Tag: hit&run

If you tax something, you generally get less of it. That logic undergirds a San Francisco ballot measure that would tax vacant storefronts in hopes of filling them with thriving retail businesses.

Supporters of the idea argue that the city is facing an epidemic of unused commercial space, caused in part by speculating landlords keeping empty units in the hopes of securing higher-paying tenants. Taxing vacant properties would encourage these landlords to get off the sidelines and give business tenants a chance, the thinking goes.

A vacancy tax would encourage “bad actor landlords to get off their duffs” and lease out their properties, said Aaron Peskin, a member of the city’s Board of Supervisors and the author of the proposed vacancy tax, according to the San Francisco Examiner.

Peskin has been pushing versions of the vacancy tax since January. In late November, the Board of Supervisors voted unanimously to place it on the March 2020 ballot.

If approved by voters, it would go into effect January 2021.

The tax would apply to the non-residential properties in the city’s neighborhood commercial districts that remain vacant for over 182 non-consecutive days in a given year.

The tax rate would start out at $250 per linear foot of storefront that’s vacant in 2021, rising to $500 for properties that are vacant in that year and the next, and maxing out at $1,000 per linear foot for storefronts that are vacant for three years in a row.

The tax will bring in very little money. The city’s controller estimated it would generate at most $5 million, and that was when the proposed tax rate was a flat $1,000 per linear foot for all vacant storefronts.

This is of little concern to Peskin, who told the San Francisco Chronicle back in January that the idea of slapping fees on vacant storefronts is not “meant to be a revenue generator. It’s meant to be a behavior changer.”

To avoid penalizing landlords or lessees for circumstances outside their control, Peskin’s legislation includes exemptions for buildings that are empty as a result of construction or due to damage by natural disasters or fires. There is also a one-year exemption for empty stores that are waiting on building permits from the city.

That the latter carveout is necessary should suggest that there’s more to San Francisco’s vacancy rate than landlords refusing to rent out their space. The amount of time businesses spend waiting for city permits, not to mention the number of permits businesses need to get, is a significant factor in why so many storefronts in the city are empty.

That was the case made by Hans Hansson, a managing principal of Starboard Commercial Real Estate, in an April opinion piece for the San Francisco Business Times.

“The majority of the building owners, and certainly retail brokers like myself, all are aggressively trying to fill these vacant spaces,” wrote Hansson. “In almost all cases, the rent is not the stumbling block; it’s the high cost of starting the business, strict government regulations, and the risk of ultimate success.”

Hansson points to city regulations and, in particular, zoning laws that require additional approvals for chain businesses with over 12 locations from setting up shop in parts of the city, as making retail space harder to lease out.

These same factors were cited in a 2018 “State of the Retail Sector” report prepared for the city government, which called out the time it took to secure permits from city agencies as a strain on the retail sector, writing that “brokers, developers, and business assistance providers cited examples of permitting processes that took six to nine months, sometimes resulting in the applicant going bankrupt before they could open.”

The process can take even longer if NIMBY (“not in my backyard”) neighbors ask the city’s Planning Commission to use their discretionary powers to review permit applications, which can stretch things out for months. The commission also has the power to deny permits, even if they comply with all city regulations.

In one recent case covered by Reason, a falafel business trying to set up shop in a vacant storefront in the city’s Castro District was prevented from opening for months by a discretionary review initiated by a competing restaurant.

That report also pointed to the specificity of San Francisco’s zoning code as reducing the flexibility of retail businesses to adapt to changing economic circumstances, say by co-locating multiple businesses in a single location, or adding food and drink service to attract customers otherwise lost to online shopping.

In another story covered by Reason, one business owner spent over 18 months trying to get city permission to convert an arcade repair shop he owned into a simple arcade that serves food and drink.

In addition to all the ways the planning process stymies business formation, there’s also the city’s high minimum wage, paid sick and parental leave laws, and other labor regulations that, whatever their merit, raise the costs for retail business owners operating on slim margins.

Rather than trying to combat retail vacancy rates by rolling back some of the red tape that makes starting a business difficult, San Francisco politicians are doubling down on their tax-and-regulate approach.

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Earlier today, House Democrats released two draft articles of impeachment against President Donald Trump: abuse of power and obstruction of Congress. In September, I wrote two posts explaining why, if Trump withheld congressionally appropriated military aid from Ukraine in order to pressure the Ukrainian president into investigating supposed misdeeds by Joe Biden and his son Hunter, he usurped Congress’ power over federal spending, and also likely committed a federal crime in the process (see here and here).

This theory is compatible with the first article of impeachment released today, and evidence that has accumulated over the last several months makes it clear that Trump did indeed usurp Congress’ power in this way. Usurpation of congressional authority is not the only abuse of power involved in Trump’s actions. But focusing on it effectively dispenses with a number of standard objections to this impeachment process, such as claims that advocates have failed to specify any law the president violated, or that they rely too much on his subjective motives.

