Tag: hit&run

I became a United States citizen on Friday, September 29, 2017.

If I wanted to put a romantic gloss on my story, I could note how I arrived 22 years earlier via a one-way ticket to Detroit on a student visa with just a small bag of clothes, some philosophy books, and $97 in cash. Or how I lived on $10 a week after the rent and bills were paid. How—in the tradition of all good immigrants!—I buckled down and worked hard and graduated with a Ph.D. from Bowling Green State University in three years. How I beat the odds and secured a tenure-track job my first time on the market and then met the woman who was to become my wife on the first day of faculty orientation.

To make my immigration tale even more compelling, I could throw in some of the challenges that I faced. Like how I ditched my useless, high-priced corporate immigration attorney for a man (an immigrant himself!) who shared an office with a taco stand. The new guy charged me a discount price of $80 after I showed I could identify the Dominican Republic on a map, and then he provided me with perfect visa-renewal paperwork within hours. I could recount the harrowing experience of having my work visa granted literally 15 minutes before teaching my first class at The College of New Jersey.

Like so many others’, my story could be held up as an advertisement for the American immigration system. While it may have taken me a long time to become a U.S. citizen, I didn’t have to wait much to enter the country legally—that initial student visa took just a couple of months. I worked hard, adhered to the law, and was naturalized only after dutifully waiting in line. Shouldn’t everyone have to do this? Isn’t it unfair to people like me when others jump the line and enter illegally?

No. Because there is no line.

There is an implication in the line metaphor that the current immigration system operates as it did at the time of Ellis Island: People get off the boat (or the plane or the bus), register with the immigration authorities, and then, after waiting their turn, get approved to live and work in the United States. There are more people coming in now than there were in the late 19th and early 20th centuries, so the line’s longer, but the principle is assumed to be the same.

It is not.

There are vanishingly few paths to being legally able to live and work here. The two main roads to legal immigration are the family-based visa program and the employment-based visa program. The family-based visa program is only freely available to the parents, spouses, or unmarried under-21 children of a U.S. permanent resident or citizen. (Those two classes of people are grouped together under the legal term “U.S. persons.”) There are more-limited slots available to siblings, married children, and adult unmarried children. There are no slots for nieces, nephews, aunts, uncles, or stepchildren if the marriage creating that relationship occurred after the child was 18.

What if you’re not related to a U.S. person? It’s still possible for you to legally move to America, but it’s unlikely. To qualify for an EB-1 employment-based immigration visa, you usually need a job offer from a U.S. employer. Nobel laureates, Olympic gold medalists, and other rare creatures can qualify for the elusive “persons with extraordinary ability” visa without a job in hand. But for the rest of us mortals, a U.S. employer must have made us an offer of a job. And not just any job.

According to U.S. Citizenship and Immigration Services (USCIS), there are two main types of qualifying workers: “outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally,” and “multinational managers or executives who have been employed for at least one of the preceding three years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer.” Those are high bars to meet. But if you’re one of the few with extraordinary qualifications and have an offer from a U.S. employer, you could get the green light to immigrate to the United States.

If you’re not a highly skilled worker who’s already firmly established at the top of your profession, there’s some hope—but not much.

Australians in a “specialty occupation” (kangaroo veterinary science, perhaps?) can apply for an E-3 visa. This allows them to work in the U.S. legally for two years, and they can apply to have it renewed indefinitely.

Not an Australian with specialty knowledge? You won’t qualify for a visa that would allow you permanently to immigrate to the United States. (Sorry, huddled masses yearning to breathe free.) But you may be legally able to take a temporary job in America. If you play your cards right—and if you’re very, very lucky—you could parlay that into permanent residency.

Under the H-1B visa program, a U.S. employer can file a petition with USCIS to hire a foreigner, temporarily, for a specialty occupation. To qualify for this visa, you will usually need a bachelor’s degree (or training that’s equivalent to a bachelor’s degree) considered necessary to perform the “specialized and complex” job you’re being hired to do. No bachelor’s degree? No problem—assuming you’re a fashion model “of prominence.”

Even those who are well-educated or beautiful shouldn’t get their hopes up. The number of H-1B visas is capped at 65,000 annually, and USCIS has been getting more than 200,000 valid petitions each year.

If you’re lucky enough to receive an H-1B visa, you’ll usually have to leave after six years—unless your employer is willing to sponsor you for a green card, which gives you permanent residency in the United States. This is an arduous process. The employer will have to demonstrate to USCIS that there are no American workers who can do your job. It will then have to file an Immigration Petition for Alien Worker form. If all goes well, you can apply for an “adjustment of status” with USCIS. And if that’s approved, you’ll receive your green card—but don’t expect to get it quickly. Depending on which country you’re from, this process can take up to a decade.

What about those who are neither well-educated nor beautiful but still want to live and work in America legally, maybe for the local mom-and-pop? They’ll likely have to put their dreams of permanent immigration aside.

Under the H-2A visa program, a U.S. employer who meets certain regulatory requirements can file a petition with USCIS to hire a foreigner for temporary agricultural work. These visas are restricted to people from certain countries and are only available if it can be shown that there are not enough Americans “able, willing, qualified, and available” to do the work in question.

Under the H-2B program, some non–field hands can also work here temporarily. Again, these visas are limited to people working for U.S. employers that meet certain regulatory requirements, and they’re only available if there are not enough Americans to do the jobs in question. H-2Bs are currently capped at 66,000 annually.

To be clear, H-2s are not immigrant visas—they’re only for jobs that last less than a year. If you’re a working guy or gal who wants to make a life in the United States, there are few options available to you.

If you’re a native of a country that has a low level of emigration to the U.S., you can enter one of President Donald Trump’s least favorite contests: the annual Diversity Visa lottery. But the chances of being one of the 50,000 winners are small: 22.4 million people entered in 2017. In theory, you could also be one of the rapidly shrinking number of foreigners—targeted at 18,000 for fiscal year 2020—to be admitted as refugees. But few people become refugees just for the pleasure of working in the United States.

The lived reality of immigration is much less like a line and much more like the forking paths of a Choose Your Own Adventure book. Make the right choices (marry an American, get hired by a U.S. firm at the executive level, win a Nobel Prize, secure an H-1B visa and parlay it into a green card) and you can make a life in the United States! But make just one wrong choice (marry a Canadian, fail to achieve tenure, get hired by a foreign company, don’t have an employer that will sponsor your green card application), and you’re out of luck.

