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Immigrant Seeking to Challenge Removal Prevails with Unusual Supreme Court Line-up

The Supreme Court issued a single opinion today in Niz-Chavez v. Garland, in which the Court considered the adequacy of a “notice to appear” to a deportation proceeding was legally adequate if the notice did not contain all of the statutorily specified information. This matters because a nonpermanent resident aliens otherwise subject to removal may be eligible to remain in the country if they can establish they have been in the country continuously for at least ten years. A notice to appear, however, effectively cuts off the running of this time period. So, in this case, whether the government’s notice to appear to Niz-Chavez was adequate would determine whether he is potentially eligible for discretionary relief from deportation.

In a 6-3 decision, the Court held that the government had not provided Niz-Chavez with a statutorily adequate notice to appear because no single document sent to Niz-Chavez contained all of the required information. Justice Gorsuch, wrote for the Court, joined by Justices Thomas, Breyer, Sotomayor, Kagan, and Barrett. Justice Kavanaugh dissented, joined by the Chief Justice and Justice Alito.

We may think of this as a 6-3 Court, but this is not the 6-3 split many would expect. That said, there is something intuitive about this split, in that it resembles the formalist-pragmatist splits we’ve sometimes seen on the Court before, in which more formalist conservatives (e.g. Thomas, Scalia) would join with the Court’s liberals to side with criminal defendants. In this case, the Court’s more formalist/textualist conservatives (Gorsuch, Thomas, Barrett) joined with the Court’s liberals to hold that if the statute requires “the notice” to contain certain information, the failure of a single notice to contain that information renders it deficient, while the Court’s more pragmatic conservatives (Kavanaugh, Alito, and the Chief) dissented on the grounds that this imposes an unreasonable burden and ignores that, as a practical matter, notice of all the relevant info was provided, even if not in a single document. So, while we have not seen this precise lineup before, I would not be at all surprised were we to see it again, particularly in areas such as immigration.

Justice Gorsuch’s majority opinion begins in fairly typical Gorsuch style.

Anyone who has applied for a passport, filed for Social Security benefits, or sought a license understands the government’s affinity for forms. Make a mistake or skip a page? Go back and try again, sometimes with a penalty for the trouble. But it turns out the federal government finds some of its forms frustrating too. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–546, requires the government to serve “a notice to appear” on individuals it wishes to remove from  his country. At first blush, a notice to appear might seem to be just that—a single document containing all the information an individual needs to know about his removal hearing. But, the government says, supplying so much information in a single form is too taxing. It needs more flexibility, allowing its officials to provide information in separate mailings (as many as they wish) over time (as long as they find convenient). The question for us is whether the law Congress adopted tolerates the government’s preferred practice.

As noted above, the majority concludes the answer is “no” The plain text of the statute indicates as much and, as the Court had noted previously in Pereira v. Sessions, the statutory requirements for notices to appear at deportation proceedings mean what they say.

Gorsuch reaffirms the need to interpret statutes in accord with their “ordinary meaning”:

When called on to resolve a dispute over a statute’s meaning, this Court normally seeks to afford the law’s terms their ordinary meaning at the time Congress adopted them. See, e.g., Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___ (2018). The people who come before us are entitled, as well, to have independent judges exhaust “all the textual and structural clues” bearing on that meaning. Id., at ___ (slip op., at 8). When exhausting those clues enables us to resolve the interpretive question put to us, our “sole function” is to apply the law as we find it, Lamie v. United States Trustee, 540 U. S. 526, 534 (2004) (internal quotation marks omitted), not defer to some  conflicting reading the government might advance. . . .

And this, Gorsuch notes, presents a problem for the government:

To trigger the stop-time rule, the government must serve “a” notice containing all the  information Congress has specified. To an ordinary reader—both in 1996 and today—”a” notice would seem to suggest just that: “a” single document containing the required information, not a mishmash of pieces with some assembly required.

The majority opinion concludes:

At one level, today’s dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. In this case, the law’s terms  ensure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.

Writing in dissent, Justice Kavanaugh argues that the majority’s interpretation is “perplexing as a matter of statutory interpretation and common sense.” He argues that the majority’s interpretation is unreasonable, and fails to accord proper deference to the political branches. His opinion concludes:

As a matter of policy, one may reasonably debate the circumstances under which a noncitizen who is unlawfully in the country should be removed and should be eligible for cancellation of removal. But those policy choices are for the political branches. Our job is to follow the law passed by Congress and signed by the President. The statute here requires the Government to serve the noncitizen with written notice of the charges and other required information, including the time and place of the hearing. In this case, Niz-Chavez received written notice of the charges and all the required information, including the time and place of his hearing. Niz-Chavez appeared with counsel at his hearing in Detroit on June 25, 2013. Because he received written notice to appear before he had accumulated 10 years of continuous physical presence, he is  not eligible for cancellation of removal

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Immigrant Seeking to Challenge Removal Prevails with Unusual Supreme Court Line-up

The Supreme Court issued a single opinion today in Niz-Chavez v. Garland, in which the Court considered the adequacy of a “notice to appear” to a deportation proceeding was legally adequate if the notice did not contain all of the statutorily specified information. This matters because a nonpermanent resident aliens otherwise subject to removal may be eligible to remain in the country if they can establish they have been in the country continuously for at least ten years. A notice to appear, however, effectively cuts off the running of this time period. So, in this case, whether the government’s notice to appear to Niz-Chavez was adequate would determine whether he is potentially eligible for discretionary relief from deportation.