I. Trump’s Usurpation of the Spending Power.

Today’s articles of impeachment do not directly reference the spending power. But the first article does indicate that Trump “solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election” and “sought to pressure the Government of Ukraine to take these steps by conditioning official United States Government acts of significant value to Ukraine on its public announcement of the investigations.” One of those “acts of significant value” that Trump tried to use as leverage was “the release of $391 million of United States taxpayer funds that Congress had appropriated on a bipartisan basis for the purpose of providing vital military and security assistance to Ukraine to oppose Russian aggression and which President Trump had ordered suspended.” The article goes on to claim that this suspension (and other acts committed by Trump) demonstrate that his conduct is “a threat to national security and the Constitution.”

Members of the House voting on the articles can surely consider usurpation of the spending power to be part of the “threat to the Constitution” arising from Trump’s conduct. The same goes for members of the Senate deciding whether to convict Trump in a trial before that body (assuming, as is likely, that the House votes to impeach).

How did the threat to withhold military aid violate the Constitution? I summarized my reasoning here:

If there is one thing that constitutional law scholars agree on, it is that the spending power is supposed to be controlled by Congress, not the president. Even most of those who otherwise favor very broad presidential power concur…..

If Trump tried to use aid money allocated by Congress to pressure the Ukrainian government into investigating one of his major political rivals, that would be a blatant effort to use federal funds for purposes that were never authorized by Congress. The legislative branch does often give the executive the power to withhold foreign aid money until various conditions are met—such as assisting US foreign policy goals, combating corruption, or promoting development. There is a longstanding debate over how much discretion the Constitution allows Congress to delegate to the president on such matters. But, in this case, Congress never even came close to authorizing the president to use the aid money as leverage to force a foreign government to try to dig up dirt on the president’s own political opponents and their family members.

If the president can threaten to withhold funds authorized by Congress until the intended beneficiaries do him some personal or political favor, he would have acquired a very dangerous power indeed. He would thereby gain enormous new leverage over a wide variety of public and private organizations, both foreign and domestic. It isn’t hard to see how such power can easily be abused in a variety of ways.

Even if you believe there is good reason to investigate Joe Biden and his son’s dealings in Ukraine (which is not clear), the proper way to do so is to use law enforcement funds properly allocated for such purposes, not use foreign aid money as leverage to get a foreign government to do it for you. You cannot investigate the possible corruption of others by engaging in corrupt self-dealing yourself.

Even back in September, when I wrote the above, there was already extensive evidence showing that Trump did in fact withhold aid for the purpose of pressuring Ukraine into investigating the Bidens. That evidence has been reinforced by the testimony of numerous Trump administration officials who appeared before the House Intelligence Committee. It is striking that all of them had much the same understanding of the reasons why aid was withheld.

These officials’ testimony cannot easily be dismissed as that of left-wingers or committed “Never Trumpers.” If they had been such, it is unlikely they would have been entrusted with high policy positions in the Trump administration.

Some of the most damning testimony on this point came from Gordon Sondland, the Trump-appointed US Ambassador to the European Union, who testified that he had specifically informed Ukrainian officials that the aid would be released only if they pursued the investigations the president wanted. Far from being hostile to Trump, Sondland is actually a big enough supporter of the president that he contributed some $1 million to Trump’s inauguration. As the House Intelligence Committee report points out, Sondland “testified that he developed a clear understanding that the military aid was also conditioned on the investigations, that it was as simple as 2+2=4.”

At times, defenders of Trump have argued that the aid was really withheld for purposes of pushing the Ukrainian government to combat corruption more generally. But that story is undercut by  the fact that the Trump administration had previously certified that Ukraine had taken sufficient steps to combat corruption to qualify for the aid.

Trump’s usurpation of the spending power not only violated the Constitution, but also federal criminal law:

[A] quid pro quo scheme like the one Trump apparently engaged in does qualify as a federal crime. Specifically, it would be a violation of 18 USC Section 601, which criminalizes “knowingly caus[ing] or attempt[ing] to cause any person to make a contribution of a thing of value (including services) for the benefit of any candidate or any political party, by means of the denial or deprivation, or the threat of the denial or deprivation, of…. any payment or benefit of a program of the United States,… if such employment, position, work, compensation, payment, or benefit is provided for or made possible in whole or in part by an Act of Congress.” Violators are subject to a fine, a prison sentence of up to one year, or both.

Section 601 pretty clearly covers this quid pro quo scheme. The aid money is a “payment or benefit of a program of the United States,” one that is “made possible… by an act of Congress” (which appropriated the money). An investigation of the president’s most likely Democratic opponent in the 2020 general election is obviously a “thing of value (including services)” that benefits a candidate or a political party; in this case, Trump and the GOP. At the time Trump made the call, Biden was the leading contender for the Democratic nomination, even though Elizabeth Warren may have caught up to him since then. And, if Trump made the quid pro quo threat at all, he surely did so knowingly and with full awareness of the potential political advantages. Finally, Section 601 criminalizes attempted use of funds as leverage to gain political support, not just successful efforts to do so. Even if Trump’s pressure tactics failed to achieve their goals, he still violated 601.

