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A Kentucky lawmaker wants to grant police in his state the power to detain a person for two hours if he or she declines to offer up identification or answer an officer’s questions while they’re investigating possible criminal activity. Lawyers? Miranda warnings? Forget about them.

The bill was introduced by state Sen. Stephen Meredith (R–Leitchfield), and civil rights lawyers are warning that it could open a big, nasty, easily abusable, unconstitutional can of worms.

The bill states that the person who is being detained by police in this process is not considered under arrest, which appears to be a mechanism to try to keep a person from demanding a lawyer. It could also get people to incriminate themselves by making them answer police questions or face temporary detention.

While police are obviously empowered to investigate criminal activity, this bill, SB 89, seems designed to give police the power to target individuals for harassment for the sketchiest of reasons. Meredith told the Lexington Herald-Leader that one of the incidents that inspired the bill (which he acknowledges was pushed forward at the urging of local police) was a man lingering outside an apartment complex, which made neighbors nervous. They called the police, but the man refused to answer their questions and left. They found out later that he had outstanding arrest warrants.

But Rebecca DiLoreto, who lobbies for the Kentucky Association of Criminal Defense Lawyers, noted that the police could have tagged this guy for violating the state’s loitering laws, and then they could have used that actual allegation of criminal activity to demand ID and check for warrants.

DiLoreto warns that SB 89’s passage would lead to an environment where police would be able to detain people for up to two hours without having to keep official records because these people aren’t technically arrested. She tells the Herald-Leader:

“The idea that we can detain people because we find them to be suspicious and we think they might commit a crime, that crosses a dangerous line. Now, unfortunately, it has been known to happen. Sometimes it’s in a mostly white community where someone spots a black person walking down the street and they get suspicious and call police.

The ‘crime’ in this case is basically that you’re here and we don’t think, from looking at you, that you should be here. The potential for abuse in that seems obvious.”

It would also most certainly violate people’s Fourth and Fifth Amendment rights.

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The Florida Supreme Court issued an advisory opinion last week condoning a state law that prohibits residents with felony convictions from voting if they owe outstanding fines and court fees. Opponents of the law say it undermines a ballot initiative that was slated to restore the voting rights of an estimated 1.4 million Floridians and that it is also unconstitutional.  

Passed by a popular vote in November 2018, Amendment 4 changed the Florida constitution to restore the voting rights of former felons. “Complications emerged almost immediately,” Reason‘s C.J. Ciaramella noted last year. “The language of Amendment 4 said that voting rights would be restored ‘upon completion of all terms of sentence including parole or probation,’ but it did not say whether ‘all terms’ included financial obligations imposed by courts.”

The Republican-led state legislature chose to interpret “all terms of sentence” as including fines, restitution, and court fees associated with the felony conviction. Both chambers of the state legislature enshrined that interpretation in SB 7066, which Gov. Ron DeSantis (R) signed into law on June 28, 2019.  

Almost immediately, civil liberties groups representing impoverished former felons sought an injunction against the state in federal court, claiming that SB 7066 essentially imposed a poll tax in violation of the 24th Amendment. In October 2019, Judge Robert Hinkle of the U.S. District Court for the Northern District of Florida issued a temporary injunction, writing that “each of these plaintiffs have a constitutional right to vote so long as the state’s only reason for denying the vote is failure to pay an amount the plaintiff is genuinely unable to pay.”

“The court’s decision is clear: The right to vote cannot be denied to anyone based on their inability to pay,” said Micah Kubic, executive director of the ACLU of Florida, in a statement. “The state must create a clear and unencumbered process that provides Florida’s returning citizens the ability to vote.”

In August 2019, while the ACLU suit was before Hinkle’s court, Gov. DeSantis sent a letter to the Florida Supreme Court asking that it interpret the constitutionality of SB 7066 under Florida law. The Court issued an advisory opinion on January 16 in which it answered only the question of whether “all terms of sentence” includes “legal financial obligations” (LFOs) imposed by a sentencing court. In its advisory opinion, the Florida Supreme Court says both that LFOs are covered by the amendment’s “terms of sentence language,” and that the amendment’s sponsors made that clear to the Court in 2017 during a hearing to determine whether Amendment 4 could be included on the 2018 ballot: 

In its brief to this Court arguing in support of Amendment 4 being placed on the ballot, Amendment 4’s sponsor, Floridians for a Fair Democracy (the Sponsor), asserted: “Specifically, the drafters intend that individuals with felony convictions, excluding those convicted of murder or a felony sexual offense, will automatically regain their right to vote upon fulfillment of all obligations imposed under their criminal sentence.” [Emphasis used in the opinion]

During the oral argument, counsel for the Sponsor stated—consistent with the Sponsor’s brief—that the operative language in Amendment 4 “means all matters—anything that a judge puts into a sentence.” As noted in the Governor’s letter, that oral argument involved discussion of LFOs—including fines, costs, and restitution—as well as the process for confirming payment of LFOs. Counsel for the Sponsor summed up by reiterating that Amendment 4 was intended to be “a restoration of voting rights under these specific conditions.” It is beyond dispute that the Sponsor expressed the intention that “all terms of sentence” include all LFOs ordered by the sentencing judge.

