Tag: in-the-news

From Madison’s Remonstrance Against Religious Assessments (1786):

[I]t is proper to take alarm at the first experiment on our liberties. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle.

The post Slippery Slope Arguments in History: James Madison appeared first on Reason.com.

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The wave of successful zoning reforms sweeping the country has largely passed over America’s largest city. No longer, it seems.

On Wednesday, Mayor Eric Adams released a “City of Yes” initiative that aims to lessen the city’s regulatory burden on new housing, small businesses, and “zero carbon” infrastructure

“We are going to turn New York into a city of yes. Yes in my backyard. Yes on my block. Yes in my borough,” said the mayor during a speech. “Rules that made sense in the days of the rotary telephone are getting in the way of doing business in the age of the smartphone.”

There’s little that’s revolutionary in the mayor’s plan, which was also light on the details. The guiding thrust of Adams’ initiative is nevertheless a view that the city places too many needless regulations on its entrepreneurs and homebuilders.

For businesses, Adams has proposed a Zoning for Economic Opportunity amendment that would allow certain businesses—his plan specifically mentions life sciences, custom manufacturing, maker-retail, and nightlife—to open up in more areas of the city and give other businesses an easier time expanding.

In his remarks on Tuesday, Adams gave the example of how a bakery in a residential neighborhood would have to move to a manufacturing zone if it wanted to expand and start doing wholesale deliveries. He wants to give them the flexibility to expand in place.

He also called for finally ending the city’s restrictions on dancing in bars. In 2017, the city repealed its law requiring cabaret licenses for bars that wanted to allow dancing. That reform left in place zoning regulations that still banned dancing.

Adams is proposing to complete that unfinished work, saying “we’re going to change that no to a yes, and let the people dance.”

The mayor’s Zoning for Housing Opportunity amendment is similarly a bundle of reforms meant to expand housing supply in a city that’s been underbuilding for a decade.

Adams has proposed giving density bonuses to projects that include affordable, price-restricted units, eliminating restrictions on how many studio apartments buildings can include, and making it easier to convert commercial space to new homes.

To the delight of zoning reformers, he’s also proposed to reduce how much parking is required in new residential developments.

“It’s an outdated policy,” says Logan Phares, the political director for zoning reform group Open New York, of the city’s parking requirements. “We can allow the market to decide if parking is needed. A lot of places in the city do not need to be building new parking. We have the best mass transit system in the country.”

Open New York, in a statement, urged Adams to eliminate the city’s parking requirements completely, saying the policy needlessly forces developers to devote floor space to cars that no one is demanding.

Other cities that lessened their parking requirements have seen a rush of new development. After years of chipping away at them, Minneapolis eliminated parking minimums citywide in 2021, which contributed to a spike in the construction of new, smaller apartment buildings.

Eric Kober, a former New York City planner and scholar at the Manhattan Institute, says that the individual planks of Adams’ plan are all virtuous, but that doesn’t touch the largest impediments to new housing development in the city.

“The things that they are doing are good things, but they’re not the most impactful things they could do,” he tells Reason.

In particular, he says Adams is missing an opportunity to call for much-needed reform of the city’s Mandatory Inclusionary Housing (MIH) program created by the last mayor, Bill de Blasio, in 2016.

MIH requires that projects built in areas that have been rezoned to allow for more housing include a set percentage of affordable units. Developers seeking individual rezonings that would allow them to construct larger projects must also include a set percentage of affordable units.

Nearly 1,000 jurisdictions in the country have these kinds of inclusionary zoning programs. Research has generally shown that they act as a tax on new housing, increasing rents overall and/or suppressing new supply.

Because the MIH’s requirements are so steep (developers have to offer anywhere from 25 percent to 40 percent of their units at below-market rates), the program “effectively precludes the construction of new housing upon rezoning except in the most affluent parts of the city,” he says.

A 2020 study authored by Kober notes that in its first four years, MIH produced just 2,065 units, with most of those in projects that received heavy public subsidies.

A state tax credit that builders of MIH projects could make use of to offset the costs of the affordable units is also expiring this month, which will make even fewer MIH-subject projects viable, says Kober.

“The city can’t rezone and get privately financed housing that doesn’t have a deep public subsidy component,” he says.

Making fixes to that program will be a big political lift. Kober expressed skepticism that the current New York City Council, which he describes as hostile to private, market-rate housing development, will make the necessary changes.

Phares sounded a more optimistic note, telling Reason that while many individual council members do successfully oppose housing in their districts, that’s becoming more politically controversial.

The day before Adams announced his “City of Yes” initiative, news broke that the developers behind One45, a proposed 1,000-unit project in Harlem, had withdrawn their development application. The project had been fiercely opposed by Councilmember Kristin Richardson Jordan, who said it didn’t include enough low-income units.

Jordan’s opposition was enough to kill the project. But it also attracted a heated tweet thread from Councilmember Erik Bottcher, who said the “fiasco” illustrated the need for citywide rezoning for more housing.

“I refuse to spend my time on the Council (and on the Zoning Subcommittee) lurching from project to project, only to produce a fraction of a fraction of the housing we need,” he said on Twitter.

THREAD: The Harlem One45 fiasco is an example of why we need a new comprehensive citywide planning framework. ????

— Erik Bottcher (@ebottcher) May 31, 2022

“Not only are people realizing we have a housing shortage, and we are in a state of crisis,” says Phares, they are also realizing that a system that gives individual politicians so much power to block new housing is responsible for it.

Adams’ “City of Yes” doesn’t confront the worst aspect of that system. But it is a first step toward peeling back regulations that have made the country’s biggest city one of its most expensive too.

The post Eric Adams Wants to Cut a Rug, Zoning Regulations appeared first on Reason.com.

