Tag: in-the-news

Publius: The Journal of Federalism recently published my review of political scientist Michael Dichio’s important new book The US Supreme Court and the Centralization of Federal Authority. Although I have some disagreements (detailed in my review), this is an impressive work, and I highly recommend it to anyone interested in the subject. My review is available for free on SSRN. Here’s the abstract:

Does the U.S. Supreme Court protect the states from the expansion of federal authority? In this important new book, political scientist Michael Dichio argues that the answer is “no.” To the contrary, he contends that, throughout American history, “the Court …. has persistently acted as an important instrument of the broader central state, expanding federal authority over society.” The theory that the Supreme Court expands federal power at the expense of the states is not a new idea, having been first raised by anti-Federalist critics of the Constitution over 200 years ago. But Dichio provides the most thorough and wide-ranging defense of it to date, drawing on an extensive database of notable Supreme Court decisions from 1789 through 1997. Among other things, he shows that the Court constrained the states in important ways even in historical periods that are often thought of as high points for “states’ rights,” such as the Jacksonian era and the late nineteenth century.

Dichio’s analysis is, in many ways, compelling, and is a major contribution to the literature on federalism and judicial review. But some of his methodological choices overstate the centralizing tendencies of the Supreme Court. He also unduly downplays some key ways in which the Court promotes decentralization of power. While the Supreme Court has never been a consistent ally of state governments seeking to limit federal authority, it is also not quite as consistent a centralizing force as Dichio suggests.

The final published version is available here, albeit behind a gate (the final version differs very little from the SSRN version, except in format and pagination).

I previously wrote about this issue in a 2017 book chapter, published in Nicholas Aroney and John Kincaid, eds., Courts in Federal Countries: Federalists or Unitarists?,  (University of Toronto Press). My conclusions are similar to Dichio’s on several key points. But Dichio covers a wider range of cases and historical periods than I did. There is some disagreement on such questions as how to assess federal judicial decisions that protect individual rights against state and local governments, and also whether it is appropriate to classify decisions where the Supreme Court upholds federal laws against constitutional challenges as cases where the Court promoted expansion of federal power (as opposed to merely refused to try to limit it).

The debate over the relationship between federalism and judicial review will no doubt continue. But Dichio’s book does much to increase our knowledge of this crucial subject.

It is perhaps worth noting that the book is endorsed by Volokh Conspiracy co-blogger Keith Whittington, who writes that “Dichio takes a fairly unique approach to thinking about the relationship between the US Supreme Court and the development of the American state. Scholars interested in American political development and historical work on the law and the courts should grapple with the evidence on offer here.”You can’t go wrong with a book backed by two different VC bloggers!

 

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Democratic presidential candidate Sen. Bernie Sanders (D–Vt.) released a plan over the weekend to transform the U.S. criminal justice system, calling for federal marijuana legalization, a ban on private prisons, an end to cash bail, and curtailing civil asset forfeiture.

Sanders’ 6,000-word plan, first reported by Politico, is filled with proposals that would target nearly every aspect of the criminal justice system, from policing to prosecutors to juvenile justice to pretrial detention to sentencing to the Sixth Amendment right to counsel.

The sprawling document calls for ending the federal death penalty and solitary confinement; pumping billions of dollars into state public defender systems and creating a new federal agency to oversee them; legalizing “safe injection sites” and needle exchanges; and creating a “prisoner bill of rights” that would restore inmate voting rights and lift the ban on federal Pell Grants to inmates.

It also contains typical Sanders’ rhetoric about the dangers of privatization, such as the need to ban private prisons and eliminate “profiteering” in reentry and rehabilitation services for recently released inmates. (Private prisons hold less than 10 percent of inmates in the U.S. prison population.) 

Alex Vitale, a professor of sociology at Brooklyn College and the author of The End of Policing, advised the Sanders campaign on its criminal justice plan and said the document sets a “gold standard for looking comprehensively at our messed up criminal justice system.”

“The most important thing for me is the framing language that says that we’re over-relying on the criminal justice system to solve social problems,” Vitale says. “We need to shift our emphasis from trying to engage in procedural reforms of policing and move to reduce the role of the police.”

In the years since the Black Lives Matter movement rose to prominence, criminal justice reform has become a must-address issue for Democratic candidates. Sanders faced criticism in his 2016 campaign for focusing primarily on economic issues.

Other candidates in the crowded 2020 field have also released similar proposals, such as Sen. Cory Booker (D-N.J.), former Housing and Urban Development Secretary Julian Castro, and Sen. Elizabeth Warren (D-Mass.), the latter of which released her criminal justice plan today.

