Category: reason

“In those original weeks of Ferguson,” says Reason Editor at Large Matt Welch while talking about the 2014 police shooting that started nationwide protests and conversations about police violence, “we started seeing the country use terms and looking at issues that [Reason had] been using and looking at for years. So things like the militarization of police, a great Radley Balko phrase, suddenly was on the tips of everyone’s tongue…. [In the] last couple of years, [we’re seeing it with] civil asset forfeiture, just what an awful thing that is, or the way local cities just shake down their poorest residents in the criminal justice system as a way to fund their operations.” He also points to pot legalization, marriage equality, warnings about mounting national debt, and alarm over the ways campuses handle sexual abuse as cases where Reason has been way ahead of the curve.

Founded in 1968 by Lanny Friedlander (1947–2011), Reason is celebrating its 50th anniversary by hosting a series of in-depth conversations with past editors in chief about how the magazine has changed since its founding, what we’ve gotten right and wrong over the years, and what the future holds for believers in “free minds and free markets.”

In this Reason Podcast, I talk with Matt Welch, who was editor of the print magazine from 2008 through 2016, about how he became a libertarian and learned about Reason, what it was like working at The Los Angeles Times opinion page, and whether he still believes in “The Libertarian Moment,” a concept that he and I came up with in 2008.

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Audio production by Ian Keyser.

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Across the country, U.S. Border Patrol agents routinely board intercity buses and interrogate passengers with brown skin or foreign accents, asking for proof that they are in the country legally. These warrantless inspections, which have become more common since Donald Trump took office, are intimidating, inconvenient, and humiliating, and they often lead to the erroneous detention of U.S. citizens and legal residents who can’t immediately document their status. Critics of Trump’s crackdown on illegal immigration say there is an easy way to end these “papers, please” parades up and down the aisles: The companies that operate the buses can just say no.

Last week Rep. Joaquin Castro (D-Texas) and 22 other members of Congress sent Greyhound Lines CEO David Leach a letter urging him to stop letting Border Patrol agents on the company’s buses unless they have a warrant or probable cause. “By granting consent to CBP agents to board buses to inquire about immigration status, Greyhound exposes its passengers to frequent violations of their constitutional rights to be free from warrantless searches and seizures, racial profiling, and harassment,” Castro et al. wrote. “According to Greyhound’s website, the company prides itself on ‘providing safe, enjoyable and affordable travel to nearly 18 million passengers each year in the United States and Canada.’ We do not see how this mission comports with authorizing dragnet CBP searches of Greyhound’s passengers.”

Greyhound seems to agree but maintains that it is powerless to resist the Border Patrol’s demands. The company does not “support or coordinate these searches,” a spokeswoman told The Washington Post this week. “Nor are we happy about them….We have started conversations with the Border Patrol to determine if there is anything that can be done to balance the enforcement of federal law with the dignity and privacy of our valued customers.” Castro et al. say such conversations are unnecessary, because Greyhound has no legal obligation to allow bus searches without a warrant or probable cause.

It is not hard to see how the company might have gotten the opposite impression. A federal law, 8 USC 1357, says Border Patrol agents “shall have power without warrant…to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle,” provided the search occurs “within a reasonable distance from any external boundary of the United States,” defined as a 100-mile zone that happens to include about two-thirds of the country’s population. But as the American Civil Liberties Union noted in its own letter to Leach, the blanket power suggested by that language is inconsistent with the Fourth Amendment as interpreted by the Supreme Court.

In the 1973 case Almeida-Sanchez v. U.S., the Court rejected the Border Patrol’s warrantless search of a car driven by a Mexican who was legally working in California. The search, which discovered marijuana, was conducted without consent or probable cause. The Border Patrol argued that it was authorized by 8 USC 1357, and the Court disagreed. “No Act of Congress can authorize a violation of the Constitution,” Justice Potter Stewart observed in the majority opinion.

