Tag: hit&run

Raising the minimum wage to $15 an hour would cost an estimated 1.3 jobs but would also lift more workers above the poverty line, the Congressional Budget Office (CBO) estimates in a report released Monday.

The current federal minimum wage is $7.25 an hour, though most states have minimum wage laws requiring higher pay. Earlier this year, House Democrats introduced a bill to raise the federal minimum wage to $15 per hour by 2025, and most Democrats in the 2020 presidential field have endorsed that plan. That plan builds on an unsuccessful Obama-era effort to set the federal minimum wage at $10.10 per hour.

If implemented by 2025, the CBO estimates, the $15 federal minimum wage would boost paychecks for 17 million workers who would otherwise earn less than $15 per hour. About 10 million workers who now earn about $15 an hour might see their paychecks increase slightly as well. The trade-off would be 1.3 million more people out of work. Those who lose their jobs (or are unable to find them in the first place) are likely to be lower-income workers, unskilled workers, and those with little work experience.

The CBO also ran projections for smaller minimum wage increases. If Congress hiked the minimum wage to $12 per hour by 2025, about 5 million workers would benefit from bigger paychecks and about 300,000 jobs would be lost. An increase to $10 per hour would benefit only 1.5 million workers and would have a negligible effect on employment levels (largely because 15 states already have minimum wages set at or above that level).

“For most low-wage workers, earnings and family income would increase, which would lift some families out of poverty. But other low-wage workers would become jobless, and their family income would fall—in some cases, below the poverty threshold,” the CBO concludes.

Democratic presidential candidates and others on the left will probably try to use the report to bolster the case for a higher minimum wage, claiming that the benefits outweigh the costs. The Employment Policy Institute, a left-leaning think tank, is already claiming the CBO “substantially overstates the costs” associated with higher wage mandates.

But it’s important to remember that any negative consequences—regardless of what they might be—will fall most heavily on workers with fewer skills or little experience. Someone who has a hard time finding a job that pays $8 an hour will be completely out of luck if employers are required to hire only workers who are worth $15 an hour.

It’s also important to remember that low-wage workers aren’t always from low-income families. Think of teenagers working summer jobs, for example, or students working part-time while they pursue higher education. In other words, some of the beneficiaries of higher minimum wages aren’t really what is traditionally thought of as “poor”—and the truly needy are more likely to lose out on entry-level jobs.

Having the feds set a minimum wage rate introduces additional problems. The law’s consequences in poorer, rural states will not be the same as its consequences in places with a higher cost of living. In other words, a $15 minimum wage will do more damage in Mississippi than in New York City. Forcing all American businesses to pay the same minimum wages makes little sense.

State lawmakers will make mistakes too, of course—California’s $15 per hour minimum wage means vastly different things depending on whether you live in Los Angeles or the poorer, rural counties of the state’s Central Valley, where unemployment is already high.

Eighteen states began 2019 with higher minimum wages than they had at the start of 2018, according to the National Conference of State Legislatures, which tracks state-level policies. Eight of those states automatically increase their minimum wages to track with the cost of living, while 10 others adopted increases because of specific legislation or ballot initiatives. Four other states have approved minimum wage increases during 2019.

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He came, he saw, he did stuff, he formed the Freedom Caucus, he called for impeachment proceedings, he left the Freedom Caucus, he left the Republican Party, and now he’s making the media rounds amid speculation about his electoral possibilities for 2020. So was Justin Amash’s declaration of independence on balance a good thing?

Yes is the consensus on today’s Editors’ Roundtable edition of the Reason Podcast, though not without some bleak real-talk about the near-term viability of libertarian electoral politics. Katherine Mangu-Ward, Nick Gillespie, Peter Suderman, and Matt Welch engage with the critiques that libertarians don’t meaningfully exist, that libertarianism without populism is DOA, and that yet somehow libertarians have run economic policy for far too long. The group also discusses the Trump administration’s Census-citizenship gymnastics, the latest Nancy Pelosi/AOC flap, and what we can learn from revisiting the Tom Cruise flick Cocktail.

Audio production by Ian Keyser.

Relevant links from the show:

“Justin Amash Declares Independence From Republican Party,” by Matt Welch

“Trump Taunts Amash as a ‘Dumb’ ‘Loser’ Who ‘Knew He Couldn’t Get the [GOP] Nomination,’” by Matt Welch

“Justin Amash Isn’t Just Rebelling Against Trump. He’s Fighting the Two-Party System,” by Peter Suderman

“Shock Poll: Amash Down 16 Points in Republican Primary,” by Matt Welch

“Libertarian Presidential Candidates, on a Possible Justin Amash Run: ‘That Would Be Amazing,’” by Matt Welch

“The Trump Administration’s Double Reversal on the Census Highlights the Difficulties of Dealing With a Mercurial President Who Rules by Tweet,” by Jacob Sullum

“Would Counting Illegal Immigrants Make the Census Pro–Democratic Party?” By Nick Gillespie

“Enumerated Powers and the Census Case,” by Ilya Somin

“SCOTUS Ruling on Adding a Citizenship Question to the Census Shows Wilbur Ross Was Defeated by His Own Lies,” by Jacob Sullum

“Census Citizenship Question Pushed for by GOP Gerrymanderer,” by Matt Welch

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Federal law enforcement agencies have been using facial recognition technology to mine state driver’s license databases for information, reports the Washington Post. The Federal Bureau of Investigation (FBI), the Transportation Security Administration (TSA), and Immigration and Customs Enforcement (ICE) simply email requests to state departments of motor vehicle registration, asking them to match suspects’ faces with those collected and stored in their driver’s license databases. Generally speaking, state bureaucrats have been happy to cooperate.