The leftward shift has left more centrist candidates, such as former Vice President Joe Biden, struggling to explain their tough-on-crime pasts. As Reason‘s Christian Britschgi wrote, Biden’s criminal justice plan calls for rolling back many of the same laws that Biden himself spearheaded in the 1980s and ’90s:

Biden has also endorsed a list of other, more substantive reforms, including the elimination of mandatory minimums, the abolition of private prisons, the expanded use of drug courts, and the end of the death penalty. He would also eliminate the sentencing disparity between crack and powder cocaine, and he thinks states should be allowed to pursue their own cannabis legalization policies without federal interference.

Many of Sanders’ proposals, such as eliminating federal mandatory minimums and the federal death penalty, would presumably require congressional action for any long-term fix, which makes their likelihood extremely doubtful. It took a massive political lift by criminal justice advocates to pass the FIRST STEP Act last year, which merely reduced several of the harshest mandatory minimums on the books.

Other parts of Sanders’ plan, such as reducing states’ pretrial detention populations, would rely on federal grants (or the withholding of grants) to nudge states into compliance with federal standards. State prison systems and county jails hold the vast majority of inmates in the U.S., and under federalism this carrot-and-stick approach is the primary way in which the federal government tries to exert influence over the states, often with mixed results.

Nevertheless, Sanders’ criminal justice plan is a Christmas list of things advocates have been agitating for and writing about for years.

Sanders would rescind former Attorney General Jeff Sessions’ memo ordering federal prosecutors to seek the maximum sentences on the books, as well as a memo limiting the Justice Department’s use of consent decrees to constrain police departments with a pattern of violating residents’ constitutional rights.

The document says Sanders would “ban the practice of any law enforcement agency benefiting from civil asset forfeiture” and “limit or eliminate federal criminal justice funding for any state or locality that does not comply.” Under typical asset forfeiture laws, the proceeds of property seizures often go into police and prosecutors’ budgets, and civil liberties groups say this creates a perverse profit incentive.

The Justice Department’s Equitable Sharing Fund currently funnels hundreds of millions of dollars a year in asset forfeiture proceeds to state and local police departments, and also allows the federal government to “adopt” local cases, letting local police to sidestep state laws that restrict their ability to retain forfeiture revenues.

Sander’s plan would create a national database of fatal police encounters and require the attorney general to launch an investigation of every police-involved death. As Reason reported, the FBI collects data on fatal police shootings, but that information is voluntarily submitted by police departments, not all of which participate. As a result, the FBI reports consistently lowball the actual number of fatal police encounters in the U.S.

The plan also calls for limiting qualified immunity, a legal doctrine that shields public officials, like police, from civil lawsuits if they can prove the rights they’re accused of violating were not “clearly established” at the time. Over the years, Reason has written at length about how qualified immunity’s vague standard allows police to evade lawsuits if they happen to violate the Constitution in a novel way.

Sanders is one of several candidates to propose establishing an independent clemency board in the White House, separate from the Justice Department. Advocates working on Barack Obama’s clemency initiative complained that one of the major roadblocks to the program was interference from the Justice Department, and they say having prosecutors involved in the vetting of clemency applications is a clear conflict of interest. Cory Booker has also proposed a similar clemency board.

Draconian “Three strikes” laws would be on the chopping block under Sanders’ plan as well. Reason reported last November on how a federal “three strikes” enhancement for drug offenses was used by prosecutors to hammer defendants who turned down plea deals with life sentences. The FIRST STEP Act reduced that penalty from mandatory life in prison to 25 years.

Sanders plan is long on ideas, bullish on the executive branch’s power to overhaul a massive, largely independent patchwork of criminal justice systems, and somewhat short on details as to how exactly the president would do some of those things. It is also by far the most sweeping and ambitious criminal justice plan released by a Democratic candidate this cycle.

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From yesterday’s dissenting opinion by Ninth Circuit Judge N.R. Smith in U.S. v. Begay:

MURDER in the second-degree is NOT a crime of violence??? Yet attempted first-degree murder, battery, assault, exhibiting a firearm, criminal threats (even attempted criminal threats), and mailing threatening communications are crimes of violence. How can this be? “I feel like I am taking crazy pills” [quoting Zoolander].

The underlying legal question—what qualifies as a “crime of violence” for purposes of the federal statute banning discharging a firearm during a “crime of violence”—is complicated (needlessly so, some say), because of the Supreme Court precedent on the subject; if you’re interested, read the majority and dissenting opinions. Here I just wanted to pass along the dissent, which James Klugman (who alerted me to the opinion) speculates might be the first occurrence of “???” in a circuit court opinion. Regrettably, Westlaw and Lexis can’t search for punctuation like that, so I can’t confirm or deny that speculation ….

