Category: reason

Roughly one year ago, shortly after the U.S. Supreme Court
concluded its 2012-2013 term, progressive legal activist Simon
Lazarus took to the pages of The New Republic to
sound the alarm against what he saw as the growing threat of
libertarianism and its “potentially seismic” influence on the
Court. The “recent surge of libertarianism among conservative
academics, advocates, politicians, and of course, voters,” Lazarus
worried, has now “begun to register at the Supreme Court.”

Indeed it had. For instance, although the outcome was also
cheered by progressives, the Supreme Court’s blockbuster 2013
ruling against the Defense of Marriage Act was heavily
flecked with libertarian legal principles, including both a
robust defense of individual liberty and a lengthy ode to
federalism. What’s more, Justice Antonin Scalia’s dissent in the
case effectively accused the majority of engaging in a bout of
libertarian judicial activism. “The Constitution does not forbid
the government to enforce traditional moral and sexual norms,”
Scalia fumed.

That libertarian trend continued apace when the Court wrapped up
its most recent term last week. Indeed, in case after case this
term, the justices issued one broadly libertarian ruling after
another, voting against aggregate limits on
campaign finance spending; in favor of a legal challenge to a

speech-restricting Ohio law; against
warrantless cellphone snooping by the police; against expansive
government privileges for
public-sector unions; and against the
executive overreach of the Obama administration. Lazarus was
definitely right to worry.

What explains the libertarian surge?
In 2010 I reported on the rise of a distinct
libertarian legal movement within the ranks of the larger
conservative legal community. Led by such pioneering figures as
Georgetown law professor Randy Barnett and Cato Institute legal
scholar Roger Pilon, the libertarians took aim at the reigning
legal orthodoxies on both the right and the left, urging broad
constitutional protections for the individual against the state in
wide areas of life. To put that in simpler terms, they came out
swinging on behalf of both
gay rights and gun rights.

That principled stance, which was backed by decades of
painstaking legal and historical scholarship by
Barnett,
Pilon, and
others, gradually began winning new converts to the cause. In
time, the libertarian legal movement began to shape
the outcome of major cases as well.

As one measure of this widening success, consider the example of
the Cato Institute’s Center for Constitutional Studies, which
weighs in on the major legal issues of the day by submitting
amicus briefs at the Supreme Court. In 2013, Cato filed 19
briefs and came out on the winning side in 15 of those cases. This
year, Cato’s win-loss record at SCOTUS was an impressive 10-1.

All that seismic libertarian activity is starting to shake
things up at the Supreme Court.

President Obama has a trip
planned for Texas this Wednesday and Thursday. He has several
fundraisers scheduled as well as speech on economic policy and “at
least one” event about the border while spending the two days in
Austin and Dallas. Texas Governor Rick Perry (R)
rejected an attempt by the Obama team to stage a hand shake
photo-op on the tarmac when the president arrives in Austin and
instead told the president he could meet him any time to have a
“substantive meeting” to talk about border security. The White
House said the president would meet with Perry. That meeting won’t
take place anywhere near the border though, which Rep. Henry
Cuellar (D-Tex.) told Fox News’ Neil Cavuto he hoped wouldn’t
become Obama’s “Katrina moment.”
Via Fox News:

I’m sure that President Bush thought the same thing, that he
could just look at everything from up in the sky, and then he owned
it after — for a long time. So, I hope this doesn’t become the
Katrina moment for President Obama, saying that he doesn’t need to
come to border.

He should come down. Not only Governor Perry has asked him to
come down, but I know my colleagues Filemon Vela and Ruben Hinojosa
invited him to come down. And I certainly would ask him to come in,
even though I still think he is still one step behind.

But he should come down to the border to see exactly what is
happening.