In a 6-3 decision, the Court held that the government had not provided Niz-Chavez with a statutorily adequate notice to appear because no single document sent to Niz-Chavez contained all of the required information. Justice Gorsuch, wrote for the Court, joined by Justices Thomas, Breyer, Sotomayor, Kagan, and Barrett. Justice Kavanaugh dissented, joined by the Chief Justice and Justice Alito.

We may think of this as a 6-3 Court, but this is not the 6-3 split many would expect. That said, there is something intuitive about this split, in that it resembles the formalist-pragmatist splits we’ve sometimes seen on the Court before, in which more formalist conservatives (e.g. Thomas, Scalia) would join with the Court’s liberals to side with criminal defendants. In this case, the Court’s more formalist/textualist conservatives (Gorsuch, Thomas, Barrett) joined with the Court’s liberals to hold that if the statute requires “the notice” to contain certain information, the failure of a single notice to contain that information renders it deficient, while the Court’s more pragmatic conservatives (Kavanaugh, Alito, and the Chief) dissented on the grounds that this imposes an unreasonable burden and ignores that, as a practical matter, notice of all the relevant info was provided, even if not in a single document. So, while we have not seen this precise lineup before, I would not be at all surprised were we to see it again, particularly in areas such as immigration.

Justice Gorsuch’s majority opinion begins in fairly typical Gorsuch style.

Anyone who has applied for a passport, filed for Social Security benefits, or sought a license understands the government’s affinity for forms. Make a mistake or skip a page? Go back and try again, sometimes with a penalty for the trouble. But it turns out the federal government finds some of its forms frustrating too. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–546, requires the government to serve “a notice to appear” on individuals it wishes to remove from  his country. At first blush, a notice to appear might seem to be just that—a single document containing all the information an individual needs to know about his removal hearing. But, the government says, supplying so much information in a single form is too taxing. It needs more flexibility, allowing its officials to provide information in separate mailings (as many as they wish) over time (as long as they find convenient). The question for us is whether the law Congress adopted tolerates the government’s preferred practice.

As noted above, the majority concludes the answer is “no” The plain text of the statute indicates as much and, as the Court had noted previously in Pereira v. Sessions, the statutory requirements for notices to appear at deportation proceedings mean what they say.

Gorsuch reaffirms the need to interpret statutes in accord with their “ordinary meaning”:

When called on to resolve a dispute over a statute’s meaning, this Court normally seeks to afford the law’s terms their ordinary meaning at the time Congress adopted them. See, e.g., Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___ (2018). The people who come before us are entitled, as well, to have independent judges exhaust “all the textual and structural clues” bearing on that meaning. Id., at ___ (slip op., at 8). When exhausting those clues enables us to resolve the interpretive question put to us, our “sole function” is to apply the law as we find it, Lamie v. United States Trustee, 540 U. S. 526, 534 (2004) (internal quotation marks omitted), not defer to some  conflicting reading the government might advance. . . .

And this, Gorsuch notes, presents a problem for the government:

To trigger the stop-time rule, the government must serve “a” notice containing all the  information Congress has specified. To an ordinary reader—both in 1996 and today—”a” notice would seem to suggest just that: “a” single document containing the required information, not a mishmash of pieces with some assembly required.

The majority opinion concludes:

At one level, today’s dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. In this case, the law’s terms  ensure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.

Writing in dissent, Justice Kavanaugh argues that the majority’s interpretation is “perplexing as a matter of statutory interpretation and common sense.” He argues that the majority’s interpretation is unreasonable, and fails to accord proper deference to the political branches. His opinion concludes:

As a matter of policy, one may reasonably debate the circumstances under which a noncitizen who is unlawfully in the country should be removed and should be eligible for cancellation of removal. But those policy choices are for the political branches. Our job is to follow the law passed by Congress and signed by the President. The statute here requires the Government to serve the noncitizen with written notice of the charges and other required information, including the time and place of the hearing. In this case, Niz-Chavez received written notice of the charges and all the required information, including the time and place of his hearing. Niz-Chavez appeared with counsel at his hearing in Detroit on June 25, 2013. Because he received written notice to appear before he had accumulated 10 years of continuous physical presence, he is  not eligible for cancellation of removal

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via IFTTT

Joe Biden Wants To Close the ‘Boyfriend Loophole.’ Here’s What That Means.


spnphotosten226259

During last night’s national address, President Joe Biden spoke of his desire to end the “boyfriend loophole.” What does this mean?

At its core, it involves one of Biden’s long-running specialties: pushing tough-on-crime policies—ones that ramp up federal law enforcement involvement in people’s lives and threaten a host of negative and disproportionate consequences for the same groups that always get shafted by them—in the name of being a feminist ally.

Closing the Biden “boyfriend loophole” would involve expanding the Violence Against Women Act (VAWA), which was written by then-Sen. Biden and passed as part of the now-disgraced 1994 Crime Bill.

