Tag: in-the-news

[This post is co-authored with Seth Barrett Tillman]

The Foreign Emoluments Clause provides that “no Person holding any Office of Profit or Trust under them [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” Since 2017, plaintiffs in three lawsuits have argued that President Trump is violating this provision. Does the phrase “Office . . . under” the United States apply to the President? In a series of amicus briefs, filed along with the Judicial Education Project, we contend that this phrase is limited to appointed officials in all three branches of government. Therefore, the elected President is not restricted by this provision.

In 2009, the Office of Legal Counsel (OLC) stated, in a conclusory fashion, that the Foreign Emoluments Clause “surely” applies to the President. Three years later, the Congressional Research Service (“CRS”) reached a similar conclusion: “The President and all federal officials are restricted by the” Foreign Emoluments Clause. To date, OLC has not revisited this position. (Though the Department of Justice has cast some doubt on the 2009 conclusion, stating that it was reached “without discussion.”) CRS, however, has altered its position. 

In 2016, CRS hedged a bit. CRS stated that the Foreign Emoluments Clause “might technically apply to the President.” This change was significant, and warrants praise. CRS acknowledged that this issue may not be as simple and straightforward as once thought. And we attribute that shift to Tillman’s scholarship in this area. 

More recently, CRS has explained its revised position. On September 25, 2019, the House Subcommittee on Economic Development, Public Buildings, and Emergency Management held a hearing that concerned the Foreign Emoluments Clause. (We submitted a joint statement for that hearing, which we intend to blog about in a future  post.) Michael A. Foster, a legislative attorney for CRS, submitted a statement. Only seven years earlier, CRS stated, without any analysis, that the President was subject to the Foreign Emoluments Clause. Now, CRS devoted nearly three full pages of analysis, with two dozen footnotes, to the “important threshold issue” about who “is subject to” the Foreign Emoluments Clause. The statement referenced the “significant academic debate about whether Office of Legal Counsel’s conclusion comports with the original public meaning of the Foreign Emoluments Clause.”

Foster’s subcommittee statement cited Tillman’s scholarship several times. First, CRS cites Tillman’s textualist taxonomy, in which “the Foreign Emoluments Clause does not apply to elected officials such as the President, but only to certain appointed federal officers.” (We discussed that taxonomy on the Volokh Conspiracy in 2017.) Second, beyond Tillman’s “textual and structural arguments,” CRS also cited “Founding-era historical evidence” raised by in our amicus briefs:

To support the view that the Foreign Emoluments Clause does not apply to the President, academics have observed that, among other things: (1) a 1792 list produced by Alexander Hamilton of “every person holding any civil office or employment under the United States” did not include elected officials such as the President and Vice President; (2) George Washington accepted gifts from the Marquis de Lafayette and the French Ambassador while President without seeking congressional approval; and (3) Thomas Jefferson similarly received and accepted diplomatic gifts from Indian tribes and foreign nations, such as a bust of Czar Alexander I from the Russian government, without seeking congressional approval.

Without a doubt, CRS also cited evidence and arguments that the Plaintiffs have relied upon which supports the contrary view. CRS, however, does not adopt one side of this debate over the other; rather, it flags legitimate arguments which exist on both sides of the issue. In doing so, CRS has now cast doubt on the Office of Legal Counsel’s 2009 conclusion that the Foreign Emoluments Clause “surely” applies to the President. 

In a subsequent post, we will discuss how the Department of Justice Civil Division has taken a position  in recent briefs that is in tension with the 2009 OLC Opinion.

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The city of Dunedin, Florida, really wants Jim Ficken’s house. Last year, the 69-year-old retiree left town to attend to his dying mother and then to sort out her estate. While he was away, he left a handyman in charge of his property. In a Shakespearean twist, the handyman also died, leaving Ficken’s lawn unmowed and the municipality perturbed.

Ficken returned home, learned that he was in violation of Dunedin’s tall grass ordinance, and mowed his lawn two days later. The city then held a hearing at which it decided to retroactively fine Ficken for each day that his grass had exceeded 10 inches in height. Because he had let his grass grow too tall once before, in 2015, Dunedin deemed him a “repeat violator” and doubled his daily fine from $250 to $500. The total damage: over $29,000.