And most people don’t have the opportunity to make any of these choices. A low-education, working-age Mexican male—that staple of blue-collar employment in the American Southwest—does not qualify as a permanent immigrant under any of the visa regimes listed above. There is simply no path for many people in the world.

So those who seek better lives for themselves and their children, faced with the impossibility of ever being allowed to legally immigrate, do what you and I might be desperate enough to do under the same circumstances: They cheat. It’s not that they want to skip the line and get an unfair head start. It’s that there’s no line for them to be in. There are no choices they can make to become legal immigrants to the United States.

Many critics of illegal immigration object not to jumping the line but to breaking the law. That’s a reasonable point. It’s also easy to address: Change the law so that people who wish to move to the United States and live in peace can do so easily and legally.

How could we do this? Simple—just flip the current system. Instead of the default legal position of prohibiting people from moving to the United States, we make admitting people the norm. In other words, we return to the old Ellis Island approach of actually having a line.

This proposal doesn’t amount to open borders. There would still be background checks of the sort that I went through when I applied for my green card. And some people, such as violent criminals, could still be barred because of the choices they made in the past. But rather than telling people, “You’re not going to be allowed to live here unless you fit into one of these very narrow criteria for entry,” we should tell them, “Of course you can live here—unless you fit one of these very narrow criteria for exclusion.”

What if the resulting line is too long? That is a practical consideration. One possible solution would be to boost the current staffing level of USCIS, allowing the agency to process applications much more quickly. This need not lead to a net increase in government, since switching the default would mean there would be far fewer illegal immigrants to chase, prosecute, and deport. (Persons who are currently in the country illegally could be granted amnesty, provided they’re willing to undergo the same Ellis Island–style procedures as everyone else.)

USCIS is funded largely by application and petition fees. (It currently costs $1,140, plus for most people an $85 biometrics fee, to register to apply for permanent residency in the United States.) There’s no reason these fees couldn’t be increased, ensuring that the agency wouldn’t cost taxpayers a penny. According to an April 2019 study by the RAND Corporation, undocumented immigrants from Central America pay between $6,000 and $10,000 to cross the border in extremely perilous conditions. So there is demonstrated price elasticity upward for a more safe and regulated system.

We know that legalizing the market in alcohol or drugs leads to better, cheaper products, while significantly reducing the abuses (such as violence and fraud) that are associated with black markets. Similarly, legalizing the market in green cards would lead to a better product—legal rather than illegal U.S. residency, with immigrants securing safe passage to start a new life. This product would be cheaper than its current black-market alternative, and the legal market would drastically reduce the demand for human smuggling that is currently being met by criminal organizations.

Existing Americans would reap economic benefits from this increased immigration. In the respected academic literature, the lowest estimate of the “immigration surplus” (the increased wages and incomes of native-born Americans that is a direct result of immigration) is that of George J. Borjas in his 2014 book Immigration Economics. Borjas calculated this surplus at 0.24 percent of GDP. That might not sound like much, but it would have amounted to a whopping $49 billion in 2018.

All of these benefits can come if we muster the courage to rethink and then overhaul our immigration policy. At the moment, America is closed to all but the privileged few (like myself) who satisfy narrow criteria for entry that are unreflective of true supply and demand. A return to an Ellis Island approach to immigration would be a return to people waiting in line to enter America peacefully and then to prosper. I’m willing to tell people to get in line, but only if there’s a line for them to get in.

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Starting in 2020, the Greek government will require all residents to spend at least 30 percent of their income electronically. Officials say the move is aimed at fighting tax evasion. Those who fail to meet the requirement will be fined 22 percent of the difference between what they purchase electronically and what they are supposed to spend.

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Sen. Rand Paul (R–Ky.) just wrote a book, The Case Against Socialism.

I thought that case was already decided, since socialist countries failed so spectacularly.
But the idea hasn’t died, especially amongst the young.

“Hitler’s socialism, Stalin’s socialism, Mao’s socialism. You would think people would have recognized it by now,” says Paul in my latest video.

Paul echoes Orwell in likening socialism to “a boot stamping on the human face forever” and warning that it always leads to violence and corruption.

“You would think that when your economy gets to the point where people are eating their pets,” says Paul, contemplating the quick descent of once-rich Venezuela, “people might have second thoughts about what system they’ve chosen.”

That’s a reference to the fact that Venezuelans have lost weight because food is so hard to find.

“Contrast that with (the country’s) ‘Dear Leader’ Maduro, who’s probably gained 50 pounds,” Paul observes. “It really sums up socialism. There’s still a well-fed top 1 percent; they just happen to be the government or cronies or friends of the government.”

Naturally, American socialists say our socialism will be different.

“When I talk about democratic socialism,” says Sen. Bernie Sanders, “I’m not looking at Venezuela. I’m not looking at Cuba. I’m looking at countries like Denmark and Sweden.”

Paul responds, “They all wind up saying, ‘The kinder, gentler socialism that we want is Scandinavia … democratic socialism.’ So we do a big chunk of the book about Scandinavia.”

Paul’s book is different from other politicians’ books. Instead of repeating platitudes, he and his co-author did actual research, concluding, “It’s not true that the Scandinavian countries are socialist.”

Scandinavia did try socialist policies years ago but then turned away from socialism. They privatized industries and repealed regulations.

Denmark’s prime minister even came to America and refuted Sanders’ claims, pointing out that “Denmark is far from a socialist planned economy.” In fact, in rankings of economic freedom, Scandinavian countries are near the top.

“They have private property, private stock exchanges,” says Paul. “We learned that, actually, Bernie is too much of a socialist for Scandinavia!”

Scandinavia did keep some socialist policies, like government-run health care. The media claim that’s why Swedes live longer, but Paul says: “This is the trick of statistics. You can say, ‘The Swedes live longer, and they have socialized medicine!’ Yet if you look hard at the statistics, it started way before socialized medicine.”

Scandinavians already lived longer 60 years ago, and they also had lower rates of poverty. That’s because of Scandinavian culture’s emphasis on self-reliance and hard work. Paul reminded me of an anecdote about economist Milton Friedman.