Every several years, the VAWA gets expanded. Democrats call this “reauthorization,” even though the main provisions of VAWA never expire and each new version has done much more than simply add more money for VAWA grant programs. (Biden admitted this in 2019, tweeting that “VAWA’s power is that it gets stronger with each reauthorization.”) Republicans have recently been voting against these expansions, which Democrats have been having a public relations field day with.

This is how so much bad legislation gets passed—slapping a noble-sounding name on something with questionable results and then demonizing anyone who dares question it. (Hello, Fight Online Sex Trafficking Act, aka FOSTA). It’s been very effective for the VAWA—as Democrats say, who could be against stopping violence against women?

All of these tricks were on display during Biden’s address last night. “Let’s reauthorize the Violence Against Women Act, which has been law in this country for 27 years since I first wrote it,” Biden said. “It will close the so-called ‘boyfriend’ loophole to keep guns out of the hands of abusers.…Pass it and save lives.”

VAWA History

Some evidence suggests that VAWA provisions actually increased violence against women, all while steering domestic violence resources away from peer-to-peer networks, local women’s shelters, and other forms of material assistance for victims of abuse and toward police, prosecutors, and courts.

“Anti-violence feminists from the left, especially women of color, were adamantly opposed to outsourcing vengeance to the state,” note Judith Levine and Erica R. Meiners in The Feminist and the Sex Offender: Confronting Sexual Harm, Ending State Violence. These groups “learned from experience that prisons do not end violence, but instead perpetrate and perpetuate it, while destroying individual lives, families, and communities.”

But Biden and a bipartisan gaggle of Tough on Crime politicians—backed by radical feminist lawyers and politically connected groups like the National Organization for Women—dismissed their concerns in favor of creating new federal crimes and centering solutions on courts and police.

The VAWA was part of a carceral feminist agenda that said “that battered women had a right to state action. But it was one kind of state action—arrest,” as Aya Gruber writes in The Feminist War on Crime. “Within short order, this right became compulsory, and a battered woman could not waive the ‘right’ to her husband’s arrest.”

Some VAWA grants were conditioned on recipients encouraging an arrest during all domestic violence calls—no matter what the alleged victim’s wishes are—and helped spur dual arrest of both partners if the abused party fights back.

A major part of the VAWA (involving civil lawsuits) was declared unconstitutional. But Biden promised on his campaign website to bring it back anyway, declaring that “the Supreme Court got it wrong.”

The New VAWA

The latest VAWA “reauthorization” —which passed the House in March—is full of new expansions, including what Democrats keep referring to as “closing the boyfriend loophole.”

Under current federal law, it’s illegal to possess a gun if you’ve been subject to a restraining order against an intimate partner or have been convicted of a misdemeanor crime of domestic violence.

A misdemeanor crime of domestic violence includes threats, force, or attempted force, under which force doesn’t necessarily mean violence and can include “offensive touching.” Domestic violence “is not merely a type of ‘violence’; it is a term of art encompassing acts that one might not characterize as ‘violent’ in a nondomestic context,” wrote Justice Sonia Sotomayor in the Court’s 2014 opinion on the matter.

As it stands, the domestic violence/intimate partner provisions only apply to acts involving spouses, domestic partners, and people who have a child together. Democrats want to expand them to cover people in all sorts of sexual or romantic relationships.

The new bill would expand the term intimate partner to cover “a dating partner or former dating partner.” It defines dating partner as “a person who is or has been in a social relationship of a romantic or intimate nature with the person.”

This would massively expand the reach of the law, and the federal government’s prerogative to get involved. It would allow the feds to punish girlfriends and boyfriends convicted of everything from serious violence to mere “offensive touching.” And it doesn’t just stop there, as Reason‘s Jacob Sullum explained back in 2019 (when similar provisions were up for consideration):

Under current law, people subject to [protective] orders may not possess guns, but only when they have had an opportunity to contest claims that they pose a threat.

The House bill would expand the disqualification to ex parte orders, which are issued without a hearing, can last a few weeks, and may be renewable after that. That change should trouble anyone who cares about due process, since it takes away people’s constitutional rights based on allegations they have had no chance to rebut.

Another provision of the House bill is even more far-reaching. It would permanently deprive someone of his Second Amendment rights if he has been convicted of misdemeanor stalking, a crime that need not involve violence, threats, or even a victim the offender knows.

Protecting Women?

Proponents of these new rules say they’re about protecting women. But will men who aim to commit violence against women really stop just because they can’t legally purchase a new firearm? There are other ways to commit violence—and other ways to get guns. People intent on murder aren’t generally put off by having to illegally obtain the murder weapon.

Even some proponents of the law when it comes to domestic partners don’t seem so sure about its expansion. “Everyone agrees that a firearm in a household with domestic violence poses a clear increased danger to the abused partner,” University of Wyoming law professor George Mocsary told PolitiFact. But no reliable evidence shows “that there is a similar increased danger” in non-cohabitation scenarios.

Meanwhile, there is some evidence that provisions of VAWA and other tough-on-domestic-violence policies—like mandatory arrest and/or prosecution in domestic violence cases—have led to a spike in girls and women being arrested and prosecuted. Some of this may be warranted, but some of it is targeted at women merely trying to protect themselves; it’s not uncommon for abusers to accuse their victims of abusing them for fighting back or for reacting in minor physical ways to intimidation and similar non-physical slights. And in a world where “offensive touching” qualifies as domestic violence, they may technically be right.