 

 

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CNN (Susan Scutti) reports, “6 teens tried to rob a house, police say. After the homeowner shot and killed 1, the others were charged with murder.” According to prosecutors,

[O]n Tuesday at 1:15 am, the six teens awakened a 75-year-old resident of Lake County. The resident saw the headlights of the stolen Lexus they were driving in the area of his driveway. Grabbing his firearm, he left the house and went to the outside of his property …. Facing “multiple strangers,” he ordered them off his property, but they “continued to advance on him[.]”

One stranger had something in his hand, the resident later explained, and believing himself in danger, the resident fired his gun several times, striking one of the defendants with a single bullet, the prosecutor said…. “When Lake County authorities responded to the scene of the shooting, they located the offenders’ hunting knife on the driveway[.]”

But while prosecutors are still deciding whether the shooting was justified, they are charging the remaining teens with murder of their confederate. How is that possible?

It’s complicated, and the rules differ from state to state; but Illinois does indeed allow such prosecutions.

The basic legal principle is this: Many state murder laws provide that someone is guilty of so-called “felony murder” “when, in the commission of a felony, he causes the death of another human being.”

And “causes” is a capacious term. Obviously, shooting someone so that he immediately dies counts as causing death. But so could, for instance (to quote a Georgia Supreme Court decision), “smash[ing] the victim’s skull with a hatchet” even though “the victim die[s] nine months later from infection and gangrenous lung abscess.” So could “throwing the drunken victim off a bridge into a river” if this causes the victim to drown. The criminal is generally guilty of felony murder so long as the “proximate cause” requirement is satisfied, which is to say that (1) the death wouldn’t have happened but for the defendant’s actions, and (2) the death was sufficiently foreseeable.

A. So say that robber Rob and his accomplice Alec are robbing victim Vic, and Vic pulls out a gun and shoots and kills Alec. A jury might be able to find that the death wouldn’t have happened but for Rob’s actions (since Alec might have been unwilling to commit the crime by himself). And the jury could find that there was a reasonably foreseeable possibility (not certainly or even probability, but just a foreseeable possibility) that Vic would use deadly force to defend himself against Alec. In states that follow the “proximate cause” approach to such scenarios, Rob would then be guilty of murder, because “in the commission of a felony [robbery], he cause[d] the death” of Alec. The same would happen if it is police officer Polly who kills Alec.

B. But that’s the minority view.

The majority of states that have opined on this question follow the “agency” approach, under which felons are guilty of felony murder only if the immediate human cause of the death is one of the felons. If Alec kills Vic (even accidentally), then both Rob and Alec are guilty of felony murder. But if Vic kills Alec, Rob isn’t guilty of the felony murder of Alec, since the immediate human cause of the death was Vic. One common argument for the agency view is that, when Vic kills Alec, that’s not murder at all—that’s Vic’s justifiable defensive killing of Alec. Therefore, Alec’s killing is not felony murder on the part of Rob (who is guilty of robbery and conspiracy to rob, but nothing more).

Okay, so we know what happens if Vic kills Alec—felony murder on Rob’s part in the proximate cause states, not any crime on Rob’s part in the agency states.

But what if Vic (or police officer Polly) shoots at Alec, but accidentally kills bystander Betty? In the proximate cause states, Rob is guilty, since that sort of unfortunate event is foreseeable (it’s foreseeable that Vic would try to defend himself and that this self-defense in the heat of the moment will accidentally kill someone else). In the agency states, Rob isn’t guilty, since Vic is the immediate human cause of the death.

C. Yet wait: There’s a third, small category of states (which at least includes New York)—in those states, Rob would be guilty of felony murder for the death of bystander Betty, but wouldn’t be guilty of felony murder for the death of accomplice Alec.

The focus in those third-way states is on who dies (felony murder if anyone dies other than one of the criminals). The focus in the agency states is on who kills (felony murder only if the immediate human cause of the death is one of the criminals). And in the proximate cause states, it’s felony murder if anyone dies, so long as the death is foreseeable and wouldn’t have happened if the defendant hadn’t participated in the crime. (Actually, these requirements of foreseeability and but-for causation for a felony murder conviction would also apply in the non-proximate-cause states; it’s just that in those other states there are also the extra requirements I discuss above.)