The Government Accountability Office recently revealed that the FBI can scan about 640 million pictures, including not just mugshots but driver’s licenses and passport photos. At a congressional oversight committee hearing last month, Rep. Jim Jordan (R–Ohio) observed that many state’s DMVs “have just given access to that to the FBI. No individual signed off on that when they renewed their driver’s license, got their driver’s licenses. They didn’t sign any waiver saying, ‘Oh, it’s OK to turn my information, my photo, over to the FBI.’ No elected officials voted for that to happen.”

Well, maybe not, but compliance with federal Real ID requirements essentially means that state DMVs have been building a national digital identification database for federal law enforcement.

The Fourth Amendment of the Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be searched.

The vast majority of photos that the FBI, TSA, and ICE have been accessing depict Americans who have never been charged with a crime. Yet each time those agencies conduct a facial recognition search, all those Americans are treated as a suspect in the specific crimes that are under investigation.

Of course, much the same thing could be said of the FBI’s fingerprint database, since nearly half of the records on file there are from non-criminal civilians. That database contains 145 million fingerprint records, including 77 million criminal suspect, 65 million non-criminal civil, and 3 million Repository for Individuals of Special Concern records. And the courts haven’t objected to police searching those without anything like a warrant. So—keeping firmly in mind that I am not any sort of legal scholar—it seems likely to me that court precedents allowing police access to fingerprint databases will be applied to querying these growing faceprint databases.

The one area where we might be able to hold the line against a metastasizing surveillance state is to prohibit law enforcement use of real-time facial recognition technologies. Deploying such tech would essentially turn our faces into ID cards on permanent display to the police.

 

 

 

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Newly independent Michigan Rep. Justin Amash spent the holiday weekend attempting to make it clear that his decision to leave the Republican Party was not just about President Donald Trump’s behavior. It’s about a rigidly controlled party system that made discussion and political change impossible.

Amash went so far as to tell CNN’s Jake Tapper on Sunday that he probably would have left the Republican Party even if Trump hadn’t been elected president. Amash says that political party power structures have gotten so entrenched that they keep members of Congress from genuinely participating in the lawmaking process.

“I don’t think there’s anyone in there who can change the system,” he lamented to Tapper. “It’s pretty rigid. It’s top-down. It comes down from leadership to the bottom. And over the years it’s gotten more rigid.  It’s more difficult now to change the process than it was a few years ago.”

Amash’s comments to Tapper—and in a local interview with WZZM, the ABC affiliate in Grand Rapids, Michigan—track with what he wrote in the Washington Post when he declared on Independence Day that he was leaving the Republican Party. Here’s the WZZM interview:

Amash tells Tapper that he will be running for Congress again as an independent and that he is confident about his chances of remaining in Congress. Polling shows him losing a primary against a Republican challenger, and Michigan allows partisan straight-ticket voting, which tends to hurt third-party candidates. But Amash says he has been hearing a lot of support from citizens, and quietly from other Republicans. “There are lots of Republicans who are saying these things privately, but they aren’t saying them publicly,” Amash told Tapper about Congress’ dysfunctions.

Amash is maintaining his support for impeachment proceedings against Trump for his alleged attempts to obstruct Robert Mueller’s investigation of Russian meddling in the 2016 presidential election. He also criticized House Speaker Nancy Pelosi (D–Calif.), saying she’s making a mistake by closing off (for now) the possibility of impeachment proceedings. “I believe she believes there’s a strong case,” he tells Tapper. “And, if so, she should move forward and make sure that the American people understand what’s going on, because people at home aren’t reading the Mueller report.”

Amash’s departure from the GOP has caused a new spike of interest in the libertarian-leaning conservative, but the numbers from Google Trends aren’t showing the kind of spike he got when he initially broke from the party to lay out the case for impeachment.

He has, of course, inspired not a bit of “What does it mean, really?” analysis from libertarians, conservatives, and libertarian conservatives. Over at the USA Spectator, Daniel McCarthy brands Amash’s form of libertarianism much more naïve than what we saw from the likes of Ron and Rand Paul:

Amash has many principles in which he professes to believe, including the unborn’s right-to-life. Trump and the populist Republican party are clearly better than the Democrats, or any non-existent third force, where some of those principles are concerned. With respect to others, such as reducing government spending and power, both major parties do nothing for libertarians like Amash. But having presence in the GOP can pay dividends even there when the occasion arises—when it means that there are more small-government Republicans willing to hash out a compromise like the ‘sequester’ that limited both domestic and military spending, for example, one of the rare success stories for smaller government in living memory.