Which means a lot of women and abuse victims would have their right to own a firearm for protection taken away. And unlike people intent on threats and violence, they’re probably a lot less likely to go through illegal channels to get one—which means laws like these could make it more difficult for women to protect themselves.

These laws would also give law enforcement another reason to harass and discriminate against people of color, people in poor communities, and others who tend to wind up disproportionately targeted by the police. Not only are already marginalized groups liable to bear the brunt of enforcement for “dating violence,” and to thus be unevenly excluded from legally owning a gun, they’ll also have new opportunities to be guilty of a federal firearms offense (and the feds will have a new excuse to monitor these people and communities).

This isn’t the only new gun prohibition Biden wants—he’s also proposing a ban on “ghost guns.” And there’s another new prohibition in the works; allegedly, the administration is considering a crackdown on menthol cigarettes.

The Biden administration sometimes talks a good game about criminal justice reform. But at the same time, the administration just keeps pushing the same old triggers for mass incarceration and police abuse, disguised in different packages. It suggests neither Biden nor Vice President Kamala Harris has actually learned anything since their ardent crime warrior days except which messages it’s most popular to pay lip service to these days.

FREE MINDS 

Criminalizing prostitution harms sex workers, their children, and public health. Check out the Cato Institute’s new brief on the unintended consequences of criminalizing sex work. Researchers Lisa Cameron, Jennifer Seager, and Manisha Shah find that “criminalizing sex work increases STI rates among sex workers (measured using biological test results) by 27.3 percentage points, or 58 percent, from baseline,” that “the health consequences of criminalization are not restricted to sex workers,” and that “children of women from criminalized work sites are adversely affected.”

FREE MARKETS

California already tried Biden’s ghost gun ban and it didn’t work, as Reason‘s Brian Doherty points out:

California is ahead of Biden’s game in banning ghost guns, having since 2018, as the Center for American Progress summed up, “require[d] all self-assembled firearms to contain a unique serial number from the California Department of Justice. Furthermore, owners of newly serialized firearms must provide identification information to the California Department of Justice. Under California law, self-assembled firearms cannot be sold or transferred.”

At the same time, California has remained a place media calls on to scare you about the still growing threat of ghost guns, such as the claim made to ABC News last year by Carlos A. Canino, the special agent in charge of the A.T.F. Los Angeles field division, that “Forty-one percent, so almost half our cases we’re coming across, are these ‘ghost guns.” Last year was two years after California banned them in just the way Biden plans to. Not a promising sign for the efficacy of his bold initiative.

More here.

QUICK HITS

• The FBI searched Rudy Giuliani’s home and office and seized his electronics yesterday.

• Biden said his new spending plans will be paid for in part by targeting corporate tax scofflaws—firms that paid $0 in corporate taxes. But “tax experts are not sure whether Biden’s plan would in fact substantially reduce the number of large corporations paying zero dollars in federal income taxes,” says The Washington Post.

• “As part of a $2.3 trillion infrastructure proposal, President Joe Biden is pushing Congress to spend $100 billion fixing a problem that mostly doesn’t exist: widespread lack of access to broadband internet,” writes Reason‘s Eric Boehm.

• Are politicians finally starting to come around about civil asset forfeiture? In Arizona, at least, the answer appears to be yes:

• A new law in Colorado called the Ranch to Plate Act “deregulates meat sales that are made directly to consumers,” explains Food Safety News.

from Latest – Reason.com https://ift.tt/3xCkEvk
via IFTTT

Joe Biden Wants To Close the ‘Boyfriend Loophole.’ Here’s What That Means.


spnphotosten226259

During last night’s national address, President Joe Biden spoke of his desire to end the “boyfriend loophole.” What does this mean?

At its core, it involves one of Biden’s long-running specialties: pushing tough-on-crime policies—ones that ramp up federal law enforcement involvement in people’s lives and threaten a host of negative and disproportionate consequences for the same groups that always get shafted by them—in the name of being a feminist ally.

Closing the Biden “boyfriend loophole” would involve expanding the Violence Against Women Act (VAWA), which was written by then-Sen. Biden and passed as part of the now-disgraced 1994 Crime Bill.

Every several years, the VAWA gets expanded. Democrats call this “reauthorization,” even though the main provisions of VAWA never expire and each new version has done much more than simply add more money for VAWA grant programs. (Biden admitted this in 2019, tweeting that “VAWA’s power is that it gets stronger with each reauthorization.”) Republicans have recently been voting against these expansions, which Democrats have been having a public relations field day with.

This is how so much bad legislation gets passed—slapping a noble-sounding name on something with questionable results and then demonizing anyone who dares question it. (Hello, Fight Online Sex Trafficking Act, aka FOSTA). It’s been very effective for the VAWA—as Democrats say, who could be against stopping violence against women?

All of these tricks were on display during Biden’s address last night. “Let’s reauthorize the Violence Against Women Act, which has been law in this country for 27 years since I first wrote it,” Biden said. “It will close the so-called ‘boyfriend’ loophole to keep guns out of the hands of abusers.…Pass it and save lives.”