II. Answering Standard Objections to Impeachment.

Usurpation of the spending power is not the only abuse of power justifying impeachment in this case. But this does have the virtue of negating two standard criticisms of impeachment advanced by my co-blogger Josh Blackman, among others: that advocates cannot specify any laws Trump violated, and that they rely too much on debatable interpretations of his motives.

The law Trump violated is the Constitution. And the violation is a serious one, because it undermines one of Congress’ most important powers and—if allowed to become a precedent for the future—creates a dangerous concentration of power in the hands of one person. Moreover, the effort is part of a broader pattern of usurpation of congressional spending power by Trump. That is evident in the many cases in which both Republican and Democratic-appointed judges have struck down the president’s attempts to impose conditions on federal grants to states and localities, that were never authorized by Congress. The same pattern recurs in the litigation over Trump’s attempts to divert funds to build his border wall, despite Congress’ repeated refusal to allocate funding for that purpose. And there are plenty more examples of Trump playing fast and loose with the spending power. This pattern reinforces the point that Trump;s conduct poses a more general threat to the separation of powers, and strengthens the case for ending it by removing him from office.

In the process of violating the Constitution,  Trump also committed a criminal offense by violating 18 USC Section 601.

The spending power issue also does not depend on any potentially tendentious interpretations of Trump’s motives. Even if he genuinely believed that pressuring Ukraine to investigate the Bidens was in the public interest, and  was not motivated by any potential benefit to himself, Trump still usurped the spending power by trying to use federal funds for purposes not authorized by Congress.

Similarly, in this scenario he still violated Section 601, which requires only that he “knowingly” tried to use the funds in question as leverage to “cause or attempt to cause any person to make a contribution of a thing of value (including services) for the benefit of any candidate or any political party.” Trump need only have known that the “benefit” to himself as a candidate existed (an obvious fact he could hardly have missed). There is no requirement that the creation of such a benefit was his motive for using the funds as leverage.

For reasons well-explained by co-blogger Keith Whittington  and prominent conservative legal scholar Michael Stokes Paulsen, among others, impeachment can be justified even in cases of abuse of power where no specific law has been violated. I also agree with Orin Kerr’s thoughtful explanation of why consideration of presidential motives is sometimes a legitimate basis for impeachment, even if the conduct in question might otherwise be defensible. But to the extent some nonetheless do believe that violations of a specific law are essential and do worry about potentially excessive scrutiny of motivations, the spending power theory avoids both problems.

III. The “Everybody Does it” Defense.

Finally, some defenders of the president argue that it’s wrong to impeach Trump for using aid withholding as leverage because presidents do similar things all the time, and then Vice President Joe Biden did the same thing when he used aid withholding as leverage to get Ukraine. Even if these “everybody does it” and “Biden did it” arguments were factually accurate, they do nothing to justify Trump. If such violations of the Constitution are in fact common, that makes it all the more imperative to start curbing them by holding presidents accountable for such usurpations. To put it in Trumpist terms, this theory suggests that the swamp is really deep, and therefore we must take especially aggressive measures to start draining it! If presidents are routinely getting away with violations of the Constitution, there’s no better way to put a stop to such behavior than by removing one from office in disgrace,

As already noted above, presidents do in fact often use as aid as leverage. In most cases, however, it is for purposes authorized by Congress, which often delegates relatively broad discretion to the president in this respect. There is a longstanding debate about how broad such discretion can be. But what is unusual in this case is that Trump tried to use aid as leverage for purpose that wasn’t even remotely authorized by the legislative branch.

That’s a sharp contrast with both general standard practice in the past, and what Joe Biden did in 2015, when he used the threat of withholding $1 billion in loan guarantees in order to pressure Ukraine into removing Prosecutor General Viktor Shokin. Shokin was forced out because he was widely perceived to be soft on corruption.  Removing him out was not an idiosyncratic project of Biden’s. It had bipartisan support within the US government and was also backed our NATO allies, the International Monetary Fund, and others. This is why Biden’s role in the removal was not attacked by the GOP-controlled Congress at the time. The Republicans surely would not have missed the opportunity to  score political points if removing Shokin was just a corrupt bargain for the benefit of Biden.

Moreover, the use of aid money for combating corruption in Ukraine was specifically authorized by Congress. The aid in question was authorized by a 2014 law that specifically indicated that the money was to be used “as a means to address endemic corruption” in Ukraine (among other purposes). As discussed above, Trump’s aid withholding had no similar justification, because his own administration had certified that Ukraine had met all corruption-related requirements for receiving the funds in question.

This is not to say that everything Biden did was proper. Given that Shokin previously investigated Burisma—the firm on which Hunter Biden was a member of the board—Biden likely had a conflict of interest and should have left the issue to other administration officials. But Biden’s actions did not usurp Congressional authority, and they did not violate any laws.

It is legitimate to argue that more needs to be done to eliminate conflicts of interest by high executive branch officials. But, if so, Trump’s massive conflicts of interest arising from his failure to divest himself of his large-scale international business empire—are a far graver sin than anything Biden did in Ukraine. Trump has also appointed his son-in-law, Jared Kushner, to important roles involving foreign policy towards the Middle East, despite the fact that Kushner has major business interests in the region. Kushner’s glaring conflicts of interest make the Hunter Biden/Burisma situation seem like small potatoes by comparison. Here, as elsewhere, the bad behavior of previous administrations doesn’t justify that of  the current one—and vice versa.