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After succeeding last weekend in his half-decade-long quest to engineer a “takeover” of the Libertarian Party, Michael Heise, founder and chair of the L.P.’s now-dominant Mises Caucus, crowed on Twitter that the national party had become “the 1st institution to shake off wokism in the country. Now that the party isnt a raging embarrassment we can actually outreach to and funnel so many groups. Bitcoiners, people pissed at schools, the major podcast audiences, etc.”

Baked into Heise’s optimism is the assumption that the prior L.P. leaders, campaigns, and candidates that the Mises Caucus repudiates—including former three-time national chair (2014–2020) Nicholas Sarwark, the team behind Jo Jorgensen’s 2020 campaign, and, above all, 2016 vice presidential candidate Bill Weld—repelled potential voters with milquetoast messaging.

This may indeed be true; political counterfactuals are stubbornly difficult to prove. But what is indisputable is that the Libertarian Party has never had an electoral stretch as successful on the presidential level as 2012–2020:

The M.C.-derided Libertarian presidential campaigns of 2016 and 2020 produced the top two voting-percentage results in party history; the 2012 Gary Johnson/Jim Gray ticket ranks a close fourth behind the well-financed Ed Clark/David Koch experiment in the third-party spike year of 1980. The L.P.’s current streak of three consecutive bronze-medal finishes is the longest of any American third party since before the Great Depression.

The most paradoxically impressive result in that stretch might be the one most recent: Jo Jorgensen, with close to zero national name recognition and very little political charisma (“She put the nation to sleep,” cracked comedian Robbie “the Fire” Bernstein during a Libertarian convention-adjacent taping of Dave Smith’s Part Of The Problem podcast), produced the party’s second-highest presidential vote percentage in a year that was brutal for nonmajor candidates and bested Green Party nominee Howie Hawkins in all 50 states.

Before former New Mexico governor Gary Johnson ran in 2012, the high-water mark for an L.P. presidential nominee’s share of the non-Democratic/Republican vote was in 1988, when 48 percent of that electorate pulled the lever for future Mises Caucus hero Ron Paul. Johnson/Gray topped that figure with 56.6 percent in 2012; Johnson/Weld inched upward to 57.2 percent, and Jorgensen/Spike Cohen brought it all the way up to 64.5 percent. The gang that went 0 for 4 against Ralph Nader has, within three election cycles, become the third party in the United States.

Will that streak continue, now that the L.P. has been taken over by a caucus highly critical of the people who produced those comparative successes? Twenty-nine months is an eternity in modern politics; at this point four years ago, the party’s top three presumed 2020 candidates were Bill Weld (who would end up running and losing badly as a Republican), John McAfee (who was arrested in Spain on U.S. tax evasion charges in October 2020 and found dead in his jail cell eight months later), and Adam Kokesh, who wound up finishing sixth.

As of this very early moment, the two main potential 2024 Libertarian presidential candidates are comedian/podcaster Dave Smith, who has the strong backing of the Mises Caucus, and former congressman Justin Amash, who in his convention keynote speech trolled the caucus by getting them to boo blind quotes from their namesake economist, Ludwig von Mises. Amash played Hamlet in the 2020 race and then abruptly dropped out just before the nominating convention, citing among other factors the adverse third-party electoral environment created by heightened negative polarization, though many insiders suspected that L.P. dysfunction may have also scared him off.

That external polarization and internal cat-herding may well continue in the 2024 cycle and could yet dissuade Amash from running. He and other prospective non-Mises Caucus candidates may not relish spending two-plus years being asked by reporters to respond to such headlines as “Kentucky Libertarian Party compares ‘vaccine passports’ to stars Jews wore in Holocaust,” and “The Libertarian Party of New Hampshire Ripped for Tweeting ‘Libertarians Suffer More Oppression Than Black People.’“

That kind of outré messaging, which correlates strongly with Mises Caucus influence on state affiliates, has already turned some people away from the party, to which the general vibe from the victorious side has been: Good riddance.

“After decades of disappointing presidential campaigns and zero mainstream media coverage, the LP needed a new direction and the Ron Paul Revolution needed an infrastructure to become influential in the political discussion in 2022 and beyond,” the anonymous Being Libertarian website asserted in a post-convention victory lap of a post. “It means the Libertarian Party just got a lot less woke….[And] the Libertarian Party will become more friendly to disgruntled Republicans.”

Whether there’s an untapped reserve of anti-woke Ron Paul fans that can overcome the loss of previous L.P. voters turned off by the party’s new messaging will depend in no small part on who ends up winning the Republican and even Democratic nominations. Former President Donald Trump remains the man to beat in the GOP, but his star is waning measurably, while Florida Gov. Ron DeSantis moves up in the polls and prediction markets. It’s hard to picture an edgier, more right-leaning Libertarian social media game competing meaningfully against the master; meanwhile, DeSantis grows more Trumpy by the day.

President Joe Biden, meanwhile, is not only old and unpopular; a majority of Democrats and Democrat-leaners want another candidate to run in the 2024 primaries.

On the one hand, you would expect a redux of Biden vs. Trump, with their demonstrated track records of government-expanding incompetence and alienating independents, to be the perfect opening for a youthful and articulate small-government guy like Amash. On the other, Trump is a one-man base-rallier for Democrats; the dark economic clouds on the horizon favor a pendulum swing against the incumbent, and both sides are on the verge of being heavily motivated by abortion politics. If that’s not enough to scramble your calculations, close your eyes and imagine a DeSantis vs. Kamala Harris race, with Dave Smith lobbing rhetorical bombs and insult comedy.