Greyhound is therefore free to stop Border Patrol agents from boarding its buses, which are nonpublic areas ordinarily open only to employees and passengers with tickets. “The Fourth Amendment protects businesses as well as individuals,” the ACLU says, “and we believe Greyhound has the Fourth Amendment right to refuse consent to board its buses.” The Department of Homeland Security (which includes the Border Patrol) seems to recognize that right. The department’s regulations say “an immigration officer may not enter into the non-public areas of a business…unless the officer has either a warrant or the consent of the owner or other person in control of the site to be inspected.”

The Post reports that Leach is not happy about the searches, which “cause delays and missed connections.” But in his response to Castro et al., he “also said the company couldn’t direct drivers to physically block armed officers from searching buses without putting them in danger.” Leach would like Congress to amend the law to clarify that Border Patrol agents need a warrant or probable cause to board a bus in search of unauthorized immigrants. But since he already has Supreme Court precedent and homeland security regulations on his side, declining to cooperate with the Border Patrol’s invasions and impositions seems like a perfectly legal and straightforward way to defend the interests and rights of Greyhound’s customers.

Today the U.S. Supreme Court ruled 8-1 in favor of an undocumented immigrant seeking to qualify for discretionary relief from federal deportation proceedings. The ruling also raised serious questions about the future viability of a controversial legal doctrine known as “Chevron deference.”

The ruling came in the case of Pereira v. Sessions. Wescley Fonseca Pereira is a Brazilian citizen who arrived in the United States in 2000 on a six-month non-immigrant visa and has been here ever since. He works as a handyman and has two daughters, both of whom are U.S. citizens. In 2013 he was arrested on a minor traffic infraction and the federal government took steps towards deporting him.

Under federal immigration law, a nonpermanent resident subject to removal proceedings may seek relief from the attorney general, who has the discretionary authority to “cancel removal” and adjust immigration status if the alien in question has maintained 10 years of continuous physical presence in the U.S.

The problem for Pereira is that federal law also says that “any period…of continuous physical presence in the United States shall be deemed to end…when the alien is served a notice to appear under section 1229(a)” of federal immigration law. Under that section, a “notice to appear” is defined as a “written notice” and it must specify the “time or place of the proceedings.”

In 2006, when he had been in the U.S. less than 10 years, Pereira was arrested and served with a Department of Homeland Security document labeled “Notice to Appear.” According to the federal government, this DHS action effectively stopped the clock and rendered Pereira ineligible for discretionary relief under the 10-year presence rule.

The problem for the federal government is that this 2006 DHS document specified neither the time nor the date of Pereira’s removal hearing. In other words, perhaps the clock did not stop on Pereira’s 10-year clock after all. If so, that would mean that he remains eligible for discretionary cancellation of his removal from the country.

In its decision today in Pereira v. Sessions, the Supreme Court ruled in his favor. Here is how Justice Sonia Sotomayor summarized the issues at stake and the Court’s judgment on them:

If the Government serves a noncitizen with a document that is labeled “notice to appear,” but the document fails to specify either the time or place of the removal proceedings, does it trigger the stop-time rule? The answer is as obvious as it seems: No. A notice that does not inform a noncitizen when and where to appear for removal proceedings is not a “notice to appear under [federal law]” and therefore does not trigger the stop-time rule. The plain text, the statutory context, and common sense all lead inescapably and unambiguously to that conclusion.

In short, Pereira represents a loss for immigration hardliners and their allies in the federal government, who pushed for a statutory interpretation that was least favorable towards aliens seeking discretionary relief from deportation.

It is also a loss for advocates of the legal doctrine known as Chevron deference.

That doctrine takes its name from the Supreme Court’s 1984 ruling in Chevron U.S.A., Inc. v. Natural Resources Defense Council, in which the Court said that when federal judges are confronted with an “ambiguous” statute, the default position is for the judiciary to defer to the statutory interpretation favored by the federal agency charged with enforcing that statute.

In the present case, when Wescley Fonseca Pereira came before the Board of Immigration Appeals, that body held that because federal law was “ambiguous” about whether or not a “notice to appear” must necessarily include the date and time, the scales should be tipped in favor of federal immigration officials. In July 2017, the U.S. Court of Appeals for the 1st Circuit agreed, ruling that the federal immigration board’s judgment “is entitled to Chevron deference.”

