Trump’s Claim That Mexico Will Buy More American Agricultural Goods Is Fake News

First things first: President Donald Trump’s decision to back away from his threats to impose tariffs on goods imported from Mexico is a unambiguous victory for the American economy, for the hundreds of thousands of people whose jobs are part of that international supply chain, and for continued good relations between two deeply interconnected countries. Trump did the right thing, even if “the right thing” in this instance was simply backing down from doing the wrong thing.

But in typical Trump fashion, it apparently wasn’t enough to announce over the weekend that Americans wouldn’t be subject to a new $87 billion tax increase come Monday morning. Instead, Trump mashed all-caps for a tweet that bizarrely claimed Mexico had agreed to purchase more American agricultural goods in exchange for Trump revoking the tariff threat:

Remember, Trump threatened to hit Mexican imports with tariffs because he was unhappy with how the Mexican government was handling the influx of Central American refugees crossing Mexico to seek asylum in the United States. That a supposed national emergency regarding immigration across the southern border could be solved by Mexico buying more American farm goods is…well, rather odd.

Even more odd: There is nothing in the agreement between the U.S. and Mexico about agricultural goods. You can read it here; it’s only about two pages long. Mexican officials have told Bloomberg that there was no discussion of agricultural issues during the tariff talks, which focused on re-separating immigration policy and trade policy—two issues that Trump unexpectedly slammed together two weeks ago.

As the story unraveled on Sunday, Trump followed up with subsequent tweets suggesting that the agricultural deal was a secret part of the agreement to be revealed at a later date. That would be highly unusual. He also whined about not getting enough credit.

In a speech this morning, Mexican Foreign Minister Marcelo Ebrard confirmed that the two nations had not reached an agriculture agreement.

Not that we need one! Mexico is already the second largest buyer of American farm goods, behind Canada. More than 14 percent of U.S. farm goods already end up in Mexico, with purchases expected to top $19 billion this year, according to the U.S. Department of Agriculture.

But Trump’s misleading tweets are more than just a bizarre aside to the tariff craziness of the past two weeks. They reveal the president’s biggest blind spot when it comes to understanding how trade works.

Trump doesn’t seem to understand that American goods are not nationalized commodities for him to buy and sell around the world. The federal government measures how much is imported from and exported to various countries, but that’s not the same as actually conducting those transactions. That may seem obvious to you, but the distinction continues to evade the president.

When “the United States” sells farm goods “to Mexico,” what’s really happening is a chain of private transactions. Farmers sell their products to wholesalers who sell to export brokers who sell to Mexican importers who sell to their own supply chains on the other side of the border. About the only role that the national governments of the United States and Mexico play is determining how difficult it will be to get a box of tomatoes or a bushel of corn across the border itself.

In other words, even if Mexican trade officials wanted to agree to buy more American farm goods to appease Trump, that’s not something they could agree to do. Individuals and businesses on both sides do the buying and selling, privately. Mexico can’t force consumers to buy American products any more so than Trump can force American farmers to sell their goods to Mexico. The complexities of those supply chains cannot be organized and controlled by central planners—or at least, they really ought not to be.

Given those realities, the best thing the Trump administration can do to boost the exporting of American farm goods to Mexico is stay out of the way. Trump may have stumbled onto that answer this time, but there’s no sign he’s learned the broader lesson.

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Kamala Harris Tries (Again) to Rewrite Her History as a Prosecutor of Petty Crimes

Sen. Kamala Harris (D–Calif.) is “leaning into” her history a prosecutor, some observers noted after the 2020 presidential candidate gave a speech Saturday in South Carolina. Rewriting her history would be more accurate.

“In this election, regarding my background as a prosecutor, there have been those who have questioned my motivations, my beliefs, and what I have done,” Harris said at an event organized by the South Carolina NAACP. “But my mother used to say, you don’t let people tell you who you are. You tell them who you are. Let me be clear, self-appointed political commentators do not get to define who we are and what we believe.”

But if we’re to rely on Harris’ own words and writing about who she is and what she believes, we’re left with a whole lot of contradictions and all sorts of major gaps—as I note in Reason‘s latest print issue. Throughout her political career, Harris has been prone to playing up her progressive bona fides when it suits her and her carceral-centric side at other times. But her actions as a prosecutor almost always fell in the latter camp.

I don’t presume to know what Harris truly believes or who she really is behind the mask, which is why I think that her actions as a prosecutor and legislator are probably a better guide to how she would govern than anyone’s commentary. And that record bears little resemblance to the prosecutor that Harris has been conjuring on the campaign trail.

The Harris campaign slogan is “Kamala Harris For the People” (a callback to her days representing Alameda and San Francisco counties in court), and her campaign is pushing hard on the idea that America needs a prosecutor-in-chief to counter President Donald Trump’s corruption and lawlessness.

This seems to be missing the point of running for president. If Trump loses the 2020 election, we won’t need a president to relitigate his past. That’s not to say everyone should just write off any crimes committed by people in and around the Trump administration after it’s gone. But the job of the next administration is to lead America forward, not keep us an eternal loop around the 2016 election.

The Harris campaign argument makes more sense when applied to how she would handle Trump in the general election, but it still falls flat as something particularly aspirational for a candidate. A smiling Harris grilling Trump from the debate stage may satisfy some. But Democrats need someone who can show up Trump without making it feel like merely a self-interested, sneaky, and partisan attack if they want the sympathy of swing voters or of people tempted to stay home. Again and again, Harris has failed on that.