Another potential X-factor is competition from other third parties. While the Greens seem relegated to also-ran status as long as lefty voters remember Trump vs. Hillary Clinton, Andrew Yang’s centrist Forward Party is starting to achieve ballot qualifications, and the kinda-sorta Christian Democratic American Solidarity Party had an earlier start. There’s still plenty of time between now and 2024 for party-building, though the work is a slog, and the Libertarians, for all their foibles, have been stomping the competition for more than a decade now.

For the moment, in the absence of national political attention for the foreseeable future, much will depend on how the Mises Caucus decides to flex its power. Newly elected Party Chair Angela McArdle in her winning pitch to delegates repeatedly stressed the primacy of “bold messaging,” particularly on social media.

“Messaging is the face of the party,” McArdle wrote. “Social media is usually the first thing someone sees when they interact with us as an organization. Social media has the changed the political landscape. The days of ‘reading about something’ have been replaced by the experience of ‘interacting with something’. Unfortunately, our messaging at the national level has a very self-conscious tone. We need to move away from ‘low self esteem’ messaging.”

Is that a license for outrage-courting edgelordia? Not so fast, McArdle insists: “Simply put, bold messaging is messaging that is not watered down and does not take an apologizing, embarrassed tone about libertarian topics[.] Is bold messaging shit posting? No. Bold messaging is courageous, and it tells the truth.”

If in 2012 you were to have told Gary Johnson and retired Judge Jim Gray—decent gentlemen both—that the future success of the party they were then helping bring to the next level would depend in part on the line between “shit posting” and telling the truth, they would have probably looked at you funny. Yet, that is the world that both the Libertarian Party and the rest of the United States find themselves in now.

McArdle and her winning cohort still have some time before the outrage archeologists in the competition and the press start combing in earnest through the old tweets and podcast episodes. We shall soon see how much the new Libertarian Party orients itself around social media controversy and what kind of audience that attracts.

The post Can a Post-'Takeover' Libertarian Party Improve on Its Historical Run of 2012–20? appeared first on Reason.com.

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Ohio lawmakers approved a particularly intrusive trans school sports ban Wednesday night by attaching it to a completely unrelated bill.

H.B. 61, the “Save Women’s Sports Act,” bans schools and colleges in Ohio from permitting “individuals of the male sex” from participating in women’s sports. It covers any school that participates in organized interscholastic athletic conferences, meaning it covers private schools that compete against state-funded schools as well.

The bill does not explain what the “male sex” or “female sex” is. It does not say “trans” or “transgender” anywhere in the bill. It doesn’t talk about birth or biological sex.

What it does instead is give people the power to dispute the sex of an individual athlete. Then it falls upon that athlete to prove their sex by going to a physician and getting a signed statement confirming the athlete’s sex based on only the following:

“The participant’s internal and external reproductive anatomy;”

“The participant’s normal endogenously produced levels of testosterone;”

“An analysis of the participant’s genetic makeup.”

The bill does not specify who has the authority to levy such challenges, but it does authorize individuals or schools “who [are] deprived of an athletic opportunity or suffers a direct or indirect harm as a result of a violation of this section” to sue the school, school district, or conference who allowed the trans woman to play and be awarded damages.

So, to be very clear here, no evidence is needed that a particular athlete is trans or not a biological female in order to demand that she prove her sex. The athlete must then go to a physician and either subject herself to a physical inspection of her sexual organs or arrange for hormone or genetic tests. And no, the bill does not fund the costs of such tests.

The bill’s wording is similar to one passed in Idaho in 2020 that is currently being challenged in federal court. This Ohio bill had first been introduced more than a year ago by sponsor Reps. Jena Powell (R–Arcanum) and Reggie Stoltzfus (R–Paris Township). The bill had been referred to the Primary and Secondary Education Committee and never voted on. On Wednesday evening, the text of the bill was attached to H.B. 151, an unrelated bill about the Ohio Teacher Residency Program, and passed.

News 5 in Cleveland notes that there is currently only a single trans female student competing in high school sports in Ohio. Powell, though, insists that this bill is needed to protect biological females.

“I am passionate about this issue because we cannot allow girls’ dreams of being a gold medal athlete to be crushed by biological males stealing their opportunity,” she said. “This bill ensures that every little girl who works hard to make it on a podium is not robbed of her chance by a biological male competing against her in a biological female sport.”

For a moment, let’s aside the cruelty of a complete one-size-fits-all rejection of trans participation in girls’ sports regardless of the sport or situation, the assumption that the trans girl has an advantage, and whether the existence of this problem even requires government intervention.

Let’s instead think for just a few minutes about what is likely to happen if these rules become law. This bill does not require the person levying the complaint to provide any evidence that the accused athlete is trans or not a biological female. The bill puts the onus on the target to prove that she is a biological female and is permitted to compete. And it provides financial incentives for parents, athletes, and other schools to file complaints and officially prohibits retaliation or punishment against anybody who files such complaints.

The potential for these regulations to be used to harass biologically female athletes is very high. Assuming the claim is true that there’s only one trans female athlete competing in Ohio, isn’t the most likely outcome of this bill complaints against biological girls who appear more masculine or muscular, who are stronger than the other girls, and who even have more naturally produced testosterone than other girls, but who are nevertheless the biological females Powell claims she wants to protect?

We live in a country where parents assault the umpires at little league games, for heaven’s sake. You better believe that these rules will be turned against some of the best female athletes by other parents or schools regardless of the girls’ biology. And they’re going to have to subject themselves to intrusive testing to prove who they are. Biological girls are not the beneficiaries of this bill—politicians wanting to score culture war points propping up a particular social conservative constituency are.

There are ways that sports programs can navigate the participation of trans women in a way that can be inclusive of trans athletes yet also recognizes the potential for fraud and can evaluate participants for unfair advantages. But that’s a complicated and challenging process that requires people to be willing to compromise. Politically, Americans are not in a place where that can happen. When Utah politicians attempted to create a compromise bill that would have created a commission to do this, it was replaced at the last minute by a Republican lawmaker with a complete ban.