 

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Add Disney’s Tarzan to the list of theater productions no longer tolerated on a school campus.

Alexander Hamilton High School in Elmsford, New York, had planned to stage a musical based on the Disney version of Tarzan. But the production was canceled just before auditions due to concerns from some parents.

According to The Washington Post:

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Less than an hour after announcing two articles of impeachment aimed at ending President Donald Trump’s tenure, Speaker of the House Nancy Pelosi (D–Calif.) announced a handshake deal with the Trump administration to pass a new North American free trade deal.

There is still no clear timetable for a congressional vote on the new United States-Mexico-Canada Agreement (USMCA), and details regarding specific changes to the deal made to appease House Democrats remain sketchy for now, but Monday’s announcement is a big turning point after a monthslong standoff. U.S. Trade Representative Robert Lighthizer is heading to Mexico City to meet with top trade officials from Canada and Mexico to sign (rather, re-sign) the amended agreement, which will then be presented to Congress.

Even if some specifics remain unknown—new environmental and labor standards put into the USMCA at Pelosi’s insistence are likely the most important pieces yet to be detailed in full—there’s enough information about the USMCA to draw some sweeping conclusions, in true Trumpian fashion, about the winners and losers.

Winner: A lot of the politicians involved

Tuesday’s announcement was mostly about politics, not policy.

This is an obvious win for Trump, of course, who entered office with a promise to renegotiate the North American Free Trade Agreement (NAFTA)—the 1994 deal that Trump routinely castigates as the worst deal in U.S. history. In the end, the USMCA looks a lot like NAFTA, but Trump will get to take victory laps at his 2020 campaign rallies for delivering on his promise to rename kill NAFTA.

It’s a win for Democrats too. Though some might be surprised that Pelosi announced this deal with the White House on the same day that the House of Representatives outlined plans to officially charge Trump with abuse of power and obstruction of Congress, it actually makes a lot of sense. She’s sending the message that Democrats aren’t obsessed with impeachment—as some on the right have claimed—and that Congress will continue to do other important legislative work even as the impeachment process continues.

Loser: Free trade

On the whole, the USMCA is an agreement that will increase barriers to trade across North American borders and will impose more managed trade. All trade deals are a form of managed trade, of course, but relative to the standards set by NAFTA, the USMCA seems like a step backward.

The main way the USMCA reduces free trade is in the so-called “rules of origin” that will apply to cars built in North America. In order to cross borders tariff-free, 75 percent of the value of materials within a car or truck will have to be produced in North America. Additionally, 40 percent of the steel used in auto production will have to come from U.S. steel plants. The deal also gives the U.S. government the ability to impose quotas on imported cars from Canada and Mexico. That combination of protectionism and increased federal power over the decisions of private businesses is a major black mark against the deal.

Winner: The AFL-CIO

Take a step back and appreciate how deeply weird it is that the AFL-CIO has endorsed the rewritten USMCA. Labor unions never support trade deals. Ever. The AFL-CIO opposed both NAFTA and the Trans-Pacific Partnership (TPP), the ill-fated 12-nation deal the Obama administration tried to strike—and both of those agreements were the product of Democratic administrations.

The AFL-CIO appears to have had a significant hand in making last-minute changes to the bill, as Pelosi on Tuesday specifically (and repeatedly) thanked Richard Trumka, the union federation’s president, or his input. The final version of the deal will allow stricter enforcement of labor standards in Mexico, “including a process that allows for the inspections of factories and facilities that are not living up to their obligations,” the AFL-CIO said in a statement.

Loser: Manufacturers operating in Mexico (and maybe here, too)

The intended consequence of several components of the USMCA is to encourage businesses to shift production from Mexico into the United States. That’s why the Trump administration has pushed for the heightened rules of origin requirements and new rules that effectively hike the minimum wage to $16 per hour in Mexican auto plants. More accurately, they are intended to make Mexico a less attractive option for manufacturing by imposing higher costs on businesses that manufacture goods in Mexico and setting up additional barriers to bringing those goods into the United States.

But the unintended consequence of those new rules might be a reduction in manufacturing across all of North America. When it comes to cars, for example, companies might find it cheaper to simply pay the 2.5 percent import tax rather than comply with the new standards to be able to trade duty-free. “You start thinking very carefully about whether it makes sense to do all your production in Asia, or in Latin America, or outside the region,” says Dan Ikenson, director of trade policy studies at the Cato Institute, a libertarian think tank.

Winner: America’s reputation

A breakthrough in securing passage of the USMCA through Congress means stability in North America, where Trump’s election threw open the possibility of tearing up NAFTA. That would have been a disaster, since the mere existence of NAFTA boosts the U.S. economy by about 0.5 percent per year.