More than 50,000 unaccompanied children
have crossed the border illegally since October, three times as
many as in 2011, mostly from Honduras, Guatemala, and El Salvador,
as well as Mexico.  Some parents believe children who are able
to cross the border would be permitted to stay, although by law the
children are surrendered to the Department of Health and Human
Services, who places them into foster homes while their immigration
cases go through court, a legal process that takes years.

Neither are the Central American children legally permitted in
Mexico. The United Nations is pressing both countries to treat the
children as refugees of armed conflicts in order to grant them
asylum, something neither country is doing at the moment. Mexico
has tried to control its southern border with Guatemala, far
smaller than the U.S. border with Mexico, strictly, not
particularly offering any path to citizenship for illegal
immigrants. Last year the U.S. and Mexico
talked about U.S. funding for increased border security along
the Mexican-Guatemalan border.

Last Wednesday, I had an interesting
extended conversation on U.S. foreign policy and foreign affairs
with Jack Thompson on Political Badger, talking about
Iraq, ISIS, their

bizarre name change and
crazy leader, why
non-intervention in Iraq is the best bet for more stability in
the region and in the war on terror,
democracy in Ukraine,  U.S.
relations with
Russia, where
weapons from Libya ended up, and touching on topics
like Obamacare and subsidized
housing and voters being stupid in explaining those
things, as well as  how whether it’s Iraq, Nigeria, Ukraine, Venezuela, or Syria U.S. media seem to focus
on one country at a time.

You can listen to the whole thing
here. 

In a
speech in Oslo, Norway, reports Lene Johansen, U.S. Attorney
General Eric Holder said that he expects the number of Americans
that travel to Syria to fight alongside Islamic extremists to grow.
He also called for targeting westerners for surveillance and
potential prosecution if they show signs of becoming
radicalized.

American intelligence estimates that there are about 23,000
fighters in Syria. About 7,000 of these are foreign fighters. Of
these, “dozens” come from America and about 50 come from Norway.
 One of them is ISIS-spokesperson Abu Safiyya, who recently
taunted Obama to buy diapers in a propaganda video.

Holder spent the day reviewing the Norwegian action plan against
radicalization with Norwegian Prime Minister Erna Solberg and
Minister of Justice Anders Anundsen. He then called for other
countries to enact a four-step multilateral plan to fight the
“global crisis of influx of U.S.- and European-born violent
extremists into Syria.”

He also, writes Johansen, sought to ease concerns about the
civil liberties consequences of his proposals throughout his
speech.

View this article.

A judge has said that the Federal Bureau of Investigation is not
at fault for the effects of classifying Juggalos, the fans of
Detroit horrorcore rap duo Insane Clown Posse (ICP), as a “hybrid
gang” in their 2011 National Gang Threat Assessment report.

U.S. District Court Judge Robert Cleland dismissed a
lawsuit brought in January 2014 by the members of Insane Clown
Posse and the American Civil Liberties Union of Michigan that
alleged local police departments were using the FBI’s report to
profile, harass, and detain Juggalos based on the fact that they
associated themselves with the group. From the
Associated Press:

Cleland said the U.S. Justice Department is not responsible for
how authorities use a national report on gangs.

The report “does not recommend any particular course of action
for local law enforcement to follow, and instead operates as a
descriptive, rather than prescriptive, assessment of nationwide
gang trends,” Cleland said in a 14-page opinion last week.

Lawyers from the ACLU beg to differ and
released a statement July 8 saying that the only way to remedy
the classification was to start at the root of the problem.

“There is no doubt that the FBI created this problem and the
solution begins there as well,” said Michael
J. Steinberg, ACLU of
Michigan legal director. ”Otherwise, we’ll be
playing whack-o-mole to stop local law enforcement agencies from
discriminating against our clients, when the agencies are just
following the FBI’s lead.”

The members of ICP, Joseph Utsler and Joseph Bruce, known as
Shaggy 2 Dope and Violent J respectively, have vowed to keep
fighting against classification of their fans.

