Category: reason

The Canadian Supreme Court has ruled that the law societies of British Columbia and Ontario have a constitutional right to withhold accreditation from a Christian university’s law school if the school requires students and faculty abide by traditional Christian beliefs. The two law societies denied Trinity Western University law school accreditation because of its community covenant which, among other things, requires abstinence from sex outside marriage between a man and a woman. The court says that requirement discriminates against LGBT people.

Sen. Rand Paul (R-Ky.) is happy today that what he calls his “months” of work with President Trump and Secretary of Labor R. Alexander Acosta have led to finalizing rules for expanding the availability of Association Heath Plans (AHP). Paul calls AHPs a “pro-patient, pro-worker, and pro-family solution” and “one of the most significant free market health care reforms in a generation.”

The Labor Department’s announcement sums up what problems AHPs are meant to solve and how they are meant to work:

The percentage of small businesses offering healthcare coverage has been dropping substantially. For the self-employed, the individual market exchanges do not offer affordable coverage either; premiums more than doubled between 2013 and 2017 with deductibles increasing even more.

This reform allows small employers – many of whom are facing much higher premiums and fewer coverage options as a result of Obamacare – a greater ability to join together and gain many of the regulatory advantages enjoyed by large employers.

Under the Department’s new rule, AHPs can serve employers in a city, county, state, or a multi-state metropolitan area, or a particular industry nationwide. Sole proprietors as well as their families will be permitted to join such plans…These plans will also be able to reduce administrative costs and strengthen negotiating power with providers from larger risk pools and greater economies of scale….

The Congressional Budget Office (CBO) estimates that millions of people will switch their coverage to more affordable and more flexible AHP plans and save thousands of dollars in premiums. CBO also estimates that 400,000 previously uninsured people will gain coverage under AHPs.

The Washington Post, reporting today on the new rules, notes that this Trump administration action will “allow plans to exclude coverage for maternity care, prescription drugs, mental-health services and other ‘essential health benefits’ the ACA requires of coverage sold to ­individuals and small businesses…Congressional Democrats and critics across the health-care industry say the availability of cheaper, skimpier coverage will leave some patients stranded when they get sick.”

The AHPs will be “phased in for coverage sold from September to April” and “may not charge more or refuse to cover customers with preexisting medical conditions…But the plans will have more freedom to charge different prices depending on customers’ ages, genders and locations — something ACA coverage cannot do.”

AHPs have already existed, but the new rules will “substantially expand the circumstances under which association health plans can be created and purchased. The regulations erase a requirement that any association must already have existed for a purpose unrelated to health insurance. And for the first time, individuals will be able to buy one of the plans.”

Michael Cannon at the Cato Institute doesn’t love the AHP idea traditionally, since as designed initially the concept “violates Republicans’ federalist principles, because they would move health-insurance regulation from the state level to the federal level. But since ObamaCare went ahead and federalized regulation of small-business health plans, and the association-health-plans rule merely allows small businesses to opt for lighter versus heavier federal regulation, association health plans no longer violate federalism. Credit ObamaCare with making a bad idea good.”

But still not all that good an idea, Cannon thinks, since “Trump’s association health plans rule builds on the broken model of employer-sponsored health insurance.” That model in general, Cannon complains, “deprives workers of control of their health-insurance dollars and decisions. It sticks millions of workers with health plans they would never choose themselves. It leaves millions of workers with uninsurable preexisting conditions, because it disappears for no good reason after workers get sick. It increases prices for health care and health insurance.”

Thus, whatever benefits on the margin for some small businesses might result, the new AHP plan “does nothing to move Americans toward a better system of providing health insurance.” Cannon grants that the plans will create incentives for some of the healthy to leave the current ObamaCare insurance exchanges, likely causing those premiums to rise even more. While ObamaCare fans call this sabotage, Cannon writes, it’s really merely accurately and factually reflecting the actual costs of ObamaCare.

Peter Suderman has reported for Reason on earlier steps in the process of bringing AHPs to law.

Full text of the final rule.

In previous lives, Matt Kibbe has been a congressional staffer, the head of FreedomWorks, and a New York Times best-selling author.

These days, he’s the president and “chief community organizer” at Free the People, a libertarian nonprofit that defends “free speech online, the right to bear arms, and privacy from government cyber-snooping.”