“This Swedish economist comes up to him and says, ‘In Sweden, we have no poverty!’

Friedman responds, ‘Yeah, in America, we have no poverty among Swedish Americans!'”

In fact, Swedes have 50 percent higher living standards in the U.S. than when they stay in Sweden. Danish Americans, too. Socialism can’t take the credit.

But the most important argument against socialism is that it crushes freedom.

Socialists get elected by promising fairness and equality, but Paul points out: “The only way you can enforce those things is to have an equality police or a fairness police, and ultimately they show up with truncheons. … The best kind of socialist leader ends up having to be ruthless because you can’t be a kinder, gentler socialist leader and get the property.”

By contrast, capitalism largely lets individuals make their own choices.

“It’s a direct democracy every day,” says Paul. “You vote either for Walmart or you vote for Target. You vote with your feet, with your wallet. People who succeed are the people who get the most votes, which are dollars. And as long as there’s no coercion, seems to me that that would be the most just way of distributing a nation’s economy.”

It’s not perfect, but look at the track record of the alternative, says Paul: “Stalin, Hitler, Mao, Pol Pot, Castro, Chavez, Maduro. It doesn’t work.”

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Former FBI Director James Comey initially portrayed last week’s damning report on the bureau’s investigation of alleged links between the Trump campaign and Russia as a vindication. This week Comey admitted that Justice Department Inspector General Michael Horowitz discovered “real sloppiness,” which is “concerning.”

That characterization does not begin to cover the problems described by Horowitz, which yesterday prompted a highly unusual public rebuke from the court that reviews secret warrant applications under the Foreign Intelligence Surveillance Act (FISA). The FISA court called the FBI’s conduct “antithetical to the heightened duty of candor” that applies in such cases.

The court cited Horowitz’s report, which found egregious and persistent omissions and misrepresentations in applications for warrants that otherwise probably would not have been sought, let alone approved. While Comey may take comfort from the fact that Horowitz “did not find documentary or testimonial evidence that political bias or improper motivation influenced the FBI’s decision” to eavesdrop on former Trump campaign foreign policy adviser Carter Page, the rest of us can hardly be reassured by the implication that the FBI is inept rather than corrupt.

Comey, who ran the FBI from September 2013 to May 2017, is not just self-interested but demonstrably untrustworthy on this subject. Last year he claimed information from former British spy Christopher Steele, which according to Horowitz “played a central and essential role” in the decision to surveil Page, was merely “part of a broader mosaic of facts” supporting the four warrants issued by FISA judges—”not all of it or a critical part of it.”

Comey also said he had “total confidence that the FISA process was followed and that the entire case was handled in a thoughtful, responsible way by DOJ and the FBI.” Yet Horowitz found that the first warrant application included “seven significant inaccuracies and omissions” that were not corrected in the three renewal applications, which were marred by “10 additional significant errors.”

Those “errors” included blatant exaggerations of Steele’s proven reliability, the failure to note that his work was opposition research commissioned by the Democratic National Committee even after that became clear, the omission of the fact that Steele himself was “desperate” to prevent Trump’s election, and a false denial of Steele’s contacts with the press. The FBI also neglected to mention that people who had worked with Steele questioned his judgment, that Steele’s “primary sub-source” had directly contradicted claims in his “dossier,” that Page had reported his contact with a Russian intelligence agent to the CIA, and that Page said he had never met key figures in the purported conspiracy described by Steele.

“FBI personnel fell far short of the requirement in FBI policy that they ensure that all factual statements in a FISA application are ‘scrupulously accurate,'” Horowitz concluded. Even that assessment is charitable, especially since an FBI lawyer deliberately doctored an email to conceal Page’s relationship with the CIA, which had deemed him truthful.

The pattern of these “errors” is not random, of course, since all of them served to bolster the appearance of probable cause. Horowitz told the Senate Judiciary Committee his investigators “did not receive satisfactory explanations for the errors or problems we identified,” and he allowed that they might reflect “intentionality,” saying “it’s fair” to “look at all of these 17 events and wonder how it could be purely incompetence.”

It would be reassuring, in a sense, if the FBI’s misfeasance could be explained by anti-Trump bias. But as Horowitz noted in his report, the fact that “so many basic and fundamental errors were made by three separate, hand-picked teams on one of the most sensitive FBI investigations,” one that “was briefed to the highest levels within the FBI” and “FBI officials expected would eventually be subjected to close scrutiny,” suggests a much deeper problem involving unrestrained overzealousness, confirmation bias, tunnel vision, and groupthink—tendencies that threaten all Americans who value their privacy and reputations.

Even Comey, who claims the dishonesty described by Horowitz “does not reflect the FBI culture of compliance and candor,” wonders if the failure might be “systemic,” meaning there could be “problems with other cases.” Too bad he was never in a position to explore that issue.

© Copyright 2019 by Creators Syndicate Inc.

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In the wake of the devastating Hurricane Harvey in 2017, the US Army Corps of Engineers deliberately flooded  thousands of homes and other properties in Houston, because they they believed it was necessary in order to prevent even worse flooding elsewhere. Numerous property owners filed lawsuits claiming that the flooding amounts to a taking requiring “just compensation” under the Takings Clause of the Fifth Amendment.

The litigation in these cases has dragged on for over two years. But, earlier today, we finally got a decision on the merits in one of them, issued by Judge Charles Lettow of the US Court of Federal Claims. His ruling is a major victory for the plaintiffs, in so far as he concludes that the flooding does indeed qualify as a taking, and the federal government must pay compensation for the enormous damage inflicted. The decision potentially has significant implications for other similar cases.

To many people, it may seem obvious that the government has “taken” your land if they deliberately flood it, and inflict massive damage in the process. I share that sentiment. But, unfortunately, the Supreme Court’s jurisprudence on the subject is far from a model of clarity, which is one of the reasons why today’s decision is important.

In its unanimous decision in Arkansas Game and Fish Commission v. United States (2012), the Supreme Court rejected the Obama administration’s dubious argument that temporary flooding of property by the government can never qualify as a taking. But the Court also did not hold that such flooding is automatically a taking. Instead, they gave us a complex multi-factor test to help determine which cases of government-induced flooding are takings and which are not.