The Supreme Court overruled that reliance on Chevron. Justice Sotomayor’s opinion held that federal immigration officials were not entitled to such deference because federal law is clearly and unambiguously against their preferred statutory interpretation.

To make matters worse for Chevron supporters, Justice Anthony Kennedy, who often holds the Court’s swing vote in tight cases, wrote separately to say that “it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision.” According to Kennedy, “the type of reflexive deference exhibited in some of these cases is troubling. And when deference is applied to other questions of statutory interpretation, such as an agency’s interpretation of the statutory provisions that concern the scope of its own authority, it is more troubling still.”

Those remarks echo previous concerns about Chevron raised by other members of the Court, including Chief Justice John Roberts and Justice Clarence Thomas. They also echo the Chevron criticism for which Neil Gorsuch is famous from his days on the 10th Circuit. As then-Judge Gorsuch observed in Gutierrez-Brizuela v. Lynch (2016), under Chevron, “an administrative agency may set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive).” As Gorsuch put it, “under any conception of our separation of powers, I would have thought powerful and centralized authorities like today’s administrative agencies would have warranted less deference from other branches, not more.”

It’s a big deal when Justice Kennedy voices similar concerns and signals his interest in revisiting such a contentious precedent. It might just mean that Chevron‘s days are numbered.

Today the Supreme Court overturned past decisions and ruled, 5–4, that states may potentially demand that businesses that don’t have actual physical presence within their borders still pay sales taxes on what they sell to residents who live there.

The ruling in South Dakota V. Mayfair overturns two previous Supreme Court precedents (Quill Corp. V. North Dakota and National Bellas Hess V. Illinois) that limited states’ ability to charge sales taxes on goods that were shipped to customers in the state if the businesses did not have any physical presence in that state. Consumers themselves could be ordered to pay sales taxes, but of course, compliance was extremely low.

South Dakota believed it was losing millions of dollars per year in tax revenue and passed a law requiring out-of-state vendors to charge and submit sales taxes to the state if they reached a threshold of selling $100,000 worth of goods or 200 or more separate deliveries into the state. South Dakota petitioned the Supreme Court to vacate its previous precedents so it could demand online vendors like Wayfair and Overstock.com (defendants in the case) to pay the sales taxes.

The majority agreed, in an odd combination of judges that defies ideological analysis. Justice Anthony Kennedy wrote the majority decision, joined by Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito, and Neil Gorsuch. The dissenting opinion was written by Chief Justice John Roberts, joined by Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

The majority justified the decision partly because, as online commerce has grown, these precedents now unfairly punish companies who are based within a state when compared to those who are situated elsewhere. The majority accepted the argument that their previous precedents actually created an uneven tax environment:

In effect, Quill has come to serve as a judicially created tax shelter for businesses that decide to limit their physical presence and still sell their goods and services to a State’s consumers—something that has become easier and more prevalent as technology has advanced.

Worse still, the rule produces an incentive to avoid physical presence in multiple States. Distortions caused by the desire of businesses to avoid tax collection mean that the market may currently lack storefronts, distribution points, and employment centers that otherwise would be efficient or desirable. The Commerce Clause must not prefer interstate commerce only to the point where a merchant physically crosses state borders. Rejecting the physical presence rule is necessary to ensure that artificial competitive advantages are not created by this Court’s precedents. This Court should not prevent States from collecting lawful taxes through a physical presence rule that can be satisfied only if there is an employee or a building in the State.

This ruling pretty much ignores the idea that states can make themselves more desireable for businesses to locate there by, say, lowering their taxes. There may be some severe and unbalanced consequences for smaller businesses attempting to try to navigate extremely varied sales tax laws when selling goods. Big vendors can (and most already have) done the tech work to make compliance possible. But as Veronique de Rugy warned in April, this ruling today could jack up compliance costs for small online retailers, requiring them to calculate the demands of 12,000 tax-collecting jurisdictions.