Here’s some of the rhetoric her communications person shared on Twitter as an example of “the kind of sharp, effective prosecution voters can expect from in a general election,” as well as a showcase of her “wit and humor”:

The quote above is from Harris’ Sunday speech in Cedar Rapids, Iowa. No matter what you think of health care or tax policy, that’s political grandstanding, not a realistic indictment of Trump or his administration. She goes on to crack a joke about Trump engaging in “securities fraud” for buddying up with foreign dictators.

None of the above comes across like much of a punchline when you watch Harris’ delivery, and no one can be heard laughing in the audience. It’s just the “sharp and effective” prosecutor casually suggesting that legislation passed by Congress could be a crime if Democrats don’t agree with it.

Harris wraps up the theme by joking that Trump was also guilty of “identity fraud” against Barack Obama by claiming to be the best president this century.

The line might not be terrible coming from an entertainer. But coming from someone who has spent nearly her entire career putting people behind bars and threatening to (often for petty crimes like drug possession, truancy, and sex work, and at other times when she knew federal law disallowed her arrests), during an administration that has at least flirted with using the power of the executive to punish political enemies, following an election filled with Republicans chanting about the same…joking about all the trumped up charges you would bring as president and all the tortuous cop logic you can conjure in service of it just doesn’t feel all that funny.

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Rep. Alexandria Ocasio-Cortez (D–N.Y.) has been calling for birth control pills to be sold over-the-counter:

Will she join her Republican counterparts in the Senate in sponsoring legislation to help see it through?

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Cop Arrests Mom for Letting Kids Wait in Car During 10 Minute Errand

The authorities should stop equating a rational parenting decision—letting your kids wait in the car a few minutes—with criminal wrongdoing.  A great piece in The Appeal by Joshua Vaughn calls this practice a “new moral panic that targets moms.” He opens with the shocking story of Amanda Forst, a Pennsylvania mom who let her three kids—ages 2, 5, and 7—wait in the car for ten minutes while she ran an errand inside a store:

While Forst was in the store, a passerby saw the children in the van and called county authorities. Cumberland County 911 dispatched [Sgt. Keith] Stambaugh, and Kohl’s alerted shoppers about the children over the public address system. Forst ran out of the store and drove off because she feared that the police would take her children away, she later told Stambaugh. She returned to the store minutes after leaving and waited for the police to arrive.

When he arrived on the scene, Stambaugh arrested and charged Forst with three counts of reckless endangerment, three counts of leaving a child unattended in a vehicle and a count of careless driving. Forst’s 10-minute errand now meant she was facing up to two years in jail.

Consider the state’s logic: For the crime of separating from her kinds for ten minutes—which the authorities view as criminally dangerous—mom could be forced to separate from her kids for two full years.

Vaughn goes on to trace the origin of our car-wait panic, which he believes began in the 1980s when “stranger danger” was first sweeping the country. Missing kids’ pictures were put on milk cartons without anyone bothering to explain that the vast majority were runaways or taken by parents in contentious custody cases.

After that, the concern about hot cars started to grow. Hot cars are indeed a threat to child safety when the child is forgotten for a very long time. But the public has come to believe that any instance of a kid waiting in a car, however briefly, represents mortal danger. A brief wait is not only safe—it is safer than being taken out and crossing the parking lot. As truly gut-wrenching as cases of hyperthermia are, arresting moms who let their kids wait in the car for five minutes will not bring back the children forgotten there for five hours.

And yet, Vaughn writes:

Though the incident outside the Kohl’s occurred nearly one year ago, Forst’s case is still unresolved. In the meantime, she has incurred—and paid—hundreds of dollars in fines and fees, including nearly $200 for the county’s plea fee, $50 for the cost of prosecution, $100 for the disposition program and $23 for an expungement fee.

In August, Forst is expected to enter an accelerated rehabilitative disposition program, in which she will spend the next six months to two years under probation-like supervision and perform community service with the expectation that the charges will be dismissed after successful completion. If Forst does not finish the program, Cumberland County District Attorney Skip Ebert could prosecute her.

It’s time for this to stop. We can help turn the tide by demanding that parents not be arrested unless they show blatant disregard for their children’s safety and put them in real danger.

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The Case for Sanctions Fails at Every Turn

As pundits debate how much the Trump administration’s penalties have contributed to Venezuela’s economic crisis and as European governments move forward with a plan to trade with Iran in the face of U.S. sanctions reimposed on the Islamic Republic, it’s time for some calm and straight talk about sanctions.

People who oppose putatively humanitarian military interventions are frequently charged with supporting genocidal tyrants. In the same way, people who oppose sanctions on disfavored regimes are often criticized as apologists for those regimes. Each charge is a non sequitur.

Suppose the American government sought to impose a general trade embargo on Bozarkia, a (fictional) country with a disturbing human rights record. No doubt some people would oppose the move because they happened to like the regime. But there would be good reasons to oppose sanctions on Bozarkia even if we found little or nothing to like about its government.

Sanctions are bad news for the same reasons trade barriers of all kinds are bad news. After all, they’re designed to impede particular commercial relationships. If robust property rights are human rights that hold consistently across borders, and if these rights matter—because they promote prosperity, safeguard autonomy, reduce conflict, and so forth—then sanctions are obviously problematic, because they interfere with people’s rights to use their property as they see fit.