In this article, I counted four factors: the duration of the flooding, “the character of the land at issue, the owner’s ‘reasonable investment-backed expectations’ regarding the land’s use,” and “the degree to which the invasion is intended or is the foreseeable result of authorized government action.” Where I saw four factors, Judge Lettow counts six: The factors…. include: (1) ‘time;’ (2) ‘inten[t];’ (3) ‘foreseeab[ility];’ (4) ‘character of the land;’ (5) ‘reasonable investment-backed expectations;’ and (6) ‘severity’ [of the damage].” Some of the difference between his count may be considered a matter of terminology. But I now think I probably erred in not considering “severity” to be a separate factor, as opposed to being subsumed under the others.

However many factors the test has, the Court gave little guidance on how they are to be assessed, how much weight should be given to each, and what happens if some factors come down in favor of the government and some in favor of the property owners. Nonetheless, in my view, the factors in the Houston cases strongly support the plaintiffs. Judge Lettow agrees:

The time and duration of the government invasion is an important consideration in many takings cases…. The government, through its construction, maintenance, and operation of the Addicks and Barker Dams in the past, present, and future, has taken a permanent flowage easement on plaintiffs’ properties. Defendant argues that its actions had only temporary consequences, because flood waters from Harvey were only on the properties for a matter of days….  This argument, however, fails to account for the fact that the government’s actions have subjected plaintiffs’ private properties to the possibility, rather probability, of government-induced flooding ever since the construction of these dams, throughout subsequent changes to the dams and reservoirs, and for at least the foreseeable future. The time and duration of the government’s actions at issue here is not measured by “the length of time the water inundates the properties,” as the government would have it….; rather, it is measured by a permanent right to inundate the property with impounded flood waters. Thus, this factor weighs in favor of plaintiffs….

This focus on potential recurrence and the permanent nature of the right claimed by the government strikes me as correct, and as more convincing than the government’s focus on the length of time during which the property was actually covered with water. However, to my mind, the problem could be resolved more easily by simply concluding that the duration is permanent because the damage inflicted by the flooding is permanent (or at least lasts indefinitely, until such time as the owner is able to have it repaired).

Here is the ruling’s assessment of severity:

The flooding at issue here went well beyond a tort and was sufficiently severe to rise to the level of a compensable taking. The government’s suggestion that this flooding is not a compensable taking because it was temporary and confined to a single flood event carries no water. Even if a single event of this nature were insufficient to rise to a taking, the sheer frequency of significant storms in the region both before and since construction of the dams… suggests that this was more than an isolated event, and that it is likely to recur….  [I]n the nearly inevitable event of a future storm of significant magnitude, it can be expected that the government would similarly impound water on plaintiffs’ properties to prevent what would be catastrophic flooding downstream. As a result, the likelihood of recurrent flooding is high, weighing strongly in favor of the finding of a compensable taking…

The significant harm caused to plaintiffs’ properties, almost entirely preventing their normal use and enjoyment, is also relevant to the severity analysis. Water measuring as much as several feet in some cases inundated plaintiffs’ homes—for as long as a week in multiple instances—destroying substantial personal property, causing structural damage, and rendering properties uninhabitable or unusable until repairs could be completed months or years later.

The  severity question strikes me as an easy call.

On both this point and time/duration, it is significant that the ruling sidesteps the government’s egregious “one flood free” argument (that a single instance of flooding can never be a taking), by holding that this should not actually be considered a single instance. In my view, the one flood free theory should simply be rejected outright. Judge Lettow’s approach leaves the issue open. But it does reduce the possible damage such a rule can do, if adopted, by narrowing the range of circumstances that can be considered a single, isolated flood. If, as in the Houston cases, the government has a disaster-management plan that is likely to require deliberate flooding on multiple past or future occasions, it cannot be considered a one-time occurrence.

To my mind, these questions of whether the government is immune from liability when it floods private property “only” once, and (if so) what qualifies as a single, isolated flood, are the most significant raised by the case. Today’s ruling does not fully resolve them. But it does move the doctrine in a more pro-property rights direction.

Here is the analysis of intent and foreseeability:

Arkansas Game & Fish next requires the court to assess “the degree to which the invasion is intended or is the foreseeable result of authorized government action…”

Despite being separate inquiries, the two factors are interrelated—one cannot find intent without foreseeability; but what is an objectively foreseeable result may not have been the intended result….

Here, the evidence demonstrates the Corps was aware or should have been aware since the initial construction of the dams and at every point onward, that the flood pools in the Addicks and Barker Reservoirs would at some point (and thereafter) exceed the government-owned land, inundating private properties….

As early as the 1940s, the Corps understood that storms of exceptionally large size were possible in the Houston metropolitan area….

To an objectively reasonable person, it was not a question of whether the pools would reach the level they did—it was merely a question of when and how often. Just as in Cotton Land Co. v. United States, “The events which occurred, although they took some time, were only the natural consequences of the [government’s actions]. If engineers had studied the question in advance[,] they would . . . have predicted what occurred….”

Later events only magnified the risk of flooding beyond government-owned land, rendering it virtually inevitable….

Not only is it evident that the Corps believed flooding beyond the extent of government-owned land was probable, it is unreasonable to contend otherwise….

It is true that Tropical Storm Harvey was a record-setting storm. But the evidence markedly shows that pools of this size and the attendant flooding of private property were, at a minimum, objectively foreseeable. Thus, Harvey’s magnitude does not exculpate the government of liability for its actions….

Intent does not concern whether the government meant to abridge a private property right but whether it intended to occupy the pertinent property without lawful authority or excuse…. Thus, the intent element is present if the government intended its physical occupation even if it did not intend to effect a taking….

Intent is present here because, like foreseeability, intent is not measured at one singular point in time. Again, this is because the government action at issue is not simply the construction of the dams, but the totality of their construction, modification, maintenance, and operation over the project lifespan. The Corps subjectively knew by the 1940s, and particularly by the 1960s, that storms larger than the design storm were likely to occur over Addicks and Barker…. From that time forward, it had subjective knowledge that pools exceeding government-owned land were probable at some point. Indeed, by 1973 the Corps expected the possibility of flooding off of government-owned land to become a public concern… Thus, intent can be inferred here because the government knew flood waters would likely occupy plaintiffs’ private properties at some point.