VAWA History

Some evidence suggests that VAWA provisions actually increased violence against women, all while steering domestic violence resources away from peer-to-peer networks, local women’s shelters, and other forms of material assistance for victims of abuse and toward police, prosecutors, and courts.

“Anti-violence feminists from the left, especially women of color, were adamantly opposed to outsourcing vengeance to the state,” note Judith Levine and Erica R. Meiners in The Feminist and the Sex Offender: Confronting Sexual Harm, Ending State Violence. These groups “learned from experience that prisons do not end violence, but instead perpetrate and perpetuate it, while destroying individual lives, families, and communities.”

But Biden and a bipartisan gaggle of Tough on Crime politicians—backed by radical feminist lawyers and politically connected groups like the National Organization for Women—dismissed their concerns in favor of creating new federal crimes and centering solutions on courts and police.

The VAWA was part of a carceral feminist agenda that said “that battered women had a right to state action. But it was one kind of state action—arrest,” as Aya Gruber writes in The Feminist War on Crime. “Within short order, this right became compulsory, and a battered woman could not waive the ‘right’ to her husband’s arrest.”

Some VAWA grants were conditioned on recipients encouraging an arrest during all domestic violence calls—no matter what the alleged victim’s wishes are—and helped spur dual arrest of both partners if the abused party fights back.

A major part of the VAWA (involving civil lawsuits) was declared unconstitutional. But Biden promised on his campaign website to bring it back anyway, declaring that “the Supreme Court got it wrong.”

The New VAWA

The latest VAWA “reauthorization” —which passed the House in March—is full of new expansions, including what Democrats keep referring to as “closing the boyfriend loophole.”

Under current federal law, it’s illegal to possess a gun if you’ve been subject to a restraining order against an intimate partner or have been convicted of a misdemeanor crime of domestic violence.

A misdemeanor crime of domestic violence includes threats, force, or attempted force, under which force doesn’t necessarily mean violence and can include “offensive touching.” Domestic violence “is not merely a type of ‘violence’; it is a term of art encompassing acts that one might not characterize as ‘violent’ in a nondomestic context,” wrote Justice Sonia Sotomayor in the Court’s 2014 opinion on the matter.

As it stands, the domestic violence/intimate partner provisions only apply to acts involving spouses, domestic partners, and people who have a child together. Democrats want to expand them to cover people in all sorts of sexual or romantic relationships.

The new bill would expand the term intimate partner to cover “a dating partner or former dating partner.” It defines dating partner as “a person who is or has been in a social relationship of a romantic or intimate nature with the person.”

This would massively expand the reach of the law, and the federal government’s prerogative to get involved. It would allow the feds to punish girlfriends and boyfriends convicted of everything from serious violence to mere “offensive touching.” And it doesn’t just stop there, as Reason‘s Jacob Sullum explained back in 2019 (when similar provisions were up for consideration):

Under current law, people subject to [protective] orders may not possess guns, but only when they have had an opportunity to contest claims that they pose a threat.

The House bill would expand the disqualification to ex parte orders, which are issued without a hearing, can last a few weeks, and may be renewable after that. That change should trouble anyone who cares about due process, since it takes away people’s constitutional rights based on allegations they have had no chance to rebut.

Another provision of the House bill is even more far-reaching. It would permanently deprive someone of his Second Amendment rights if he has been convicted of misdemeanor stalking, a crime that need not involve violence, threats, or even a victim the offender knows.

Protecting Women?

Proponents of these new rules say they’re about protecting women. But will men who aim to commit violence against women really stop just because they can’t legally purchase a new firearm? There are other ways to commit violence—and other ways to get guns. People intent on murder aren’t generally put off by having to illegally obtain the murder weapon.

Even some proponents of the law when it comes to domestic partners don’t seem so sure about its expansion. “Everyone agrees that a firearm in a household with domestic violence poses a clear increased danger to the abused partner,” University of Wyoming law professor George Mocsary told PolitiFact. But no reliable evidence shows “that there is a similar increased danger” in non-cohabitation scenarios.

Meanwhile, there is some evidence that provisions of VAWA and other tough-on-domestic-violence policies—like mandatory arrest and/or prosecution in domestic violence cases—have led to a spike in girls and women being arrested and prosecuted. Some of this may be warranted, but some of it is targeted at women merely trying to protect themselves; it’s not uncommon for abusers to accuse their victims of abusing them for fighting back or for reacting in minor physical ways to intimidation and similar non-physical slights. And in a world where “offensive touching” qualifies as domestic violence, they may technically be right.

Which means a lot of women and abuse victims would have their right to own a firearm for protection taken away. And unlike people intent on threats and violence, they’re probably a lot less likely to go through illegal channels to get one—which means laws like these could make it more difficult for women to protect themselves.

These laws would also give law enforcement another reason to harass and discriminate against people of color, people in poor communities, and others who tend to wind up disproportionately targeted by the police. Not only are already marginalized groups liable to bear the brunt of enforcement for “dating violence,” and to thus be unevenly excluded from legally owning a gun, they’ll also have new opportunities to be guilty of a federal firearms offense (and the feds will have a new excuse to monitor these people and communities).