Ficken, who is on a fixed income, can’t pay the city. In a sane world, his explanation for neglecting the lawn and the fact he remedied the problem promptly upon being informed of it by a code inspector would settle the matter. But Dunedin, a picturesque beach town on Florida’s Gulf Coast, has threatened to foreclose on Ficken’s home to get the money it claims it is owed. Ficken, who is being represented by the Institute for Justice (I.J.), is now suing the city in order to protect his house and end the saga.

In his lawsuit, filed in May, Ficken argues that Dunedin’s practice of imposing such large fines with such extreme consequences, “without providing…notice before applying such classification” and without “advising…of the consequences of such a classification…violates the Due Process Clauses of both the U.S. and Florida Constitutions.”

The city, which sought to have the lawsuit tossed by the Florida Circuit Court for the 6th Judicial District, says Ficken received all the due process he was owed. Dunedin informed him of a hearing where his case would be discussed, and in which the doubled “repeat violator” fines were retroactively imposed.

A filing from Ficken’s lawyers counters that Dunedin officials were “repeatedly advised that Jim would not be able to attend the hearing,” yet “the City went forward anyway.” According to I.J., “this ‘process’ was one in which Jim was not permitted to participate,” and “when he sought a rehearing, his request was rejected.” Ficken adds that he was never informed of his status as a “repeat violator” or told what such a designation would mean for his case.

Since no statutory cap exists on the total amount in fines that can be levied for petty violations, Ficken believes the city’s threats also violate the Excessive Fines Clauses of the U.S. and Florida constitutions. Taking someone’s house for having overly tall grass for a few weeks seems, on its face, excessive and unreasonable.

Dunedin, naturally, disagrees, insisting the question of excessiveness must be based on the daily fine, not on whatever heights it might reach. The city cites a number of other Florida cases that seem to support that conclusion.

Ficken’s lawyers noted in a reply that the cases Dunedin cites are legally unpublished and thus lack precedential power. They also involve daily fines substantially less than Ficken’s $500 a day and also involve noncompliance far more intentional and long-lasting.

Finally, Ficken’s fines had no connection with any legitimate city purpose to force compliance, as Ficken had already cut his grass before the hearing at which they were imposed.

It appears that Dunedin has resorted to such tactics in order to raise revenue. From 2007 to 2017, Dunedin’s take from code enforcement fines increased nearly twentyfold, from $34,000 per year to $703,000. The city can pay its employees’ salaries out of such cash, giving them a motive to act punitively. The city had the option, while Ficken was out of town, to mow his lawn and bill him for the service. It instead chose the path leading to the attempt to seize his home.

“A fine of $30,000 and the loss of one’s home are excessive because they are both unreasonably harsh and so oppressive as to shock the conscience of reasonable men,” the I.J. lawyers wrote, riffing off language in an earlier case. The consciences of these city officials in Dunedin, though, seem defective.

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The Fayetteville, North Carolina, police department has fired detective Paul G. Matrafailo III after three alleged rape victims whose cases he worked on said he hit on them. One woman said that after Matrafailo found she was a nursing student he texted her asking if she wanted to practice on him. Another said he found her on Instagram even though her account doesn’t have her name on it and began to message her. She said one message pointed to lingerie that was being sold on an Amazon link in her account and included a tongue emoji and a wink emoji. Matrafailo’s employment file shows he was reprimanded in 2018 for sending offensive and inappropriate messages to forensic technicians.

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Ten Democratic presidential candidates gathered today in Las Vegas, under the auspices of Giffords and March for Our Lives, to talk for a half-hour each at the “2020 Gun Safety Forum.” They were questioned individually and sequentially by MSNBC anchor Craig Melvin and audience members; most, if not all of them, connected to some anti-gun-violence group.

Collectively, the first five candidates—South Bend, Indiana, Mayor Pete Buttigieg, former HUD Secretary Julian Castro, Sen. Cory Booker (N.J.), Sen. Elizabeth Warren (Mass.), and former Vice President Joe Biden—supported a set of initiatives they insist have mass popular support, including from gun owners. They argued that these “common sense gun safety” proposals are stymied by a combination of President Trump (who, they stated or implied, must be unseated before anything “sensible” can happen regarding new restrictions on gun owners) and a Congress in the thrall of the gun industry and the National Rifle Association (NRA), with the latter merely standing for the former, not for civil rights or the interests of their gun-owning members.