Though this new ban passed the House, Ohio’s Senate is currently not in session and won’t be back until after the November election. Republicans have a supermajority control of the Senate, so they can most certainly get this bill across the finish line in a post-election lame-duck session.

The post Ohio Lawmakers Want To Subject Female Athletes to Genital Inspections appeared first on Reason.com.

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President Joe Biden’s bipartisan infrastructure bill apportioned $1.2 trillion for such projects as roads, bridges, and airports. But it also designated $65 billion “to help ensure that every American has access to reliable high-speed internet” by funding broadband expansion. This included a $45 billion “Internet for All” program, under which Biden pledged to expand broadband access to all Americans by 2030.

But this was not the first tranche of federal funds dedicated to expanding internet access: The 2009 stimulus bill allocated more than $7 billion toward broadband grants for rural areas, and expenditures have grown since. A new report from the Government Accountability Office (GAO) shows that the return on that investment has been underwhelming.

The report, titled “Broadband: National Strategy Needed to Guide Federal Efforts to Reduce Digital Divide,” was released on Tuesday. Based on Biden’s pledge of getting to universal broadband access by the end of the decade, the GAO studied the government’s current broadband programs and expenditures, looking for shortcomings or areas of improvement.

What it found was a jumbled mess.

“Federal broadband efforts are fragmented and overlapping,” with “at least 133” programs “administered by 15 agencies,” the report found. These agencies varied widely, with the three largest being the Federal Communications Commission (FCC), the U.S. Department of Agriculture (USDA), and the National Telecommunications and Information Administration (NTIA), which is part of the Department of Commerce. Between FY 2015 and FY 2020, these programs collectively dispensed at least $44 billion in broadband assistance.

In practice, so many programs from so many agencies all pursuing the same goal leads inevitably to waste. In one case the report cites, “multiple providers received funding from different programs to deploy broadband to the same county in Minnesota.” If the goal of the federal broadband effort is to expand into areas that lack access, then there is no reason to fund multiple providers in the same area.

Broadband providers also struggle with qualifying for certain grants, since different programs administered by different agencies have different criteria. The NTIA even developed the BroadbandUSA Federal Funding Guide to help applicants navigate the maze of different programs. Even still, the GAO reports that applicants found the guide “overwhelming or of limited benefit to potential users.“

Overall, the report determined, “The U.S. broadband efforts are not guided by a national strategy with clear roles, goals, objectives, and performance measures.“

Unfortunately, this is nothing new. “There is a history of waste when the government spends a ton of money on broadband,” Evan Swarztrauber, a former FCC advisor and a senior advisor for the Lincoln Network, tells Reason. “Broadband programs are run by too many agencies, too many jurisdictions, [and] they’re not coordinated effectively.

“There’s no sense that this is being tracked in a coordinated way to make sure that we’re not duplicating and to make sure that money’s going to people who actually need it.”

Indeed, barely six months after rolling out a new broadband program last year for low-income areas, the FCC noted that it was already plagued with fraud, with enrollment vastly outpacing eligibility in some areas.

The report makes several recommendations, including “synchronizing federal efforts with a national broadband strategy” that the government currently lacks. But unfortunately, the report makes no mention of involving the private sector, and future spending seems tilted in the opposite direction.

A previous GAO report noted that while the federal government invested over $47 billion in rural broadband infrastructure between 2009 and 2017, the broadband industry invested $795 billion over the same period. To the extent that federal funding would ever be necessary, it would be to fill in any gaps the private sector was unable to cover.

“The problem is the Biden administration is prioritizing the government being the provider,” rather than the private sector, says Swarztrauber. “The rhetoric is all about how we should prioritize the local government being the owner and operator of the network.”

In the past, such plans consistently lead to higher costs, corrupt bidding processes, and technology inferior to what’s offered by the private sector. But the Biden administration is moving full steam ahead, with NTIA Administrator Alan Davidson saying last month that his agency would “press” states to allow more municipal broadband programs.

Regardless of whether federal funding of broadband expansion is a good idea—in fact, newer satellite broadband options have promising results even in far-flung rural areas—the current setup involves too many programs under too many different administrators. The first step in any cleanup of the process should be to drastically prune the number of programs and consolidate what’s left under a single agency. Then it will be easier to determine how much money is truly wasted on redundant programs.

The post Do We Really Need 100 Different Federal Programs To Fund Broadband? appeared first on Reason.com.

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This week, The Verge reported that General Motors’ 2023 Chevy Bolt electric vehicles (E.V.) have dropped in price by 18 percent since 2022, down to $26,595 from $32,495. Meanwhile, BMW in the last few weeks announced plans to alter its E.V. battery design, which is estimated to yield a 30 percent drop in materials costs over the next few years. And Ford CEO Jim Farley told attendees of the Bernstein Strategic Decisions Conference on Wednesday that he anticipates a “huge price war” in the E.V. industry in the coming years, as more and more carmakers price cars around that $25,000 mark.

Though building electric vehicles currently costs up to 45 percent more than standard automobiles—batteries and chargers are astonishingly expensive to manufacture—Farley predicts a future where carmakers’ focus on making designs more aerodynamic and producing smaller batteries with longer charges, both of which would drive costs down.

With such developments, more and more automakers are throwing their hats in the ring in an attempt to compete with giants like Tesla, which has quite successfully tapped into this fast-growing market. (Double the number of electric vehicles were sold in the U.S. in 2021 compared to 2020, and first-quarter sales for 2022 have held strong.) 