This isn’t the only new gun prohibition Biden wants—he’s also proposing a ban on “ghost guns.” And there’s another new prohibition in the works; allegedly, the administration is considering a crackdown on menthol cigarettes.

The Biden administration sometimes talks a good game about criminal justice reform. But at the same time, the administration just keeps pushing the same old triggers for mass incarceration and police abuse, disguised in different packages. It suggests neither Biden nor Vice President Kamala Harris has actually learned anything since their ardent crime warrior days except which messages it’s most popular to pay lip service to these days.

FREE MINDS 

Criminalizing prostitution harms sex workers, their children, and public health. Check out the Cato Institute’s new brief on the unintended consequences of criminalizing sex work. Researchers Lisa Cameron, Jennifer Seager, and Manisha Shah find that “criminalizing sex work increases STI rates among sex workers (measured using biological test results) by 27.3 percentage points, or 58 percent, from baseline,” that “the health consequences of criminalization are not restricted to sex workers,” and that “children of women from criminalized work sites are adversely affected.”

FREE MARKETS

California already tried Biden’s ghost gun ban and it didn’t work, as Reason‘s Brian Doherty points out:

California is ahead of Biden’s game in banning ghost guns, having since 2018, as the Center for American Progress summed up, “require[d] all self-assembled firearms to contain a unique serial number from the California Department of Justice. Furthermore, owners of newly serialized firearms must provide identification information to the California Department of Justice. Under California law, self-assembled firearms cannot be sold or transferred.”

At the same time, California has remained a place media calls on to scare you about the still growing threat of ghost guns, such as the claim made to ABC News last year by Carlos A. Canino, the special agent in charge of the A.T.F. Los Angeles field division, that “Forty-one percent, so almost half our cases we’re coming across, are these ‘ghost guns.” Last year was two years after California banned them in just the way Biden plans to. Not a promising sign for the efficacy of his bold initiative.

More here.

QUICK HITS

• The FBI searched Rudy Giuliani’s home and office and seized his electronics yesterday.

• Biden said his new spending plans will be paid for in part by targeting corporate tax scofflaws—firms that paid $0 in corporate taxes. But “tax experts are not sure whether Biden’s plan would in fact substantially reduce the number of large corporations paying zero dollars in federal income taxes,” says The Washington Post.

• “As part of a $2.3 trillion infrastructure proposal, President Joe Biden is pushing Congress to spend $100 billion fixing a problem that mostly doesn’t exist: widespread lack of access to broadband internet,” writes Reason‘s Eric Boehm.

• Are politicians finally starting to come around about civil asset forfeiture? In Arizona, at least, the answer appears to be yes:

• A new law in Colorado called the Ranch to Plate Act “deregulates meat sales that are made directly to consumers,” explains Food Safety News.

from Latest – Reason.com https://ift.tt/3xCkEvk
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Leaving the COVID Bubble and Re-Entering Civil Society

For some people, 2020 were not much different than 2019. They traveled wherever they wanted. They shopped in any store. They ate in any restaurant. And so on. Indeed, some jurisdictions never enforced mask mandates. I was not one of those people. Last March, my world ground to a halt. Over the past 13 months, I haven’t left Houston. I have not travelled more than 60 miles from my house. (The prior year I flew about 100,000 miles on United.) I stopped going to any stores. (Door Dash and other apps made visits to grocery stores obsolete). I haven’t eaten at a restaurant, indoor our outdoors. I have relied entirely on delivery and curbside pickup. I haven’t had a meal in anyone else’s home either. With the exception of doctor and dentist appointments, I haven’t spent any considerable times indoors. I’ve done some outdoor activities, like going to the Zoo. But even then, I was masked and avoided crowded spots. And so on. I’ve been as careful as possible to protect myself and those in my household.

But soon enough, I will be fully vaccinated. On May 1, I will be two weeks removed from my second Pfizer shot. And all of the other adults in my house will also be fully vaccinated. With the new CDC guidance, a brave new world awaits me. At that point, I will face a choice that I am still grappling with: how to re-enter civil society.

I worry about walking into a restaurant, taking my mask off, and eating. It was something I have done thousands of times before, and seemed so natural. Now, I simply don’t see the need to eat out. Why risk it, I think? I dread the prospect of getting on a plane, only to have the person in the middle seat wear his mask falling below his nose for three hours. And I still have that dread even though the circulation of air on airplanes is better than any place on terra firma. And what about hopping in an uber or a taxi? Do I keep the window open while driving on the highway? I worry about speaking in a classroom, where students may not be properly masked. Can I get a meal with students, like I would any other semester? And so on.

I have lots of these worries. And I am not sure the best way to address them. Do I go cold turkey, and jump back into society? I do need to book a mileage run to Singapore to maintain my airline status. Or do I take baby steps? I’ve considered ordering an Uber ride around the block as a trial run. (Yes, I have). I’ve also considered buying a points ticket, going through security at the airport, then cancelling the ticket, and going home. (That option would only cost a few dollars to cancel). I’m sure there are other people reading this that have had similar thoughts. Or, perhaps, all Volokh readers are heartier than me, and are ready to roll with their jabs.

By the fall, I plan to be back to some semblance of normalcy. I may even get a haircut. I don’t quite know how I’ll get there. But I’ll make it work.