An embargo on Americans’ trade with Bozarkia would impede Americans’ own property rights. It would involve the threat of force against the property and bodies of people who trade with that country. It would also, obviously, prevent Bozarkians from making unconstrained choices about the use of their property. For anyone who sees strong property rights as foundational to people’s abilities to pursue their own projects, the obvious property-rights violations effected by sanctions should be sufficient to rule them out.

Property rights and the market exchanges they make possible enhance prosperity on an ongoing basis. Sanctions would intentionally interfere with Bozarkians’ prosperity, but they would also interfere with Americans’ prosperity, denying them the benefits that would otherwise come from trade.

Sanctions also limit people’s associational freedoms. Sanctions on Bozarkia would keep Americans and Bozarkians from interacting with each other commercially. Again, if we value freedom of association, we have every reason to look skeptically at sanctions.

The U.S. government often structures sanctions specifically to interfere with the behavior of non-Americans. This is a kind of international bullying that seems designed to impose the will of a would-be global hegemon on unwilling subjects. It is not only an instance of egregious imperial overreach; it also encourages ill will, reduces the likelihood of international cooperation, and raises the possibility of aggressive pushback.

Indeed, sanctions are clearly instances of great-power meddling. (Countries that aren’t great powers can hardly impose sanctions outside their own borders.) They’re an especially ugly way for governments with military and economic influence to throw their weight around. To impose sanctions is to treat yourself as entitled to manage the lives of others.

Sanctions are deeply objectionable, too, because they represent purposeful attacks on others. Again, that’s their point. They wouldn’t work if they didn’t undermine Bozarkians’ welfare—not just by affecting the sizes of their bank accounts but also by impeding their access to the actual, life-enriching goods and services they could buy if trade were unimpeded. And choosing to injure real aspects of well-being is always cruel and unreasonable. It involves treating the welfare of Bozarkians as less important than, and therefore trumped by, our own putative policy goals.

Doing so might make sense if the goods we sought to realize really were more important than the goods sanctions deliberately attack. But they’re not.

Bozarkians seek to realize all sorts of goods by engaging in trade—physical well-being via nutrition, aesthetic experience via entertainment, and so forth. And American policy makers seek to realize all sorts of goods by restraining trade. We can argue about what these are—the real goals may have to do with imperial dominance, though the nominal objectives may have to do with promoting the Bozarkian people’s well being by freeing them from tyranny. In any case, different kinds of goods can’t be quantitatively compared on a common scale. This means that the good things proponents of sanctions say they want to achieve don’t objectively outweigh the good things sanctions exist to harm. Therefore, deliberately attacking Bozarkians’ welfare in order to achieve these other goods just isn’t reasonable.

Sanctions also enhance the risk of violence and full-blown warfare. Imposing sanctions is, in effect, an act of war, and sanctioned countries can be expected to respond violently against embargoes and other forcible attempts to interfere with peaceful trade. Whether or not they formally declare war, they will likely judge that war has been declared on them and act accordingly. Anyone who values peace should seek to cement trading relationships rather than undermine them.

Sanctions are frequently unfair because they are cast much more widely than their stated rationales would permit. Across-the-board sanctions on trade with Bozarkia affect not just Bozarkia’s authoritarian leaders but also ordinary Bozarkians—in theory, the victims of their leaders’ bad behavior whom sanctions are designed to benefit. Sanctions of this kind would impose costs on people who are not, in this case, responsible for the harms the sanctions purportedly seek to remedy. Indeed, a general embargo would seem likely to harm the most vulnerable people most severely, since those people lack the financial resources to cushion the blow sanctions deliver.

Unsurprisingly, then, sanctions often help inadvertently to legitimize sanctioned governments. Many Bozarkians may resent various choices made by their rulers. However, sanctions make them suffer. The imposition of sanctions—even in putative response to their government’s misdeeds—would quite reasonably seem like bullying. Many Bozarkians might tribalistically identify with their government, which is, after all, made up of fellow Bozarkians. Seeing their country and even their government as being victimized by the United States, they would likely push back. More than that, they could be expected to rally around their leaders as their representative in the context of the crisis created by the sanctions.

Sanctions intended to undermine a bad government would thus likely end up strengthening it.

Sanctions also prevent the use of two crucial tools that can be used against authoritarian regimes. The brutality and unfairness of such a policy make it impossible for Americans to trade on an image of benevolence. The invitation to ally with us comes to seem more like the proverbial “offer you can’t refuse” than like an attractive appeal to embrace attractive values and partners.

Meanwhile, sanctions directly interfere with cultural exchange in various ways, making it less likely that ideas, texts, music, films, and other drivers of cultural change will be available to people living under authoritarian regimes—with the result that there will be fewer spurs to social and political transformation.

Thus, sanctions seem rarely to undermine authoritarian regimes substantially. Even if the interference with property rights and the attacks on people’s welfare that are essential to any sanctions regime were justified—which I believe they’re not—sanctions fail to achieve what is often taken to be their ultimate goal.

Sanctions proponents sometimes cruelly suggest that they are intended to make people suffer enough to overthrow their government and install one sympathetic to U.S. interests. But sanctions will often prompt people to support embattled governments more, and people subjected to sanctions seem strikingly unlikely to rally to the side of the power responsible for increasing their suffering. Even if they do overthrow their government, what are the odds that they’ll respond positively to an interfering power that caused poverty, loss, and death by means intended to manipulate them?