A bit of a milestone:
After 130 years or so of growth, the global fleet of cars with only an internal combustion engine will probably peak in 2022. EVs are already the auto industry's sales growth driver. Soon they will be the fleet growth driver too. https://t.co/C2GeXoIKnZ pic.twitter.com/wWJ1poyBVs

— Nat Bullard (@NatBullard) June 1, 2022

How much of this innovation and aggressive price-slashing is due to government intervention in the clean energy market? It’s hard to tell. E.V. sales have long been boosted by government subsidies that offer electric and hybrid vehicle owners federal income tax credits of up to $7,500 for new cars bought in or after 2010. But in a splendid twist of government logic, carmakers also get punished for being too successful, since customers are phased out of subsidies if the automaker has sold more than 200,000 qualifying units—a threshold Tesla has reached, rendering owners ineligible for tax rebates. Tesla CEO Elon Musk has even criticized such tax credits, noting that they’re simply not needed in order to drive demand for E.V.s. Though likely correct, Musk delivered this critique years after the subsidies were put in place and after his company’s customers became ineligible for it. It’s entirely possible that tax credits helped drive the early transition to E.V., but play less of a role now, and will play no role in the future.

In May, the Biden administration signaled that it would incentivize further E.V. adoption—pursuing ill-advised and market-distorting economic nationalism despite the fact that consumers were already gravitating in that direction (as strong Tesla sales, even post-subsidy-expiration, have suggested, and Musk has confirmed). The administration last month started to put in place a $3.1 billion plan to ramp up domestic production of E.V. batteries. Though packaged as a way “to insulate consumers from the fluctuation of global oil markets,” as The New York Times reports, gesturing at Russia’s war in Ukraine, the shift to mass domestic production of E.V. batteries will take quite a while to implement, and the effects even longer to be felt. It also ignores that much of the lithium, cobalt, and nickel mining needed for these batteries is done in China and will be difficult to scale up to sufficiently meet demand.

Mass electric vehicle adoption need not be spurred by socially conscious word-fluff or well-meaning (but flawed) subsidies; it’s looking like customers want electric vehicles because they’re high-quality, convenient products made increasingly attractive by their lower price and easier maintenance. May the best man win in the coming price wars.

The post GM Slashes Prices for Its Electric Vehicles (To Compete With Tesla) appeared first on Reason.com.

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From In re K.P. & C.P., decided yesterday by the Colorado Court of Appeals (Judge David Yun, joined by Judges Matthew Grove and Dennis Graham:

The juvenile court found C.P., a/k/a K.A. (K.A.), in contempt for violating permanent civil protection orders barring her from discussing her children’s dependency and neglect case with most third parties. At a hearing that occurred several months after it had issued the protection orders, the court entered its judgment of contempt and sentenced K.A. to six months in jail. K.A. now appeals only the contempt judgment, arguing that the protection orders violated her constitutional right to free speech and that insufficient evidence supported the court’s judgment of contempt.

This appeal therefore requires us to determine whether K.A., in appealing the contempt judgment, may collaterally attack the lawfulness of the underlying protection orders. We conclude that she may not. Under the collateral bar rule, a party must obey a court order—even an unconstitutional order—unless and until that order is stayed, set aside, or reversed on appeal. With rare exceptions, a party cannot challenge a court order by violating it. This is so because the orderly and efficient administration of justice would be jeopardized if parties could determine for themselves when and how to obey a court order….

Here’s the factual and procedural story:

This contempt proceeding followed K.A.’s contentious divorce from C.P., the father of their three daughters, K.P., L.P., and M.P., as well as the family’s involvement in two dependency and neglect cases….

In 2017, the year before the divorce became final, the Arapahoe County Department of Human Services filed a petition in dependency and neglect alleging that the father was sexually abusing the two younger girls. A jury, however, found that the children were not dependent or neglected.

Two years later, the Department filed a second petition, this time asserting that K.A. had coached the oldest daughter into falsely reporting sexual abuse by her father as part of K.A.’s pattern of emotionally abusing the girls. A jury found all three girls dependent and neglected as to K.A., and the juvenile court ordered her to comply with a treatment plan designed to give her “insight into how [her] behaviors alienated and emotionally harmed her children.” K.A. appealed the adjudication, but a division of this court affirmed it….

Soon after, in April 2020, K.A. posted a “Petition to Protect CHILDREN!” on the website change.org. In this posting, K.A. alleged that, despite her daughters’ disclosure of sexual abuse by their father, protective services, law enforcement, and mental health professionals had all insisted that the girls live with him. The petition included a video of the youngest daughter being interviewed by K.A. and making an outcry of sexual abuse, as well as a video of the oldest daughter’s journal entries disclosing sexual abuse by her father—evidence that K.A. had never disclosed to the Department or the police.

In May 2020, the Department moved for a protection order under section 19-1-114(2)(a), C.R.S. 2021. It alleged that K.A.’s posting invaded the children’s privacy and showed that “any progress in her treatment plan was feigned” and that she refused to “own[] that she coached her children” into making outcries of sexual abuse against their father. The court agreed that K.A. was not acting in the girls’ best interests and granted the protection order (the May protection order). Among other things, the court required K.A. to take down the petition, prohibited her “from posting on social media sites information related to the Minor Children and the allegations of abuse or neglect associated with this case” (including doing so through third parties), and obligated her to provide the Department with the videos attached to the change.org petition. The court warned that her failure to comply with the order could “result in contempt proceedings and up to six months in jail.”

But K.A. refused to take down the petition, added copies of the girls’ handwritten notes when the website hosting the video took it down, and continued to post about the allegations on social media, as well as on her own website. As a result of K.A.’s defiance of the May protection order and her failure to engage in her treatment plan, the Department filed two motions: one for a contempt citation against K.A., and another to terminate her parental rights. The juvenile court scheduled a hearing on both matters over two days in late August 2020.