“It is our opinion,” the Florida Supreme Court concluded, “that the phrase ‘all terms of sentence,’ as used in article VI, section 4 [of the state Constitution], has an ordinary meaning that the voters would have understood to refer not only to durational periods but also to all [legal financial obligations] imposed in conjunction with an adjudication of guilt.”

Reason‘s C.J. Ciaramella, who has covered the restoration effort, reported that felony offenders collectively owe hundreds of millions of dollars in fees and fines. The Florida Court system, which is funded almost entirely by fees and fines, has about “115 different types of fees and surcharges, the second-highest number in the country,” per the Fines & Fees Justice Center.

In an interview with The Appeal, Miami-Dade public defender Carlos Martinez observed that many fees and fines are not listed on sentencing documents. He estimated that 90 percent of those facing outstanding fees and fines in his county were affected by the practice.

On Friday, the Cato Institute and the R Street Institute filed an amicus brief in the U.S. Court of Appeals for the 11th District arguing that “SB 7066, insofar as it excludes people who cannot afford to pay criminal court debt from participation in the democratic process, perhaps permanently, violates the bedrock guarantee of equal rights that every citizen enjoys.”

Cato and R Street, who ask the U.S. Court of Appeals for the 11th District to uphold its injunction, write in their brief that “the unprecedented and growing imposition of fines, fees, court costs, and other financial obligations by state criminal courts has created an enormous class of citizens in debt to the government” and asks that the court “closely
scrutinize any law that purports to condition the ability to vote on payment of court
debt.”

They add that “as a constitutional matter, this case falls squarely within the line of cases
beginning with Griffin v. Illinois, 351 U.S. 12 (1956), which have held that a state denies equal protection of the laws when it conditions a right or benefit solely on the ability to pay.” While Florida argued that felons have no “fundamental right” to vote, Cato and R Street argue that “once the state chooses to re-enfranchise that class, it may not discriminate on the basis of wealth absent a compelling government interest and narrowly tailored means.”

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Today is the day that the impeachment trial of President Donald Trump gets underway. Proceedings start around 1 p.m. in Washington (go here for places to watch) and are expected to last anywhere from a week to a month (Bill Clinton’s trial in 1999 lasted five weeks). In a vote that proceeded along party lines, President Trump has been charged with abuse of power and obstruction of Congress. He is widely expected to be found not guilty by the Senate, in a vote that will also proceed largely, if not completely, along party lines.

Come February, or whenever the pompously self-declared “world’s greatest deliberative body” votes on the matter, we will be right back to where we started, only a little bit more in debt, a little angrier, and a little more behind schedule on nuts-and-bolts things like passing a real budget for the current fiscal year, figuring out how to pay for entitlements, and discerning whether we’re technically at war with various countries.

The impeachment process thus perfectly encapsulates everything that is wrong with the federal government. From start to finish, the impeachment is almost purely partisan and political rather than substantive, and it accomplishes nothing other than driving down even further any form of trust or confidence in the presidency, Congress, or even the Supreme Court (Chief Justice John Roberts will preside over the Senate trial). To be fair, impeachment is designed to be a political, rather than legal, process. It’s not about discovering the truth of what happened, or even fully explaining what happened, as you’d expect in a real trial. As Gerald Ford noted just a few years before becoming president himself after the resignation of Richard Nixon (who was faced with his own impeachment trial), an impeachable offense “is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

It’s only fitting, then, that being found innocent will be an equally partisan exercise. Indeed, that seems especially fitting in an election year in which the incumbent shows some of the worst approval numbers in history and still seems to have an excellent shot at winning a second term.

I’ve documented over the years how far and fast trust and confidence in various parts of the federal government has fallen. In 1964, for instance, 77 percent of Americans agreed that they trusted “the government in Washington always or most of the time.” As of last year, that figure stood at 17 percent. When it comes to the presidency, trust has toppled from 73 percent in 1972 to 45 percent.  For Congress, the drop is even worse, plummeting from 71 percent in 1972 to 38 percent in 2019. Trust in the Supreme Court has followed the same general trend, even if its numbers are better. In 1988, 56 percent had a high degree of trust in the Supreme Court but thirty years later, that figure clocked in at 37 percent.

It’s unlikely that the purely partisan impeachment process will do anything but accelerate those trends. For libertarians, this might on its face seem a blessing, as evacuating trust and confidence in the federal government is surely a precondition for radically reducing its growth and power.