I am not convinced that intent and foreseeability really are separate factors, as opposed  to merely a single factor that counts in favor of the plaintiff if the government either 1) intended the damage resulting from its flooding to occur, or 2) could reasonably foresee that it would happen, whether or not they subjectively knew it would. But, either way, this factor (or two factors) support the property owners here, as the damage was both objectively foreseeable and subjectively expected by the relevant federal agency. This part of the ruling is significant because it rejected the government’s claims that foreseeability only applies to such damage as could be foreseen when the dams in question were first built back in 1940, and that the Corps therefore cannot be responsible for any damage to structures built since then, if they were larger and more valuable than those that existed at the time of construction. This theory would have greatly reduced takings liability for property destruction in any number of areas where development has occurred over the years.

The court also ruled that the plaintiffs had “reasonable, investment-backed expectations,” in part because the government did not do enough to make them aware of the possibility that their land might be deliberately flooded in the event of a hurricane. I would have preferred a stronger ruling: that even if the owners were so aware that this was the Corps’ policy, they still could reasonably invest in the land, and reasonably expect that the government would compensate them for deliberately inflicted damage.

Finally, Judge Lettow rejects claims that the government is immune from takings liability because it was using its “police powers” and because the flooding was driven by a “necessity” created by a natural disaster. On both issues, he emphasizes that the flooding was not merely a result of a natural disaster, but also of the government’s own long-planned approach for dealing with it. Police power emergencies and “necessities” justifying exemption from takings liability only exist where the harm inflicted was “unavoidable.” But here,  “the government had made a calculated decision to allow for flooding these lands years before Harvey, when it designed, modified, and maintained the dams in such a way that would flood private properties during severe storms… Defendant cannot now claim that this harm was unavoidable when it planned for years to impound floodwaters onto plaintiffs’ properties.”

In my view, the better approach here would be to simply do away with the very inconsistently applied idea that exercises of the police power or necessity can exempt the government from takings liability. Even if there is a good reason for the destruction of private property, and even if that reason is a genuinely unforeseen emergency, that is not a good justification for denying innocent property owners compensation for their losses. But a trial court judge does not have the authority to fully cut this Gordian knot.

Today’s ruling is far from the end of the Hurricane Harvey takings litigation. It will surely be appealed, and perhaps even get all the way to the Supreme Court. In addition, this case ruling only deals with claims by property owners whose land was upstream of the dams that the government opened. There is a separate case addressing claims by downstream owners, which remains to be decided. Both cases involve factual issues related to causation (whether the government’s actions actually caused the damage inflicted on the property at issue), as well as legal questions about what qualifies as a taking. Today’s ruling resolves the causation questions for many of the upstream properties, but that too might be challenged on appeal.

As Winston Churchill might put it, this more the end of the beginning of the legal struggle over Hurricane Harvey flooding, than the beginning of the end. It is nonetheless a significant win for property rights, and a rebuke to the federal government’s policy of trying to wipe its hands of all liability for the enormous damage it caused.

Prominent takings expert Robert Thomas has some thoughts on today’s ruling here. I previously wrote about the Hurricane Harvey cases here and here. Judge Lettow’s ruling reaches the same  general conclusion as a recent Texas state court decision in a similar case, which I analyzed here.

UPDATE: I should perhaps note that today’s decision only addresses the claims of thirteen property owners who “selected to serve as bellwethers for the hundreds of property owners who have filed suit raising similar claims against the government.” But, presumably, these thirteen were selected as “bellwethers” precisely because the resolution of their cases is likely to dictate the outcome of all or most of the others.

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Last week, the Office of the Inspector General for the Department of Justice found that the FBI omitted relevant information and made a number of mistakes on its warrants submitted to the Foreign Intelligence Surveillance Court (FISC) to wiretap a former aide to Donald Trump. Now the judges of the court are demanding some answers.

In an order filed today and signed by FISC Presiding Judge Rosemary M. Collyer, the court lays out a brief explanation about why it’s so bad that the FBI left important details out of its warrant request as it sought a wiretap to get more information about Page’s communications with Russian officials to determine whether Trump’s presidential campaign had been somehow been compromised. In short, there are many rules to get permission to use FISC warrants to secretly snoop on Americans on American soil, and each of the 17 problems Inspector General Michael Horowitz found with the warrants represents a breakdown in the system at several points.

“When it is the FBI that seeks to conduct … surveillance, the Federal officer who makes the application is an FBI agent, who swears to the facts in the application,” the report notes. “The FISC judge makes the required probably cause determination ‘on the basis of the facts submitted by the applicant.'”

In short, the FISC has to trust that the FBI is including all relevant information in its warrant request and is not leaving out any important details that might factor into the decision. That’s because FISC essentially serves as the only form of oversight over the FBI when it comes to secretly snooping on Americans. Its role is to make sure that the targeted Americans’ rights are protected and that wiretaps aren’t based solely on activities protected by the First Amendment (this is partly why the court was made) and to protect the Fourth Amendment rights of targets. The court depends on the “candor” (a term used several times in the order) of FBI officials in deciding whether to permit surveillance of Americans.

In Page’s case, the report says, “The FBI’s handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty of candor described above.”

The court is therefore ordering the federal government, by January 10, to provide a sworn written submission of what it has done and what it plans to do to make sure FBI warrant applications to FISC “accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application.”

The court is also ordering a declassification review of an order FISC put out on December 5 demanding more information about the FBI attorney who is accused of altering a document to conceal that Page had a previous relationship as a source with another federal agency regarding contacts with Russian officials. This would be very relevant to the court when considering a request to wiretap him over conversations with these very Russians.

Read the orders for yourself here.

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On the campaign trail, Democratic presidential hopefuls are promising huge tax increases—primarily targeting wealthy Americans—to pay for a host of new government spending.

Meanwhile, congressional Democrats are set to vote this week to restore a huge tax break that primarily benefits wealthy Americans—one that effectively shifts the federal tax burden onto middle- and lower-income earners.

That tax break is known as the State and Local Tax (SALT) deduction and it does exactly what the name would suggest. Taxpayers are allowed to deduct payments of state and local income and property taxes from their federal taxes. (In states with no income tax, taxpayers can deduct sales taxes instead.)