Back then to the Illinois case: Illinois follows the proximate cause approach (see People v. Dekens (1998)), so the teens here could indeed be guilty of murder. Here is the relevant passage from the Illinois Supreme Court precedent:

We believe that a charge of felony murder is appropriate in these circumstances. In [an earlier case] we determined that a defendant may be charged with the offense when an intended victim mistakenly shoots and kills a bystander. Here, the intended victim shot and killed the defendant’s cofelon. We do not believe that the defendant should be relieved from liability for the homicide simply because of the decedent’s role in the offense. Nor do we believe that application of the doctrine depends on whether or not the decedent was an innocent party.

To hold otherwise would import the agency theory of felony murder into our law. As we have noted, Illinois has long followed the proximate cause theory. Consistent with that view, then, we conclude that a defendant may be charged with murder under a felony-murder theory when an intended victim of the felony shoots and kills a cofelon of the defendant. We note that other states that adhere to the proximate cause theory also recognize liability for felony murder when the decedent is a cofelon of the defendant.

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Sen. Kamala Harris’ (D–Calif.) health care flip-flops are, first and foremost, a referendum on Kamala Harris, the candidate, and the fundamental emptiness of her presidential campaign. 

Harris doesn’t really care about health policy as policy; instead she appears to view the issue through an exclusively political lens, wanting to be seen as a supporter of Medicare for All and its most popular promises without reckoning with the trade-offs that a real single-payer health care system of the sort proposed by Sen. Bernie Sanders (I–Vt.). Sanders may be in it for the revolution, but Harris is in it for the optics. 

This dynamic helps explain the campaign trail sniping between the two candidates yesterday after Harris reportedly told a group of supporters at a fundraiser that she was “uncomfortable” with Sanders’ Medicare for All plan, a single-payer system that would eliminate virtually all private health coverage in four years. 

I don't go to the Hamptons to raise money from billionaires. If I ever visited there, I would tell them the same thing I have said for the last 30 years: We must pass a Medicare for All system to guarantee affordable health care for all, not just for those who can afford it.

— Bernie Sanders (@BernieSanders) August 19, 2019

Yes, that’s the same Medicare for All plan that Harris co-sponsored all the way back in 2017, the same Medicare for All plan that she came out swinging for when she launched her presidential bid in January, the same Medicare for All plan she was listed as backing as recently as April of this year. Harris has backtracked on health care multiple times over the course of the year, but it’s hard to believe she was genuinely uncomfortable with a plan she so prominently backed.

What’s more likely is that Harris was uncomfortable not with the plan itself, but with the unpleasant political position it put her in—having to defend not only the substantial cost of the plan but its swift elimination of private coverage and the disruption that would cause. Harris wanted to be seen supporting the popular underlying idea of Medicare for All and a government-granted guarantee of comprehensive coverage, but not face difficult questions about what it would cost or how it would work. 

Which is why her own plan, released earlier this summer, is best understood not as a health care plan, but as a campaign messaging document that allows her to say she supports both Medicare for All and some allowance for private health insurance. Notably, her plan contained no cost estimates and pushed the transition back 10 years—conveniently ensuring not only that it wouldn’t happen during a Harris administration, but that conventional congressional cost estimates, which cover the legislation’s first decade, wouldn’t show the full cost of implementation. It’s a plan that hides its least popular elements beyond the scope of a conventional legislative price tag, and past the political accountability of a two-term president. 

Yet her plan, which allows private insurance only if is essentially designed by the government, would still lead to the elimination of employer-sponsored coverage as we know it, disrupting coverage for tens of millions of people in the process—something that Harris herself has awkwardly admitted. 

Harris isn’t a health care wonk. She hasn’t devoted herself to the issue or its nuances, and whenever she’s pressed even mildly about it, she seems to trip up, as if she hadn’t anticipated basic questions about how her plans would work (or not work) in practice. Instead, she’s an ambitious politician attempting to craft a policy that will best position her in the Democratic primary, somewhere between the single-payer-or-bust enthusiasms of Sanders and Sen. Elizabeth Warren (D–Mass.) and the Obamacare redux of the frontrunner, former Vice President Joe Biden. And her ambitions have repeatedly led her into a cynical and shallow embrace of ideas that she can’t fully defend, that fall apart upon even the mildest inspection.

Yet because Harris’ position on the issue is the result of such undisguised politicking, of the desire to pinpoint some rhetorical middle ground that offers maximum electoral appeal, whether or not it makes complete policy sense, her personal twists and turns also offer some insight into the Democratic Party’s larger conundrum. 

Like Harris, the Democratic base rushed to embrace Sanders-style Medicare for All, and like Harris, its most popular proponents have not been able to answer key questions about it, especially when it comes to financing the new government spending such a system would entail. And while the party’s left flank has stood by the plan and its essential radicalism, it’s not clear that much of the rest of the party even agrees on what it means. That’s why both “Medicare for All” and copycat labels like Medicare for All Who Want It have regularly been deployed by those who favor something less than full-fledged single-payer, but still want to seem like they support the same basic goals. 