“There has never been—and will never be—a music fan base quite
like Juggalos, and while it is easy to fear what one does not
understand, discrimination and bigotry against any group of people
is just plain wrong and un-American,” said Bruce.

For more on the Juggalos watch
Juggalos vs. the FBI: Why Insane Clown Posse Fans are Not a
Gang:

Aaron Malin at the always
interesting Show-MeCannabis site has some more great
reporting on the feckless and pointless silliness of the police
task forces fighting our hopeless and insane war on drugs.

I
blogged last month on how Malin found them stonewalling him
over petty terminological issues when he tries to use a sunshine
law to get info on a drug “task force” that an official insists
doesn’t exist since its official name was “Metro
Multi-jurisdictional Undercover Drug Program.”

This new story by Malin is actually also from last month, but
just digested by me today, and at any rate represents a timeless
problem: government using
its own power to propagandize for itself.

As Malin reports:

According to the Clay County Drug Task Force, at a taxpayer
funded conference supposedly dedicated to law enforcement training,
Missouri’s narcotics officers were taught the latest
anti-legalization talking points. What’s more, they received
training credit hours (POST Certification) for their attendance at
the class — all to become well-versed in the latest drug war
propaganda. ….

Taxpayers should be troubled by the notion that their money,
allocated for the training of our law enforcement officers, is used
to fund political propaganda. Missourians should be troubled by the
notion that learning the latest anti-legalization talking points
counts as training hours for law enforcement. Cannabis policy
reform activists should be troubled by the fact that dismantling an
80-year-old marijuana-prohibition complex, already an uphill
battle, becomes even harder when we are forced to fund political
training for our opposition with tax dollars…

Malin, who does much of his reporting via rigorous public record
requests, informs us that “the Department of Public Safety
only began redacting the name of this conference from documents I
requested on task force grant funding after I began asking
specific questions about these conference expenditures.”

Fourteen
fatalities and a total of 82 people shot. It’s not Ukraine or
Syria, but Chicago. The heartland city, already notorious for its
high crime rates, had a surprisingly bloody Independence Day
weekend, and its mayor and top cop say it’s because gun laws aren’t
broad enough, when in fact the relevent gun laws are quite
broad—but that doesn’t make them effective. 

Mayor Rahm Emanuel
called for more robust restrictions at a press conference
yesterday, saying that current “gun laws are the weak link.”

Police Superintendent Garry McCarthy, whose officers were
responsible for shooting five people and killing a 16-year-old and
a 14-year-old, stated
at a separate press conference that “it all comes down to these
guns: there’s too many guns coming in and too little punishment
going out.” This perceived problem exists on problem exists on “not
just on a state, but on a federal level,” he believes. “Possession
of a loaded firearm,” the incredulous McCarthy said, “is not even
considered a violent felony in the state of Illinois for sentencing
purposes.”

Can a deficiency in gun laws really be blamed, though? Let’s
look at the restrictions in place from different levels of
government.

Federal law already
prohibits convicted felons and people convicted of certain
misdemeanor crimes, such as domestic violence, from owning
firearms.

Open carry is banned by Illinois state law. Getting a concealed
carry permit is requires a stack of data: a
driver’s license, a Firearm Owner I.D., a headshot current as of 30
days, an Illinois Digital I.D., a copy of a 16-hour training
certificate, residency information for the previous 10 years, and a
$150 fee to boot.

The police board that grants concealed carry permits can deny
people for no reason, and they’ve denied over 800 this year without
explanation. On July 4, the Tribune reported that they’ve
been denying people who have no criminal record whatsoever.

Cook
County
bans the sale of any type of firearm to anyone under 21.

The city of Chicago this year has established severe
restrictions that prohibit the sale of a firearm without video
evidence and block stores from existing in “99.5 percent of the
city,”
according to the Associated Press.

As evidenced by exactly what happened this weekend, all of this
is moot to lawbreakers with black market weapons.