Audience questions often steered them toward the question of the disproportionate impact of gun violence on black and brown urban communities. (While the candidates didn’t run with it, David Hogg, the student activist who was present at the Marjory Stoneman Douglas High School shooting in 2018, linked the issue of gun ownership with “white supremacy” without explanation.) None of the candidates mentioned or alluded to the idea that the illegal drug trade plays a large role in that violence, and that liberalizing federal drug laws might help stem gun violence. Biden, in a complete gun law proposal issued today, does mention specific targeted interventions in affected communities, an idea that National Review‘s Robert VerBruggen praises due to “good evidence showing that they work, and they focus on specific individuals at severe risk of committing gun violence—not everyday people who own guns legally.”

Warren was the only candidate savvy and wonky enough to point out something that analysts from the gun-rights side often point out: that the colorful public tragedies that fuel the political demand for action on gun rights would in most cases not have been affected by most of the proposed “common sense” policies that would merely complicate the lives and actions of the overwhelming number of innocent gun owners.

Still, she thinks, that’s not a reason not to impose all of them. She suggested that a slow application of every idea to make gun ownership harder or more onerous, like the constellation of safety features the federal government has mandated for cars over the decades, will add up to the results she seeks. In general, she thinks anything that makes sure there are fewer people possessing fewer guns will be good for America.

While agreeing on the broad strokes, including a need for more mental health resources to curb both suicides and potential homicides, each candidate had their own particular points to make.

Buttigieg stressed his desire to spend a billion dollars to have the Department of Homeland Security keep a watchful eye on domestic speech looking for dangerous hateful extremists as a tool to curb gun violence.

Julian Castro stressed higher excise taxes on ammunition and guns and proposed spending the $600-700 million those taxes might raise on gun violence prevention programs. He also thinks making ammunition more uniquely marked and traceable to the gun or buyer would help law enforcement investigate gun crimes.

Cory Booker stressed that we need federal licensing of gun owners because localities with strict gun laws and high gun violence are importing guns from other places. He repeated his unsupported claim that a Connecticut law requiring a permit to buy a gun cut gun homicides 40 percent.

They all think a federal mandate for universal background checks for all gun purchases—not just those from licensed gun dealers, as is the law currently—should be politically easy.

One point of contention was the political feasibility of a mandatory buyback of “assault weapons,” such as the one proposed famously by former Texas congressman and fellow presidential hopeful Beto O’Rourke. (None of them mentioned the vanishingly small number of gun murders, around 2 percent, performed with any kind of rifle, or the criminological consensus that the last ban on new sales of such guns had no appreciable effect on public safety.)

Buttigieg considered mandatory assault weapon buybacks a longshot that would sap political capital from efforts to implement more attainable policies like universal background checks, federal licensing, and “red flag” laws to get guns out of the hands of people whose family or associates believe to be dangerous.

Castro is happy to push for a voluntary buyback, plus registering such weapons so the government knows who has them. But he didn’t get fully behind the mandatory angle proposed by O’Rourke. The experiences of New Zealand and other places suggest that getting rid of existing legally owned weapons voluntarily, short of going door-to-door, will be tough.

Booker does want a mandatory buyback but insisted that no law making an existing legally owned weapon illegal would ever lead to government men with guns coming door to door, though, in fact, that’s exactly what it led to in California. Booker also insisted on federal “safe storage” laws in response to a woman whose son was accidentally shot with a gun a friend’s father had left unlocked-up and loaded.

Warren also said something that should be food for thought for those who insist “gun safety” must be a huge federal political priority: She wants more studies trying to drill down into what causes gun violence and what might reduce it. The existing body of such work does not give much reason to hope that there are easily discoverable social science conclusions that can reasonably guide public action.

It is true that our gun murder rate in the past few years has been rising alarmingly, with uncertain causes, though not yet back to the highs of the 1970s-to-mid-1990s. But over the course of a couple of decades from the early ’90s to the early ’10s, we saw our firearms homicide rate fall nearly by half.