At FEEcon, the annual gathering in Atlanta sponsored by the Foundation for Economic Education, Kibbe talked with me about his belief that culture is more important than politics, how to reach the “liberty curious” via social media, and Off the Grid, his group’s forthcoming documentary series about Rep. Thomas Massie’s “quest for a self-sustainable life on his farm in eastern Kentucky.

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

Audio production by Ian Keyser.

Don’t miss a single Reason Podcast! (Archive here.)

Subscribe at iTunes.

Follow us at SoundCloud.

Subscribe at YouTube.

Like us on Facebook.

Follow us on Twitter.

A light rail ballot initiative in Nashville, Tennessee, went down in flames last month when two-thirds of voters rejected a $9 billion transit plan that would have hiked taxes on sales, hotels, car rentals, and businesses to pay for 20-plus miles of light rail and new bus rapid transit lines.

Apparently, it’s all the Kochs’ fault.

That’s according to The New York Times, whose subtly-titled Tuesday article, “How the Koch Brothers Are Killing Public Transit Projects Around the Country,” lays the blame for the defeat of this ballot measure—and a handful of other failed local transit initiatives—squarely at the feet of the billionaire brothers.

According to the Times, the Kochs have been deploying an army of Astroturf activists from Americans for Prosperity (AFP), a Koch-funded group, to successfully stop otherwise necessary and popular transportation measures that run against the pairs’ ideological and financial self-interest. (Charles and David Koch also support Reason Foundation, the nonprofit that publishes Reason.)

“The Kochs’ opposition to transit spending stems from their longstanding free-market, libertarian philosophy. It also dovetails with their financial interests,” writes the Times. “One of the mainstay companies of Koch Industries, the Kochs’ conglomerate, is a major producer of gasoline and asphalt, and also makes seatbelts, tires and other automotive parts.”

Fearful that demand for these products would fall should Nashville build a light rail network, the theory goes, the Kochs’ tapped their Tennessee AFP chapter to wage a get out the vote campaign that saw activists make 42,000 phone calls and knock on some 6,000 doors. This activism flipped what was supposed to be a slam dunk into a crushing defeat.

It’s a deliciously plausible narrative for those who see nefarious machinations behind anything remotely connected to the Kochs. It’s also a story that falls apart upon a closer examination of the details.

For starters, it’s hard to believe that the canvassing operation of a single organization—no matter how effective—would be able to produce a landslide victory for a “no” campaign that was going up against some pretty stacked odds. (As the Times noted, the light rail expansion “was backed by the city’s popular mayor and a coalition of businesses. Its supporters had outspent the opposition, and Nashville was choking on cars.”)

Indeed, when the Tennessean‘s Nashville reporter Joey Garrison analyzed the reasons for the campaign’s defeat, the Kochs and AFP didn’t even make the list. Instead, he pinned the blame on things like the decision to put the light rail initiative on the low-turnout May ballot; opposition from black leaders and voters concerned about light rail–spurred gentrification; a muddled promise-all-things message from the “yes” campaign; and the untimely mid-campaign resignation of Nashville mayor and light rail superfan Megan Barry, who was forced out of office over a sordid sex-and-spending scandal.

Former Nashville City Councilwoman Emily Evans likewise failed to mention the Kochs in her rundown of what went wrong for Nashville transit enthusiasts.

“There were a host of reasons [the proposal failed], like the cost ($9 billion), the scale (20 plus miles of light rail), the funding source (sales tax increase) and the financing structure (a decade of interest-only payments),” said Evans in an email to CityLab.

These are more plausible explanations, but they lack the dramatic appeal of shadowy monied interests subverting democracy from afar.

This is not to say that AFP had no effect. The Times article describes an effective outreach campaign that focused on contacting suburban voters likely to bristle at the idea of a massive tax increase to pay for a light rail system few of them would use. (Nashville’s light rail plan would have boosted sales taxes to the highest rate in the nation.)

This is hardly as conniving as the Times story makes it out to be. Instead, AFP’s actions show the benefit of money in politics as a way to boost voter engagement in what would have otherwise been a low-turnout, low-information election.