Two observations here. First of all, Republican voters are showing that they are not terribly interested in cutting federal spending in any significant way. And Amash in these interviews has painstakingly explained how party leadership cuts off these compromises and negotiations while preventing amendments from being introduced and debated. When your example of spending compromise is something that happened more than five years ago and ultimately ended up being a speed bump in the middle of a massive ramp-up of military spending, those dividends don’t really amount to much.

Over at The American Conservative, W. James Antle III sees Amash’s split from the Republican Party as a problem for those who want to restrain the party’s hawkish nature. Antle’s analysis goes to an interesting place, because Trump is frequently less hawkish than the GOP establishment. The president, he writes,

could either ratify his party’s break with the neocons or court still greater disasters. But some of his intraparty foils, like former Representative Mark Sanford before Amash, are more supportive of the president’s stated goal of a smaller military footprint in the Middle East than anyone on his team. And now the GOP establishment has trained its sights on [libertarian-leaning conservative Kentucky GOP Rep.] Thomas Massie.

The fight feels like an all-or-nothing scenario if you insist on seeing it solely in terms of Trump. But there’s always nuance to be found if you know where to look. Even though Amash left the House Freedom Caucus as the rift grew over his objections to Trump’s behavior, members of the Caucus continued to support his (unfortunately failed) effort to scale back the authority of the federal government to snoop on American citizens without getting warrants. Congress’s bipartisan leadership has stood in the way of real surveillance reforms under both Barack Obama and Trump. And that has continued to concentrate power in the executive branch and has shielded Congress from having open and transparent debates about the amount of control the federal government has over our lives.

Amash did not rule out the possibility that he would join the Libertarian Party and run for president in 2020, which has prompted some debate over who he would draw his votes from and how much he’ll affect the outcome. Given his conservative credentials, it would be logical to assume Amash would draw more from the right than from the left, but McCarthy wonders if Amash would give centrist Democrats a protest vote if their party nominates a candidate they think is too far to the left. Color me a skeptic there, if only because any discussion of Amash in liberal circles tends to end up focusing on his anti-abortion, fiscally conservative voting record, regardless of whether he opposes Trump. It’s a sign, though, that people are already looking to blame third-party voters for how the election turns out.

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Once again, responding to a horrendous crime by inflicting knee-jerk, authoritarian restrictions on innocent people proves to be an ineffective means of convincing people to obey. Specifically, New Zealand’s government—which also stepped up censorship and domestic surveillance after bloody attacks on two Christchurch mosques earlier this year—is running into stiff resistance to new gun rules from firearms owners who are slow to surrender now-prohibited weapons and will probably never turn them in.

Officials should have seen it coming.

“Police are anticipating a number of people with banned firearms in their possession won’t surrender them,” Stuff reported at the end of May, based on internal government documents.

As of last week, only around 700 weapons had been turned over. There are an estimated 1.5 million guns—with an unknown number subject to the new prohibition on semiautomatic firearms—in the country overall.

Traditionally relaxed in its approach to firearms regulation, and enjoying a low crime rate, New Zealand has no firearms registration rule. That means authorities have no easy way of knowing what guns are in circulation or who owns them.

“These weapons are unlikely to be confiscated by police because they don’t know of their existence,” Philippa Yasbek of Gun Control NZ admitted. “These will become black-market weapons if their owners choose not to comply with the law and become criminals instead.”

Yasbek’s organization advocates registering all guns in private hands. But that won’t help with gathering guns already in the possession of owners appalled by the government’s attack on the rights of innocent people—government attacks, it’s worth noting, that come in response to the crimes of one man who explicitly anticipated just such a response.

“I chose firearms for the affect it would have on social discourse,” the killer wrote in a document he released to explain his crimes. “The gun owners of New Zealand are a beaten, miserable bunch of baby boomers, who have long since given up the fight. When was the last time they won increased rights? Their loss was inevitable. I just accelerated things a bit.”

Politicians fulfilled the murderer’s predictions with panic-driven legislation.

That gun owners would, in large numbers, defy restrictions should have been anticipated by anybody who knows the history of government attempts to disarm their subjects—or who just glanced across the Tasman Sea to Australia.

“In Australia it is estimated that only about 20% of all banned self-loading rifles have been given up to the authorities,” wrote Franz Csaszar, professor of criminology at the University of Vienna, after Australia’s 1996 compensated confiscation of firearms following a mass murder in Port Arthur, Tasmania. Csaszar put the number of illegally retained arms in Australia at between two and five million.

“Many members of the community still possess grey-market firearms because they did not surrender these during the 1996–97 gun buyback,” the Australian Criminal Intelligence Commission conceded in a 2016 report. “The Australian Criminal Intelligence Commission continues to conservatively estimate that there are more than 260,000 firearms in the illicit firearms market.”