In a statement in response to the ruling Erik Jaffe, appellate attorney for the Competitive Enterprise Institute (which submitted a brief supporting the online vendors), lamented, “In allowing states to extend their taxing authority beyond their borders, [the court] passed up an opportunity to reassert the horizontal federalism principles of the Constitution. Rather, adopting mistaken notions that state sovereignty extends beyond state borders and that the purchasing power of state citizens are assets belonging to the state, the court fundamentally subverts federalism.”

CEI is calling for Congress to fix the problem with legislation that would stop states from demanding taxes from businesses in other states. Normally, you’d think a Republican Congress would jump on this, but have you heard about President Donald Trump’s crusade against Amazon and its founder Jeff Bezos?

In 2003, Venezuelan President Hugo Chávez pegged the exchange rate of the bolivar to the U.S. dollar at Bs.1,600/$1, which was one of the most disastrous policies of his 14-year tenure. Over the ensuing decade and a half, the government engaged in out-of-control money creation, with the annual inflation rate now running at over 6,000 percent. The 100 bolivar note has become more valuable shredded up and sold as confetti than as a medium of exchange.

Imports of food and medicine have dried up, and many firms only survive because the government allows them to exchange bolivars and dollars at a special discount. Officials have “weaponized” this discretionary power, cutting off companies accused of “waging economic war against the country.” Trading money at the official exchange rate, which has risen to Bs. 80,000/$1, means depleting its value by a factor of 36, using the black market rate of about Bs. 2.9 million/$1 as a reference.

Desperate for foreign currency, the government has moved in recent weeks to liberalize one aspect of this policy: the system by which Venezuelans living abroad send money home to their friends and relatives. Vice President Tareck El Aissami announced the move last month as an effort to thwart “organized crime mafias that foster and promote the criminal dollar.” He granted three agencies with a combined 124 locations—Italcambio, Zoom Casa de Cambio, and Insular—permission to begin processing remittances through the Western Union and MoneyGram networks.

It’s not clear if the government gave the three agencies complete discretion to set their own prices, but on June 12, Zoom Casa de Cambio boosted its exchange rate offering to Bs.1.3 million/$1. Within the last few days, it hiked the rate to Bs.2.2 million/$1.

Jean Paul Leidenz, a senior economist at the Caracas-based consultancy firm Ecoanalitica, says it’s possible the remittance agencies are eyeing the black market rate published by DolarToday, the news site founded by Gustavo Díaz, a Venezuelan-born dissident who also works as a salesman at a Home Depot in Hoover, Alabama. DolarToday listed the exchange rate at 2.2 million bolivars on June 12, but as of today the price has risen to 2.9 million.

Today, most black market trades happen between Venezuelans who hold U.S. bank accounts and execute parallel transfers in the two countries, so the dollars exchanged never enter the country. Liberalizing remittance transfers brings dollars into Venezuela to finance imports, and opens a channel to individuals who aren’t lucky enough to hold a foreign bank account.

The three remittance agencies sanctioned by the government are required to sell the dollars they collect for bolivars through the government-run auction program known as the “Sistema de Divisas de Tipo de Cambio Complementario Flotante de Mercado,” or DICOM, according to Leidenz.

“It’s a positive step, but it’s completely insufficient,” he says. “The government still only recognizes the Bs.80,000/$1 rate for any other use…so the distortions are going to keep happening.”

Bitcoin provides another mechanism for circumventing the official exchange rate when moving money into Venezuela. In Reason’s January 2017 issue, I profiled a 32-year-old expat living in Brazil, who routinely enlisted a friend to bring cash across the Colombian border to deposit in her parent’s bank account, which was both risky and slow. After discovering bitcoin, she was able her to transfer money to her parents fast and hassle free.

President Donald Trump prides himself on being a great negotiator. And his basic modus operandi is to squeeze the other side as hard as he can in an effort to soften it before he even comes to the table. He thinks he can extract the maximal concessions through maximal pressure while yielding little himself. Hence he threatened to tear up NAFTA—not when the discussions had reached an impasse—but right off the bat before a single meeting had occurred. Likewise, he threatened Kim Jong Un with war before calling his grand summit. This strategy isn’t yielding any discernible results. NAFTA talks are degenerating into a proto trade war. And on North Korea, he ended up rehabilitating a man on the international stage who is for all practical purposes a prison warden while getting less in return than what even President Obama got from Iran.