The 2017 federal tax reform capped that deduction at $10,000. That means taxpayers who pay more than that amount in state and local taxes cannot write off amounts over that threshold.

But the House is expected to vote this week on a Democratic proposal to lift the SALT cap to $20,000 for 2019 and then repeal the cap entirely for 2020 and 2021. After 2021, the $10,000 cap would again apply—although it is already scheduled to disappear after 2025, when several big elements of the 2017 tax reform will sunset. The bill proposes to offset the SALT deduction changes by raising the top income tax rate from 37 percent to 39.6 percent until 2025.

Democrats are trying to sell the repeal of the SALT caps as a middle-class tax break, but historical evidence shows that it almost exclusively benefits high-earning homeowners who live in parts of the country where you must pay high taxes.

“Jurisdictions with higher-income residents received more of a benefit than those with lower-income residents,” Nicole Kaeding, a vice president at the Tax Foundation, a nonpartisan tax policy center, explained to the House Ways and Means Committee at a hearing earlier this year. “In some ways, it allowed high-tax states and localities to export their tax liabilities to taxpayers in other states, particularly low-tax, low-income states.”

Prior to the 2017 tax reform, every dollar of additional local and state taxes translated into a net tax increase of only $0.60 to $0.90, depending on an individual’s federal marginal income tax rate.

Although the SALT deduction is frequently portrayed as being an issue that pits red states against blue states, Kaeding says that’s not really accurate. In reality, the deduction benefits “high-income taxpayers in high-tax jurisdictions,” she says.

In 2016, for example, the average SALT deduction in wealthy Westchester County, New York, was nearly $16,000, while the SALT deduction in relatively poor St. Lawrence County, New York, was only $2,000.

Restoring the SALT deduction would also add to the federal deficit, by perhaps as much as $500 billion, says Marc Goldwein, a senior vice president at the Committee for a Responsible Federal Budget, a nonprofit that advocates for balanced budgets.

“This is serious money,” Goldwein tells Reason. “This was perhaps the biggest pay-for in the Tax Cuts and Jobs Act, and so if you repeal the SALT cap, the Tax Cuts and Jobs Act would result in even larger revenue losses and—sort of ironically, I think—even larger tax cuts to the very highest earners.”

Reducing Americans’ tax obligations is always welcome, of course, but the plan to lift and repeal the SALT deduction cap is still questionable policy at best—a proposal that shifts the tax burden to middle- and lower-class Americans and adds to the budget deficit.

Politically, this week’s House vote is potentially both a messaging and policy problem for Democrats.

Leading progressive presidential contenders like Sen. Elizabeth Warren (D–Mass.) are promising to hike taxes on the wealthy by as much as $26 trillion. Even perceived centrist candidates like former Vice President Joe Biden have outlined plans to shift the tax burden toward higher earners.

True, the mechanisms they would use differ from the tax policies included in the SALT bill before the House. But there is an obvious tension between a guiding principle that says the rich must pay a higher share of the overall tax burden and support for specific legislation that would reduce the taxes paid by the rich. On that point, Democrats seem confused right now.

The obvious answer is that this tax break overwhelmingly benefits residents of Democratic districts. An analysis by the Urban-Brookings Tax Policy Center found that 19 of the top 20 districts, ranked by the percentage of households claiming a SALT deduction in 2016, are represented by Democrats in Congress.

Passing this bill, then, is an indicator that Democrats know perfectly well that their own constituents like paying less in taxes, regardless of the campaign rhetoric.

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As this decade began, U.S. armed forces were in year nine of their occupation of Afghanistan. A fresh surge of new U.S. military personnel was sent in by then-President Barack Obama that raised troop levels there to just below 100,000 by August 2010. The estimated expense of the occupation for 2010 was $94 billion, with a cumulative total through the end of that year of $338 billion.

Obama had promised he’d start to reverse his troop surge by July 2011, and it seemed just barely possible that the Nobel Peace Prize winner might actually end a U.S. war in the 2010s.

Instead, not counting 2010, this decade has seen its own cumulative cost of our Afghanistan adventure come in at $690 billion. In 2019, civilian casualties in that tortured nation hit all-time quarterly highs.

The Washington Post this month debuted a series of articles based on piles of documents they obtained via research from the Office of the Special Inspector General for Afghanistan Reconstruction (SIGAR). Readers of Reason should not be surprised to learn there was no more winnable military mission once the Taliban government we wanted to punish for sheltering Al Qaeda had been knocked out, which happened within months of the invasion; that our aid did more to line the pockets of corrupt officials and inefficient contractors than it did to meaningfully rebuild a nation; and that official pronouncements regularly oversold progress toward our goals—whether in military strategy, drug eradication, or nation building. We have been writing about those issues since 2010 and 2012.

Although Donald Trump, before becoming president, had regularly said the war was a “big waste” and that we should “come home” immediately, we now have more troops in Afghanistan than there were when he took office. His first full year running U.S. foreign policy saw a record number of bombs dropped on Afghanistan. (One positive difference is he has been willing to directly negotiate with the Taliban, a likely necessary step that was off the table as the decade began.)

Across the globe in the 2010s, under Obama and under Trump, U.S. foreign policy continued to be wastefully aimed at our unquestionable (and insanely expensive) primacy, our dominance of arms sales—sometimes on both sides of conflicts—that enable destruction, and our refusal to learn from mistakes.

Overall annual military spending, for example, has seen another 22 percent increase since 2016, from $611 billion to $750 billion in 2019. Average annual military spending from 2009 to 2016, inflation-adjusted, tended around 17 percent higher than in 2001–2008.

Also in 2010, U.S. forces were in year seven of the Iraq occupation, but a big pullback was beginning: At the start of the year there were 114,000 troops. By year’s end there were less than half that: 48,000.

As the Congressional Research Service reported in May, “In late 2017, the DOD [Department of Defense] stopped reporting the number of U.S. military personnel deployed in support of operations in Afghanistan, Iraq, and Syria as part of its quarterly manpower reports and in other official releases. These data remain withheld.” However, educated media estimates indicate that as the decade winds down, there are 6,000 troops still left in Iraq, and 12,000-13,000 in Afghanistan.