Just as Australian police named “outlaw motorcycle gangs, Middle Eastern organised crime groups, and other groups engaged in trafficking illicit commodities such as drugs” as beneficiaries of the prohibition-fueled black market in firearms, underground organizations are similarly poised to prosper in New Zealand. Gangs in the island nation announced very loudly after the new legislation was introduced that they wouldn’t be surrendering their own weapons.

“Will gangs get rid of their weapons? No,” one prominent gang leader told Stuff. “Because of who we are, we can’t guarantee our own safety.”

So Kiwis who actually do comply with the confiscation scheme will put themselves at a disadvantage relative to violent gangs that don’t intend to obey.

They would also be putting themselves at a disadvantage relative to the government, which is retaining its own weapons despite a distinct lack of competence (in April, a police station provided one-stop, discount gun shopping for an enterprising burglar) and intends to further squeeze the country’s liberty. Even before the latest law has been fully implemented, Prime Minister Jacinda Ardern is planning more gun legislation, including registration. Additionally, the Security Intelligence Service stepped up domestic spying after the mosque attacks and saw a big boost in its funding courtesy of the latest budget.

Arguably, defiant gun owners are just being realistic in seeing little to gain by obeying restrictive laws that have their greatest impact on those who pose no threat to their neighbors.

Fulfilling internal police expectations, some Kiwis openly boast of defying the law—especially with compensation rates set well below the value of the firearms that are supposed to be surrendered. The low turn-in numbers suggest they’re matching words with action.

And who can claim to be surprised? By refusing to comply with restrictions, New Zealand gun owners are just following in the footsteps of their counterparts in Australia, Europe, and the United States. In each of these places, and many more besides, gun owners ignored laws, kept their property out of sight, and frustrated efforts to disarm them.

If New Zealand’s political class had looked to the history of gun control efforts they would have seen that they were walking a well-trodden path that leads to a dead end. But then again, if they had enough foresight to know that ill-considered restrictions on personal liberty are usually counterproductive and often breed rebellion, they probably wouldn’t have gone into government.

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When Iraq fired Scud missiles at Israel during the Persian Gulf War in 1991, many people near the first blast reported breathing problems, which made sense in light of fears that the missiles carried chemical or biological weapons. But it turned out that the missiles had no such payloads, meaning that the symptoms were a product of anxious anticipation rather than physical causes. Something similar seems to be happening in the United States among police officers who encounter people who have overdosed on illicit fentanyl.

The latest example is an incident in Hazleton, Pennsylvania, early last Friday morning, when three officers responded to a call about a man who had overdosed. WBRE, the NBC station in Wilkes-Barre, reports that “all three became ill and it could have been much worse.” After the officers “were exposed to the highly addictive and potentially deadly opioid fentanyl,” WBRE says, “one officer nearly overdosed,” while the other two felt unwell. Hazleton Police Chief Jerry Speziale explains the context:

My officer goes to pull him out, the first officer on scene. They hit him with Narcan [a.k.a. naloxone, an opioid antagonist], and when he does he realizes that on the individual’s chest and on his face and around his nose is fentanyl. The other two officers were a little bit sketchy. They checked their vitals. He started to feel a little weird right away, so when EMS got to the scene they checked him out. His vitals were a little off. They transported him immediately. They called me in the middle of the night. I said get him to the hospital right now. They Narcanned our officer.

Given how difficult it is to absorb fentanyl through the skin (which is why the companies that make legal fentanyl patches for pain treatment rely on patented technology that took years to develop), the likelihood that these officers were actually feeling the narcotic’s effects is approximately zero. Fortunately, WBRE consulted a drug treatment specialist…who proceeded to confirm all the worst fears about incidental exposure to fentanyl and upped the ante by claiming that first responders who don’t die can end up accidentally addicted to the drug:

Jason Harlen has worked in addiction counseling for 20 years. He says the officers were very lucky. It could have been a much different outcome.

“Fentanyl is extremely addictive. Someone, say a first responder or a family member, who enters a room with a person who’s having an issue with fentanyl could become addicted to it instantly [emphasis added]. It’s that strong of a synthetic drug made by humans,” Harlen said.

As the journalist Maia Szalavitz pointed out on Twitter, there is no such thing as instant addiction. Addiction is a gradual process through which people become strongly attached to an experience that provides pleasure or emotional relief. Individual characteristics and circumstances play a crucial role in that process, which is why patients who take prescribed opioids, including fentanyl, for pain relief rarely become addicted to them. So even if these officers somehow absorbed enough fentanyl to experience its psychoactive effects (say, by accidentally injecting themselves with a loaded syringe found at the scene), they would not become addicted to it unless they liked those effects enough to repeatedly seek them out, which they clearly did not.