In a city that just yesterday hit 200 homicides for the
year, McCarthy understands in principle that it is “illogical” to
believe “that government can intercede and prevent this from
happening,” but he somehow doesn’t understand that prohibitions
aren’t just ineffective, but outright counterproductive toward
safety as they make sitting ducks of innocent, law abiding
people.

There was a
silver lining story to the weekend’s violence: one unnamed man
with a concealed carry weapon defended himself and three other
people against gunmen as they left a party on the far south side of
town. But, if McCarthy’s and Emanuel’s fantasy of even stricter gun
laws were a reality, would the death toll have been 18 instead of
14?

A
few decades ago, back in high school I was particularly struck by
an incident in which a German exchange student with whom I was
friendly expressed considerable surprise that Adolf Hitler’s screed
<em>Mein Kampf</em> was setting openly on the shelves
of our library. I told him that I had actually tried to read it,
but found it be an incomprehensible mess. He solemnly told me that
the book was illegal in Germany. He picked the volume up and held
it as though he thought it might bite him. Having never heard of
<em>United
States v. One Book Called Ulysses</em>, i was
patriotically proud of the fact that we had no such censorship in
my country.

According to an op-ed by journalist Peter Ross Range, “Should
Germans Read ‘Mein Kampf’?, in today’s New York Times,
the book is, strictly speaking, not illegal in Germany. However,
the copyright holder, the state of Bavaria, has refused to allow
its republication. The copyright is about to expire, so anyone
would have the right to publish it soon. In fact, a team of
scholars is working on an annotated version. This has provoked
concern in some quarters that making it available to Germans might
summon forth the old Nazi demons. As the op-ed reports:

Unsurprisingly, the “Mein Kampf” project has stirred uproar in
some Jewish circles. Charlotte Knobloch, president of the Israelite
Cultural Community of Munich and Upper Bavaria, said “there is
still a danger” of catalyzing far-right sentiments. Uri Chanoch, an
86-year-old Israeli Holocaust survivor, added that Germans
“somewhere in their hearts still have a hatred for us” and has
campaigned aggressively against the book’s republication, calling
for international pressure on Bavaria to block it.

It is only natural for people who survived the savagery of
Hitlerism to express such sentiments, but cooler heads have
prevailed and work on the annotated edition is proceeding:

Racing to be first to publish the book is the Institute for
Contemporary History, a noted center in Munich for the study of
Nazism, which has a five-scholar team at work on an annotated
“critical edition” of Hitler’s 700-page ramble.

The institute’s version will double the size of the book and
create an academic baseline for all future study of the ur-text of
Hitlerism, said the team’s leader, Christian Hartmann. The book’s
extensive notations, he added, will “encircle” Hitler’s story line
with a “collage” of commentary to demystify and decode it, an
alternative subtext and historical context that will strip it of
its allegedly hypnotizing power.

Range is clearly right when he concludes: 

Sixty-nine years after World War II, it no longer makes sense
for Germans not to have unfettered access to the same book that can
be easily bought in other countries….

In 1959, West Germany’s first postwar president, Theodor Heuss,
recommended republishing “Mein Kampf” as a cautionary document for
the German people. Not yet ready for such a confrontation, the
political establishment ignored him. Today, 55 years and 10
presidents later, Heuss’s good idea is finally coming to
fruition.

Limiting speech will not deter tyranny, but free speech can.

A 48-year-old terminal cancer patient was
rushed to the hospital from an Iowa courthouse Monday during
his trial over felony charges for growing marijuana he uses as a
treatment for his rare condition.

Brian Wellner of Iowa’s Quad-City Times’ first
reported that paramedics took Benton Mackenzie, who was
expected to take the stand in his trial in Scott County District
Court on Monday, from the courtroom to a local hospital after he
complained of extreme pain and hallucinations related to
his angiosarcoma, a rare and aggressive form of cancer of the blood
vessels which has produced large lesions on Mackenzie’s skin.