It also makes the next trade deal easier. “The best argument for the agreement remains that its failure will further erode U.S. credibility as a trading partner,” says Clark Packard, trade counsel for the R Street Institute, a free market think tank. “If USMCA fails, that would make two agreements in a row that failed to be passed by Congress [after the TPP]. Why would other countries want to engage in trade talks with a party who has proven itself incapable of passing agreements that are negotiated?”

Loser: Congress’s anti-tech crusaders

A bipartisan group of lawmakers had pushed Pelosi to revoke a part of the USMCA meant to protect online free speech across national borders. As Reason has previously reported, those members of Congress were worried that enshrining liability protections for online platforms into trade deals would make it more difficult to strip away those same protections domestically.

Thankfully, that didn’t happen. Asked about it at Tuesday’s press conference, Pelosi said she did not want to add more issues to the negotiations, which were already bogged down by debates over labor standards, environmental rules, and enforcement mechanisms. That’s certainly not going to put an end to Congress’ misguided effort to strip away online free speech protections, but it’s a small victory for liberalism in the midst of a larger fight.

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Last Thursday, a divided panel on the U.S. Court of Appeals for the Ninth Circuit stayed two preliminary injunctions that had been issued against the Trump Administration’s effort to redefine the term “public charge” for purposes of immigration law. In City and County of San Francisco v. U.S. Citizenship and Immigration Services, the court concluded that the federal government was likely to prevail on the merits and that a stay was warranted. Whatever the policy merits of this change, the majority concluded, the federal government had adopted a permissible interpretation of the relevant statutory language, and adequately explained the basis for its interpretation.

Federal law provides that “[a]ny alien who, in the opinion of the [relevant government officials] is likely at any time to become a public charge is inadmissible.” Prior to the Trump Administration, the Immigration and Naturalization Service (INS) only considered the receipt of cash benefits in making this determination. Under the Trump Administration rule, government officials would have to consider the receipt of certain non-cash benefits as well, a decision which will have the effect of rendering a greater proportion of aliens inadmissible.

. . . Congress has not spoken directly to the interpretation of “public charge” in the INA. Nor did it unambiguously foreclose the interpretation articulated in the Final Rule. Instead, the phrase “public charge” is ambiguous under Chevron. DHS has the authority to interpret it and “must consider varying interpretations and the wisdom of its policy on a continuing basis.” Chevron, 467 U.S. at 863–64. Indeed, “the fact that the  agency has adopted different definitions in different contexts adds force to the argument that the definition itself is flexible, particularly since Congress has never indicated any disapproval of a flexible reading of the statute.” Id. at 864 . . .

DHS is likely to succeed in its argument that the Final Rule should not be set aside as contrary to law. We will not minimize the practical impact of the Final Rule, but we will observe that it is a short leap in logic for DHS to go from considering in-cash public assistance to considering both in-cash and in-kind public assistance. DHS has shown that there is a strong likelihood that its decision to consider the receipt of in-kind government assistance as part of its totality-of-the-circumstances test is a reasonable interpretation of the INA and does not violate the Rehabilitation Act.

In addition to authoring the majority opinion, Judge Bybee also wrote an opinion “concurring, perplexed and perturbed.” In it, he writes:

I join the majority opinion in full. I write separately to emphasize two points—points that I feel must be made, but are better said in a separate opinion.

We as a nation are engaged in titanic struggles over the future of immigration in the United States. These are difficult conversations. As a court, the Ninth Circuit in particular has felt the effects of the recent surge in immigration. As we observed last year with respect to the asylum problem:

We have experienced a staggering increase in asylum applications. Ten years ago we received about 5,000 applications for asylum. In fiscal year 2018 we received about 97,000—nearly a twenty-fold increase. Our obligation to process these applications in a timely manner, consistent with our statutes and regulations, is overburdened. The current backlog of asylum cases exceeds 200,000—about 26% of the immigration courts’ total backlog of nearly 800,000 removal cases. In the meantime, while applications are processed, thousands of applicants who had been detained by immigration authorities have been released into the United States.

E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 754 (9th Cir. 2018) (citations omitted). Because of our proximity to Mexico, Central America, and East Asia, the brunt of these cases will find their way into our court. And we are well aware that we are only seeing the matters that find their way into federal court, and that the burdens of the increase in immigration are borne not only by our judges, but by the men and women in the executive branch charged with enforcing the immigration laws.

Our court has faced an unprecedented increase in emergency petitions arising out of the administration’s efforts to administer the immigration laws and secure our borders. These controversial efforts have met with mixed success in our court and the Supreme Court. . . .

My first point is that even as we are embroiled in these controversies, no one should mistake our judgments for our policy preferences. Whether “the iron fist [or an extended velvet glove] would be the preferable policy. . . . our thoughts on the efficacy of the one approach versus the other are beside the point, since our business is not to judge the wisdom of the National Government’s policy.” Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 427 (2003); . . .