Everything I’ve said so far assumes that sanctions are well-intentioned. But the rationales characteristically offered for sanctions can hide bad motives. Humanitarian rhetoric can provide excuses for economic policies designed to benefit domestic political interests or to foster imperial goals. As long as the policy tool of sanctions is on the table, fallible governments can hardly be expected to consistently employ that tool in anything like a virtuous way.

Imposing sanctions means interfering with people’s freedom to trade and their freedom of association. It means undermining not only the prosperity of the people who live in the target country but also our own prosperity. It means deliberately, and therefore unreasonably, attacking various aspects of people’s welfare. It means harming them as a way of controlling them. It means increasing the chance of violent conflict and eliminating factors that make conflict less likely. It actually props up bad governments and limits efforts to undermine them. It’s a classic instance of international bullying. And it is all too likely to be used as a means not of humanitarian assistance but rather of imperial mischief.

Sanctions are cruel, ineffective, and unreasonable. We should unequivocally reject them as tools of international policy.

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Brickbat: A Shot in the Arm

The Shulamith School for Girls, a Jewish school in Long Island, New York, has gone to court, challenging an effort by the state Education Department to force it to admit two unvaccinated girls into its classes and after school activities. The girls’ parents have claimed a religious exemption from mandatory vaccines.

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Trump Just Can’t Quit Afghanistan

Imagine being a U.S. citizen who believes that America should withdraw its troops from Afghanistan after nearly 18 years of increasingly pointless war. Shouldn’t be too hard, since that describes 61 percent of Americans—and an eye-popping 69 percent of veterans—polled in October 2018 by YouGov.

But let’s also stipulate that by some glitch in the time-space continuum you become president of the United States, and that in one of your first major post-election interviews you observe that “nothing is going well” in Afghanistan. Wouldn’t you think those troops would be home more than two years after that?

This is where we find ourselves in the spring of 2019—with a president who accurately declares in his State of the Union address that “great nations do not fight endless wars,” even while 14,000 of the troops under his command still suffer and inflict death more than 200 months (and 2,300 Americans killed) after U.S. forces first overthrew the Taliban government.

“We should leave Afghanistan immediately,” Trump tweeted as far back as March 2013. “No more wasted lives.” He was right then, and presumably still leans that way now. To invert the old Madeleine Albright quote, what’s the point of these superb executive powers if you can’t use them to withdraw troops?

“We have a president—the first president, really—to say that the war has long been over, there is no military solution, he’s bringing the troops home,” Sen. Rand Paul (R–Ky.) says. “The problem is that several of his advisers that he has appointed don’t necessarily agree with him. So they either countermand his sentiments or talk him into delaying.”

Former Trump chief of staff and Obama-administration chief of U.S. Southern Command John Kelly has basically admitted to the latter tactic, telling the Los Angeles Times in an interview last year that when he arrived at the White House in August 2017, Trump “was inclined to want to withdraw from Afghanistan.” Instead, Kelly and others persuaded the draft-dodging president to add troops and wait for some mythical moment when conditions would allow for a drawdown.

That has been the default position of the American political class for three administrations now. Even though George W. Bush campaigned on a more “humble” foreign policy; even though Barack Obama won against both John McCain and Hillary Clinton while opposing the Iraq War; and even though Trump in his 2015 campaign announcement speech complained that “we spent $2 trillion in Iraq…we lost thousands of lives…and we have nothing,” presidents once in office cannot bring themselves to face the truth about sunk costs.

“If there is no military solution, what is one more death going to do over there?” asks Paul, who in March with Sen. Tom Udall (D–N.M.) introduced the American Forces Going Home After Noble (AFGHAN) Service Act, which would pull out all U.S. troops within one year and euthanize the 2001 Authorization for the Use of Military Force—the legal justification for the continued deployment of combat troops in the region. “It’s a mess now, but it will be a mess when we come home, too. And we just need to acknowledge that our original mission was to go after those who plotted or attacked us on 9/11, and there’s frankly none of them left.”

As Special Counsel Robert Mueller’s report made painfully clear upon arrival in April, Trump’s more impulsive and erratic desires—to fire Mueller, for instance, or to have his staffers lie to Congress—are often thwarted by subordinates leery of their propriety and/or legality. In many of those cases, Americans (especially Trump himself, given the possible legal jeopardy) should be relieved that the president’s wishes did not become commands.

But it’s hard to envision an authority more constitutionally explicit than the executive’s discretion over the military. The fact that Trump can announce a troop withdrawal from Syria in December and yet find himself, just four months later, agreeing to keep a presence of 1,000 there speaks to how difficult it is for a president to pull back America’s military reach.

“When will we stop wasting our money on rebuilding Afghanistan?” citizen Donald Trump asked in 2011. It’s still a good question. The military still doesn’t have any good answers.

“If we’re going to wait until there’s nobody left with a suicide vest in the Middle East or around the world,” Paul says, “we’ll wait forever.”

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Justice Stevens Admits Error in the Kelo Case—but also Doubles Down on the Bottom Line

Retired Supreme Court Justice John Paul Stevens.

In his recently published memoir, The Making of a Justice: My First Ninety Four Years, retired Supreme Court Justice John Paul Stevens includes an extensive discussion of his majority opinion in Kelo v. City of New London (2005).  The  Takings Clause of the Fifth Amendment indicates that the government may only take private property for a “public use.” In Kelo, a narrow 5-4 Supreme Court majority ruled that almost any potential public benefit qualifies as “public use,” thereby permitting the City of New London to take fifteen residential properties for purposes of transfer to a new private owner in order to increase “economic development.”