But he took this strategy to a whole new level in the service of his zero tolerance border policy when, mafia like, he took migrant kids hostage and put them in government pens. However, instead of succeeding it failed spectacularly as his reversal yesterday suggests, I point out in a column at The Week.

Go here to read the column.

On Tuesday evening, President Donald Trump held a meeting with GOP congressmen on Capitol Hill where he reportedly made some wisecracks at the expense of outgoing, conservative lawmaker and former South Carolina Gov. Rep. Mark Sanford (R–S.C.).

According to Trump, his jokes brought the House down.

“Had a great meeting with the House GOP last night at the Capitol. They applauded and laughed loudly when I mentioned my experience with Mark Sanford. I have never been a fan of his!” he tweeted Wednesday afternoon.

Had a great meeting with the House GOP last night at the Capitol. They applauded and laughed loudly when I mentioned my experience with Mark Sanford. I have never been a fan of his!

— Donald J. Trump (@realDonaldTrump) June 20, 2018

Trump, you’ll recall, helped sink Sanford’s reelection chances by endorsing his Republican primary opponent via Twitter on Election Day.

That the president would feel the need to rub salt in the outgoing lawmaker’s wounds is petty in of itself. Making it worse are the comments coming from lawmakers who were present for Trump’s remarks, and who report a very different reaction to his jokes.

“House Republicans had front row seats to @POTUS’s dazzling display of pettiness and insecurity. Nobody applauded or laughed. People were disgusted,” tweeted Rep. Justin Amash (R–Mich.).

House Republicans had front row seats to @POTUS‘s dazzling display of pettiness and insecurity. Nobody applauded or laughed. People were disgusted. https://t.co/FvmDCxElgv

— Justin Amash (@justinamash) June 20, 2018

“Categorically false,” said Rep. Ryan Costello (R–Penn.).

Categorically false https://t.co/mLLyCFB8im

— Ryan Costello (@RyanCostello) June 20, 2018

Rep. Scott DesJarlais (R–Tenn.) told Politico that only “crickets” were heard following the president’s jabs at Sanford.

Check out Reason‘s political obituary of the libertarian-leaning Sanford here.

President Donald Trump rallied some of his most hardcore fans during a speech in Duluth, Minnesota, last night.

If this was a bad week for Republicans, it hardly showed on Trump’s face. The president praised himself for meeting with North Korean president Kim Jong Un, promised to build the border wall, and assailed societal elites—who aren’t even that elite, in Trump’s view. “Why are they elite?” asked Trump. “I have a much better apartment than they do. I am smarter than they are. I am richer than they are. I became president and they didn’t.” (Why, it’s almost as if Trump is himself one of the elite.)

Hecklers interrupted the president at least twice. Trump mocked one of them, joking that he couldn’t tell whether the protester was a man or a woman.

The audience chanted “lock her up” when Trump talked about “crooked” Hillary Clinton. They also shouted, “CNN sucks!”

The speech concluded a day in which the president signed an executive order ending the routine separation of immigrant families who crossed into the country illegally. Children will now be held with their parents, barring extenuating circumstances. It’s not clear what will happen to the more than 2,000 children who have already been separated.

An HHS official tells @weijia that there will NOT be special efforts made to reunite children who have already been separated from their families bc of the Zero Tolerance Policy, despite Trumps EO. Process will proceed for minors currently in the unaccompanied children program.

— Jacqueline Alemany (@JaxAlemany) June 20, 2018

According to The New York Times:

The president’s four-page order says that officials will continue to criminally prosecute everyone who crosses the border illegally, but will seek to find or build facilities that can hold families—parents and children together—instead of separating them while their legal cases are considered by the courts.

But the action raised new questions that White House officials did not immediately answer. The order does not say where the families would be detained. And it does not say whether children will continue to be separated from their parents while the facilities to hold them are located or built.

Officials on a White House conference call said they could not answer those questions.