It did so without any of these proposed actions from these candidates having any bearing on the outcome, during a period when the number of guns available to Americans and the states where they had the legal right to carry their weapons outside their home both zoomed up, not down. Thus, the connection between all these proposals and lowering gun homicide rates is far from clear.

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Police officers outside of Dayton, Ohio, unsheathed their weapons and fired blanks in Franklin High School on Tuesday as part of a misguided effort to prepare students for a possible active shooter.

The planned drill unnecessarily ratcheted up the intensity of school lockdown procedures, which routinely require students and teachers to barricade themselves in their classrooms. That the exercise was potentially traumatizing was not lost on the officials who planned it, as they came equipped with “Social-Emotional Activities,” as well as counselors who could talk with any disturbed teens.

“There was a concern and it did cause some stress” among parents and students, Lt. Gerry Massey tells the Cincinnati Enquirer. Senior Samantha Earnhart, one such terrified student, said that she “became very emotional” and “started to cry” upon hearing the gunfire.

And for what? Regardless of the feverish rhetoric around school shootings, the phenomenon remains exceedingly rare.

Less rare, however, are these increasingly extreme active shooter drills.

In August, police fired off blanks at a high school in Long Island, New York, in response to a pretend shooter who banged on classroom doors while students and teachers hid. Elementary school teachers in Indiana were recently shot execution-style with plastic pellets, causing many of them to bruise, and a Florida “Code Red” exercise last year was marketed to students as the real deal. “This is not a drill,” a school administrator announced over the intercom, sending some students into an emotional frenzy as they texted their parents goodbye.

“I felt more traumatized than trained,” Elizabeth Yanelli, a teacher in Cranberry Township, Pennsylvania, told Education Week after undergoing an active shooter drill at her school. Yanelli says teachers were told to shoot Airsoft guns in the cafeteria to sharpen their skills in case they might need to confront an active shooter one day. Worse still, the teachers were told to practice on each other. “We had colleagues shooting colleagues, we had people getting hit with [plastic] pellets. … People were screaming, trying to run. People were tripping over each other. It was just horrendous.”

Whether or not such exercises actually prepare people for active shooters remains to be seen, says James Alan Fox, the Lipman Family Professor of Criminology, Law, and Public Policy at Northeastern University. But they almost certainly stoke paranoia around an already-fraught issue.

“From 2013 to 2018, 40 students were fatally shot by an assailant in school, averaging 6.7 a year out of 55 million schoolchildren,” Fox tells Reason. That includes the Parkland and Santa Fe shootings, which took 17 and 10 lives, respectively. He contrasts that with the student fatalities that occur while children commute to school—bicycle and bus crashes, for instance—which average about 30 a year.

The overblown approach to shooter drills might actively make schools less safe. Fox notes that some students find the exercises “extremely upsetting, traumatizing, and fear-provoking,” while others still think they’re “not that big of a deal.” But then there’s another group of students, he says, who find it all-too-thrilling, increasing “the likelihood that they’ll perpetuate” something similar. (While the jury is still out on that, some preliminary data is worrying.)

It’s likely impossible to pinpoint a hard number on how many lives, if any, have been saved by active shooter exercises. Thus far, the benefit of these drills does not appear to exceed the cost.

At Franklin High School, for example, teachers had the option to tell students which direction the bullets were coming from and then confer with their students about the best plan of action. A teacher seized with fear in real-time might not have the ability to determine where shots were coming from, or have time to chat with students about evacuation versus a barricade.

Some version of active shooter preparation likely has a place in the school curriculum. Even Fox says he can understand teachers talking to students about proper protocol. But the wild attempts to subject kids to an authentically frightening experience provides no additional benefit and borders on the absurd. During a tornado drill, should school staff employ high-powered fans to shake the windows and drive genuine terror into their pupils? Most would certainly say no, as it would it actively inflict trauma on young kids⁠—just as these shooter drills are now designed to do.

“Schools are safe,” says Fox. “For some kids, it’s the safest place they can be.” Let’s keep it that way.