So while it’s true that Harris’ chief rivals for the Democratic nomination—Biden, Warren, and Sanders—have clearer individual visions when it comes to health policy, it remains the case that the party as a whole is both divided and muddled in its thinking. Any Democratic candidate who won the nomination would face the same challenge of reconciling those conflicting impulses, and then defending and explaining them to the voting public at large. And as Harris has shown, that isn’t easy, because it’s not possible to wish away the costs and trade-offs of health policy, to craft a plan that is all popular provisions with no downsides. 

So it’s not just Harris who has a problem with Medicare for All; it’s the entire Democratic party. 

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A new Pew survey reveals that the partisan split that became visible a couple of years ago in public perceptions of American higher education has continued. In the long term, this cannot be good for American colleges and universities.

A lot of American institutions have taken it on the chin in recent years as Americans have become less trusting of any of them. Some of those declines reflect a general eroding of public confidence, but some institutions tend to see a specifically partisan split with supporters of one political party continuing to like that institution as supporters of the other party express dislike. This is not terribly surprising for political institutions like the presidency, which tend to be seen through a partisan lens depending on who currently occupies the White House (though notably this stark partisanship about the presidency is itself a relatively recent development).

Colleges and universities are fairly distinctive in being non-political institutions that are nonetheless seen in increasingly partisan terms. There is an extensive conservative infrastructure now dedicated to publicizing the foibles of academia. Of course, the reality is that college professors and administrators lean heavily to the political left, though this has been true for decades. Republicans now perceive universities as politicized, partisan institutions.

Republicans continue to send their own kids to college. They continue to recognize the personal economic value of a college degree. But if Republicans continue to believe that on the whole universities are damaging American society, they are unlikely to try to defend them against misguided political interventions from the political left and are more likely to propose misguided political interventions of their own. There is probably a limit as to what universities themselves can do to improve the situation, but they would be wise to take a serious look in the mirror and consider how they could win back the confidence of conservative Americans.

Details here.

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The first wave of prosecutions of abortion pill sellers is upon us. A federal court last week arraigned pill purveyor Ursula Wing on charges of introducing misbranded drugs into interstate commerce and of conspiracy to defraud the United States.

Wing, who lives in New York, is accused of running a website that sold foreign-sourced pharmaceuticals to U.S. customers. The drugs Wing supposedly sold—mifepristone and misoprostol—can be taken in a two-step process to induce an abortion. The U.S. Food and Drug Administration has approved this pill regimen for prescription use, under the brand name Mifeprex.

Mifeprex can’t be sold in normal pharmacies. It must “be ordered, prescribed and dispensed by or under the supervision of a healthcare provider who prescribes and who meets certain qualifications” and “may only be dispensed in clinics, medical offices, and hospitals by or under the supervision” of this supervised provider, per FDA rules.

As with many rules surrounding abortion, these strict guidelines stem more from political issues than from reasonable health concerns.

“Despite a better safety track record than some over-the-counter drugs, the FDA prevents the sale of mifepristone at pharmacies, making it prohibitively expensive for many Americans who can’t afford to travel to a registered clinic to get the abortion pill,” notes the National Women’s Health Network.

Regardless, Wing “could not legally sell prescription drugs because she was not licensed to do so,” the complaint against her states. She allegedly bought the drugs wholesale from a pharmaceutical manufacturer in India. On an application with Western Union, she indicated that she was a retailer of Indian and Moroccan jewelry, clothing, and home goods through the business Morocco International Inc.

Wing “used a secret webpage called ‘My Secret Bodega,’ on her Macrobiotic Stoner blog,” the government says, “to hide her activities from the FDA, [Customs and Border Protection and the U.S. Postal Service].”

She is due back in court on October 9.

The U.S. Food and Drug Administration has been sending warning letters to other online purveryors of abortion pills as well. Back in March, the FDA sent warnings to the companies AidAccess and Rablon about their unauthorized sales of mifepristone and misoprostol.

AidAccess was launched by Rebecca Gomperts, a doctor who also runs the Netherlands-based abortion pill provider Women on Web. According to University of Texas at Austin researcher Abigail Aiken, around 21,000 people tried to order abortion drugs from AidAccess between March 2018 and March 2019. Gomperts’ lawyer told NBC that 2,581 were sent prescriptions.