Contrast that with Seattle’s $54 billion Sound Transit 3 light rail initiative that easily coasted to victory over a practically non-existent opposition and is now facing a fierce public backlash from voters who missed the fine print about all the taxes and fees included in the initiative. Had a more effective opposition campaign been mounted, the electorate might have been more cognizant of these costs when they voted.

More ludicrous still is the idea that the Kochs are taking special interest in light rail initiatives in an attempt to shore up demand for gas and auto parts. Despite increasing transit spending by all levels of government, car sales continue to trend comfortably upwards as do vehicle miles travelled. Fuel consumption is down from a pre-recession high, but that has a lot more to do with increasing fuel efficiency than a sudden popularity of mass transit. (With the exception of growing and densifying Seattle, transit ridership is down in real terms across the country.)

Indeed, were the Times looking to find a clear profit motive in Nashville’s light rail fight, it should have taken a closer look at the “yes” side.

One of the main contributors to that campaign was the Citizens for Greater Mobility PAC, which spent roughly $2.1 million on the initiative, nearly double the money spent by the “no” side.

According to campaign finance disclosure reports, donors to Greater Mobility included a number of engineering firms who offer transportation expertise, including CDM Smith (who gave $55,000) and CH2M Hill ($15,000), HDR Inc ($25,000), and Smith Seckman Reid, Inc. ($25,000). The National Association of Realtors kicked $150,000 to the PAC. (Real estate prices tend to go up when a light rail line goes in.)

Even industries the Times intimates have a financial interest in fighting light rail chipped in to the pro side, including tire company Bridgestone, which gave $100,000 to the Greater Mobility PAC. Apparently the benefit of having a major transit station installed a couple blocks from its national headquarters and right in front of a hockey arena that bears its name—as the Nashville light rail plan called for—outweighed the lost revenue from new train takers no longer needing tires.

Which is not to say that there is anything necessarily unseemly about these donations either. Transportation ballot initiatives represent interest group politics in their rawest form, pitting suburban drivers (and sometimes urban bus riders) against city rail riders, downtown property owners, and anyone who stands a chance of landing a construction contract on the coming project.

Rather than portraying Nashville’s transit fight for what it really was, however, The New York Times chose instead to craft an unsupported and unconvincing narrative about shadowy billionaires pursuing a vague financial interest.

Over the weekend, former CIA Director Michael Hayden displayed the calm reflection and sense of proportion for which Donald Trump’s opponents are known by likening the separation of illegal border crossers from their children to the Holocaust:

Other governments have separated mothers and children pic.twitter.com/tvlBkGjT0h

— Gen Michael Hayden (@GenMhayden) June 16, 2018

Yesterday on CNN, Hayden defended the comparison. “I walked down that railroad siding, where the families were separated,” he said, “and that’s why I used that picture. That’s the scene where families were separated. Now, look, I know we’re not Nazi Germany, all right. But there is a commonality there and a fear on my part that we have standards we have to live up to.”

Last night Attorney General Jeff Sessions, an architect of the “zero tolerance” policy that has separated thousands of children from their parents at the border, got a chance to explain why Hayden’s analogy was unfair. “It’s a real exaggeration,” Sessions said on Fox News, “because in Nazi Germany they were keeping the Jews from leaving the country.”

Let’s leave aside the point that Hitler initially tried to expel Europe’s Jews (the opposite of keeping them from leaving) and might have stopped short of the Final Solution if other countries had been more welcoming. Is the victims’ direction of travel really the crucial distinguishing feature between what Hitler did at places like Birkenau and what Trump is doing along the southern border?

Yes, Trump is separating parents from children at the border, which many Americans rightly view as a cruel and disproportionate response to people who enter the United States without the government’s permission. But Trump is not proceeding to starve them, beat them, torture them, work them to death, and murder them en masse in gas chambers. These are not minor details.

“I guess I wanted to grab’s people’s attention,” Hayden said on CNN. Maybe Hayden, a retired Air Force general who ran the National Security Agency as well as the CIA, has never heard of Godwin’s Law, and maybe he is unfamiliar with the mocking meme that begins, “Do you know who else…” It is easy enough to believe that Sen. Dianne Feinstein (D-Calif.), who also resorted to the N-word yesterday, suffers from a similar lack of rhetorical self-awareness.