Oh, I am not so naive as to think that a simple declaration of judicial neutrality will quell inquiry into judges’ backgrounds, prior writings, and opinions. The battles over judicial nominations provide ample proof that our generation of lawyers bear a diverse set of assumptions about the nature of law, proper modes of constitutional interpretation, and the role of the judiciary. These are fair debates and they are likely to continue for some time. We can only hope that over time our differences can be resolved by reason and persuasion rather than by politics by other means. But I don’t know of any judge—at least not this judge—who can say that every opinion and judgment she issued was in accord with her preferred policy outcomes. “[I]n our private opinions, [we] need not concur in Congress’ policies to hold its enactments constitutional. Judicially we must tolerate what personally we may regard as a legislative mistake.” Harisiades v. Shaughnessy, 342 U.S. 580, 590 (1952).

My second point is less politic. In this case, we are called upon to review the merits of DHS’s Final Rule through the lens of the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 706. Our review is quite circumscribed. We can set aside agency action if it is contrary to law, if it exceeds the agency’s jurisdiction or authority, or if the agency failed to follow proper procedure. Id. § 706(2)(B)–(D). Those are largely legal judgments, which we can address through the traditional tools judges have long used. With respect to the policy behind the agency’s action, we are largely relegated to reviewing the action for arbitrariness and caprice. Id. § 706(2)(A). That is not a very rigorous standard and, as a result, an agency has broad discretion to administer the programs entrusted to it by Congress. Cf. Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 558 (1978) (“[F]undamental policy questions appropriately resolved in Congress . . . are not subject to reexamination in the federal courts under the guise of judicial review of agency action.”).

In the immigration context, whatever dialogue we have been having with the administration over its policies, we are a poor conversant. We are limited in what we can say and in our ability—even if anyone thought we were qualified to do so—to shape our immigration policies. We lack the tools of inquiry, investigation, and fact-finding that a responsible policymaker should have at its disposal. In sum, the APA is the meagerest of checks on the executive. We are not the proper foil to this or any other administration as it crafts our immigration policies.

By constitutional design, the branch that is qualified to establish immigration policy and check any excesses in the implementation of that policy is Congress. See U.S. CONST. Art. I, § 8, cl. 4. And, so far as we can tell from our modest perch in the Ninth Circuit, Congress is no place to be found in these debates. We have seen case after case come through our courts, serious and earnest efforts, even as they are controversial, to address the nation’s immigration challenges. Yet we have seen little engagement and no actual legislation from Congress. It matters not to me as a judge whether Congress embraces or disapproves of the administration’s actions, but it is time for a feckless Congress to come to the table and grapple with these issues. Don’t leave the table and expect us to clean up.

Judge Owens also wrote a brief opinion concurring in part and dissenting in part noting he would have denied the government’s motions to stay and preferred to “let these cases proceed in the ordinary course.”

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After months of deadly, large-scale grassroots protests demanding reform in Baghdad, Iraqi, Prime Minister Adel Abdul-Mahdi announced his intent to resign and the country’s parliament approved his resignation. In the protests, about 400 demonstrators, mostly young and unarmed, have been killed by Iraqi security forces; another 8,000 have been injured; and about a dozen security forces have also died in clashes with a violent minority of protesters. Today, it is unsettled who will become the new head of government.

It is unlikely to be a question easily resolved. The demonstrators’ complaints are extensive, including state corruption and incompetence, unemployment and economic stagnation, and a perception of foreign influence over domestic politics, notably from Iran. More important than these specific issues, however, is the protesters’ overarching critique of the governance structure in Baghdad—a structure shaped by Washington’s nation-building efforts after the 2003 U.S. invasion of Iraq. That dissatisfaction makes this political unrest a fresh and urgent impetus to end American military intervention in Iraq once and for all.

U.S. exit could signal a move toward meaningful reforms the Iraqi people want. It would also be a boon for the American people, bringing closure to a misguided military intervention that has proven costly and counterproductive to U.S. security.

It is commonplace in U.S. politics to hear of the “end” of the Iraq War under former President Obama, but it is an odd end to a war which leaves thousands of occupying troops in place. The Trump administration began this year with more than 5,000 boots on the ground in Iraq, and, since then, added to their number after reshuffling U.S. forces in Syria. It has been nearly three years since Baghdad declared victory over the Islamic State—whose rise occasioned a growing U.S. footprint in Iraq beginning in 2014. In those years, Washington has ignored repeated Iraqi calls for withdrawal of all foreign militaries, as well as recent insistence from Baghdad that American forces relocated from Syria cannot stay.

The demonstrations this fall are further evidence of Iraqi dissatisfaction with prolonged meddling by Washington. “You know, 16 years, there is nothing good,” an Iraqi widow named Hala Chalabi, who is part of the protests, told NPR. Her family had high hopes following the ouster of Saddam Hussein but has been bitterly disappointed with the U.S.-backed government that replaced him. “Nothing happened very good for the people. Everything is bad. Killing, stealing—it’s about all the government. All of them are bad and the same thing.”

Thus the protesters’ aim is not merely a new election but a major restructuring of the electoral system established in 2005 under U.S. influence. Indeed, “public sentiment has reached a point where it cannot be placated by piecemeal or cosmetic changes,” Fanar al-Haddad, a Middle East expert at the University of Singapore, explained to Al Jazeera. “If all that the political class can offer is a rearranged constellation of the same faces, there will be more public anger and a possible escalation of protests.”