Wilkes-Barre is my hometown, and my first job out of college, as a police/general assignment reporter on the night shift at The Times Leader, required me to simultaneously watch the evening newscasts on WBRE and the other local stations, in case they had any scoops that I needed to follow up on. That experience helps explain my lifelong hatred of local TV news, which tends to credulously pass on whatever law enforcement agencies say, especially when the story is scary and the subject is drugs (which is not to say that the national networks are immune to such scaremongering.) When TV stations bother to interview additional sources, it is usually to amplify police claims and rarely to question them. In this case, the “expert” consulted by WBRE clearly has no idea what he is talking about.

In a 2017 Slate article headlined “The Viral Story About the Cop Who Overdosed by Touching Fentanyl Is Nonsense,” Jeremy Faust, a Boston E.R. physician and clinical instructor at Harvard Medical School, noted that “neither fentanyl nor even its uber-potent cousin carfentanil (two of the most powerful opioids known to humanity) can cause clinically significant effects, let alone near-death experiences, from mere skin exposure.” Faust quoted Harvard medical toxicologist Ed Boyer, who flatly stated that “fentanyl, applied dry to the skin, will not be absorbed.”

A few months later, my colleague Mike Riggs interviewed Stanford anesthesiologist Steven Shafer, who said “fentanyl is not dangerous to touch,” adding that “transdermal fentanyl patches deliver fentanyl across the skin, but they require special absorption enhancers because the skin is an excellent barrier to fentanyl (and all other opioids).” Shafer did note that fentanyl “is readily absorbed through mucus membranes, so snorted, rubbed in the mouth, or swallowed are all effective ways of administering fentanyl.” Neither the incident in Hazleton nor the other cases where first responders reportedly had brushes with death by fentanyl overdose seem to have involved such administration.

As Walter Olson noted here last June, the implausibility of these accidental overdose stories has not stopped members of Congress from rushing to address “a fentanyl problem that fentanyl experts say probably does not exist.” The danger of lending credence to these reports should be clear: If first responders perceive drug users as potentially deadly threats, requiring officers to conduct field testing, don gloves, and take other precautions (hazmat suits?) for their own protection before rendering aid, people who have overdosed are less likely to promptly get the help they need to survive. The deadly threat here is not fentanyl users but fentanyl phobia.

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The Trump administration will reportedly try yet again to add a question about respondents’ legal status to the 2020 Census. The Supreme Court previously nixed the question because the rationale articulated by Commerce Secretary Wilbur Ross, who oversees that decennial head count, was clearly false. The judicial branch has the right to review administrative-agency rulings under the Administrative Procedure Act and, as Jacob Sullum has written, if Ross had been less full of beans, the Court would have likely signed off on the question since the secretary “has broad discretion to determine census questions.”

Ross claimed several times in congressional testimony that he included the question after the Department of Justice prodded him to do so. Internal communications prove it was in fact Ross initiated its inclusion. Furthermore, he claimed that adding a question about legal status would lead to “more effective enforcement” of the Voting Rights Act, a law held mostly in contempt by the Republicans pushing the legal-status question. Indeed, it seems unquestionable that the goal of adding the question is to suppress participation by non-citizens even though, as Matt Welch has pointed out, the main function of the Census has been to figure out how to reapportion House seats. “According to both the Constitution and all active Supreme Court precedent on the issue,” Welch writes, “House reapportionment is based on the number of residents, not number of legal residents or eligible voters.”

That basic reality frightens Republicans such as Ford O’Connell, who served as director rural outreach for John McCain in the 2008 presidential election. The headline to a recent O’Connell screed says, “If you don’t think illegal immigrants are voting for president, think again.” The actual article admits to something different:

No, illegal immigrants aren’t allowed to directly vote for the commander-in-chief yet, but in vast numbers they can dramatically alter the Electoral College to favor Democrats for at least a decade because a state’s electoral votes are based on the number of people residing within that state, not the number of citizens present when the Decennial Census is taken.

If that’s the big fear, Republicans should take a couple of deep breaths. The number of illegal immigrants has been declining, and it is at its lowest point in about a dozen years. According to Pew Research, “In 2017, an estimated 10.5 million unauthorized immigrants lived in the United States, down from a peak of 12.2 million in 2007.” Other data from Pew document that about 60 percent of undocumented immigrants live in one of 20 major metro areas, almost all of which have seen sharp declines in the illegal population’s numbers:

These trends are unlikely to be affected by recent upsurges in migrants showing up at the border between Mexico and the United States, as the numbers aren’t big enough to alter the national picture. However the legal drama plays out over the next few weeks, the number of people here illegally seems likely to keep declining.

 

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Cassandra Robertson and I have a new piece in The Conversation about the ways in which the U.S. government has detained and deported many of its own citizens even though there is long-standing Supreme Court precedent on how having even a few such cases is unacceptable. We discuss how these situations tend to arise and why this must stop regardless of the government’s other goals. It is worth emphasizing that some of the individuals currently in ICE detention are almost certainly U.S. citizens.