Former President Baarck Obama spoke out on Wednesday about the injustice of the Trump adminstration’s treatment of immigrant children. The Obama administration also separated immigrant children from families—albeit on a much more limited, case-by-case basis.

FREE MINDS

Meanwhile, conservative pundits retreated to familiar anti-anti-Trump territory. The actor Henry Fonda tweeted a series of (subsequently deleted) vile statements about Barron and Melania Trump, White House Press Secretary Sarah Huckabee Sanders, and Homeland Security Secretary Kristjen Nielson. And conservatives pounced:

Actor Peter Fonda (@iamfonda) has since deleted his tweets calling for:
• The kidnapping & rape of the president’s 11 year-old son

• Sarah Sanders children to be kidnapped

• DHS Sec Nielsen to be caged naked & raped in public while being filmed

Here they are forever: pic.twitter.com/otz5RmDKFn

— Benny (@bennyjohnson) June 20, 2018

Dear @TwitterSafety & @jack,

Does being investigated by the Secret Service for multiple kidnapping & rape threats against WH staff & children get you unverified?

Asking for the entire platform. https://t.co/7iv93uKthF

— Benny (@bennyjohnson) June 20, 2018

FREE MARKETS

The White House will propose a merger of the Education and Labor Departments, The Wall Street Journal reports:

Lawmakers have shown reluctance to embrace such plans in the past, and Congress has limited time for major legislation before the November midterm elections. Previous proposals to eliminate agencies, including the departments of education and energy, have made little headway.

Streamlining the executive branch has been a longtime conservative goal. The new plan also meshes with the administration’s priority of retooling higher-education programs to train students more directly to join the workforce.

It’s difficult to imagine that Republican leaders will show much enthusiasm for such a drastic change, though anything is possible in the age of Trump. And while eliminating cabinet-level departments always sounds excellent, simply merging the two bloated bureaucracies—which is the mostly likely outcome, if this happens at all—is a half-measure. And of course, libertarians would rather see both abolished outright.

QUICK HITS

• Splinter doxed Stephen Miller, sharing his cell phone number on social media. Miller, a Trump adviser and alt-right adjacent figure, is widely seen as the brains behind Trump’s nationalist approach to immigration.
• Twitter made the (reasonable, in my view) decision to suspend users who shared the article, given that doxing violates Twitter’s terms of service.
• New York magazine’s Jesse Singal was attacked by Lena Dunham, Jezebel, et al. for daring to write about the nuances of gender dyspohira. The Stranger‘s Katie Herzog comes to his defense.
• Canada is legalizing recreational marijuana.
• From Rep. Justin Amash (R–Mich.):

House Republicans had front row seats to @POTUS‘s dazzling display of pettiness and insecurity. Nobody applauded or laughed. People were disgusted. https://t.co/FvmDCxElgv

— Justin Amash (@justinamash) June 20, 2018

For manufacturers of electric vehicles, you might expect the accomplishment of moving their 200,000th unit to be met by celebration. However, because the threshold triggers the reduction of a juicy federal handout that props up electric vehicle sales, observes Veronique de Rugy, we’re getting hand-wringing instead. There’s even a push to expand the giveaway and keep taxpayers on the hook in perpetuity.

Congress failed to fully utilize the opportunity afforded by last year’s tax reform to end the electric vehicle tax credit and other programs that force all taxpayers to subsidize the activities of a tiny few. At a minimum, de Rugy argues, Congress should avoid compounding that error and resist the call of special interests to expand electric vehicle subsidies.

View this article.

Donald Trump’s policy of snatching toddlers from the arms of mothers who arrive in the United States to escape turmoil in Central America has been a model of brutality, writes Steve Chapman, inflicting unspeakable horror on children and parents. It was so ugly that on Wednesday, Trump decided to drop it.

Keeping families in detention together rather than separated is a modest improvement. But there are less harsh options. If you want to prevent these people from absconding, you could provide them with lawyers. You could fit them with ankle bracelets and monitor their whereabouts. You could expand the number of immigration courts to greatly accelerate asylum processing.

View this article.