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America’s opioid crisis is really a fentanyl crisis, and the fentanyl crisis is really a prohibition crisis. So why aren’t we doing more to prevent fentanyl deaths?

As demand for black market opioids has increased in response to the reduced availability of prescription opioids, there’s been a corresponding spike in the use of illicit fentanyl, which is 50 times more potent than heroin and widely available on the street. A powerful drug being marketed as a less powerful drug has produced a corresponding increase in overdose deaths—48,000 Americans overdosed on opioids in 2017, according to the U.S. Centers for Disease Control and Prevention (CDC), with synthetic opioids like fentanyl responsible for 29,000 (and likely more) of those fatalities. While the overall number of overdose deaths has doubled since 2013, the number of deaths resulting from the use of synthetic opioids has increased ninefold.

Federal drug prohibition played a big role in creating this mess. Unfortunately, the federal government is also playing a role in limiting the availability of naloxone, a drug that blocks opioid receptors and can reverse an otherwise fatal overdose.

“Everyone agrees—no matter where they stand on the drug war—everyone agrees this is a lifesaver,” says Jeffrey Singer, a medical doctor and senior fellow at the Cato Institute.

Singer, who has written previously for Reason and has co-authored a paper with Reason‘s Jacob Sullum, co-hosted an event on Wednesday for congressional staffers in the hopes of jump-starting an apparently stalled effort to get naloxone to be approved for over-the-counter sales (something that many other countries already allow). If the FDA changes the designation for naloxone, it could be sold in more than 750,000 retail stores across the country, or even out of vending machines. That would mean better, easier access to a life-saving drug for the people who are most likely to need it: those using heroin or illicit fentanyl in public spaces without access to a pharmacy.

For now, Naloxone is available in most states by going to a pharmacy and asking for it, no doctor’s prescription needed. The drug is easy-to-use and can be safely administered without training—either in the form of a nasal spray (sold under the brand name Narcan) or an intramuscular auto-injector (Evzio). The drug was first approved by the FDA all the way back in 1971.

“There are a lot of people, because of the stigma attached to opioid use in general, who are hesitant to go up to the counter,” says Singer. “Just being able to take it off the shelf with a box of Band-Aids and take it up to the counter—or, better yet, to pay a robot in the form of a vending machine.”

There are some who worry that such widespread access to naloxone could create a moral hazard. That is, if it becomes easier to avoid a deadly consequence, more people might be willing to engage in dangerous behavior, like doing heroin, in the first place. That was the stated reason why, for example, Maine’s Gov. Paul LePage (R) vetoed a bill allowing pharmacists to dispense naloxone (the state legislature overrode his veto).

Studies into whether those fears are grounded in reality have been mixed. While some have found an increase in opioid-related emergency room visits after access to naloxone was expanded in some states, others have found a reduction in opioid-related deaths. A study published in the journal Addictive Behavior found that opioid use generally declined among individuals who used or have been trained to use naloxone—suggesting that close brushes with death discourage drug use.

So why isn’t naloxone available over-the-counter? The FDA isn’t entirely at fault. The agency has actually been asking drug companies to petition them for a reclassification of the drug. But under FDA rules, the agency doesn’t necessarily have to wait until the drug companies ask for that change. Technically, any “interested person” can request a review, or the FDA commissioner can institute one preemptively.

The FDA has worked to raise awareness about naloxone. In 2018, Surgeon General Jerome Adams issued a statement encouraging more people to carry naloxone. Later that same year, the Department of Health and Human Services outlined guidance for health care providers and patients detailing how naloxone can help save lives. The FDA has even taken the unusual step of pre-approving an official “drug facts label”—something required for all over-the-counter medications—that can be slapped on packages of Narcan once naloxone is reclassified. Those are all encouraging signs, even against the backdrop of President Donald Trump’s threats to double-down on failed “get tough” prohibition policies.

If the drug companies won’t pick up the pace and get naloxone approved for over-the-counter sales—perhaps because they are worried that it would cause the drug’s price to fall, something that often happens when drugs are made available over-the-counter—then acting FDA Commissioner Norman Sharpless should do it unilaterally. The agency does not exist to protect drug companies’ profits; it exists to evaluate the risks of allowing wider access to certain drugs. In this case, opioid overdoses are an exponentially greater threat to Americans than the misuse of naloxone.