The AidAccess website states: “If you are healthy and less than 9 weeks pregnant, you can do the online consultation. The abortion pills mifepristone and misoprostol will be delivered to you by mail.” The FDA quoted this text and told the company that “by facilitating the sale of unapproved mifepristone and misoprostol to consumers in the U.S., Aidaccess.org causes the introduction of unapproved new drugs into U.S. commerce in violation of the [federal Food, Drugs, and Cosmetics] Act.” The agency requested the company “immediately cease causing the introduction of these violative drugs” in the U.S.

“The FDA should get its own house in order before seeking out more ways to restrict access to mifepristone and misoprostol,” said Cindy Pearson, executive director of the National Women’s Health Network, in a statement. “Aid Access provides a vital service to women who want to safely and effectively self-manage their abortions at home. If the FDA is truly worried about the safety of abortion pills imported from overseas, they should…allow Aid Access to prescribe from US pharmacies.”

In a May response, AidAccess told the government that “because access to medical abortions in the U.S. has been so restricted by the FDA, women have been forced to attempt to exercise their right to abortion by way of the Internet.” It would not stop selling the pills.

“I will not be deterred,” Gomperts wrote on Facebook. “When US women seeking to terminate their pregnancies prior to nine weeks consult me, I will not turn them away.”

As abortion clinic access in the U.S. continually contracts, the popularity of online sellers like Wing, AidAccess, and Rablon is only likely to grow⁠—and so, too, calls to crack down on sites like these and political battles surrounding them. After the FDA’s warning letters in March, more than 100 members of the House of Representatives sent the agency a thank-you letter.

“Many of these lawmakers represent the very states that have recently passed laws attempting to legislate legal abortion out of existence—including Alabama, Georgia, Kentucky, Mississippi, and Ohio,” the group If When How noted in a letter to the FDA. “This agency’s warning letters and threatened actions will further these efforts to keep abortion inaccessible,” it continued. “The FDA’s obligation is to protect public health for all people in the U.S., not to be partisan or political. We strongly urge you to work on advancing the FDA’s mission, not to be a part of a political agenda to deprive women in the U.S. of access to legal, safe and effective abortion care.”

In July, a group of more than 50 organizations and individuals sent a letter urging “the FDA, state legislators, and all policy-making bodies to be guided by the science and support the removal of unnecessary regulatory barriers that make safe and effective abortion medications inaccessible to people who need them.”

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President Donald Trump had dinner on Friday night with Apple CEO Tim Cook, who may have imparted a critical lesson in international economics on the “Tariff Man” president. While some of his top advisors spent the weekend defending Trump’s increasingly nonsensical tariff and trade policy, the president himself appears to have achieved a new level of understanding about how those policies are affecting American businesses.

As he was heading back to Washington, D.C., from a vacation at his hotel in Bedminster, New Jersey, on Sunday, Trump told reporters that Cook “made a very compelling argument” about how tariffs were making it more difficult for Apple to compete with companies like Samsung. Like many American-based tech firms, Apple relies on China to manufacture much of its products, even though high-level jobs in design, software engineering, and final assembly is done in America. As I wrote last year:

Cheap Chinese labor, contrary to popular opinion, is not the source of most of the savings achieved by building iPhones in China. Apple pays about $5 per iPhone in labor costs, but building phones in the U.S. would add only about $10 to that total. The real problem with trying to make an all-American iPhone is that cell phone components and parts are sourced all around the world. The pieces that go into an iPhone cost Apple about $190 to puchase, but would easily cost three times as much to produce in the U.S.

In the past, Trump has argued that Apple should simply do all it’s manufacturing in America—despite the fact that doing so would likely make the retail price for an iPhone double or triple. But while Trump never appeared to be swayed by fears that iPhones would suddenly be too expensive for many Americans to afford, it looks like Cook might have appealed to Trump’s competitive nature during their dinner.

As Bloomberg points out, Samsung assembles its products in Vietnam and South Korea, which means it can import all those globally sourced component parts without having to pay Trump’s tariffs. Apple can’t.

“It’s tough for Apple to pay tariffs if it’s competing with a very good company that’s not,” Trump said—apparently realizing something that economists have been trying to tell him for months.

It’s possible that Trump has taken that lesson home with him to the White House. On Monday night, The New York Times reported that Trump administration officials are considering a series of maneuvers to ward off the threat of a recession—including a payroll tax cut and “a possible reversal” of some tariffs.

But the change in trade policy—if one is in the offing, and it’s always difficult to be certain with this administration—may have come too late for some U.S. steelworkers. Despite the fact that Trump’s tariffs on imported steel were intended to prop up domestic steelmakers, the opposite has (predictably) happened, as demand has fallen (and exports have too). On Tuesday morning, U.S. Steel announced that it would lay off about 200 workers at a plant in Michigan. That comes on the heels of the company’s decision to shut down a blast furnace in Indiana last month.