On the first day, the court found beyond a reasonable doubt that K.A. had willfully violated the May protection order. It delayed sentencing her for contempt until after the termination hearing, which was set to continue through the next day. K.A., however, failed to appear (or to have counsel appear on her behalf) the following morning, so the court issued a bench warrant and did not proceed with sentencing. At the end of the hearing, the court terminated K.A.’s parent-child legal relationships with her three daughters. The court also sealed the court records, stating that no party was to release any filing in the case to any third party or ask other people to post anything on the internet regarding the case….

The juvenile court [later] … narrowed the September protection order so that K.A. could communicate about the case with her therapists and doctors, as well as her attorneys (the December protection order). The December protection order says,

Because this Court is certain that more harm will occur from future postings regarding the allegations of sexual abuse in this case, the Court first ORDERS that [K.A.] shall be restrained from posting any information related to the allegations of abuse or neglect which were investigated during this case on any website or social media outlet. This includes posting through a third party, which is subject to the provisions outlined above, as [K.A.] may be held liable for directing any third party to post such information. Further, the Court further ORDERS that [K.A.] shall be restrained from discussing the allegations of abuse or neglect which were investigated during this case or providing any case-related information, including but not limited to any documents within the case file, to any third party who does not have a legal duty of confidentiality to [K.A.] Thus, [K.A.] may discuss this case with her attorneys, therapists, or doctors, but she may not direct these third parties to release or disseminate case-related information to any other third party or to the public.

Though the court recognized K.A.’s First Amendment concerns, it concluded that the December protection order passed constitutional muster. The order, the court explained, was the least intrusive means necessary to serve the government’s compelling interests in protecting domestic abuse victims and the privacy of children involved in dependency and neglect proceedings. The court further found that, “based on the history of this case and [K.A.’s] repeated and relentless dissemination of the false allegations of abuse, Father and all three children will undoubtedly suffer great, grave, and certain harm as a result of continued expression.” …

On December 31, 2020, the father moved for a contempt citation against K.A. He alleged that an article published three days earlier in an online edition of the Colorado Springs Gazette includes details about the dependency and neglect case that K.A. must have shared, either directly with the author or through a third party, in violation of the juvenile court’s protection orders.

The article, titled “A sick mom, alone in a cell, on Christmas Eve,” does not include anyone’s name, but it does include, among other things, (1) K.A.’s experience of having COVID-19 in jail {K.A. was serving time in jail on prior contempt citations that are not part of this appeal}; (2) K.A.’s “unwavering belief” that the father sexually abused the children; (3) that K.A. is in jail for seventeen months for violating a “gag order” in the case; and (4) that K.A. wrote to her friend, “A system shouldn’t be able to destroy someone’s life. Punished for protecting, for speaking truth, for loving my daughters so much—I would do anything for them.” Even though the case was sealed, the week after the article’s publication, the juvenile court received two voicemail messages urging it to release K.A. from jail….

The appellate court applied the so-called “collateral bar” rule as set forth in Walker v. City of Birmingham (1967):

[In Walker], Birmingham officials obtained an injunction prohibiting Dr. Martin Luther King, Jr., and other civil rights protesters from parading without a permit. Rather than appealing the injunction, the protesters disobeyed it. They were subsequently charged with violating the injunction, fined, and sentenced to jail. The Court noted that the ordinance, which provided the basis for the injunction, “unquestionably raise[d] substantial constitutional issues” and that “[t]he breadth and vagueness of the injunction itself would also unquestionably be subject to substantial constitutional question.” Nonetheless, the Court ruled that the protesters could not collaterally raise those constitutional issues in the contempt proceedings….

The Court declared, “[t]his case would arise in quite a different constitutional posture if the [protesters], before disobeying the injunction, had challenged it in the Alabama courts, and had been met with delay or frustration of their constitutional claims.” Thus, despite the potential illegality of the injunction, the Court upheld the protesters’ convictions because the protesters “were [not] constitutionally free to ignore all the procedures of the law and carry their battle to the streets.” The Court observed that “no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion.” …

While we acknowledge that K.A. has raised substantial constitutional issues regarding the protection orders, the juvenile court’s order “must be obeyed by the parties until it is reversed by orderly and proper proceedings.” Because K.A. decided to disobey the protection orders rather than challenge them on appeal, she cannot collaterally raise those constitutional issues in this appeal….

[One exception is that] “court orders that are transparently invalid or patently frivolous need not be obeyed.” But to protect the judiciary’s dignity and authority, “we must indulge … a heavy presumption in favor of the validity of every court order.” “Only when there is no colorable, nonfrivolous argument to support the order being reviewed should a contemnor be excused from his disobedience of the order.” We cannot say that no colorable, nonfrivolous argument supports the validity of the juvenile court’s protection orders. See In re Marriage of Newell (Colo. App. 2008) (concluding that a parent’s exercise of free speech that “threatened the child with physical or emotional harm, or had actually caused such harm,” could establish a state interest sufficiently compelling to curtail the parent’s free speech rights)….

I’m not sure the collateral bar rule is sound. It’s true that it’s important for the rule of law that people generally follow court orders, but it’s also important that people generally follow statutes—and yet we allow people to violate a statute and raise a First Amendment defense when they’re prosecuted, rather than requiring them to challenge the statute up front. Why not do the same for court orders? Indeed, some states, such as my own California, reject the collateral bar rule and do allow people to raise a First Amendment defense when challenging a contempt prosecution for violating an injunction, and the skies haven’t fallen. (California has many problems, but I don’t think they stem from the collateral bar rule.)

Moreover, many civil defendants can’t afford a lawyer, and, unlike in criminal cases, don’t have court-appointed lawyers; they may thus find it hard to appeal an injunction. It’s only when they are prosecuted for contempt, and are entitled to a court-appointed lawyer if there’s the possibility of jail time, that they can realistically raise their First Amendment claims.