“The fact that you have to, in this country, go up to a pharmacy counter to get naloxone,” Singer tells Reason, “is standing in the way of getting access to the people who need it.”

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Clarifying the significance of a resolution that absurdly condemned the National Rifle Association (NRA) as a “domestic terrorist organization,” San Francisco Mayor London Breed argues that the measure will have no practical effect. Although she does not mention the First Amendment lawsuit provoked by the resolution, her reasoning seems to be the city’s best defense against the argument that threatening to cut off contractors with ties to the NRA violates the right to freedom of speech.

The resolution, which the San Francisco Board of Supervisors unanimously approved on September 3, urges city officials to “assess the financial and contractual relationships our vendors and contractors have” with the NRA and “limit those entities who do business with the City and County of San Francisco from doing business with this domestic terrorist organization.” Insofar as it affects contractors who are sympathetic to the NRA’s Second Amendment advocacy, that policy seems like a clear violation of the principle established by the U.S. Supreme Court in the 1996 case Board of County Commissioners v. Umbehr. “The First Amendment protects independent contractors from the termination of at-will government contracts in retaliation for their exercise of the freedom of speech,” the Court said in that decision.

But don’t worry, Breed and City Attorney Dennis Herrera say in a memo dated September 23, two weeks after the NRA challenged the resolution in federal court. “The Resolution does not impose any obligations on City departments or members of the public,” Breed and Herrera write. “Because the Resolution did not change City law, the City’s contracting processes and policies have not changed and will not change as a result of the Resolution.” No harm, no foul.

“In a Face-off With the N.R.A.,” says the headline over a New York Times story about the memo, “San Francisco Blinks.” John Coté, a spokesman for Herrera, rejected that characterization. The memo “just explains what has always been true —the resolution does not change the law,” he told the Times. “If the N.R.A. thinks this is a win, it’s only because their lawsuit completely distorts what the resolution actually does.”

The NRA, for its part, is not dropping its lawsuit, which argues that even the threat of penalizing contractors for their ties to the organization has a chilling effect on constitutionally protected speech. The NRA also claims the policy described in the resolution would unconstitutionally punish the organization itself for exercising its freedom of speech.

City officials “wisely have attempted to pull back from what we alleged…was a clear violation of the association’s First Amendment rights,” NRA lawyer William A. Brewer III told the Times. “What we hope is that the Board of Supervisors will further mitigate the damage they’ve done” by rescinding the resolution or “walk[ing] away from it in some binding way.”

Supervisor Catherine Stefani, who sponsored the resolution, also has emphasized its practical insignificance. “It’s a resolution,” she told the Times after the NRA filed its lawsuit. “It’s not an ordinance. It’s nonbinding.” Her measure, in other words, was nothing more than meaningless bluster, and it should be viewed as such by the courts.

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Among the freedoms guaranteed by the First Amendment is the right “to petition the Government for a redress of grievances.” In other words, you have a right to communicate with the government, to complain about its current policies, and to advocate for new and different ones without fear of punishment or censor. You might call this a right to gripe about the government, to the government. Alternatively, you might call it a right to lobby. 

The unlimited right to petition the government—to lobby the lawmakers who make decisions that affect your life, your family, your fortune, and your business—is a right that Sen. Elizabeth Warren (D–Mass.) thinks American businesses should not have. 

Warren, who is running for the Democratic presidential nomination, has proposed taxing corporate lobbying. Expenditures between $500,000 and $1 million would be taxed at 35 percent. Spending over $1 million would face a 60 percent tax rate, which would jump to 75 percent above $5 million. Some non-profits would be exempt, but the tax would hit trade organizations as well as corporate influence efforts. 

Warren’s campaign estimates that if the rule had been in place over the last decade, and businesses had made no changes to their lobbying activities, it would have raised about $10 billion. But as with her wealth tax proposal, which is designed more to degrade large fortunes than to raise revenue for the government, the point isn’t really to generate new funds from taxation. It is to eliminate much of the lobbying that happens in Washington. 