At the risk of stating what I thought was obvious, the Nazi analogies may be effective at trolling Trump, signaling your virtue, or catering to blind hatred of the president. But this sort of eye-rolling hyperbole does not persuade anyone, which requires allowing for the possibility that a policy can be unwise, unjust, or immoral without achieving Holocaust-level evil.

A new study published in the British journal BMJ says restricting the supply of illegal drugs forces users into black markets, where the drugs get more dangerous and more addictive.

The authors of the study looked at the effect of the DEA’s rescheduling of hydrocodone in 2014 from a schedule III drug to a more tightly controlled schedule II drug on the sales of illicit prescription opioids on the darknet. They examined the data from 31 of the largest cryptomarkets in the world on prescription opioid sales from October 2013 to July 2016.

In this period, “the percentage of total drug sales represented by prescription opioids in the US doubled from 6.7% to 13.7%,” and fentanyl, an analgesic that is far deadlier than heroin, went from being the least purchased drug in July 2014 to becoming the second most purchased drug three years later. The paper also found that there were no significant changes in the sales of non-opioid drugs.

It’s no surprise that opioid sales went up on the darknet, given that pain patients and addicts have to get their fix somehow and the internet has made illicit products much more accessible. The fact that exclusively opioid sales went up is indicative of the rescheduling’s effect on drug sales.

The results are also demonstrative of the iron law of prohibition—”the harder the enforcement, the harder the drugs,” as Richard Cowan, an American drug legalization activist famously put it. Drug dealers, seeking to efficiently transport their product through waves of law enforcement, will have to increase the concentration of their drugs. This leads to opioids like heroin being cut with such chemicals as fentanyl, often without users being aware of the additives. Individuals who cannot obtain their pain medicines legally will end up going to the black market, where the sales are murkier, and the drugs more dangerous. In other words, precisely what is shown in the BMJ study.

What does this mean for policymakers looking to address the opioid crisis? It means that the supply-side approach, in which governments try to restrict access to drugs, is not working. Legislators must seriously reconsider the consequences of the war on opioids. Restricting pain medications will only force addicts into alternative markets where fentanyl is common, leading to overdoses, while leaving law-abiding pain patients with their chronic pain. The data also indicates that cutting opioid prescriptions does nothing to reduce opioid deaths, and in fact is associated with a rise in opioid-related deaths.

If anything, this study is indicative that the war on drugs must be rolled back. Relaxing regulations on the manufacture and sale of opioids will pull people out of the dark recesses of the internet and reduce the distribution of the more dangerous opioids on the market.

The Federal Communications Commission’s controversial measure repealing “net neutrality” rules went into effect last week. Supporters of net neutrality have virtually no chance of fighting back on the federal level, but in California, Democratic state legislators are getting creative.

Sen. Scott Wiener (D–San Fran.) introduced Senate Bill 822, which provides statewide net neutrality rules identical to those repealed by the FCC, including prohibitions of any distinctions by internet service providers “on the basis of source, destination, Internet content, application, service, or device.” The bill passed the Senate on party lines with Democrats voting in favor and Republicans voting against. It now heads to the California Assembly.

Speaking to the Desert Sun, state Sen. Patricia Bates (R–Laguna Niguel) said of the bill, “Ultimately, all this bill will succeed in doing is opening our state to legal challenges and costly litigation, which we know is coming if the bill is passed.” Barnes is probably referring to potential lawsuits from the FCC, which would claim that conflict preemption clauses in the 2015 and 2017 decisions make it unlawful for states to pass their own net neutrality laws.

“An example of this becoming an issue is with Portland,” Tom Struble, technology policy manager at the R Street Institute, told Reason. “In 2002, Portland, Oregon tried to reclassify cable as a Title II service instead of a Title I service and the FCC stepped in to prevent this because it came in direct conflict with the Telecommunications Act of 1996.”

Meanwhile, Washington state imposed its own net neutrality rules when Gov. Jay Inslee (D) signed Substitute House Bill 2282 into law. That legislation went into effect on the same day as the FCC repeal measure. The fear of an FCC lawsuit seems to be of little concern to lawmakers in the Evergreen State.