U.S. withdrawal would be a step toward reform for the United States as well as Iraq. The 2003 invasion was foreign policy “malpractice,” as military historian (and retired Col.) Andrew Bacevich has argued at The New York Times, guided by fantasy and an utter lack of foresight into the predictable aftermath of external regime change. Its price in blood—thousands of American and hundreds of thousands of Iraqi civilian deaths—and trillions of U.S. tax dollars remains utterly indefensible. On strategy, pragmatics, procedure, and ethics alike, this war was a misstep from the beginning, and that error is only compounded the longer it is allowed to continue.

A full and expeditious withdrawal of U.S. troops from Iraq is overdue. Yet it should appeal to President Donald Trump, who has slammed the war in Iraq as the “worst single mistake” in U.S. history and often speaks of his commitment, so far unfulfilled, to ending “endless wars.” It would give the Iraqi people needed leeway and responsibility in forging their own political future. And it would be an easy sell to the American public, which has long since soured on this fight. Iraq’s present protests provide a valuable opportunity for the U.S. to get out of a war that never should have started. We would be fools not to take it.

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Grandstanding New York state Attorney General Eric T. Schneiderman began a case in 2015 against ExxonMobil in which he accused the company of lying to its shareholders about what it knew of the risks of climate change to its future profits. The attorney general’s office calculated that the damage to shareholders could be as high as $1.6 billion.

After a three-week civil trial, state Supreme Court Justice Barry Ostrager today ruled, “The Office of the Attorney General failed to prove, by a preponderance of the evidence, that ExxonMobil made any material misstatements or omissions about its practices and procedures that misled any reasonable investor.”

Basically Justice Ostrager reached the same conclusion I did four years ago about what reasonable investors could surmise from ExxonMobil disclosures. Back then I reported:

“Over the decades, company executives did frequently point to uncertainties in the developing climate science. But this seems have changed after the IPCC issued its Fourth Assessment of climate science in 2006 which stated:

‘Most of the observed increase in global average temperatures since the mid-20th century is very likely due to the observed increase in anthropogenic greenhouse gas concentrations.’

After that report, for the first time (that I could find at least), the company’s 2006 annual report noted the risks of climate change to its business:

‘Political and Legal Factors: The operations and earnings of the Corporation and its affiliates throughout the world have been, and may in the future be, affected from time to time in varying degree by political and legal factors including … laws and regulations related to environmental or energy security matters, including those addressing alternative energy sources and the risks of global climate change…'”

Justice Ostrager additionally pointed out, “Nothing in this opinion is intended to absolve ExxonMobil from responsibility for contributing to climate change through the emission of greenhouse gases in the production of its fossil fuel products. ExxonMobil is in the business of producing energy, and this is a securities fraud case, not a climate change case.”

According to CNBC, the case against ExxonMobil was dismissed “with prejudice” which means that it is unlikely Letitia James, the state’s current attorney general, will seek to file another lawsuit against the company. Similar shareholder fraud lawsuits have been filed in Massachusetts, Texas, and New Jersey.

For what it’s worth, since ExxonMobil began noting the risks of climate change in its annual reports, its share price has hovered between $56 to $102 and is currently trading at around $69.

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On December 12, voters in the United Kingdom head to the polls for a general election that will decide the fate of Brexit, the long-delayed British withdrawal from the European Union.

To understand the stakes of the election—which will result in the Conservative Party’s Boris Johnson or Labour’s Jeremy Corbyn becoming prime minister—Reason‘s Nick Gillespie sat down with Daniel Hannan, a Conservative member of the European Parliament, one of the leading architects of Brexit. He is also the author of books such as The New Road To Serfdom and Inventing Freedom: How the English-Speaking Peoples Made the Modern World. 

In a wide-ranging conversation, Hannan explains why British libertarians voted overwhelmingly in favor of Brexit, the urgency of honoring the results of the 2016 referendum in which 52 percent of voters called for leave, and why he believes Jeremy Corbyn becoming prime minister will set the U.K. on the path to a Venezuelan-style nightmare of neo-socialism.

Edited by Paul Detrick and Meredith Bragg.

Credits: Photo of Prime Minister Boris Johnson with the Leader of the Opposition, Jeremy Corbyn; Credit: Motoo Naka/AFLO/Newscom Photos of Daniel Hannan MEP; Credit: Matt Crossick/ZUMA Press/Newscom Photo of Brexit protestor; Credit: David Cliff/ZUMA Press/Newscom Photo of Brexit signs; Credit: Martyn Wheatley/ZUMA Press/Newscom Photo of Jeremy Corbyn; Credit: Ray Tang Xinhua News Agency/Newscom Photo of protestor holding sign; Credit: Justin Ng/Retna/Avalon.red/Newscom Photo of newspaper; Credit: ID 69315769 © David Watmough | Dreamstime.com Photo of The New York Times; Credit: ID 73415342 © Ifeelstock | Dreamstime.com

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From the Foundation for Individual Rights in Education letter to the university:

In addition to rejecting [various other] organizations, Truman State has a long history of denying recognition to student organizations promoting vegetarianism or veganism.