But in any event, rightly or wrongly, most jurisdictions do follow the collateral bar rule. So if you think the injunction against you violates your First Amendment rights, you need to appeal promptly or else forfeit your First Amendment claim.

The post 6 Months in Jail for Speaking to Newspaper About Your Court Case appeared first on Reason.com.

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An unnecessary federal bailout of state and local governments has given an undeserved mulligan to some money-losing government-owned golf courses.

That’s despite the fact that some of those same courses reported an increase in customers during the COVID-19 pandemic. According to reports submitted to the Treasury Department and reviewed by Reason, Union County, New Jersey, has committed $929,000 of its federal COVID funds to a pair of county-owned golf courses: Galloping Hill and Ash Brook. That spending will help the courses cover “costs associated with increased use” as a result of “an increase in play at county golf courses due to the COVID-19 pandemic.”

That’s the sort of problem that many private businesses would probably love to have. Either as the result of government-imposed lockdowns or changes in consumer behavior during the pandemic, recreational spending on restaurants, bars, concert venues, and theaters plummeted. If that made golfing—an outdoor, socially distanced activity—more popular, why should taxpayers now have to bail out a business that got more successful?

Perhaps the problem is that government shouldn’t be trying to run golf courses in the first place. Union County’s Galloping Hill course was losing $500,000 annually as recently as 2007, according to NJ Monthly. To “solve” that problem, county officials decided to dump $17.6 million in public money into upgrades at the course. The latest bailout, then, is just another in a long line of poor decisions made by the county’s elected leaders.

They’re hardly alone. In a report published earlier this year, the Reason Foundation (the nonprofit that publishes this website) found that 155 local governments lost a combined $61 million by running golf courses during their 2020 fiscal years. One of the biggest losers was Thousand Oaks, California, which lost a staggering $800,023 on a single city-owned golf course in 2020.

Naturally, that course got a piece of the federal bailout too. The Treasury Department’s tracker of American Rescue Plan spending shows that Thousand Oaks plans to spend more than $14 million on “revenue replacement” on a variety of items, including “city-owned theatres and golf course.” It’s not clear from the data provided to the Treasury Department how much of that money will be spent on the golf course (nor is it clear why the city owns multiple theaters, but that’s for another day).

“Rather than use COVID funds to backfill golf course losses, cities would be better served by selling them,” says Marc Joffe, a senior fellow at the Reason Foundation and author of the recent report on government-owned golf courses. “Land in California is quite valuable, and a private entity could probably put the land to better uses and would pay for the privilege of doing so.”

And if it failed at doing that, at least taxpayers who have never set foot in Thousand Oaks or Union County and never picked up a golf club wouldn’t have to foot the bill for a bailout.

“Congress really put taxpayers in the rough,” says Tom Schatz, president of Taxpayers Against Government Waste, a fiscally conservative nonprofit. He says Congress should have placed stricter limits on how the $350 billion state and local government bailout could be used.

Those funds were included in the $1.9 trillion American Rescue Plan, passed by Congress in March 2021, and were ostensibly meant to cover pandemic-related public health costs or to offset lost tax revenue due to the economic consequences of COVID-19. Even before the law was passed, there were questions about whether such a large bailout of state and local tax coffers was necessary or prudent.

It seems to have been neither, as most governments did not experience a significant revenue shortfall due to the pandemic. Now flush with extra cash from Washington and few restrictions on how to use it, some state and local governments are blowing the money on pet projects like government-owned golf courses and bonuses for government workers, as Reason detailed yesterday.

“They overstimulated the economy, clearly,” Schatz tells Reason, “and they obviously handed way too much money to state and local governments if this is how it is being used.”

Other obviously vital public health costs being covered by the American Rescue Plan’s local government bailout fund include the planting of new trees “including ash, spruce, maple, pine, [and] cherry” and the installation of a new irrigation system at a government-owned golf course in Elmira, New York, according to Treasury Department data. That’ll burn through $1.2 million of federal funds.

In Lexington, Kentucky, a government-owned course that brags about containing “the longest par-5” hole in the state, will be getting a new irrigation system with the help of more than $1.3 million from the federal bailout. The course is already “a local favorite and an attraction to visitors,” the county wrote in its project summary submitted to the Treasury Department, but the desired upgrades haven’t been made due to a lack of funding from the local government.

Thank goodness there was a global pandemic that required the federal government to tee up the cash instead.

The post The American Rescue Plan Bailed Out Unprofitable Government-Owned Golf Courses appeared first on Reason.com.

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President Joe Biden has invoked the Defense Production Act and ordered the U.S. military to fly pallets of baby formula into the country from Europe.

But if the federal government just backed off and let the market function like it’s supposed to, we wouldn’t need military intervention or emergency policies designed for war to stock grocery store shelves with baby formula. This crisis is largely the result of protectionism, regulation, and central planning of the sort that both Democrats and Republicans want more of in Washington.

Reporters like CNN’s Jake Tapper have been pressing officials to explain why the government didn’t respond more quickly to this shortage—but the actual solution is for the government to be less involved entirely.

A better question is why didn’t the Biden administration clear the way for the private sector to react to price signals, like it does in every other industry? Food suppliers would have started stockpiling European-made formulas months ago if only U.S. tariffs and regulations weren’t an obstacle.

So how does this work in practice? First, the federal government prohibits importing many European-made baby formulas simply because they fail to meet the Food and Drug Administration’s (FDA) labeling requirements.

But Europe is the world’s leading exporter of baby formula, thanks to major producers based in Germany, the Netherlands, and Britain. If the FDA’s labeling regulations are so necessary, why is it that infants all over the globe safely consume formula made in Europe? Meanwhile, about 98 percent of the formula sold in the U.S. is produced domestically. We’ve sealed ourselves off from a robust, and safe, global market.