On the other hand, Oregon Gov. Kate Brown (D) took a more cautious approach when she signed a bill into law that prohibits government agencies from contracting Internet broadband services from providers who participate in activities not permissible under previous FCC regulations. The goal of that legislation is to impose some degree of net neutrality while avoiding an FCC lawsuit.

This trend is not limited to states in the Pacific northwest. Net neutrality legislation is also pending in Maryland, New Jersey, Vermont, and New York.

Allowing states to write their own net neutrality laws risks creating 50 different regulatory schemes that would come in conflict with one another due to the nature of the Internet.

“Everyone can agree that the federal government needs to be the ones to provide the guidelines on this issue, not 50 different patchwork regulations for each state,” says Struble. “These states are well aware of the outcome and are often complicit in wasting millions of dollars of taxpayer resources to prove the point that they’re not happy with federal law on this issue.”

Net neutrality advocates, such as Fight for the Future, want states to send a message to Washington. The group released the following statement:

This victory in California shows that net neutrality is here to stay. It’s time for our Federal lawmakers in the House of Representatives to follow the lead of the US Senate and California State Senate, listen to their constituents, tech experts, and small business owners, and vote for the Congressional Review Act (CRA) resolution to restore open Internet protections for all.

Speaking to the Cato Institute a few days after the measure went into effect, FCC Chairman Ajit Pai did not specify whether he would pursue legal action against states that passed such legislation, but did state that he was concerned about having too many different regulatory schemes. “It’s better to have a single, consistent federal regulatory scheme,” he said.

On May 15, Judge Ricardo Martinez of the U.S. District Court for the Western District of Washington at Seattle ruled in favor of Daniel Ramirez Medina, a Deferred Action for Child Arrivals (DACA) recipient who had been detained by Immigrations and Customs Enforcement (ICE) due to a tattoo that ICE claimed showed Ramirez’s gang affiliations.

As a DACA recipient, Ramirez was in the country legally. But that didn’t stop ICE from detaining him—apparently his paperwork, which he repeatedly showed them, was unacceptable to them because he wasn’t “born in this country”—and putting him in a Tacoma, Washington, detention facility in February 2017 while he awaited deportation proceedings. Generally speaking, when the government wants to rescind DACA status, the individual affected is given an opportunity to appeal and contest the decision. ICE claimed that Ramirez presented an “egregious public safety concern” due to gang affiliations. The only issue: The evidence of Ramirez’s supposed “gang affiliation” looks like it was doctored, writes Liz Wolfe.

View this article.

Yesterday, Chief Judge Julie Robinson of the U.S. District Court for the District of Kansas, a George W. Bush appointee, struck down Kansas’s toughest-in-the-country voter ID law that had required proof of citizenship at the polling booth. The law, authored and enforced by controversial Kansas Secretary of State (and gubernatorial candidate) Kris Kobach, violated both the Equal Protection Clause of the 14th Amendment and the National Voter Registration Act, Robinson ruled.

Kobach’s law, enacted in 2013 and then suspended via preliminary injunction by Robinson in March 2016, led to a reported 16,319 Kansans having their voter registrations canceled, and 31,089 being blocked when trying to register. In order to justify those numbers, Kobach was tasked by the judge to demonstrate that noncitizen voter fraud was a “substantial” problem—a tough climb given that he had as of earlier this year prosecuted a grand total of nine illegal voters in Kansas, eight of whom were U.S. citizens who had voted in two states.

So how did Kobach do?

“The Court finds no credible evidence that a substantial number of noncitizens registered to vote under the attestation regime,” Judge Robinson found. “He has submitted evidence of 129 instances of noncitizen registration or attempted registration since 1999, but looking closely at those records reduces that number to 67 at most. Even these 67 instances are a liberal estimate because it includes attempted registrations after the…law was passed, a larger universe than what the Tenth Circuit asked the Court to evaluate. Only 39 successfully registered to vote. And several of the individual records of those who registered or attempted to register show errors on the part of State employees, and/or confusion on the part of applicants. They do not evidence intentional fraud.”

This is hardly Kobach’s first humiliation when tasked with substantiating outlandish numerical claims about illegal-immigrant voting. In January, President Donald Trump dissolved his Presidential Advisory Commission on Election Integrity, which had been run by Kobach, after the group failed shambolically to provide anything like evidence for Trump’s factually insane suggestion that between three million and five million people voted illegally for Hillary Clinton in 2016.