Stevens calls Kelo “the most unpopular opinion that I wrote during my more than thirty-four years on the Supreme Court. Indeed, I think it is the most unpopular opinion that any member of the Court wrote during that period.” Kelo was indeed highly unpopular. Polls showed that over 80 percent of the public opposed the decision, an outcry that cut across conventional ideological and partisan divisions. Some 45 states enacted eminent domain reform laws in response. The unpopularity of the ruling does not, however, prove that it was wrong. What does make it wrong are the serious errors in Justice Stevens’ majority opinion.

In his memoir, Stevens fortrightly acknowledges one of them: serious misinterpretation of relevant precedent. Stevens’ majority opinion in Kelo relies heavily on the claim that its very broad definition of “public use” is backed by “more than a century” of precedent. That assertion is false. The nineteenth and early-twentieth-century cases cited by Justice Stevens  as support for extreme judicial deference under the Public Use Clause in fact addressed public use challenges under the “Lochner-era” doctrine of “substantive” due process applying the Due Process Clause of the Fourteenth Amendment. During that period, the Supreme Court had not yet recognized that the Fifth Amendment applied against state governments. Thus, the only way for property owners to challenge a state or local government taking in federal court was under the Due Process Clause.

Stevens now acknowledges that these were not Public Use Clause cases, and describes his reliance on them as a “somewhat embarrassing to acknowledge”error. He generously cites me as a”scholarly commentator” who “caught this issue shortly after we decided Kelo,” in an article I published in 2007. These concessions expand on similar admissions Stevens that made in a 2011 speech on Kelo, which I discussed in my book about the case (which Stevens, in turn, cites in his memoir).

Stevens deserves great credit for publicly acknowledging a significant mistake in one of his best-known opinions. Few judges are so openly honest and self-critical about their errors. It is also very impressive that Stevens is still writing books and otherwise contributing to public debate at the age of 99. We should all have such vigor and work ethic!

As I noted in my book, this one mistake does not by itself prove that Kelo was wrongly decided. The decision was still backed by more recent precedent, most notably the Court’s 1954 decision in Berman v. Parker, which also held that a public use can be almost anything the government says it is, thereby upholding an urban renewal project that used eminent domain to forcibly displace thousands of poor African-Americans. But a poorly reasoned ruling decided during the mid-twentieth century nadir of judicial respect for constitutional property rights doesn’t carry the same weight as “more than a century” of precedent endorsed by justices representing different time periods and judicial philosophies. The ultra-broad definition of “public use” endorsed by the Court in Kelo and Berman is also at odds with both the original meaning of the term, and leading variants of “living constitutionalism.”

Despite this notable concession, Stevens continues to believe that Kelo was rightly decided. But his new rationale for the decision is completely different from the one offered in his majority opinion for the Court. He now argues that the Takings Clause of the Fifth Amendment does not constrain the purposes for which the government can condemn property, at all.

This rationale (previously advanced by a few legal scholars) is actually much more dubious than the broad definition of “public use” Stevens advocated in the Kelo decision. Among other things, it really is at odds with not just one century of judicial precedent, but two. While there is longstanding disagreement between advocates of  broad and narrow definitions of public use, two centuries of state and federal judicial precedent hold that “public use” imposes at least some constraint on the reasons for which government may condemn private property.

In my view, textual and historical evidence provides stronger support for the narrow view, under which a public use  exists only if the condemned property is transferred to government ownership (as in the case of public infrastructure such as roads and bridges) or to a private owner that is legally required to serve the entire public, such as a public utility or common carrier. But even advocates of the narrow definition hold that the the Fifth Amendment constrains the range of permissible takings at least to some small degree.

They recognize that it bars condemnations where there is no chance of any public benefit, and perhaps also those where the official public purpose is just a “pretext” for a scheme to benefit a politically influential private party. Stevens himself endorsed the latter constraint in his Kelo majority opinion, as did Justice Anthony Kennedy in his influential concurring opinion. Lower courts have since struggled to figure out exactly what counts as a pretextual taking under their reasoning. I offer additional criticisms of Stevens’ radical new justification for Kelo in chapter 2 of my book about the case.

Stevens does indicate that there might be some constraints on eminent domain imposed by the Due Process Clause of the Fourteenth Amendment. But if so, they are very minimal, since in his view they do not preclude even the egregious taking in Kelo itself, which was heavily influenced by interest-group lobbying and resulted in a badly botched “development” project. To this day, the site of the condemned property lies empty, used only by a colony of feral cats who have taken up residence there.

Stevens’ reliance on the Due Process Clause as the only substantive constraint on the purposes for which government may use eminent domain is also in tension with his claim (also made in his memoir) that critics of the Kelo decision are analogous to defenders of the  Courts’ much-despised ruling in Lochner v. New York (1905), which held that the Due Process Clause protects freedom of contract and forbids maximum hours laws for bakers. The standard critique of Lochner is that the Court was wrong to use the Due Process Clause to protect “substantive” rights (as opposed to purely procedural ones) and that this error is particularly inappropriate in the case of “economic” rights. Ironically, Stevens’ new view is that the Due Process Clause does indeed provide protection for substantive “economic” property rights (albeit only weak protection). By contrast, we who oppose the Kelo decision argue that that role should be played by the public use component of the Takings Clause, which is  both explicitly substantive and specifically intended to restrict the seizure of private property by the state.