Read this article.  WARNING: GRAPHIC IMAGE
APPEARS, READER DISCRETION IS ADVISED.

One all-too-apparent lesson
from the launch of Obamacare’s health insurance exchanges last year
is that the government isn’t very good at building software. The
federal health exchange portal, HealthCare.gov, was essentially
unusable for two months after launch last year, despite repeated
outside warnings that the project was in trouble and repeated
administration assurances that all was under control. The biggest
issues on the consumer side of the system were at least temporarily
patched by December, but much of the back end that communicates
with and pays insurers remained—and remains today—incomplete.
Insurers are using imprecise manual workarounds instead. Last week,
the Inspector General for the Department of Health and Human
Services reported
that there were 2.9 million “inconsistencies”—situations in which
the data hub was not able to verify submitted information, mostly
regarding citizenship and income—in the applications sent to the
federal exchange. The vast majority, about 2.6 million, remained
unresolved.

It’s not just the federal government. The state exchanges remain
a mess. Some were never functional and had to be scrapped. And even
those being held up as model systems, like Covered California, have
problems. As The Wall Street Journal
reports, thousands of people who purchased health coverage
through state exchanges “still don’t have coverage due to problems
in enrollment systems. In states including California, Nevada and
Massachusetts, which are running their own online insurance
exchanges, some consumers picked a private health plan and paid
their premiums only to learn recently that they aren’t
insured.”

The experience overall with the exchanges has not been good. As
The L.A. Times reports, even highly educated, tech-savvy
young adults had
serious difficulties using the site. In a study, researchers
found that people between the age of 19 and 30 were often stymied
by the system. When asked how it could be better, they said they’d
like it to be more like commonly used, privately developed websites
and applications—things like Yelp or TurboTax.

Obamacare’s exchanges were not inexpensive projects, built on
the cheap with skimpy resources. As of February, the federal health
agency had budgeted
about $834 million for the exchange. By the end of the year, it
is expected to have spent $1 billion. That’s relatively cheap
compared to the price tag for all the state exchanges, which

cost some $4.7 billion.

In contrast, the first iPhone—a marvel of usable, accessible
design with a brand new touch-screen operating system that spawned
a slew of competitors and has now fundamentally reshaped the
handheld market (as well as the daily life of millions) in its
image—cost
about $150 million to develop before its release in 2008.

This is obviously not a perfect comparison:
Apple was building a consumer gadget, not a highly regulated,
health-focused, government-run shopping portal; Apple wasn’t
coordinating and connecting multiple government agencies and
insurer computer systems, nor was it relying on an army of outside
contractors; and Apple was not building a product that, by law, had
to launch and had to have certain specifications.

Even still, those difference are not quite so extreme as they
might sound: Apple’s project required coordinating with mobile
carriers, first AT&T and then others, and, in the year after
the first generation phone launched, building a unique platform
(the app store) for a wide array of mobile software to sell their
wares. And while Apple was not bound by law to complete the iPhone
and make it a success, it had spent so much on development that it
would have destabilized the entire company.  It too was bound
to complete its product.

And at the same time, those differences also suggest the
inherent advantages of the private sector. It’s less
restricted by bureaucracy and regulations, more flexible in terms
of deadlines and partnership decisions, and able to do its work
quickly and effectively in house. It is motivated by competition
and by consumer demand. It’s also, as a market leading company,
able to hire the most productive and innovative workers, and pay
them more.

These advantages are built in, and while it’s certainly possible
and desirable to improve tech management and administration in the
public sector to some extent, those advantages are never going to
go away. It’s never going to be a level playing field.

The trick, then, isn’t to determine, as we have, that the
government isn’t very good at software development and put a lot of
energy into trying to make it better. It’s to recognize the
government’s limited capabilities and built-in disadvantages,
accept them, and work to avoid project and programs that might
require the government to play software developer.