But yesterday’s new twist was what Volokh Conspiracy analyst Jonathan H. Adler described as Judge Robinson’s “quite remarkable” sanction against Kobach for his own disastrous performance defending the case: A mandatory six hours of Continuing Legal Education. There was “a pattern and practice by Defendant of flaunting disclosure and discovery rules that are designed to prevent prejudice and surprise at trial,” Robinson found. “It is not clear to the Court whether Defendant repeatedly failed to meet his disclosure obligations intentionally or due to his unfamiliarity with the federal rules.”

Kobach’s office has announced plans to appeal the ruling to the U.S. Court of Appeals for the 10th Circuit. In the meantime, one of the immigration restrictionist’s other hobbyhorses—having the Census Bureau ask all respondents about their citizenship status in the decennial survey for the first time since 1950—proceeds apace. On June 8, in response to a lawsuit, the Justice Department released 1,300 pages of documents related to the formulation of that policy change, which was cheekily justified at the time as an attempt to better enforce the otherwise Trump-neglected Voting Rights Act. What did those documents show? Here’s a summary from Mother Jones:

The initial push for the citizenship question now appears to have come from [Steve] Bannon, back when he was a top White House adviser. In July 2017, months before the Justice Department proposed the question, Kansas Secretary of State Kris Kobach—at the time the vice chair of President Donald Trump’s now-defunct Election Integrity Commission—wrote to Commerce Secretary Wilbur Ross. He told Ross that he was writing “at the direction of Steve Bannon” and said it was “essential” that the citizenship question be added to the census. Kobach wrote that the absence of a citizenship question “leads to the problem that aliens who do not actually ‘reside’ in the United States are still counted for congressional apportionment purposes.”

Steve Bannon is now in the political wilderness, and Kobach is still smarting from Chief Judge Robinson’s unusually personal rebuke, but their nationalist, fact-untethered policy agenda is alive and well. Kobach, a former birther and author of Mitt Romney’s “self-deportation” policy, is not just adequately represented in the Oval Office, he’s as likely as not to be the next governor of Kansas. This is and will increasingly continue to be what the face of the GOP looks like.

It’s just possible, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia Circuit concluded in a decision last week, that being a journalist in Syria placed on a kill list by your own government might constitute a violation of your First, Fourth, and Fifth Amendment rights.

The lawsuit started with Ahmad Muaffaq Zaidan and Bilal Abdul Kareem, two journalists from the Middle East, who often report on terrorism-related stories. Zaidan, who has worked for Al Jazeera for over 20 years, thinks the United States has labeled him as a terrorist, apparently because his work has him interacting with so many of them (Zaidan has interviewed Osama Bin Laden, among others).

Kareem, an American citizen and freelance reporter, has been at the site of five aerial bombings while working in Syria in one three-month period.

Both believe they might be on a secret U.S. government “kill list” and sued various government officials from President Trump on down last year to find out if they are.

Judge Collyer, allowing the lawsuit to proceed at least in part, wrote that their complaint asserted being on such a kill list would be “arbitrary, capricious and an abuse of discretion” and “violates the prohibition on conspiring to or assassinating any person abroad” and “violated due process because Plaintiffs were provided no notice and given no opportunity to challenge their inclusion.”

Further, placing them on the kill list “violated the First Amendment because it ‘has the effect of restricting and inhibiting their exercise of free speech and their ability to function as journalists entitled to freedom of the press.'”

Kareem, the citizen, asserts on his behalf that being on the kill list “violated the Fourth and Fifth Amendments because it constituted an illegal seizure and ‘seeks to deprive [him] of life without due process of law.'”

The government claimed Zaidan and Kareem have no standing to sue and that this whole kill list thing is a “political question” outside the jurisdiction of the federal courts.

Judge Collyer disagreed, at least as applied to U.S. citizen Kareem. Collyer did agree that when it comes to foreigner Zaidan, who is unable to prove he was indeed on any kill list, “the Court finds no allegations in the Complaint that raise that possibility above mere speculation. Accordingly, the Court finds Mr. Zaidan has failed to allege a plausible injury-in-fact and therefore has no standing to sue.”

