Tag: in-the-news

2/12/1965: Justice Brett Kavanaugh’s birthday.

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Carl McCain won $800 on a lottery ticket, but when he went to claim his prize, North Carolina officials told him the money was being taken to pay debts he owed to Lenoir County and Wayne County. North Carolina law allows the state to seize winnings to cover state or local debts, but McCain said the debts weren’t his and that he had never been to those counties. He called county officials and found the debt belonged to someone with a similar name, but their records listed McCain’s Social Security number, causing the mix-up. Still, nothing happened for over a month. Finally, after he reached out to a TV reporter, officials corrected the error and McCain received his winnings in the mail.

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Your representatives may finally grab the feared “third rail” of U.S. politics. When the Social Security and Medicare trust funds run out in the early 2030s, the law is clear: Benefits must be slashed. That would mean a roughly 24 percent cut to Social Security checks and an 11 percent cut to Medicare benefits. But Congress almost certainly won’t let that happen.

The easy, though irresponsible, political path may seem obvious: Change the law, keep benefits whole, and pay by borrowing the money. This way legislators won’t have to cast unpopular votes for spending cuts or tax hikes. This makes sense only if the consequences won’t become clear until much later, after voters have forgotten all about it.

What most people are missing is that this time, the consequences may show up quickly. Inflation may not wait for debt to pile up. It can arrive the moment Congress commits to that debt-ridden path.

Unfortunately, this part may not be so obvious to legislators looking at projections.

According to the Congressional Budget Office, borrowing to cover Social Security and Medicare shortfalls would push federal debt to about 156 percent of gross domestic product (GDP) by 2055. These shortfalls account for roughly $116 trillion, including interest, over those 30 years. In spite of all this debt, the projections assume inflation stays low for decades and interest rates only go up very slowly. That calm outlook is misleading.

Think of government debt like shares in a company, which have value based on what investors believe they will earn in the future. Government debt works the same way: Its value depends on whether those who buy it believe future primary surpluses—revenue minus spending, excluding interest—will be sufficient to pay for that government’s promises and obligations.

When the belief weakens, markets don’t just sit around and wait for the reckoning. They adjust immediately. And in the United States, that adjustment usually shows up as inflation.

We saw this happen just a few years ago, between 2020 and 2022, when Congress approved about $5 trillion in debt-financed spending with no clear payment plan. Households received pandemic stimulus checks, spent them quickly, and saw no reason to expect higher taxes or fewer services. They were right. The post-pandemic era didn’t bring austerity.

Inflation followed, and not simply because the Federal Reserve expanded the money supply. People realized the new debt lacked a credible plan behind it. The dollar’s buying power weakened until the real value of government debt fell back in line with the expected future primary surpluses available to back it. By the time inflation peaked at 9 percent in 2022, federal debt equaling about 10 percent of GDP had effectively been erased through higher prices.

Voters hated the inflation, and they made that clear at the ballot box in 2024.

The entitlement deadline could trigger an even stronger reaction. Senators elected this year will be tempted to borrow everything needed to preserve benefits. But without serious reform, new revenue and spending restraint, investors may not wait to see whether some future Congress eventually finds a way to pay.

If they reprice U.S. debt right away, prices could rise much faster than official forecasts suggest—perhaps almost immediately. Not because the debt is huge (that’s already true), but because people no longer trust the plan behind all that future debt.

At that point, the Fed would be in a terrible position. Raising interest rates to fight inflation would also immediately drive up government borrowing costs on debt that must be rolled over quickly. Paying higher-interest bills with even more debt would be like paying off one credit card with another. The Fed would be forced to choose between tolerating inflation or triggering a deeper fiscal crisis.

Either way, the costs would be severe.

Inflation is a silent, unvoted-on tax. It eats away at savings, pensions, and fixed incomes. It hurts retirees who did everything right and relied on safe assets. It squeezes workers whose paychecks don’t keep up with rising prices. It pushes families to spend more on groceries, rent, energy, and health care. And it distorts the entire economy by rewarding speculation over productive investment.

No one escapes. Not the poor. Not the middle class. Not even the wealthy. It’s the most painful way to finance government promises.