But that’s not how things work. Again and again—and in countries all over the world—declines in trust of government correlate strongly with calls for more government regulation in more parts of our lives. “Individuals in low-trust countries want more government intervention even though they know the government is corrupt,” explain the authors of a 2010 Quarterly Journal of Economics paper. That’s certainly the case in the United States, where the size, scope, and spending of government has vastly increased over exactly the same period in which trust and confidence in the government has cratered. In 2018, I talked with one of the paper’s authors, Andrei Shleifer, a Harvard economist who grew up in the Soviet Union before coming to America. Why do citizens ask a government they don’t believe in to bring order? “They want regulation,” he said. “They want a dictator who will bring back order.”

Counterintuitively, the relative size and spending of government in the United States actually flattened or dipped during periods when trust and confidence in government picked up:

From 1994 to 2001, Pew data show upticks in the number of people who trust the government to mostly do the right thing…. Using inflation-adjusted dollars, the feds spent about $250 billion more in [Bill] Clinton’s last year than in his first, a small increase compared to the spending surges seen under Ronald Reagan and George W. Bush. Viewed as a percentage of GDP, federal spending fell significantly during that period. In 1991, it equaled 21 percent. By 2001, it equaled just 17.5 percent.

There were many reasons for minor increases in trust and confidence in government during the 1990s. The end of the Cold War, the rise of the internet, and continual economic expansion all played important roles (especially the latter). While Washington got shriller—virtually all modern forms of hyper-polarization were present or birthed in the ’90s—it also became less important to more people. Clinton famously acknowledged that “the era of big government is over” even as Congress worked in a bipartisan fashion to change welfare, cut capital gains taxes, and slash defense spending. That sort of rapprochement is unimaginable in the current moment.

You can argue that Trump richly deserves to be the third president to face an impeachment trial, that we should be impeaching all the presidents all the time, or that Trump is actually the victim of a coup. You might even win those arguments. But none of that matters if you really care about restraining the size of government. Come the end of the Senate trial that starts today, Trump will almost certainly still be in office, Democrats and Republicans will hate each other even more, and trust and confidence in Washington will be even lower than it already is.

And the spending of the federal government, what Milton Friedman said was the purest measure of its power, will continue to set new records. All impeachment will have done is add more fuel to the perpetual dumpster fire that is Washington and pushed the calendar back a month or so when it comes to the fiscal reckoning that awaits us in the new decade.

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Russian Prime Minister Dmitry Medvedev and his entire cabinet resigned last week in the wake of what The New York Times‘ Andrew Higgins calls “sweeping constitutional changes.” This is the first major alteration of Russia’s constitution since the 1990s, and it would effectively secure President Vladimir Putin’s control of the state.

At a glance, it’s clear that Putin’s intention is to stay in power after 2024, the year he’s constitutionally required to step down after two consecutive terms. But his changes also indicate a methodical plan to conserve power in the executive branch, which sets a dangerous international precedent.

In his address to the Federal Assembly, Russia’s national legislature, Putin proposed to move some key powers from the executive branch to the Duma, Russia’s parliament, and the State Council, an advisory body that handles issues deemed of the highest importance to the state. The most significant constitutional changes would allow the Duma to appoint members to the prime minister’s cabinet and allow the State Council to oversee the appointment of the heads of Russia’s security agencies.

In addition to giving the State Council constitutional status, Putin also intends to limit the supremacy of international law.  The amendments would ban foreign citizenship and foreign residency permits for judicial and legislative officials and require presidential candidates to have had permanent residence in Russia for at least 25 years.

“Is this a coup? Absolutely,” says Elena Lukyanova, law professor at Russia’s Higher School of Economics. She adds that the amendments would allow the Russian government to refuse to fulfill its obligations under international treaties.

But why has Putin taken a more subtle approach to maintaining his autocracy as opposed to simply removing term limits from Russia’s constitution? Maria Snegovaya, post-doctoral fellow at John Hopkins University School of Advanced International Studies, compares Putin’s transfer of power to that of Nursultan Nazarbayev, Kazakhstan’s president, in 2019. Nazarbayev had distributed some elements of presidential authority to the Kazakh Senate and Security Council. Nazarbayev then put his daughter in charge of one body and himself in charge of the other.

“Putin’s goal is to avoid concentrating too much power under a singular institution outside of his control, lest it diminish his authority or even threaten his rule,” Snegovaya writes.

Peter Dickinson, editor of Atlantic Council’s Ukraine Alert, notes that Putin’s constitutional proposals clearly indicate his intentions to retain control while also creating an illusion of change:

Putin’s last constitutional conjuring trick, which saw him return to the presidency in 2012 after a farcical four-year handover to Dmitry Medvedev, sparked mass protests in Moscow that left the regime rattled. With his approval rating currently in the doldrums, Putin knows he must tread carefully as he seeks to extend his reign beyond 2024. Much will now depend on the public reaction to Putin’s plans. Large-scale protests are unlikely but cannot be ruled out as Russians face up to the reality of a stagnating economy and the prospect of Putin in power for another generation.

Putin’s actions should alarm the international community. They pose a grave threat to the rule of law.

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