In addition, U.S. forces or materiel were, both as the decade began and as it ends, occupying around 800 bases in 70 countries in pursuit of a foreign policy goal of U.S. primacy, a goal from which our foreign policy establishment has not shifted despite the glaring failures and grim aftereffects of our Middle East interventions, and despite all the allegations that President Donald Trump, commander in chief for the decade’s last third, had a less interventionist foreign policy vision.

Despite Obama’s drawdowns in the Middle East, he still had nearly 200,000 active duty U.S. military personnel stationed overseas as his administration ended. The Trump administration’s most recent figure, minus the secret Syria, Iraq, and Afghanistan figures, is 174,000. Adding back in best estimates for those hotspots, America’s numerical overseas commitments are pretty much equal from decade end to beginning.

Similarly, and despite Trump’s grumbling about cheapskate allies from NATO and elsewhere not holding up their end of our “manage the planet” bargain, our military alliance structure has remained intact as the decade went on, from Asia (where our mutual defense pacts are still in full force and our troop levels remain high) to NATO (where troop deployments and exercises continue to increase, and the U.S. is planning new bases) to Latin America (where Trump’s administration toyed with invasion to get our way in Venezuelan domestic politics).

The decade also saw some fresh disasters when it came to our interventionist instincts. In 2011, Obama led a campaign in Libya that killed its dictator while leaving chaos, terror, and instability in its wake. Our absurd dedication to our “alliance” with Saudi Arabia made us complicit in its ongoing—and massively destructive—attacks in Yemen. That effort, begun under Obama, has killed or displaced hundreds of thousands of people while leaving millions at risk of starvation. Trump, despite his grumblings about pointless overseas alliances and interventions, is so dedicated to continuing it that he vetoed an attempt to get him to stop, with nothing whatsoever in terms of U.S. interests for this supposed “America First” president except pleasing the butchers who run our “ally” Saudi Arabia.

Syria also became a new site of active U.S. military efforts this decade, beginning with Obama in 2013 and continuing under Trump, despite some confusing shuffling earlier this year that allowed our NATO ally Turkey to pound and displace their Kurdish foes (and our former allies) but left most our troops still elsewhere in the country or the Middle East as a possible tripwire for future conflict.

Trump’s general approach to the Middle East—far from the “America First” reluctance for intervention some of his fans continue to believe in—is summed up well in John Glaser, Christopher A. Prebel, and A. Trevor Thrall’s book Fuel to the Fire:

He has maintained an extensive infrastructure of forward-deployed U.S. military assets throughout the region. In his first year as president, he increased the number of U.S. troops in the theater by more than 30 percent; almost 60,000 were deployed there as of De­cember 2018. Overall, the use of force in the region increased massively as Trump loosened the rules of engagement and intensified ongoing bombing campaigns across multiple countries. In 2017, the number of coalition airstrikes against the Islamic State in Iraq and Syria rose by nearly 50 percent compared with the previous year, while civilian deaths rose by an estimated 215 percent. The use of drone strikes has also in­creased markedly

Trump’s occasional willingness to buck foreign policy convention has been mostly bad. He backed out of both the Iran nuclear deal and the Intermediate-Range Nuclear Forces Treaty, both moves that make the world more, not less, bellicose and at risk of destructive wars. (Trump does, though, deserve credit for not letting the June Iranian shoot down of a U.S. drone escalate further.)

Military pundits complain about certain overarching changes that have sped up this decade, such as a shift in control over foreign policy from the State Department to the Pentagon (and the CIA). Some complain that no matter which agency is ostensibly in charge, our continued focus on giant ships, fancy planes, and masses of bodies ignores that the future of military conflict is (and should be) all about special forces able to move quickly, and a world where drug lords and billionaires will wage war as much as nations do.

But whether it was Obama or Trump in charge, the 2010s have been a decade of spending money we don’t have and wasting lives pursuing goals we can’t win. More business as usual for the U.S. foreign policy machine, across administrations and decades.

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Did you know that residents of Montgomery County, Maryland, are legally required to register their bicycles? Neither did Steve Silverman, who last June received a criminal citation for violating that requirement. In a video about that experience, Silverman, founder of Flex Your Rights, presents it as an example of how “police use ill-conceived laws to punish people who assert their rights.” While Silverman’s brush with the law was relatively mild as these things go, it does illustrate the problems posed by the myriad excuses that legislators give police for hassling people they deem insufficiently respectful.

Officer Christopher Brown of the Montgomery County Police Department initially pulled Silverman over for running a stop sign while riding his bike in what he describes as “a quiet residential neighborhood.” In the police body camera video of the encounter, Silverman suggests that Brown stopped him because he had seen Silverman provide “educational information” to a young man who had just been detained, questioned, and released by Brown and Cpl. Jason Halko. That suggestion evidently irks Brown, who later asks, “Do you just try to intimidate me because you don’t want me to give you a ticket, or why?”

Silverman declines to show identification but supplies his name, address, and date of birth. He takes out his smartphone to record the encounter, which leads to this exchange with Halko:

Silverman: I’m also recording the duration of this encounter, officers.

Halko: You don’t have a right to record when you’re stopped and detained for a violation.

Silverman: I disagree. It’s a First Amendment right to record.

Halko: Oh, all right.

Having lost that argument, a sheepish and possibly embarrassed Halko leans into Brown’s car and reports that “I don’t see a registration sticker on his bicycle.” After Halko confirms that Silverman does not have the requisite sticker, Brown radios for a van to pick up the bike. That’s right: The same county ordinance that requires registration of bicycles also says police “may impound any unregistered bicycle until the bicycle is properly registered.” Although Halko ultimately dissuaded Brown from taking Silverman’s bike, the officers still left him with two criminal citations requiring him to appear in court, one for the stop sign violation and one for the unregistered bicycle.

Silverman says he was not aware of the bicycle registration requirement until that day. “I was dumbfounded when they wrote me a ticket for it,” he writes in an email. “Afterward, when I learned that it was a criminal summons, I was double-dumbfounded. The registration law is written as a Class C civil violation (i.e., a non-crime). But under Maryland law, the police may write up any class A, B, or C violation as a misdemeanor crime, as they did in my case.” If charged as a misdemeanor, a Class C violation is punishable by a $50 fine and up to 10 days in jail if the fine is not paid.