I believe that Lochner does not deserve most of its terrible reputation, and that accusations of “Lochnerism” are routinely overused by both liberal and conservative justices. In this instance, however, Justice Stevens is “Lochnerizing” to a far greater extent than opponents of the Kelo decision. He would extend Lochner-like reasoning to a new area, from which the latter would prefer to exclude it.

In his memoir, Stevens also points out that the Court has never explicitly ruled that the Takings Clause of the Fifth Amendment is “incorporated” against state governments. He is absolutely right about that. At some point in the early to mid-twentieth century, the Court began to simply assume (wrongly) that the Clause had already been incorporated in the Lochner era, and thus should apply to state governments. Stevens’ mistake in the Kelo opinion has its roots in that longstanding assumption, though (as Stevens now recognizes) the falsity of that assumption is easily established simply by reading the decisions in question (which explicitly indicate that the Fifth Amendment was not considered applicable to the states at the time).

It is not clear to me whether Stevens now thinks that the Takings Clause should not apply to state governments. If so, it would be a major anomaly in an era when nearly all the rest of the Bill of Rights has been ruled applicable against states and localities, usually with the support of both liberal and conservative justices. Ending incorporation of the Clause would also require overruling many Supreme Court rulings, which did apply it to the states, including Kelo itself.

Stevens’ admission of error in a major part of his Kelo opinion does not by itself prove that the decision should be overruled. But it does strengthen the case for the Court to reexamine the ruling to determine whether it should indeed be reversed or at least pared back. As I explain here and more fully in the conclusion of my book, there are several possible ways to limit or overrule Kelo, depending on how far the justices want to go.

I also explain there why Kelo fits the Supreme Court’s established standards for identifying constitutional precedents that should be reversed. Those standards include whether the decision  was “well reasoned” and whether it has been subject to “substantial and continuing criticism.” Few major Supreme Court rulings  have been subject to as much “substantial and continuing criticism” as Kelo, and fewer still are based on reasoning that even the justice who authored the decision now in large part rejects.

Perhaps Stevens’ admirably honest retrospective assessment of Kelo will hasten the day that the case is overruled. If so, it could turn out to be one of the last great public services of his distinguished career.

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New Jersey Regulators Crack Down on Craft Beer

Last week, New Jersey regulators pumped the brakes on the state’s craft beer industry. The state’s Alcohol Beverage Control board (ABC) issued a special ruling that restricts breweries in the state in a number of ways—including who, what, when, and how they can serve.

The new rules replace others the ABC had planned to adopt last year. Facing pushback from brewers, the ABC decided to pull back and ponder the rules.

James Graziano, acting ABC director, said in a statement announcing the new rules that the ABC chose to work with “the very few, very vocal licensees who felt their views were not adequately represented.” Yet after all that pondering and listening to breweries, the special ruling itself notes that it’s “substantially similar” to the 2018 ruling.

Under the new rules, a brewery still may not sell food but may provide delivery menus to patrons. Yay. A brewery also may not allow a food truck to park on its premises but may allow food trucks or other food vendors to sell food to brewery customers off premises (duh) provided the brewery “does not coordinate with the food vendor or food trucks.”

The special ruling is grounded in an effort—an impermissible one, I’d argue—to protect restaurants, bars, and liquor stores in the state from competition.

The state’s powerful restaurant lobby, for example, opposes “any legislation that would relax the state’s uniquely restrictive rules on [brewery] tasting rooms, such as allowing food service and eliminating a requirement that every patron must tour the facility each time s/he visits.”

Star-Ledger columnist Paul Mulshine, in an excellent column lambasting the new ABC rules this week, notes that New Jersey courts have determined that “laws cannot be written or interpreted to protect liquor license holders from competition.” Mulshine cites an earlier liquor case in the state that held “a desire to protect other businesses from economic competition is an impermissible consideration.”

Historically, New Jersey hasn’t been known as a beer state—craft or otherwise. According to the Brewers Association, which represents the interests of craft brewers around the country—and which I’ve written about many times, including here and here—New Jersey is ranked 45 out of 51 in U.S. breweries per capita. The state also ranks 47th in gallons of beer produced per capita. That puts the state just behind Kansas and just ahead of Arkansas, each of which is probably known more for its dry counties than its beers.

Despite these figures, New Jersey’s craft beer scene has grown in bunches in recent years, thanks in large part to a 2012 law that helped bolster the state’s craft beer scene. The special ruling, the ABC says, was intended to clarify that state law.

But clarity doesn’t appear to be the agency’s forte. When it comes to regulation and competition, New Jersey’s ABC appears to misunderstand a lot, including the purpose of the breweries it regulates. For example, the special ruling states that the ABC’s vision for regulating breweries in the state involves restricting what breweries may sell and to whom so “that consumers could become more interested in the craft beers and would want to buy them at” New Jersey liquor stores, restaurants, and bars. In the eyes of the ABC, in other words, breweries in the state exist largely for the purpose of promoting other businesses regulated by the ABC.

Rather strangely, the New Jersey Brewers Association, which represents many craft brewers in the state, released a statement last week applauding the new ABC rules. I reached out to Alexis Degan, executive director of the NJBA, who clarified the statement in a series of emails to me, explaining, basically, that the rules proposed last year were far worse, and that the NJBA hopes to work with lawmakers moving forward to improve the law.

When it comes to the rules, we recognize that it is time to engage the Legislature in crafting a clearer statute to protect the rights of the breweries to advertise without limit the events which the ABC Director has now said we can host,” Degan tells me.

Degan also accepted my characterization that the new rules are less awful than those proposed last year and less terrible than they might have been.