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Leaving the COVID Bubble and Re-Entering Civil Society

For some people, 2020 were not much different than 2019. They traveled wherever they wanted. They shopped in any store. They ate in any restaurant. And so on. Indeed, some jurisdictions never enforced mask mandates. I was not one of those people. Last March, my world ground to a halt. Over the past 13 months, I haven’t left Houston. I have not travelled more than 60 miles from my house. (The prior year I flew about 100,000 miles on United.) I stopped going to any stores. (Door Dash and other apps made visits to grocery stores obsolete). I haven’t eaten at a restaurant, indoor our outdoors. I have relied entirely on delivery and curbside pickup. I haven’t had a meal in anyone else’s home either. With the exception of doctor and dentist appointments, I haven’t spent any considerable times indoors. I’ve done some outdoor activities, like going to the Zoo. But even then, I was masked and avoided crowded spots. And so on. I’ve been as careful as possible to protect myself and those in my household.

But soon enough, I will be fully vaccinated. On May 1, I will be two weeks removed from my second Pfizer shot. And all of the other adults in my house will also be fully vaccinated. With the new CDC guidance, a brave new world awaits me. At that point, I will face a choice that I am still grappling with: how to re-enter civil society.

I worry about walking into a restaurant, taking my mask off, and eating. It was something I have done thousands of times before, and seemed so natural. Now, I simply don’t see the need to eat out. Why risk it, I think? I dread the prospect of getting on a plane, only to have the person in the middle seat wear his mask falling below his nose for three hours. And I still have that dread even though the circulation of air on airplanes is better than any place on terra firma. And what about hopping in an uber or a taxi? Do I keep the window open while driving on the highway? I worry about speaking in a classroom, where students may not be properly masked. Can I get a meal with students, like I would any other semester? And so on.

I have lots of these worries. And I am not sure the best way to address them. Do I go cold turkey, and jump back into society? I do need to book a mileage run to Singapore to maintain my airline status. Or do I take baby steps? I’ve considered ordering an Uber ride around the block as a trial run. (Yes, I have). I’ve also considered buying a points ticket, going through security at the airport, then cancelling the ticket, and going home. (That option would only cost a few dollars to cancel). I’m sure there are other people reading this that have had similar thoughts. Or, perhaps, all Volokh readers are heartier than me, and are ready to roll with their jabs.

By the fall, I plan to be back to some semblance of normalcy. I may even get a haircut. I don’t quite know how I’ll get there. But I’ll make it work.

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The Legal Profession and the Efficacy of Microeconomic Policy

Trouble at the Bar points out that the legal profession has more influence on public policy than any other profession. It also suggests that its influence on microeconomic policy may be harmful based on circumstantial evidence in my 2021 Brookings book, Gaining Ground: Markets Helping Government, and Yale Law Professor Peter Schuck’s 2014 book, Why Government Fails So Often and How It Can Do Better, which documents that pervasive microeconomic policy failures have generated huge costs to American society. Before indicting the legal profession, it is important to consider how government policy failures could be linked to the profession’s influence, and, if so, what could be done to make its influence more constructive.

Law and lawyers are essential for formulating and applying public policy, but both have features that sow the seeds of government policy inefficiencies. The strength of law is that it establishes boundaries—that is, identifies illegal behavior—and governs interactions among and between people and firms. Its weakness is that proposed laws that offer constructive change can be vetoed. For example, the Senate and the House of Representatives are veto players because, without their consent, no bill can become a law. The more veto players in a political system—and the United States has an exceptionally high number of them—the more difficult it is to avoid status quo bias and to adopt socially beneficial policy reforms.

Lawyers understand and respect the policymaking process and account for a large share of policymakers, especially in Congress, where 42 per­cent of the seats in the House and 59 percent of the seats in the Senate in the 113th Congress were held by lawyers. However, lawyers, like economists, can be slaves to their training and professional culture. This adversely affects policy. For example, lawyers in government emphasize procedure and advocacy and the prosecutorial style of congressional hearings instead of a systematic, collaborative search for truth.

Lawyers also have a predilection for writing laws and regulations and producing huge volumes that run in the thousands of pages yet nonetheless result in ambiguities and a constant stream of legal challenges, instead of initiating clear and effective policies that help to resolve social problems. Administrative lawyers are especially comfortable with, and, indeed, may welcome, highly detailed regulations and statutes. For example, the Federal Register exceeds 70,000 pages; the Dodd-Frank Act spawned an additional 14,000 pages on top of its initial 2,300 pages; and the Affordable Care Act amounted to 2,700 pages and 1,327 waivers. Some lawyers can be so preoccupied with administering regulations that they neglect to consider whether the regulations are enhanc­ing or harming social welfare.

Phillip Howard’s critique of the legal profession argues that law­yers share a philosophy of the correctness of the law, such as compliance with a rule, regardless of the law’s actual economic and social effects. For more than three years, the Veterans Benefits Administration intentionally stopped redacting names, Social Security numbers, and other personally identifiable information on third-party individuals in claims records provided to veter­ans. Although people could face substantial harm if their information were misused, the Veterans Affairs’ General Counsel’s Office said there was legal support for not redacting the data.