Legislators know this, but reform is hard. The temptation is to borrow, avoid conflict, and let others clean up the mess when political prospects are better. But this time, inflation could break out on the same legislature’s watch. The reckoning will not be postponed, and neither will accountability. As in 2021, voters will pay first, and then they will assign blame.

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The post Politicians Want To Avoid Reforming Social Security and Medicare. You Will Pay the Price. appeared first on Reason.com.

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Yesterday, I testified against the proposed “Preserving a Sharia-Free America Act” at a hearing before the US House of Representatives Judiciary Committee’s Subcommittee on the Constitution and Limited Government. This proposed legislation would bar or deport virtually all non-citizen Muslims from the United States by  mandating that “”Any alien in the United States found to be an adherent of Sharia law by the Secretary of State, Secretary of Homeland Security, or Attorney General shall have any immigration benefit, immigration relief, or visa revoked, be considered inadmissible or deportable, and shall be removed from the United States.”

My written testimony is available here. In it, I explained why the proposed law violates the Free Exercise and Free Speech clauses of the First Amendment, and why – if enacted and upheld by the courts – it would set a dangerous precedent, cause great harm to many thousands of innocent people, and damage US national security by giving a propaganda victory to radical Islamist terrorists.

I embed the video of the oral testimony and hearing below. The hearing featured lots of political grandstanding, as is perhaps to be expected, so I can well understand if some readers decide watching the whole thing isn’t worth their time. For those interested, my own opening statement runs from about 1:03 to 1:08:

 

Notably, the GOP members on the Subcommittee and the other three witnesses (all called by the Republicans; the minority party is allowed only one witness, in this case me) mostly didn’t even try to defend proposed bill. Instead, they focused on various issues with Sharia law that – even if valid – would not require mass deportation or exclusion of migrants to address.

At one point, California Republican Rep. Tom McClintock asked all four witnesses if any of us disagreed with the point that it is unconstitutional for the government to penalize people on the basis of religious belief. Everyone indicated they did not. But such discrimination on the basis of religion is exactly what the proposed legislation would do.

I won’t try to go over the testimony of the other three witnesses in detail. Many of the concerns they raised were hyperbolic, often to the point of ridiculousness. No, there is no real threat that Sharia law is somehow going to take over the US legal system or that of the state of Texas (the focus of much of the testimony). And it is no grave threat to American values if some Muslims plan to establish a private compound where they live in accordance with their religious laws, especially since it turns out the compound in question will not actually enforce Sharia law on residents. Other religious groups do similar things all the time.

On the other hand, there may be some merit to Stephen Gelé’s concerns that US courts sometimes enforce judgments issued by Sharia courts in Muslim dictatorships, in cases where they should not, because it would have harmful or illiberal consequences (e.g. – child custody rulings). The solution to such problems, however, is not to deport Muslim immigrants, but to alter the relevant legal rules on comity and conflict of laws. And, in fairness, Gelé’s testimony did not recommend deportation and exclusion as a fix. If Texas courts are giving too much credence to some types of foreign court decisions, the GOP-dominated Texas state legislature can easily fix that problem!

Finally, the opposing witnesses and others who fear the supposed spread of Sharia law and the impact of Muslim immigrants often act as if Islam and Sharia are a single, illiberal monolith, irredeemably hostile to liberal values. In reality, as noted in my own testimony, there is widespread internal disagreement among Muslims about what their religion entails, as is also true of Christians and Jews. Most Muslim immigrants in the US are not trying to impose Sharia on non-Muslims, or establish some kind of Islamic theocracy.  Indeed, many are themselves refugees from the oppression of radical Islamist dictatorships, such as those in Iran and Afghanistan.

My Cato Institute colleague Mustafa Akyol – a prominent expert on Islamic political thought – makes some additional relevant points on the diversity of Muslim thought in a recent article.

Some Muslims do indeed have awful, reprehensible beliefs on various issues. But there are lots of ways to address any danger that poses, without resorting to censorship, discrimination on the basis of religion, mass deportation, and other unconstitutional and repressive policies. The most obvious solution is to simply enforce the First Amendment’s prohibitions on the establishment of religion, and persecution and discrimination on the basis of religious belief.