It’s too soon to say that Cook might have ended the Trump administration’s misguided experiment with tariffs—but he might have at least made the president notice the mounting the economic evidence that tariffs are taxes paid by American businesses and consumers, not by China.

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FREE MINDS

Marvel Comics won’t publish an Art Spiegelman essay in which the Pulitzer Prize winner compared President Donald Trump to Captain America villain Red Skull. 

The comics giant had hired Spiegelman, who wrote the first graphic novel to win the Pulitzer Prize, to author an introductory essay for a forthcoming book about Marvel’s “Golden Era” of comics that ran from 1939 through 1949. Those comics were highly political in nature—think Captain America literally punching Nazis—and Spiegelman’s essay was the same. After being rejected by Marvel, the essay was published this week by The Guardian—you can read the full text here, but this seems to have been the offending paragraph:

“Auschwitz and Hiroshima make more sense as dark comic book cataclysms than as events in our real world. In today’s all too real world, Captain America’s most nefarious villain, the Red Skull, is alive on screen and an Orange Skull haunts America. International fascism again looms large (how quickly we humans forget—study these golden age comics hard, boys and girls!) and the dislocations that have followed the global economic meltdown of 2008 helped bring us to a point where the planet itself seems likely to melt down. Armageddon seems somehow plausible and we’re all turned into helpless children scared of forces grander than we can imagine, looking for respite and answers in superheroes flying across screens in our chapel of dreams.”

Is that across the line? Maybe, and Marvel certainly has the right to do as it pleases with its own publications. But if you’re going to hire the guy who wrote Maus, don’t act surprised when he gets political.

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FREE MARKETS

Prohibition still doesn’t work. Americans spent an estimated $150 billion on marijuana, heroin, cocaine, and meth in 2016—nearly as much as they spent on alcohol.

Here is Reason’s Jacob Sullum on the details of a new report from the RAND Corporation:

The fact that the illegal drug market and the alcohol market are in the same ballpark is pretty remarkable, given that drinkers outnumber illegal drug users by more than 3 to 1 if you look at consumption in the last year and nearly 5 to 1 among past-month consumers. The “risk premium” associated with prohibition helps explain why illegal drug users nevertheless manage to spend almost as much money as drinkers do. The near-parity in spending reflects the profits traffickers can earn thanks to prohibition and the welfare loss caused by artificially high prices. Prohibition enriches criminals and rips off consumers.

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QUICK HITS

• President Donald Trump accused Google of stealing votes from him during the 2016 election—which, of course, he won.

I mean, the deeper problem is that said study is hilarious trash, to the point where focus on nitpicky clarifications gives the whole thing undeserved credence. https://t.co/1QUsrpPviR

— Julian Sanchez (@normative) August 20, 2019

• Facial recognition cameras being used by local governments in Pennsylvania are vulnerable to hacking by China.
• If Trump actually wanted gun control after the El Paso, Texas, shooting, he’s already given up on it.
• Paul Ryan is officially being swallowed by The Swamp.
• Some newspapers might be worth more dead than alive.
• Can you stay friends with your ex? Should you?
• What do campaign rally playlists tell you about presidential candidates? Mostly that they have really bad taste in music.

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President Donald Trump says he’s “undertaken a historic effort to massively reduce job-killing regulations.” 

People attack him for it. According to The Young Turks, Trump’s deregulation “singlehandedly led the world down a dark path.”  

The left-wing Economic Policy Institute think tank claims “workers’ health, safety, and pay are among the casualties.”

But deregulation creates wealth. 

“Trump sent a message to business: ‘We’re not going to crush you.’ And that’s caused growth,” Stossel says to Grover Norquist—who runs Americans for Tax Reform, which fights for lower taxes and fewer rules.

“That was the beginning of a recovery,” Norquist responds.

The stock market has risen by about a third since Trump was elected.

Trump has cut hundreds of regulations, including an EPA rule about “waters of the United States” that the agency said gave them power to regulate virtually everyone’s land. 

The EPA was regulating “little trickles, and the kind of ponds that spring up when it rains a lot one night,” says Norquist. “They were using it as land control.”

Stossel reported how Jill and Jack Baron, in Idaho, were encouraged by state officials to unclog a drainage ditch—but when they did so, federal officials went after them in court, fining them thousands of dollars a day.

Deregulation saved the Barons, who now have use of their land again.

“We have our land back! Without the change in the White House and the EPA nothing would have changed,” Jill Baron writes.

Trump also repealed Obama’s new “CAFE” standards—meant to force car makers to produce more fuel-efficient cars. The Obama administration wanted all car makers’ fleets to get an average of 54.5 miles per gallon by 2025. The Trump administration scrapped that, although California may keep the tougher rules.