But the legal situation for Kareem is different, the judge insisted. She noted that “two of the attacks [at or near Kareem] involved his place of work, one involved his own vehicle, one involved a work vehicle in which he had been traveling immediately before, and one hit a location from which he had just walked away.”

The government insisted, well, Syria’s a real violent place these days and lucky for him he hasn’t been killed being surrounded by so much war. Kareem’s problems, the government claimed, are not “attributable to anything more than a journalist reporting from a dangerous and active battlefield.”

“While it is plausible that Mr. Kareem is not being targeted by the United States,” Collyer wrote, “it is also plausible that Mr. Kareem’s multiple near-miss incidents were caused by Defendants’ decision to include him on the Kill List and were, therefore, caused by Defendants’ actions.”

Collyer was unimpressed by the government’s argument that this is all military business and thus not subject to judicial second-guessing. The war aspect is irrelevant, the judge maintained, since the injury Kareem alleges is the fact that he was placed on a kill list back in D.C. “Mr. Kareem complains of an alleged decision to authorize a lethal strike against him and not a decision in the field to attempt to carry out that authorization. He wants the opportunity to persuade his government that he is not a terrorist or a threat so that the alleged authorization to kill is rescinded.”

Collyer used that distinction to differentiate her decision from some precedents regarding drone attacks that were seen as more specifically about a judge’s second-guessing of military decisions in the field. That’s not what Kareem is trying to do here, Collyer concluded. “It remains a truism that judges are not good judges of military decisions during war. The immediate Complaint asks for no such non-judicial feat; rather, it alleges that placement on the Kill List occurs only after nomination by a defense agency principal and agreement by other such principals, with prior notice to the President. The persons alleged to have exercised this authority are alleged to have followed a known procedure that occurred in Washington or its environs.”

Collyer did agree with the government that certain counts in the original suit should be dismissed, including, “whether Defendants complied with the Presidential Policy Guidance [for putting people on a kill list],” which “is a political question the Court must refrain from addressing” since the guidance itself is so vague that it “provides no test or standard that must be satisfied before the government may add an individual.”

In other words, the kill list policy is so inherently arbitrary there is no way to procedurally abuse it.

Similarly, “the process of determining whether Defendants exceeded their authority or violated any of the statutes referenced in the Complaint would require the Court to make a finding on the propriety of the alleged action.” But that, Collyer wrote, “is prohibited by the political question doctrine.”

In other words, the court can’t consider whether a government act was a good idea, merely whether it violated a specific law or constitutional provision.

Luckily for Kareem, and for the larger issue of justice in executive power, the judge reasoned that the whole kill list process might have “denied Mr. Kareem his rights to due process and the opportunity to be heard and deprived him of his First, Fourth, and Fifth Amendment rights.”

As Collyer concluded in letting those aspects of Kareem’s case more forward:

Mr. Kareem alleges that the Defendants targeted him for lethal force by putting his name on the Kill List, which he deduces from five near misses by drones or other military strikes. As a U.S. citizen, he seeks to clarify his status and profession to Defendants and, thereby, assert his right to due process and a prior opportunity to be heard. His interest in avoiding the erroneous deprivation of his life is uniquely compelling.

Mr. Kareem does not seek a ruling that a strike by the U.S. military was mistaken or improper. He seeks his birthright instead: a timely assertion of his due process rights under the Constitution to be heard before he might be included on the Kill List and his First Amendment rights to free speech before he might be targeted for lethal action due to his profession. The D.C. Circuit and the Supreme Court have previously held that a citizen “must have a meaningful opportunity to challenge the factual basis for his designation as an enemy combatant.”

This does not mean Kareem has won his case, merely that the government has failed to have it thrown out of court. Collyer acknowledged that it is not yet settled fact whether Kareem even is on a kill list, but while “the Court finds that Mr. Kareem’s allegations may be wrong as a matter of fact… Complaint presents them in a plausible manner.”

Opposing drone strikes on U.S. citizens was the central point behind Sen. Rand Paul’s (R-Ky.) reputation-making 2013 filibuster, and for good reason: There is nothing more tyrannical than the power to specifically target someone for murder absent any judicial proceedings, which, alas, is standard operating procedure for the U.S. government thanks to our endless and impossible Forever War on Terror.