This was the third time I have testified in Congress. The other two times were at the invitation of Senate Republicans (see here and here). The issues at the three hearings were very different. But in each case, I tried to defend limits on government power that are essential to protecting individual rights to life, liberty, and property. I doubt my testimony had any great impact. But perhaps it made a small difference at the margin.

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I was very pleased that the new issue of the Harvard Law Review includes a book review of my 2025 book, The Digital Fourth Amendment.  The review, by Jennifer Granick of the ACLU, is here: Fourth Amendment Equilibrium Adjustment in an Age of Technological Upheaval.

If you want to buy the book, you can get it here. If you want to listen to the first hour of the audiobook for free, you can listen that here (the book starts 75 seconds in, after an introduction by the audio book company).

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A small faction of Republicans broke ranks and voted Wednesday night to terminate President Donald Trump’s “emergency” tariffs on many imports from Canada.

The 219–211 vote in the House is the first significant rebuke of Trump’s tariff policies (and the emergency powers Trump has claimed to impose them) to emerge from the lower chamber of Congress. It may not be the last, as Democrats have threatened to put forward several resolutions to block various tariffs imposed, now that a procedural block on those votes has been lifted.

“I know tariffs are a tax on American consumers. I know some disagree. But this debate and vote should occur in the House,” Rep. Don Bacon, one of the Republicans who supported the resolution on Wednesday night, wrote on X earlier in the day.

Shortly before the vote on Wednesday evening, Trump warned that “any Republican” who voted to revoke the tariffs on Canadian imports would “suffer the consequences come Election time.”

That threat was not enough to hold all Republicans in line. In addition to Bacon, Reps. Brian Fitzpatrick (R–Pa.), Jeff Hurd (R–Colo.), Kevin Kiley (R–Calif.), Thomas Massie (R–Ky.), and Dan Newhouse (R–Wash.) voted for the measure. Rep. Jared Golden (D–Maine) was the sole Democrat to vote against it.

“We got it passed. We broke the Republican blockade,” said Rep. Suzan DelBene (D–Wash.), who has headed the Democratic efforts to repeal the tariffs since shortly after Trump announced them last February.

The Senate has voted several times to terminate national emergencies underpinning Trump’s tariffs on imports from Canada, Brazil, and elsewhere.

Still, Trump will probably have the final say: Even if the House-passed resolution makes it to his desk, he could veto it. Actually blocking the tariffs would require a veto-proof two-thirds majority in both chambers of Congress.

On Wednesday, Politico reported that the White House was working to limit the number of Republican defectors in order to prevent a future veto override. An unnamed administration official reportedly told Politico that the “baseline House Republican position” is tariff skepticism.

If that’s true, it was not reflected in Wednesday’s vote totals. As long as Trump continues to hold most House Republicans under his thrall, this vote will be only a symbolic victory for tariff critics.

Still, it is also an important acknowledgement of reality.

The “national emergency” underpinning the Canadian tariffs has never made much sense. The White House claims that the tariffs are part of an effort to block the flow of fentanyl into the United States, but little fentanyl is smuggled across the border from Canada. And even if that wasn’t true, it’s illogical to tax legal goods in order to stop the flow of illegal ones.

Trade between the U.S. and Canada is plainly not a national security threat by any definition of the term, and the tariffs have accomplished little besides raising taxes on Americans. The Congressional Budget Office was the latest to confirm that reality, reporting Wednesday that American consumers have borne 95 percent of the costs from Trump’s trade barriers.

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Tomorrow the Environmental Protection Agency (EPA) is expected to release its final rule rescinding the “endangerment finding” for greenhouse gases. By taking this step, the Trump Administration is hoping to undercut the federal regulation of greenhouse gases and deprive the EPA of any authority to adopt such rules under the Clean Air Act.

I am on record arguing that this is a risky move. As a legal matter, attempting to undo the endangerment finding is not as simple or straightforward as many political commentators seem to think. The rule will immediately be subject to legal challenge, initially in the U.S Court of Appeals for the D.C. Circuit, which is not the most friendly venue for aggressive deregulatory moves. As the New York Times reported, the Administration is nonetheless hoping that it can get this issue before the Supreme Court before the end of the Trump Administration, lest a new administration undercuts the defense of the rule.