When the November 12 court date rolled around, Silverman and his lawyer showed up, but neither Brown nor Halko did. “When my attorney described the charges, the judge just shook her head in disbelief,” Silverman says in his video, “and the prosecutor kind of chuckled as he dropped the charges.”

Silverman notes that “I was very fortunate because I could afford to hire a great attorney,” and “I didn’t need to find child care or risk losing my job to make that court date,” which is not the case for many other defendants. He urges legislators to “stop passing laws that give police the power to stop and arrest people, because police will inevitably find creative ways to use those laws to harm people in ways you did not intend.” And if legislators find that “police are misusing, for example, mandatory bicycle registration laws,” he says, they should “repeal those damn laws.”

A couple of legislators already have heeded Silverman’s recommendation. Last week, David Moon, a Democrat who represents Silverman’s district in the Maryland House of Delegates, posted a link to his video on Facebook, along with the text of the bicycle registration law, urging the Montgomery County Council to “repeal this nonsense.” Council Member Tom Hucker (D–District 5) says he wants to re-examine the law. According to a 2016 Citylab report, “Only a handful of mainland North American cities currently have mandatory bicycle registration laws.”

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Central planning might have suffered a reversal with the fall of the Berlin Wall, but it’s having a comeback in the increasingly popular idea that commuters should be prohibited from walking on escalators at subway stations.

Last week Destination DC, Washington’s nonprofit tourism promotion board, released an ad encouraging Washington Metropolitan Area Transit Authority—a.k.a. Metro—riders to be “escaleftors,” or people who stand on the left side of the escalator rather than follow the established convention of leaving that side for walkers.

Live a little (like a tourist). Be an Escaleftor. #StayLocalDC https://t.co/YDXUevVTRf pic.twitter.com/2YopT1og39

— washingtondc (@washingtondc) December 10, 2019

The lighthearted idea behind the ad was to encourage hurried D.C. residents to take the time to enjoy the city like a tourist. It nevertheless provoked a storm of controversy from angry riders.

The Washington Post, DCist, Patch, and local TV news were all full of stories of commuters incensed at the idea that standing on the left would actually be encouraged. Others took to social media to vent their rage.

No, it is NOT OKAY to stand on the left side of DC Metro escalators. After all the mayhem that #DCmetro riders have endured the past few days, they don't need tourism agencies thwarting their efforts to get to work. #WMATA already makes it hard enough. https://t.co/75XAgU0rES

— Gayle Cinquegrani (@GayleCinquegran) December 11, 2019

Though the reaction of riders was uniformly negative, the media coverage has had the unfortunate side effect of signal-boosting the idea that standing-only escalators would actually be more efficient, resulting in better functioning transit for everyone.

Both DCist and the Post mention in their coverage an article from Lesley Strawderman, a systems engineering professor at Mississippi State University, who makes the technical case for standing on the left.

“Someone standing needs, on average, a little over three square feet of space, whereas a walking pedestrian needs more than eight square feet,” wrote Strawderman for Quartz back in March. “That means a constrained space such as an escalator can comfortably hold more than twice the number of standing pedestrians as walking pedestrians.”

By forcing everyone to stand, says Strawderman, we would reduce the space each individual person needs, increasing the number of people who can stand on the escalator at once, and speeding up the rate at which the machines can carry commuters in and out of stations.

Strawderman cites as proof of concept an experiment conducted on the London Underground (a.k.a. the Tube).

There, transit planners made the escalators at a typically congested station standing-only. The change boosted the number of people moved by an escalator in an hour by 27 percent. A follow-up experiment at the same station produced similar results.

In a separate study, researchers at Capgemini Consulting, a London firm, timed themselves traveling on Tube escalators, and then input that data into a simulation. They found that when 40 percent of people walked, it took standers 138 seconds, and walkers 46 seconds, to get up the escalator. Standing-only escalators got everyone up in 59 seconds, reported the New York Times. 

The gains in average speed, argue standing-only advocates, necessitates that we get rid of selfish walking on escalators.

“Allowing people to walk up the left does allow some individuals to move faster,” writes Strawderman, but “walkers’ varied speeds relative to the rest of the traffic hinders overall efficiency. To improve the overall system, the system-level efficiency is what should be considered.”

Slate had a similarly egalitarian take when covering the London experiment in 2016, writing that “The [standing-only] approach asks people to do something they are often bad at: delaying instant gratification in the interest of a greater good.”

The problem with this argument is the problem with all arguments that put the interests of central planners, focused on system-wide averages and aggregates, above the interests and decisions of the people who actually inhabit these systems.

Allowing walking on the escalators gives commuters a choice: clamber up the escalator as quickly as possible, or take the less strenuous option of just standing. People who choose to walk are saving their time, people who choose to stand are saving their energy. Both groups are making a trade-off based on what matters more to them.

People who want to make everyone stand are ignoring this. Instead, they are slowing down the people who value their time the most while speeding up escalator trips for those who are willing to trade away time for comfort.

The costs of standing-only escalators are thus borne by people who will really feel it, while the benefits accrue to people who don’t really want them.

Getting rid of walking might be more “efficient” in that escalators are moving more people per hour, but they are not more efficient in terms of serving the interests of the individuals riding those escalators.

This is why attempts to get rid of walking produce such angry, visceral reactions from riders. The Guardian recorded some of commuters’ reactions to London’s “successful” experiment:

“This is a charter for the lame and lazy!” said one. “I know how to use a bloody escalator!” said another. The pilot was “terrible,” “loopy,” “crap,” “ridiculous,” and a “very bad idea”; in a one-hour session, 18 people called it “stupid.” A customer who was asked to stand still replied by giving the member of staff in question the finger. One man, determined to stride to the top come what may, pushed a child to one side. “Can’t you let us walk if we want to?” asked another. “This isn’t Russia!”

There’s wisdom in the insults these Londoners were hurling; they knew they were getting a raw deal from the transit planners experimenting on them, and they weren’t afraid to say so.

Separate walking and standing lanes on escalators is a norm that should be cherished and protected wherever it exists, regardless of what greater good-maximizing, standing-only advocates might say.

(This is, of course, all a moot point in D.C., where none of the Metro escalators work.)

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