Trump also ended the previous administration’s “net neutrality” rules.

Democrats predicted doom. One Federal Communications Commission official said Trump was “handing the keys to the internet over to a handful of multi-billion-dollar corporations.”

Opponents feared that those corporations would jack up prices or slow some website speeds. None of that’s happened, Stossel and Norquist note.

Another regulation Trump cancelled would have treated franchise companies like McDonalds as one single business.  

Norquist explains why the Obama administration wanted that: “The trial lawyers want to be able to sue all of McDonald’s, not just the local McDonald’s, if [someone] spills coffee on themselves. And the labor unions wanted to unionize all of McDonald’s, not just the one store…that would have been a disaster. That was ended.”

But sometimes, Trump adds new regulations—he’s mandated that government buy products made in America, and he’s added tariffs on lots of imports. 

“Trump is a protectionist in many ways, and tariffs are taxes and…regulations on consumers,” Norquist says. 

“The good news is, the vast majority of the regulatory acts by a factor of many have been deregulatory and they have been tremendously helpful,” Norquist says. “He’s done a great deal more than anybody in recent history…maybe even more than Reagan did.” 

By some measures, he did. 

Trump claims to have cut 22 rules for every new regulation. He exaggerates, as usual. The real number is about five regulations repealed for every new one passed, according to the Competitive Enterprise Institute. 

Still, whether it’s 5 or 22, It’s good whenever excessive regulations are cut. Regulations take our time, opportunity, and our freedom.

The views expressed in this video are solely those of John Stossel; his independent production company, Stossel Productions; and the people he interviews. The claims and opinions set forth in the video and accompanying text are not necessarily those of Reason.

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A. In 2017, Bonner lost a case in New Jersey state appellate court, Bonner v. Cumberland Reg’l High Sch. Dist. Justia.com, a site that (among other things) publishes online copies of state and federal court opinions, included that nonprecedential New Jersey decision; Bonner then sued in federal court, asking the federal court to order Justia to remove the opinion. Yesterday federal District Judge Peter G. Sheridan granted Justia’s motion to dismiss (Bonner v. Justia, Inc.):

Plaintiff seems to believe the New Jersey [appellate] opinion is his personal property…. Plaintiff seeks to prevent the [opinion] from being “reported, copied, distributed, shared, or by any other means used by anyone or any website.” “[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” …

Plaintiff is proceeding pro se, and the Court should read Plaintiff’s complaint [here, amended] generously and hold it “to less stringent standards than formal pleadings drafted by lawyers.” … [But t]he amended complaint is substantively meritless, as was the original complaint.

Plaintiff is essentially attempting to seal the Appellate Division’s Opinion, which—like federal court documents—[is] open to the public. There is a heightened public interest in disclosure of materials that are filed within the Courts, which outweighs private interests in confidentiality, as the Courts are funded by the public and in general judicial proceedings are not done in secret….

Because Plaintiff has had two opportunities to set forth a cause of action, and failed to do so, to allow another amendment to the complaint would be futile. As such, there appears to be no cause of action for the conduct the amended complaint is dismissed with prejudice.

This is clearly the right result, but, to my shock, I’ve seen one case in which a trial court did order a different online repository (leagle.com) to remove a person’s name from a published court opinion archived at that repository (more on that in a later post). And, as I’ve noted before, I’ve seen cases in which trial courts wrongly ordered Google to deindex a photo in a newspaper (Malandrucco), or wrongly ordered media outlets to remove stories (Thorworth and Barone).

Trial courts sometimes do the darndest things, including in cases brought by pro se plaintiffs. While litigating pro se is often a handicap, it’s sometimes an advantage: pro se litigants often don’t know what’s impossible, so they ask for it—and sometimes get it. But not this time.

B. Bonner also asked—beyond his request that the New Jersey state court opinion be removed—that any order issued by the federal court resolving Justia’s motion to dismiss Bonner’s complaint “not ‘be reported, copied, distributed shared, or by any other means used by anyone or any website.'” (Bonner’s request also stated, “Confidential Notice: This letter and the things contained herein are confidential information and are not to be copied, shared, or distributed by any source”; but motions are generally public documents, just as opinions are.)

I had been tracking the case on Bloomberg Law, because I have been writing about attempts to get court opinions hidden. I thus noticed that request to seal, and filed a motion to intervene and oppose the request. The federal court granted my motion to intervene, and denied Bonner’s request to issue the order under seal. Again, that strikes me as clearly right.

There is more to this litigation, but I will save that for one or two upcoming posts.

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