It is hard to handicap any prospective legal challenge to the final rule rescinding the endangerment finding until it is released, as much will depend on the specific strategy the EPA has adopted, and how well that strategy is executed.

For background on the legal issues and what may be in store, here are some of my posts on the subject:

• Can the EPA Rescind the Endangerment Finding? Should It Even Try?, May 10, 2025;
• Can the EPA Finesse the Greenhouse Gas Endangerment Finding?, May 16, 2025;
• NYT: EPA Embarking on Endangerment Finding Fool’s Errand, July 23, 2025;
• Why Trying to Undo the Endangerment Finding Is A High-Risk (and Low-Reward) Deregulatory Strategy, September 15, 2025.

More to come!

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Just a quick post to note some upcoming talks and presentations.

• This Friday, February 13, I will be presenting my paper “Conservation Commandeering” at the Pacific Legal Foundation/Catholic University Law Review symposium, “Searching for Constitutional Limits on Environmental &
  Natural Resources Law,” a tthe Columbus School of Law at the Catholic University of America in Washington, DC. In this paper I explain why the imposition of vicarious liability on state and local governments under the Endangered Species Act often violates the anti-commandeering principle.
• On Wednesday, February 25, I will be participating in the Harvard Law School Rappaport Forum: “The Docket That Shall Not Be Named – The Supreme Court’s Emergency Orders.” This event is an exchange with Professor Kate Shaw, moderated by Professor Richard Re.
  
• On Friday, March 27, I’ll be back at Harvard Law School for the symposium, “Reflecting on the Future of Environmental Law One Year Into Trump 2.0.” co-sponsored by the HLS Environmental and Energy Law Program and the Harvard Environmental Law Review. I will be presenting a draft paper, tentatively titled “Unsustainable Assertions of Executive Power,” with commentary from Professors Thomas Merrill and Thomas McGarity.

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From a decision Monday by Judge Lynn Winmill (D. Idaho) in Seyb v. Members of Idaho Bd. of Medicine:

At issue [in this case] is not the general right to abortion—definitively rejected in Dobbs—but the right to self-preservation.

In Idaho, the Defense of Life Act makes abortion a felony except when necessary to save the life of the mother (unless her death would be due to self-harm) and for a small subset of rape and incest victims. The law does not contain an exception for pregnancies that will cause serious and permanent harm short of death. Essentially, pregnant women are required to sacrifice their health for the sake of the fetus—even if the fetus will, tragically, not survive past birth….

But the record before the Court provides significant evidence that {the right to a medically indicated abortion} is deeply rooted in our nation’s history, bound up with traditional and fundamental principles such as self-defense and necessity. For centuries, a range of legal and medical authorities have recognized that abortion is not a crime when performed to protect a woman’s health and safety….

[1.] The History-and-Tradition Test

The Due Process Clause protects certain unenumerated rights that are so fundamental that “neither liberty nor justice would exist if they were sacrificed.” These substantive due process rights are essential but limited. First, the Due Process Clause protects only “those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.” Second, there must be “‘a careful description’ of the asserted fundamental liberty interest”—not merely an appeal to broad ideals and principles.

Accordingly, when considering an asserted substantive due process right, the inquiry hinges on “a careful analysis of the history of the right at issue.” Without such constraint, the Fourteenth Amendment’s guarantee of “liberty” becomes capacious—a blank slate onto which courts may impose a virtually unlimited range of policy preferences. Reliance on objective historical evidence ensures that judges do not “confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.” America’s “history, legal traditions, and practices thus provide the crucial ‘guideposts for responsible decisionmaking,’ that direct and restrain our exposition of the Due Process Clause.” …

[2.] Historical Evidence for an Abortion Health Exception

The asserted right to a medically indicated abortion does not arise in a vacuum as a free-standing manifestation of substantive due process. Rather, the right exists within a broader right to self-protection and self-preservation, which is fundamental to the American tradition of justice.

[i.] The Right to Self-Protection

Our legal tradition has always recognized that otherwise unlawful acts can become permissible when necessary to prevent harm to oneself or another. This principle manifests in the fundamental right to self-protection, which traces back to the earliest days of the common law.