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In two previous posts here and here, Josh Blackman and I contended that Judge O’Connor’s conclusion that the individual insurance mandate is unconstitutional is correct. In our view, the Supreme Court already reached this conclusion in 2012. We also contended that his analysis of standing is supported by Part III.A of Chief Justice Roberts’s controlling opinion–even if that opinion is in tension with questions asked during oral argument. 

But even if Judge O’Connor is correct about both of these two issues, the third remaining issue is still dispositive: Was Judge O’Connor correct to conclude that the unconstitutional insurance mandate is inseverable from the ACA as a whole, which must as a result also fall? Speaking solely for myself now, because the law of severability (such as it is) is not my area of expertise, I am more hesitant to offer a definitive opinion on this question. 

On the one hand, Congress declined to include a standard “severability clause” in the ACA. Under current doctrine, the failure to do so requires the courts to answer a difficult counterfactual question: was the unconstitutional provision so essential to the remainder of the Act that Congress would not have enacted the entire statute without the unconstitutional provision. 

During the ACA litigation, the legal team for NFIB (of which I was a member) contended that the individual insurance mandate was expressly deemed by both Congress and the government to be essential to its broader regulatory scheme. To appreciate why, we need to understand the reasoning of the decision in the case I argued in the Supreme Court: Gonzales v. Raich (2005). 

In Raich, the Court held that the Controlled Substances Act (CSA) could constitutionally be applied to the wholly intrastate possession of state-regulated medical marijuana because this activity was “economic” in nature according to a 1966 Websters dictionary definition of “economics.” But the Court in Raich then offered a secondary rationale it found in dictum in U.S. v. Lopez: Congress can regulate even noneconomic activity if doing so is essential to the broader regulation of interstate commerce.

In NFIB, both Congress and the executive branch contended that the mandate was constitutional under this secondary rationale of Raich because the individual insurance mandate was “essential” to the ACA’s broader regulation of interstate commerce. Indeed, Congress included in the statute itself detailed findings about how the mandate was “essential” and concluded:

The [insurance purchase] requirement is an essential part of this larger regulation of economic activity, and the absence of the requirement would undercut Federal regulation of the health insurance market. (Emphases added.)

The statute also stated:

The requirement is essential to creating effective health insurance markets that do not require underwriting and eliminate its associated administrative costs. (Emphasis added.)

This conclusion came after numerous findings explained exactly how the mandate functions within the ACA’s overall scheme. 

Why were these findings worded this way? Clearly, this was done to satisfy the secondary rationale of Gonzales v. Raich. That case held that, under Congress’s Necessary and Proper Clause power, it could regulate local noneconomic activity if doing so was an

essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. (Emphases added.)

In other words, if Congress could not enact the individual mandate, the ACA’s other components–such as guaranteed issue and community rating, “could be undercut.” Here is how Judge O’Connor summarized the Congressional findings:

All told, Congress stated three separate times that the Individual Mandate is essential to the ACA. That is once, twice, three times and plainly. It also stated the absence of the Individual Mandate would “undercut” its “regulation of the health insurance market.” Thirteen different times, Congress explained how the Individual Mandate stood as the keystone of the ACA. And six times, Congress explained it was not just the Individual Mandate, but the Individual Mandate “together with the other provisions” that allowed the ACA to function as Congress intended.

But these Congressional findings offered to justify the constitutionality of the individual mandate under Raich also had unavoidable implications for the severability of the mandate from he rest of the ACA–implications the government largely conceded during the NFIB litigation.

If we accept this emphatic assessment by Congress of how essential the mandate is to the operation of the broader regulatory scheme as definitive evidence of its “intent”–as seems compelling to do–then, under established severability doctrine, the mandate was inseverable. The Congress that enacted the ACA would not have done so without the individual mandate because it was essential to the broader scheme. In NFIB, even the Obama administration agreed that the individual insurance mandate was inseverable from the guaranteed issue and community ratings provisions of the Act. The rest of the ACA, the Solicitor General concluded, could be severed. 

Given that the ACA lacked a severability clause, current severability doctrine (as I understand it) requires courts to ascertain whether the Congress that enacted the law would have thought the individual mandate to be essential to its entire scheme. If current doctrine adopts this time frame, then the fact Congress deemed the mandate to be essential in 2010 does not change with the passage of time or experience. That the mandate was deemed to be essential by the enacting Congress is as true today as it was in 2010 when Congress passed the ACA and in 2012 when we argued this in NFIB.

On the other hand, the different and later Congress that passed the Tax Cuts and Jobs Act of 2017 (TCJA), which zeroed out the penalty enforcing the insurance requirement, did not seem to consider the penalty essential to the rest of the ACA it left standing. Should the courts look instead to this judgment by Congress to assess severability? Or should the courts look to the intent of the Congress that enacted the ACA? On this issue, I retain an open mind.

Judge O’Connor’s severability analysis–including his discussion of the intentions of both the 2010 and 2017 Congress–seems compelling to me. It seems to me that the correct time frame is that of the enacting Congress–whose intent on the question of whether the mandate was essential to the broader scheme was made explicit. And I am therefore inclined to favor our original position on severability. (Judge O’Connor also persuasively explains why the intent of the 2017 Congress using its reconciliation procedures did not differ from that of the enacting Congress.)