She’s right. Among the improvements over the earlier proposed rules, Degan notes the new rules removed caps on the number of events a brewery can host. That’s true. But the new rules also limit to 25 the number of events a brewery can market publicly. That’s something Degan and the NJBA hope to change through the legislative process. But the marketing cap is also so arbitrary (among other problems) that it could be ripe for a brewery to challenge the limit on First Amendment grounds, whether or not the legislature moves to amend the law.

New Jersey’s lousy craft beer rules should evolve. They, like the state ABC’s understanding of craft beer, will evolve. And craft brewers and consumers in New Jersey will be better off for it.

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Fentanyl Is Not a Nuke, and Drug Dealers Are Not Terrorists

Could fentanyl be a weapon of mass destruction? That was the prompt for a Department of Homeland Security memo that became public in April, exploring the question of whether the prescription painkiller should be treated like the functional equivalent of a suitcase nuke “when certain criteria are met.” What seems absurd—powerful black-market fentanyl has been blamed for a spike in overdose deaths, but it’s not exactly sarin gas—actually hews to a perverse bureaucratic logic.

Government focus on weapons of mass destruction (WMDs) is down, while interest and resources for fighting fentanyl are up. Meanwhile, the powers granted to authorities for national security are expansive and numerous, and they enjoy special exceptions to protections involving due process, accountability, and transparency. Bundling the two is the administrative equivalent of an American heiress marrying an English lord with a crumbling manor house.

Or as WMD expert Dan Kaszeta told Task & Purpose, the publication that initially acquired the memo: “It’s an interdepartmental play for money, that’s all it is.”

This is far from being an isolated incident. Indeed, it’s a safe bet that any expansion of law enforcement powers authorized in the name of national security will soon be used in the war on drugs. We are on the verge of being overrun by vice cops in olive drab cosplay, and our lawmakers are accelerating the process under the guise of protecting Americans from war and terror.

The biggest proof point for that claim has been the evolution of the PATRIOT Act, passed during the panic immediately after the terror attacks of September 11.

As far back as the law’s 2005 reauthorization, Sen. Russ Feingold (D–Wis.) raised this objection to so-called sneak and peek warrants under Section 213 of the law: “Don’t be fooled for a minute into believing that this power is needed to investigate terrorism or espionage. It’s not. Section 213 is a criminal provision that could apply in whatever kind of criminal investigation the government has undertaken. In fact, most sneak and peek warrants are issued for drug investigations.”

He was right. Sneak and peek is exactly what it sounds like. It allows law enforcement to enter your property, search your belongings, and even take stuff—all without notifying you. The law does not require that police prove there is a national security interest; it can be used in any federal investigation, including those for misdemeanors. When it was initially debated, however briefly, the justification for such broad discretionary powers came down to “trust us.” The notion was that such warrants would be issued only in rare ticking-time-bomb situations or other emergency scenarios where secrecy was needed to forestall great harm. In fact, such warrants are employed routinely in drug cases—thousands have been granted with minimal judicial oversight—and only rarely to pursue actual terrorists like those who executed the 9/11 attacks.

Flash forward to 2019, and sneak and peek is back in the news. The hidden cameras that were installed at the Orchid of Asia Day Spa in Jupiter, Florida—the ones that caught New England Patriots owner Robert Kraft receiving a massage and possibly other services—were placed there, without the knowledge of the spa owners or the people being filmed, under PATRIOT Act authority.

In the end, there were not even any sex trafficking charges filed in that case, much less any charges related to national security. Powers granted under the specter of a national existential threat are now used in the course of ordinary vice busts, targeted not at terrorist masterminds but at stoners and septuagenarian horndogs.

Or consider the Stingray, a device that lets authorities gather information about cellphone use without the user’s permission or knowledge. The initial development and approval of the technology were entirely under the auspices of national security—those were the terms under which the Federal Communications Commission approved it. The suitcase-sized Stingray simulates a cell tower and makes authorities privy to phone calls and text messages. But the utterly unsurprising consequence of law enforcement officers having a powerful new tool to aid their terrorism investigations was that they used it to aid all sorts of investigations.

And—this is important—the courts didn’t stop them. Judges rarely throw up roadblocks to this kind of abuse, which is unfortunate, because they are pretty much the last and only line of defense.

For the most part, law enforcement doesn’t even need to bother to make the case that the drug trade is connected to actual national security. They simply take the powers granted to them for defense reasons and run with them.

But Donald Trump’s administration has figured out an even faster method than gradually assimilating powers intended for terror investigations into the everyday police state: Rather than push the envelope of the existing law, just redefine the terms. Which brings us back to fentanyl as a WMD. If everything is a matter of national security, then every incursion of due process, civil liberties, and privacy is easily justified.

In March, Trump announced that his administration would consider designating Mexican drug cartels as terrorist organizations. The notion that the national security of a global superpower rests on the interdiction of marijuana, meth, and opioids would be laughable if it weren’t taken so seriously by the powers that be in Washington. But many politicians have strong incentives to go along with the farce, because they want to be seen as either tough on terror, tough on crime, or friendly to the powerful law enforcement lobby.

The “president should simply declare the human trafficking cartels who are profiteering off the illegal immigration surge to be terrorist organizations and treated accordingly,” said Rick Manning, president of Americans for Limited Government, in a statement about the “severe” conditions at the border. “It is now endangering our national security, and those in Mexico who are facilitating the trafficking need to be dealt with the full force of the law.” This followed a previous statement in which Manning said “Congress has failed to adequately secure the border, leaving President Trump with little option but to use Congress’ limited grant of authority to reprogram uncommitted military construction funds to build the wall and other fencing needed to keep drugs, gangs and human trafficking at bay.”