“We can end excessive lobbying,” Warren wrote in a tweet this morning. Excessive lobbying. Excessive petitioning of the government. The point of Warren’s tax on lobbying is to eliminate, or at least severely degrade, a fundamental constitutional right. It is probably unconstitutional, in the sense that it wouldn’t stand up to a court challenge. It is certainly anti-constitutional, in the sense that it is contrary to the spirit of the First Amendment. 

That’s not terribly surprising coming from Warren, whose respect for the Constitution knows many bounds. As National Review‘s David French has written, many of Warren’s vaunted plans—from her wealth tax to her proposed executive order banning fracking—appear likely to cross legal and constitutional lines. As a candidate, she has repeatedly demonstrated her willingness to ignore the irritating limitations imposed by the Constitution to pursue her political and policy objectives. 

And in this case, it’s both. Or, more precisely, it’s a political objective masquerading as a policy goal: Warren, who is vying for frontrunner status in the Democratic primary race, wants to look tough on lobbyists and lobbying, and this is a way to do it. It’s pseudo-policy, a veneer of wonky seriousness draped over anti-constitutional populist dogma. 

Like many of Warren’s bad ideas, it may be politically savvy: Lobbyists are not exactly popular in America these days, and lobbying is widely viewed as grubby and unseemly, if not actively corrupt. 

This view is not always correct; asking (lobbying) the government to pursue different laws and different policies can be a noble task and a path to better governance. But the view of lobbying as ignoble does have some merit; individuals and corporations often lobby for bad ideas. Indeed, as Bradley Smith and Luke Wachob of the Institute for Free Speech recently noted, Warren herself has a long history of directly encouraging federal lawmakers to adopt policies she prefers, particularly on issues like bankruptcy, about which she has produced misleading research for decades. Over and over again, she petitioned the government to adopt her misguided views—as was her right. 

At other times, lobbyists advocate for narrow self-interest. Following the passage of Obamacare, for example, medical device makers, who have a heavy economic footprint in Massachusetts, the state Warren represents, pushed hard for a repeal of a tax directed at their industry. Starting with her 2011 campaign for Senate, Warren supported their position and backed much of the rest of their agenda in a 2012 op-ed for a trade publication. Industry lobbyists later praised her as a helpful working partner. “We’ve enjoyed the opportunity to work with Sen. Warren during her tenure in Congress,” a representative from a major medical device industry group told Time in 2015. No doubt they did. 

Lobbying—or petitioning—the government to change a law, or advance an agenda, or redress a grievance, like, say, a tax on your industry, might not be held in high esteem. But it is a form of protected speech. And that protection is designed to shield those who are not in government from those who are, to level the playing field between those who wield direct political power, and those who do not. It is more than a little revealing that Warren, a powerful senator who wants to be an even more powerful president, is proposing to weaken that protection in hopes of advancing her own political interests. Warren, you might say, is lobbying for herself. 

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It’s a rare week when a major politician doesn’t threaten social media with censorship or other legal action. President Donald Trump regularly inveighs against Facebook and Twitter, claiming that such platforms minimize the reach and influence of posting by him and conservatives. Sen. Elizabeth Warren (D–Mass.) has promised to break up tech giants using antitrust law if elected president. Meanwhile, talking heads and experts routinely blame social media for mass shootings, rising suicides, and all sorts of social maladies.

Is any of this true? If it is, what should we do about it? And if it isn’t, why are we so freaked out? On today’s podcast, Nick Gillespie interviews Mike Godwin, whose new book, The Splinters of our Discontent: How to Fix Social Media and Democracy Without Breaking Them, is a richly researched and remarkably panic-free discussion of how Facebook, Twitter, and other social media actually operate and influence public discourse, including elections. Currently a “distinguished senior fellow” at the think tank R Street, Godwin has a long and legendary history when it comes to cyberspace. Back in the 1990s, he was the first staff counsel for the Electronic Frontier Foundation (EFF) and helped craft the legal arguments that ultimately struck down government control of online speech in The Communications Decency Act of 1996. He also codified what’s become known as “Godwin’s law,” which holds that the longer an online discussion continues, the probability of a comparison involving Nazis, Adolph Hitler, or the Holocaust approaches 100 percent. Godwin has served as general counsel for Wikimedia Foundation, is the author of Cyber Rights: Defending Free Speech in the Digital Age, and longtime Reason contributing editor (read his Reason archive here).