But I can also appreciate why this conventional approach to severability now seems counter-intuitive under these circumstances. Perhaps if I had more expertise on severability doctrine–and a firmer grasp of its underlying theory–I would be as sure of Judge O’Connor’s severability analysis as I am of his analysis of the mandate. Or perhaps I am wrong about how existing severability doctrine works. Or perhaps severability doctrine needs to be modified in a circumstance such as this. Or perhaps, per Justice Thomas, a modern severability doctrine should be repudiated.

As the litigation ensues, and I hear more from both sides, my opinion on severability may become more firm than it now is. But what I have heard so far from critics of his decision has not yet persuaded me that Judge O’Connor’s decision on severability is wrong. Indeed, for what it’s worth, I find it persuasive.

Perhaps the ACA champions’ antipathy for this challenge is coloring their views of severability just as my sympathy for the challenge may be coloring mine. Not being a judge tasked with resolving this case, however, I can afford to reserve my own final opinion on the merits of this argument. At least for now.

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7 things to know about the Jeffrey Epstein case. On Saturday, billionaire and buddy to the powerful Jeffrey Epstein was arrested in New York City. He’s due in federal court Monday on charges of trafficking a minor and conspiracy to do so. An indictment against him was unsealed this morning (as I was finishing this, which means I’ve had time to skim but not read closely yet). 

There are a lot of parts to this case. Why now? Who else may be implicated? What do lawyer Alan Dershowitz, activist Mike Cernovich, and The Miami Herald have to do with it? Here’s hoping to answer those questions and more in a few bullet points:

• How long has this case been going on? A long time! Epstein first pleaded guilty in June 2008 to charges of soliciting and procuring a person under the age of 18 for prostitution. He was accused of paying young women and teen girls to give him massages and then pressuring or forcing them into sexual activity. At the time, federal prosecutors declined to pursue the case so long as Epstein registered as a sex offender in Florida, served a little time in jail, and paid compensation to the victims. The prosecutor handling the case was Alexander Acosta, who is now secretary of labor.
• Why did the feds decline to prosecute then? It’s unclear, but one thing worth noting is that soliciting or patronizing prostitution from victims of sex trafficking was not explicitly a federal crime until 2015, with the passage of the Trafficking Victims’ Protection Act. That law also stipulated that “there is no need to prove either that the defendant knew, or that he recklessly disregarded, the fact that a sex trafficking victim was a minor if the defendant had a reasonable opportunity to observe the victim.” In addition, it made prosecuting said crimes more lucrative for the feds, stating that forfeiture was allowed for any asset that is involved in, or traceable to the proceeds of, human trafficking. That means that instead of just profits made by traffickers (profits that don’t exist in this case), a house where trafficking took place, vehicles used to transport them, etc., could now be seized. And, indeed, the new indictment against Epstein lays claim to his Palm Beach and New York City residences. Before 2015, the feds may have been able to charge Epstein under the Mann Act (which prohibits bringing minors or adults across state lines for prostitution), under federal statutes related to crimes against children, or under human trafficking law if others were involved. But proving federal crimes and getting any assets from Epstein out of them would likely have been much harder back in 2008.
• Why did the case against Epstein start gaining attention again a few years ago? After Epstein’s 2008 plea deal, two of his victims sued right away, saying prosecutors didn’t consult with them about the deal as required under the Crime Victims Rights Act (CVRA). Their suit got new life in December 2014, when two more victims petitioned to join the case as plaintiffs. As the U.S. Court of Appeals for the Second Circuit noted recently, these new petitioners “included in their filings not only descriptions of sexual abuse by Epstein, but also new allegations of sexual abuse by several other prominent individuals,” including lawyer Alan Dershowitz. A court would have these allegations stricken from the record, but they reached the media anyway.
• What happened last week before the arrest? Plaintiffs in the CVRA suit reached a settlement with Epstein in 2017, and documents related to this were ordered to be kept under seal. Wanting to clear his name, Dershowitz sued to have them unsealed. Eventually, right-wing activist Mike Cernovich and Miami Herald writer Julie Brown would also seek to intervene and have the records unsealed. A district court let them intervene but denied their requests to unseal the orders. They appealed. On July 3, the U.S. Court of Appeals for the Second Circuit found “that there is no countervailing privacy interest sufficient to justify their continued sealing” and ordered “that the summary judgement documents (with minimal redactions) be unsealed upon issuance of our mandate.”
• Did the newly unsealed records have anything to do with Epstein’s arrest a few days later? Probably not. While the timing is mighty tight, the renewed investigation into Epstein had already been underway and the July 6 arrest was likely in motion before July 3. What’s more, the court’s July 3 order to unseal the records doesn’t mean they’re actually unsealed yet, as they must first be reviewed and redacted by a lower court (though it’s not totally clear what U.S. attorneys may have been already or immediately after the ruling privy to).
• Was this really sex trafficking? People keep asking me that question. It’s tough to answer, since sex trafficking is defined very differently depending on who or what you consult. But the short answer is that legally, it is: The conduct Epstein is accused of committing does fall under the federal definition of sex trafficking (which encompasses any paid sexual activity involving a minor, including paying them yourself). And more so than almost any case I’ve covered, Epstein’s alleged actions fall within the spirit and not just the letter of the law. They also come much closer to what many people might think of when they think about “sex trafficking.” But these allegations against Epstein—while exposing unequivocally wrong actions on his part—may be more closely aligned with other crimes, such as sexual assault, statutory rape, etc. The decision to bring child sex trafficking charges is likely a function of a) some of these other things not being federal crimes, b) a general federal enthusiasm for adding trafficking charges in sex-crime cases, and/or c) the greater asset forfeiture possibilities and related conspiracy/etc. possibilities that come with the federal sex trafficking statute.
• Why hasn’t this devolved into a partisan mudslinging fest yet? Because popular figures on both sides have palled around with Epstein, and bad actors on both sides may be implicated. While it’s nice to think the near-universal cheering of Epstein’s arrest comes because we can all agree on certain moral standards, we’ve seen really bad behavior excused before when it makes only one side look bad. Here, we’re likely saved by the fact that it’s to neither Republicans’ or Democrats’ advantage to weaponize this.