Again, this is nothing new. In 2018, Drug Enforcement Administration Acting Administrator Uttam Dhillon called the drug trade a “significant threat” to national security. But from the very early days of the war on drugs, the rhetoric of national strength has been interwoven with justifications for incursions on liberty.

At the root of all of this is the idea, shared by many Americans, that if a problem is bad enough, the waiving of privacy protections and other constitutional safeguards is justified. It’s the same sentiment that Trump and Barack Obama before him displayed when they chose to disregard congressional authority in their decision making about immigration and border control. It’s the animating idea behind the Green New Deal and every call for widespread crackdowns on gun ownership after a shooting. It’s also the justification for restrictions on trade, from steel to sugar, in the name of self-sufficiency and American autonomy.

To be clear: One can believe that drug interdiction is an important national priority (I don’t) and that citizens should be willing to bear great costs to slow or stop the flow of narcotics into the country (I don’t) without thinking that the special exceptions to civil liberties granted to go after terrorists in the wake of 9/11 should be applied to random Mexican drug dealers.

It is immodest to name a maxim after oneself. Ideally one’s friends—or more likely one’s enemies—should do it. But sometimes shorthand is useful, so I’d like to propose we call this Mangu-Ward’s Law: Policies designed to stop terrorists usually end up being used to try to stop people from getting high or getting laid.

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David Bergland, R.I.P.

David Bergland, the Libertarian Party’s 1984 presidential candidate, died last week at age 83 of prostate cancer.

Bergland’s interest in libertarianism began with Ayn Rand and Objectivism, and after attending a Libertarian Party meeting in Orange County in 1973 he became the young party’s 1974 candidate for attorney general in California. Two years later, he was tapped to be the party’s national vice-presidential candidate—a fresh face who showed up late at the convention and became an acceptable compromise candidate after a heated struggle between others.

After serving five years as the party’s national chair, he became its presidential nominee in 1984 (again more or less as a compromise candidate, when one of the expected main contenders dropped out at the last minute). Running against Ronald Reagan and Walter Mondale, he earned a bit over 228,000 votes.

That was a big comedown after the Ed Clark/David Koch ticket of 1980, which had earned more than 921,000, but the party had lost much of its financial backing and experienced management support when the forces surrounding Ed Crane and the Koch brothers pulled out of the party, unhappy that their preferred candidate—Earl Ravenal—failed to get the ’84 presidential nomination.

As Bergland told me in an interview for my book Radicals for Capitalism, “We didn’t really have any campaign organization at the time of the convention, and as we tried to get set up and rolling all the Koch money was gone and the Crane people [were] not gonna bother with my campaign, so we thought: What can we do on short budget and with the primary asset the candidate? We decided the thing to do was to educate journalists. I could spend time most productively and build for the future by trying to do as good a job as possible getting journalists clear on who we were and what we stood for…

“[A] majority [of reporters] didn’t know much of anything about us, and what they did know was a little bit wrong, but they were eager to know and very respectful. They weren’t saying you guys are nuts for doing what you’re doing, except for the standard: ‘You don’t have a chance to win, so why are you running?’ I’d say, ‘Mondale doesn’t have a chance to win. Why don’t you ask him that question?'”

Bergland’s media strategy indeed got libertarian ideas in American newspapers, from Montana’s Great Falls Tribune to Wisconsin’s Stevens Point Journal, explaining a variety of then-quite-eccentric notions: that the U.S. doesn’t need and can’t afford to have tons of overseas military bases that don’t defend the homeland, that education could be better done by private entities than government ones, that the state should prohibit neither drugs nor pornography nor gun ownership nor abortion.

Outside his libertarian activism, Bergland practiced law as a business attorney in private practice and taught law as an adjunct professor at Western State University College of Law in Fullerton, California and Irvine, California. He wrote an introductory book on libertarian thought for his campaign, Libertarianism in One Lesson.

Bergland wrote about his experience running for president for Reason, including this example of why he saw Libertarian presidential campaigns as having media benefits regardless of vote totals:

One young reporter [at an Albany, NY, press conference] was prompted to ask, “Mr. Bergland, would you describe our government as a totalitarian government?” After some thought, I responded, “No, not so long as we have a free press and open elections.” How would I describe our government, he asked. I said the best description is “a corporate-fascist, welfare-warfare state.”

The reporter asked to know what I meant. I explained…the hand-in-glove relationship between big government and big business—the subsidies, the bailouts, the protections against competition, the pervasive regulatory schemes—justify the “corporate-fascist” label. I added that our huge, costly, and demeaning welfare plantation system that benefits government employees while hurting the poor, and our global interventionist foreign policy that results in ever-increasing military spending and benefits the military-industrial complex at the expense of the people, justify the “welfare-warfare” label.

Those comments went out on the wire services, and for several days I had many opportunities to elaborate on my characterization of our government as a corporate-fascist, welfare-warfare state. No other presidential candidate, particularly Reagan or Mondale, is willing to challenge prevailing political views in such strong and accurate terms.

Every Libertarian presidential candidate since Bergland beat his national vote totals, which is exactly as he thought it should be.

The details of Bergland’s life, and memorial testimonials from many fellow party activists, can be found at the website of the Zero Aggression Project.

 

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