In addition to the labeling requirements, the government imposes huge tariffs on foreign-made formula to protect domestic manufacturers and the American dairy industry.

Now the U.S. is heroically flying in European-made baby formula. But just a year ago, customs officials were bragging about heroically seizing it at a port of entry.

These two policies of regulation and protectionism work in tandem to scare aware foreign suppliers. For example, let’s say you’re running a baby formula manufacturing firm in Germany. You would have zero incentive to spend the money to earn FDA approval for your labels because high tariffs would make your product too expensive to compete in the U.S. market.

Brian Deese, director of the National Economic Council, says the White House has acted quickly to “waive a whole bunch of regulations that traditionally make sense, but don’t make sense in this crisis.”

“Don’t make sense in this crisis?” Wait a minute. Did European-made baby formula suddenly become less hazardous? Does passing formula through the hands of the U.S. military magically makes it safe for American babies to drink? Or maybe the regulations and tariffs are designed to protect big businesses, not babies, and never should have existed in the first place?

Sen. Mike Lee (R–Utah) introduced a bill that would temporarily waive the tariffs on baby formula and remove the FDA labeling regulations.

How about scrapping them altogether?

There’s an important lesson here for economic nationalists, who claim that international trade is a vulnerability. Excluding even more foreign-made products is “critical for our national security,” Sen. Josh Hawley (R–Mo.) argued in a New York Times op-ed last year. He has suggested tightening the “Made in America” rules that already govern federal procurement to include “the entire commercial market.”

If Hawley got his way, all industries could become just as vulnerable to supply shocks as baby formula. Will we one day have to replace our $2.5 trillion international shipping and logistics industry with emergency military aircraft crisscrossing the skies?

The Biden administration and Congress get to come off like heroes, rushing to feed American babies left to go hungry because of the supposed cruelty of the free market. But that’s all an act. Don’t be fooled about the real cause of this shortage.

Written and narrated by Eric Boehm. Edited by Regan Taylor. Audio by Ian Keyser.

Photo Credits: A1C ALEXCIA GIVENS/UPI/Newscom; Abaca Press/Gripas Yuri/Abaca/Sipa USA/Newscom; Amy Katz/ZUMAPRESS/Newscom; Bill Clark/Newscom
BSIP/Newscom; Chamtrumping, CC BY-SA 4.0, via Wikimedia Commons; CHINE NOUVELLE/SIPA/Newscom; IChris Kleponis / CNP / SplashNews/Newscom; Imagine China/Newscom; James 4, CC BY-SA 4.0, via Wikimedia Commons; John Nacion/ZUMA Press/Newscom; Mark Hertzberg/ZUMAPRESS/Newscom; Michael Brochstein/Sipa USA/Newscom; Niyi Fote/ZUMAPRESS/Newscom; Paul Weaver/ZUMAPRESS/Newscom; RICHARD B. LEVINE/Newscom; Rod Lamkey – CNP/Newscom; Ron Sachs / CNP / SplashNews/Newscom; Stanislav Krasilnikov/ZUMA Press/Newscom; Stephanie Tacy/SIPA USA/Newscom; Stephen Shaver/Polaris/Newscom; Sipa USA/Newscom; Tom Williams/CQ Roll Call/Newscom; US Air Force/ZUMAPRESS/Newscom

Music Credits: “Game Over,” by 2050 via Artlist; “High On You Instrumental Version,” by Fvmeless via Artlist.

 

The post Can't Find Baby Formula? Blame Tariffs and the FDA. appeared first on Reason.com.

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I am happy to announce that the latest article by Cassandra Burke Robertson and myself, “Integral Citizenship“, is now out in the centennial volume of the Texas Law Review. It joins our previous publications on denaturalization and other forms of citizenship loss in the NYU Law Review (2019), Vanderbilt Law Review (2020), and North Carolina Law Review (2021). Here is the final version of the abstract:

Does the Constitution’s promise of birthright citizenship to all born “in the United States” cover the United States Territories? Residents of the Territories have regularly sought judicial recognition of their equal birthright citizenship under the Fourteenth Amendment, most recently in some prominent cases reaching federal appellate courts. When rejecting these claims, the courts have been unable or unwilling to articulate a unified theory of citizenship. Most problematically, judicial decisions have continued relying on the Insular Cases, whose reasoning over a century ago was explicitly based on a policy of racial exclusion. 

We argue that the time has come for unambiguous judicial recognition that individuals born in the U.S. Territories form an integral part of the United States citizenry. This outcome is the only one that comports with both constitutional structure and historical practice. In analyzing why courts still deny claims for constitutional citizenship in the Territories, we explore the covert norms of belonging that shed light on the otherwise inexplicable logic of the courts’ opinions. For example, there is no legal reason to treat the citizenship of those born in the U.S. Territories differently from that of those born in Washington, D.C. Nevertheless, an asymmetrical perception of belonging has flowed into the courts’ construction of legal status, influencing whose citizenship is questioned and whose is assumed. 

Although some judges and government officials have recently put forth new arguments that citizenship recognition would risk interfering with indigenous rights and endangering cultural practices, we argue that the opposite is more likely to be true. Attempting to retrofit a doctrine built on the political and social exclusion of racial minorities cannot offer durable cultural protection. By contrast, a unified national civic identity that recognizes the Territories as a fundamental part of the American fabric is more likely to foster the political will to protect indigenous rights. Recognizing the Fourteenth Amendment’s promise of integral citizenship ensures that anyone whose birth location entails allegiance to the United States—be it the U.S. Territories or Washington, D.C.—is equally American. 

The post "Integral Citizenship" Published in the Texas Law Review appeared first on Reason.com.

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