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FREE MINDS

The French don’t get free speech. French president Emmanuel Macron “and others in Europe are moving to unilaterally impose speech controls on the internet with new legislation in France and Germany. If you believe this is a European issue, think again,” writes legal scholar Jonathan Turley at The Hill: 

Macron and his government are attempting to unilaterally scrub out the internet of hateful thoughts. The French Parliament has moved toward a new law that would give internet companies like Facebook and Google just 24 hours to remove hateful speech from their sites or face fines of $1.4 million per violation. A final vote is expected next week. Germany passed a similar measure last year and imposed fines of $56 million.

How would such a crackdown affect us? 

Europeans know these companies are quite unlikely to surgically remove content for individual countries. The effect will be similar to the “California Exception.” All states are subject to uniform vehicle emissions standards under the Clean Air Act, but California was given an exception to establish more stringent standards. Rather than create special cars for California, the more stringent standards tend to drive car designs. When it comes to speech controls, Europeans know they can limit speech not only in their countries but practically limit speech in the United States and elsewhere.

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FREE MARKETS

Where are all the economic centrists? In The Washington Post, Henry Olsen tries to argue that American libertarians are basically a myth. At National Review, Robert VerBruggen calls foul. Olsen’s argument relied on a 2017 paper by Lee Drutman that found that only about 4 percent of Americans are “socially liberal and economically conservative.” But the Drutman’s analysis (which was torn apart at the time by both Karl Smith at the Niskanen Center and Emily Ekins at the Cato Institute) relied on a ridiculous approach to categorizing economic liberals, conservatives, and centrists. Here’s VerBruggen: 

[T]he economic axis (left-right on the chart) is obviously incorrect. Most of the data points—74 percent of them!—are left of center. This means that the center isn’t actually, well, the center. When you make it so that the vast majority of people are left of “center” on economics, very few will be right on economics and left on social issues.

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ELECTION 2020

• CNN’s latest debate-related stunt is to hold a draw on live television to assign Democratic candidates to one of two televised debates. 
• Sen. Kamala Harris (D–Calif.) wants to give grants to homeowners in communities that historically experienced discrimination. 
• Amash watch: 

Justin Amash, on CNN, says he'll run for Congress as an independent but won't rule out running for president as a libertarian/independent. (He does say it's "not really on my radar right now."

— Emily Cochrane (@ESCochrane) July 7, 2019

If Amash did run for president, as a Libertarian or as an independent, it could hurt Democrats, not just Republicans, suggests John Fund at National Review.   

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QUICK HITS

• The Affordable Care Act is on trial again this week. 
• State drivers license databases are a “gold mine” for facial recognition programs run by federal immigration agents and law enforcement.
• Residents of Maryland no longer have to list their sex or gender as either male or female to vote.
• Economist Tyler Cowen weighs in on the census citizenship question. 
• Bad news for bikini baristas?

The moral panic rolls ridiculously on. “Federal appeals court rules 'bikini baristas' may have to wear more clothes” https://t.co/cLiClpNvhD

— Mistress Matisse (@mistressmatisse) July 8, 2019

• Contra reporting in The Hill, Russian aluminum magnate Oleg Deripaska’s exculpatory claims about Paul Manafort won’t be much use to the former Trump campaign manager legally. 
• Quebec’s education minister says Pakistani activist Malala Yousafzai can only teach there if she doesn’t wear a headscarf. 
• Protecting and serving: 

MSP officer runs stops sign, hit by car, arrests other driver https://t.co/Go4rwvJ7Ij

— J.D. Tuccille (@JD_Tuccille) July 8, 2019

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