The right to self-defense is so well established that there is no need to linger on it. Blackstone observed that English law pardoned even homicide if done to preserve either life or limb, and St. George Tucker referred to self-defense as “the first law of nature.” Summing up this tradition, the Supreme Court described self-defense as “a basic right, recognized by many legal systems from ancient times to the present.”

Self-defense is traditionally invoked against interpersonal threats—when necessary to protect “against the use of unlawful force by such other person.” The related doctrine of necessity applies to broader forms of danger—essentially, when a person breaks the law because “they were faced with a choice of evils and chose the lesser evil.” Like self-defense, necessity has a long pedigree, discussed in English common law and recognized by numerous American courts since the Founding. {See, e.g., Reninger v. Fagossa (1551) (“A man may break the words of the law, and yet not break the law itself… where the words of them are broken to avoid greater inconvenience, or through necessity, or by compulsion.”); The William Grey (C.C.C.D. N.Y. 1810); 24 F. Cas. 873 (C.C.D. Mass. 1834). For more on this history, see Edward B. Arnolds & Norman F. Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J. Crim. L. & Criminology 289, 291-93 (1974).} This deep tradition suggests that the right to self-protection is properly understood to encompass not just interpersonal violence, but also unintentional—and sometimes tragic—forms of peril to the self.

This fundamental right to self-protection provides a compelling basis for a due process right to a medically indicated abortion. But like any right, the right to self-protection is not absolute. The Court must next consider the scope of the right—specifically, whether evidence suggests that it has historically encompassed the right to medically indicated abortions.

[ii.] Medically Indicated Abortion as Self-Preservation

In substantive due process cases, the asserted right must be defined with a high degree of specificity. Because defining rights in general terms improperly removes issues from the process of democratic deliberation, courts must assess historical support for the particular right asserted—not appealing but vague principles like dignity, autonomy, and freedom. Here, the issue at hand is whether the right to self-protection has traditionally encompassed the right of a pregnant woman to terminate a pregnancy that threatens her health….

Turning to the factual record, the Court will begin with the weighty evidence of a historical right to an abortion when necessary to save the life of a pregnant woman. At oral argument, Defendants asserted that Idaho may ban even these abortions—in other words, that the Constitution leaves the states free to require a woman to sacrifice her life for the sake of her potential child. Although this is not the question before the Court, it is a helpful baseline for considering the applicability of the right to self-protection in the context of abortion. It also bears on Dr. Seyb’s equal protection claim, which the Court will discuss below.

The historical record substantially supports the right to abortion when needed to save the mother’s life. Starting with the common law, although early authorities did not explicitly discuss a life-of-the-mother exception, later English caselaw suggests that the principles of self-defense and necessity were understood to justify abortion in such circumstances. Closer to home, of the 28 states that banned abortion in 1868, 19 included an express life exception; two had an express safety exception; and six applied only to abortions done “feloniously,” “unlawfully,” or “without lawful justification”—language understood to create, at minimum, a life exception. The single remaining state, Nebraska, adopted a life exception when it codified its laws in 1873. Every other criminal abortion law adopted after 1868 likewise contained an express life exception. See Dobbs (Kavanaugh, J., concurring) (“Abortion statutes traditionally and currently provide for an exception when an abortion is necessary to protect the life of the mother.”).

This history shows a narrow but fundamental limit on states’ authority to ban abortions. The record, when viewed in the light most favorable to Dr. Seyb, further contains evidence of a deeply rooted right to abortion when necessary to preserve a woman’s health. Though only Maryland and Illinois expressly allowed such abortions in 1868, the six states that criminalized abortions done “unlawfully” arguably also recognized broad health exceptions. There is further historical evidence that, in practice, the life-of-the-mother exception extended to pregnancies that would cause the woman permanent and serious harm, and this Court has not found a single case where a state prosecuted an abortion performed to preserve a woman’s health. Even Roe and Casey distinguished between elective and medically indicated abortions, with states free to prohibit the former but not the latter after viability.

In this vein, several states that historically recognized only life exceptions have recently held that the right to a medically indicated abortion is nonetheless deeply embedded in their history and tradition. The Supreme Court of Indiana held that the right to self-protection, implicit in the state constitution, prevented the legislature from “prohibit[ing] an abortion procedure that is necessary to protect a woman’s life or to protect her from a serious health risk.” The North Dakota Supreme Court similarly explained that the state’s “history and traditions … establish that the right of a woman to receive an abortion to preserve her life or health was implicit in North Dakota’s concept of ordered liberty before, during, and at the time of statehood.”