Social media, argues Godwin, isn’t broken at all, although both tech companies and users need to clarify their terms of engagement. On the other hand, he says, democracy is in deep disarray, for reasons that go back to the very founding of the United States.

Audio production by Ian Keyser.

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California cannot keep President Donald Trump, or any other presidential candidate, off the 2020 ballot for refusing to release his tax returns, a federal judge ruled Tuesday.

The ruling concerns Senate Bill 27 (SB27), the Presidential Tax and Transparency Act, which California’s legislature passed in July and Democratic Gov. Gavin Newsom signed into law. SB27 requires all candidates for president, in order to appear on the state’s primary ballots, make the last five years of their income tax returns publicly available.

Trump’s attorneys, representatives for the Republican National Committee, the state’s Republican Party, and a small group of individual voters all sued, arguing that the act violates the First and 14th Amendments of the Constitution and is pre-empted by federal law regulating financial disclosures by presidential candidates.

On Tuesday, Morrison C. England Jr., U.S. District Judge of the Eastern District of California, agreed with Trump and the other plaintiffs and enjoined California from enforcing the part of the law that requires the disclosure of candidate tax records. England ordered a temporary injunction when he first heard the challenge back in September. Today’s written ruling formally orders California to cease making these demands.

England agreed with every single argument the plaintiffs presented against California. He agreed that the plaintiffs were likely to win on the merits, as the U.S. Supreme Court has determined that the Constitution forbids states from making new eligibility requirements by “dressing eligibility to stand for [public office] in ballot access clothing.” He also agreed that SB27 was preempted by the federal Ethics in Government Act, which outlines what candidates for president must publicly disclose.

He further explains that the Act thwarts the will of California voters, violating their First Amendment rights:

“Here, the Act creates what amounts to a functional bar against the ability to cast an effective vote for a candidate who elects not to disclose his or her tax returns. It further interferes with the ability of both individuals and political parties to select the individual presidential candidate of their choice to act as the ‘standard bearer who best represents [their] ideologies and preferences. … These are severe restrictions, since limitations on ballot access can violate multiple constitutionally-protected interests, including the right to associate for political purposes, the right to vote, and the right to express political preferences.'”

Essentially, England is saying that if the voters support a candidate who does not want to release his or her tax returns, that’s their right and California can’t stop them.

Lawmakers tried to pass the bill under previous Gov. Jerry Brown, who vetoed it as likely unconstitutional and worried that it would result in a slippery slope. England even quotes Brown’s veto message in the ruling:

Today we require tax returns, but what would be next? Five years of health records? A certified birth certificate? High school report cards? And will these requirements vary depending on which political party is in power?

England adds his own concerns:

The list of allegedly “relevant” information required to obtain ballot access could therefore snowball out of control with no practical limitation as legislatures throughout the nation could impose their own qualifications on presidential candidates, perhaps for nakedly political purposes. That result cannot possibly comport with the Framers’ goal for a fixed and nationwide standard for such federal offices.

The short-sighted stupidity of this law should be readily apparent to even the most casual observer, even if we were to set aside the severe constitutional issues with it. For instance, why wouldn’t a state with a Republican legislature retaliate in a way that made it harder for Democratic presidential candidates to qualify for ballot access?

CNN notes that Democratic California Attorney General Xavier Becerra is likely to appeal the ruling. He really should read the whole thing, accept this law is doomed, and not waste any more taxpayer money. England does not give one single inch to any of California’s arguments in the ruling and even points out that it’s actually not true that every presidential candidate has historically released his taxes. Brown himself did not disclose his tax returns when he ran for president in 1992. Nor did Ross Perot. Nor did Ralph Nader in 2000.

It is a dumb, unconstitutional law, and to continue to defend it weakens the argument that Trump is a unique threat to Democratic and constitutional governance. There’s nothing Democratic nor constitutional about trying to gin up reasons to keep a candidate from an opposing political party off the ballot.

Read the ruling for yourself here.

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