In March of 2017, students sought to establish a Vegetarian Club at Truman State. In evaluating its self-described purpose (to, among other things, “inform others on the molestation of other animals so more people support equality for those animals”), the university raised “concerns” that the mission was “very very very extreme.” The committee member evaluating the group wrote:

“The organization doesn’t apply to everyone, I’m not nor will I probably ever be a vegetarian …. It is a diet/lifestyle choice that people make for their own independent reasons. There have also been studies coming out the last few years that point to being vegetarian/vegan might end up being worse for some people due to the lack of nutrients they get while on these diets/lifestyles. So there could be the potential risk of miseducating people interested in joining the club/lifestyle.

One evaluation form, presumably authored by a different member of the committee, noted that the group’s plan to recruit members used the word “convert,” which the committee member characterized as “[e]vangelizing.”

On March 7, 2017, the Vegetarian Club was informed that it had been rejected due to “risk management,” citing the “nature” of the organization. An administrator explained to the group that the university “see[s] serious risk in giving students information on what to eat to be vegetarian and where to get it in the Kirksville community,” and “dietary suggestions should be left to professionals due to the potential for health complications.” In internal records, however, the reasons for the rejection also listed the group’s “purpose” in addition to the “risk management” issues….

On October 16, 2019, Naomi Mathew, a sophomore at Truman State, proposed to establish the “Animal Alliance” club. The Animal Alliance met the objective criteria for establishing a group, including providing an application form, identifying an advisor, and identifying more than ten interested students.

On November 5, Mathew responded to an email from “the team” posing a serious of questions about the group’s application. Mathew was also asked about her plan to “address” the “emotional risk of this subject matter,” how the Animal Alliance planned “to address the emotional risk of having a police presence at events and how that could potentially escalate a situation.” Mathew explained that calling the police was “not the preferred response” and that she hoped “nothing would escalate to that level.” Mathew was also questioned about what “training” the group’s members would “undergo to address potentially hostile students.” Notes written by hand (presumably that of a committee member) on a copy of the group’s responses to the questions highlight the “Risk Org Assumes w/ Affiliation w/ PETA” without elaboration.

On November 13, 2019, Mathew and Astha Thapa, the would-be president of the organization, attended the hearing on the Animal Alliance application. Handwritten notes on the application suggest that at least one committee member was (1) concerned about the group’s plan to “mobilize” in support of animal advocacy, (2) wanted “proof” that the students were “incredibly passionate” about being “the voice for the animals,” and (3) believed that students could “meetup with like-minded individuals” without being a club. Further, an audio recording taken at the hearing reflects that at least one committee member was concerned about the “risk brought about by [Animal Alliance’s] affiliation with PETA.” …

Read the whole thing; I’ve found FIRE’s past factual summaries quite trustworthy.

I also think the exclusion is likely unconstitutional, for the reasons the FIRE letter raises. It’s possible that the university’s process for recognizing student organizations is so selective and subjective (with half the applicants being rejected for various reasons) that the university isn’t really setting up a limited public forum any more, and is instead engaged in some sort of quality-judgment-based benefits program like the one involved in NEA v. Finley. But on balance, I think FIRE likely has the better argument here. And even setting aside whether Truman State’s actions are unconstitutional, I think they reflect badly on it as a university.

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The Atlantic published my new essay on the two articles of impeachment.

Here is the introduction:

Today the House Judiciary Committee announced two articles of impeachment. The first article alleges that President Donald Trump abused his power by asking the Ukrainian President to publicly announce investigations into his political opponent, Joe Biden, and a “discredited theory” that Ukraine, not Russia, had interfered in the most recent presidential election. The second article charges that President Trump obstructed Congress by refusing to comply with impeachment-related subpoenas. In opting for these two offenses—and in excluding three others that had all been plausible—House Democrats have narrowed their charges to the allegations that are the easiest to see, if you see the world, and this presidency, as they do.

Here is the conclusion, which addresses some of the issues Orin raised in his earlier post.

The Senate is heading into uncharted territory. Once articles of impeachment are completely decoupled from any clearly-articulated offenses, the burden of charging a president with “abuse of power” is significantly reduced. Moreover, any president who refuses to comply with what he sees as an improper investigation can be charged with “obstruction of Congress.” This one-two punch can be drafted with far greater ease than were the articles of impeachment presented against Presidents Andrew Johnson, Richard Nixon, or Bill Clinton.

Without question, Congress can convict a president for conduct that is not criminal. This process is not bound by the strictures of the United States Code. Moreover, Congress can begin impeachment proceedings for conduct that is inconsistent with the president’s duty to faithfully execute the laws. This inquiry, though subjective, is a necessary feature of the American constitutional order. But the predicates of the Trump articles will set a dangerous precedent, as impeachment might become—regrettably—a common, quadrennial feature of our polity.

I hope to have much more to say about these issues in due course.

 

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