Going further back in history, common law sources also provide evidence, albeit indirectly, of a right to a medically indicated abortion. Blackstone condemned post-quickening abortion as “a very heinous misdemeanor”—though not homicide—immediately before explaining that the law of self-defense pardons even homicide if done “to save either life or member.” Hale distinguished between abortions performed on a woman “to destroy the child within her” and those done “to cure her of a disease.” Consistent with this tradition, English courts interpreted the country’s 1861 abortion ban to include an implicit exception for the health of the mother. In the landmark case Rex v. Bourne (1938), the court first observed that abortion was allowed “for the purpose only of preserving the life of the mother.” But, the court explained, a “reasonable” interpretation of those words extended to serious health impairments—circumstances where “the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck.”

More broadly, the right to self-defense through lethal force traditionally applies to threats of serious bodily harm in addition to death—both man’s “life” and his “limbs,” as Blackstone noted. In this sense, what Defendants are really seeking is a pregnancy exception to the right to self-protection. Normally, a person has the right to kill another person who means to do grave harm. See, e.g., Idaho Code § 19-202A (“No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting himself or his family by reasonable means necessary ….”). In Idaho, however, pregnant women must endure all manner of injuries short of death to avoid compromising the potential life they carry. Perhaps our nation’s history and traditions allow Idaho to compel this sacrifice, but Dr. Seyb has produced significant evidence to the contrary. Certainly, the record is mixed, and Defendants have cited sources indicating that states have long prohibited abortions even when medically necessary. To rule on this challenging due process question, the Court will need to carefully weigh nuanced historical evidence. And that is why the case must proceed to trial.

[C.] Equal Protection for Life-Threatening Mental Health Conditions

Finally, the Court considers Dr. Seyb’s equal protection claim, which challenges Idaho’s refusal to include death from self-harm in the life-of-the-mother exception. This issue turns on whether the Court finds that a fundamental right is at stake in the due process claim. Therefore, summary judgment is improper….

[H]eightened scrutiny [under the Equal Protection Clause] applies when a classification either “proceed[s] along suspect lines” or “involve[s] fundamental rights.” Pregnant women at risk of death from self-harm are not a suspect class, as all parties acknowledge. If, however, there is a fundamental right to a life-saving abortion, Idaho’s exclusion of self-harm impinges on that right. Strict scrutiny would thus apply, meaning that the law survives only if “suitably tailored to serve a compelling state interest.”

While Defendants’ proffered justifications—such as the existence of alternative treatments and the difficulty of verifying the threat of self-harm, which Defendants claim “can be professed by anyone”—likely pass muster under rational basis review, they do not necessarily satisfy strict scrutiny. It remains unclear whether these justifications constitute a compelling state interest, and even if they do, it is not clear whether the categorical self-harm exclusion is narrowly tailored to serve such interests—it applies even when psychiatric interventions have failed, when the risk of death has been clinically verified through standardized, evidence-based protocols, and when the patient appears in imminent danger. These are questions the Court cannot resolve at summary judgment. The equal protection claim must therefore proceed to trial.

As a closing note, it is true that abortion poses a profound moral question, and that such matters must generally be left to the states rather than the judiciary. But the Fourteenth Amendment exists to circumscribe what the state may force individuals to endure, and how far it may go when prioritizing some lives over others. Idaho could not make a mother undergo a bone marrow transplant to save her child. Can it require a pregnant woman to give up her ovaries or her kidneys in the hopes of saving a fetus? Answering that question will require the Court to weigh the evidence of our nation’s history, traditions, and practices. For that reason, this case must go to trial.

I had written a bit on this general subject in my Medical Self-Defense article (pp. 1817-28), including on the analogy to ordinary lethal self-defense. As I note there, even Justice Rehnquist in his Roe v. Wade dissent recognized that if a “statute were to prohibit an abortion even where the mother’s life is in jeopardy,” the law would be unconstitutional, though he didn’t specifically speak of serious threats to the mother’s health.

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