Trouble at the Bar argues that the pervasive role of lawyers in all levels of government has had an adverse effect on the efficacy of public policies in general because lawyers’ training, career development, and policy perspectives have oc­curred in an inefficient environment shaped by regulations that reduce competition and innovation. In addition, legal training and practice does not encourage policymakers to acknowledge and correct policy inefficiencies by subjecting previous decisions to rigorous retrospective cost-benefit analyses and by subjecting new decisions to rigorous prospective cost-benefit analyses. Precedent is, well, precedent. Period.

To be sure, economists have a comparative advantage in performing quantitative studies, but an economic analysis must usually go through lawyers if it is to have any influence on policy. Often such work is simply ignored or dismissed as “gobbledygook” unless the lawyers participating in the policy process believe its message supports their strongly held views.

For example, the available scholarly empirical evidence does not indicate that antitrust policy and enforcement has benefited consumers by promoting competition and by preventing firms from engaging in anticompetitive behavior. Nonetheless, such evidence is not acknowledged by lawyers Tim Wu and Lina Khan who advocate breaking up Big Tech and abandoning the consumer welfare standard in favor of “leveling the playing field” for any and all competitors. This is troubling because Wu and Khan are likely to have considerable influence on the future direction of antitrust enforcement given that President Biden is supporting their appointments to the National Economic Council and the Federal Trade Commission, respectively. One might hope that leveling the playing field promotes consumer welfare, but that is certainly not a given.

Trouble at the Bar also presents evidence suggesting that policy may be compromised because the government does not attract the most able lawyers graduating from the nation’s leading law schools, and when it recruits top lawyers from the private sector for a few years, the effectiveness of those lawyers may be limited by the government’s resource constraints. Although access to justice is a problem of most ordinary Americans, those individuals and firms with the resources to have access are likely to have an advantage in the quality of their legal representation when they oppose the government in a policy dispute.

The shortcomings of the legal profession in government policymaking that I have summarized contribute to status quo bias, which is the strongest explanation for government policy failure. Status quo bias inhibits learning and vision about the long-run effects of a policy, enables significant inefficiencies in part of the economy to persist and interact with inefficiencies in other parts of the economy, and makes it extremely difficult for the government to reform inefficient policies by implementing efficient ones.

Importantly, reforms that do occur may make things worse instead of better because of a lack of learning and vision. Society, of course, has other goals besides economic efficiency, but persistent inefficiencies make it much more difficult for society to accomplish those goals.

The deregulatory reforms of the legal profession that I recommended previously to increase access to justice also could help the legal profession’s influence in policymaking to be more constructive. First, deregulation that generates more competition and reduces the government earnings penalty should help the government to attract more able lawyers. Second, greater competition among legal service providers that improves the culture of law firms to make them more efficient, innovative, and congenial toward all employees could help government performance if lawyers from those firms impart those values when they take leave from the private sector to work in government.

Finally, the development of new specialized legal education programs, which result from eliminating the ABA’s monopoly control over legal education, could greatly im­prove the training of lawyers who pursue specific career paths that lead to long or short-term positions in government. For example, law schools in combination with other university departments could develop programs that blend:

  • Law, economics, political science, and policy analysis for lawyers who want to work in government to help formulate and implement social science-based policies. Such a program would enable lawyers to develop skills to assess and possibly initiate empirical policy analyses that are relevant to their area of responsibility.
  • Law, policy analysis, and STEM disciplines for lawyers who want to advise government officials and judges on policies based on science and engineering.
  • Law and medicine for lawyers who want to work in government on health-related policy issues.

Other programs that could better prepare lawyers who work in government to contribute more effectively to public policy also are likely to be developed.

Lawyers who obtain a broad analytical, multidisciplinary education are likely to be more effective at helping public officials appreciate rigorous policy-based arguments and they may be more likely to advance those arguments when they are able to do so. Lawyers with such an education also are likely to take a less ideological approach to resolving cases; thus, if they become a judge on a lower court or a justice on the Supreme Court, they could help to reduce ideologically based decisions by their own (less ideological) perspective.

Lawyers who oppose deregulating the legal profession reflect status quo bias that benefits a special interest at the expense of society. Those same lawyers, when they occupy influential positions in government, are also likely to enable government policy inefficiencies to persist. If lawyers change their mindset of how they self-regulate the legal profession, they could contribute more effectively to policy reforms that greatly benefit society when they serve in government.

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via IFTTT

The Legal Profession and the Efficacy of Microeconomic Policy

Trouble at the Bar points out that the legal profession has more influence on public policy than any other profession. It also suggests that its influence on microeconomic policy may be harmful based on circumstantial evidence in my 2021 Brookings book, Gaining Ground: Markets Helping Government, and Yale Law Professor Peter Schuck’s 2014 book, Why Government Fails So Often and How It Can Do Better, which documents that pervasive microeconomic policy failures have generated huge costs to American society. Before indicting the legal profession, it is important to consider how government policy failures could be linked to the profession’s influence, and, if so, what could be done to make its influence more constructive.

Law and lawyers are essential for formulating and applying public policy, but both have features that sow the seeds of government policy inefficiencies. The strength of law is that it establishes boundaries—that is, identifies illegal behavior—and governs interactions among and between people and firms. Its weakness is that proposed laws that offer constructive change can be vetoed. For example, the Senate and the House of Representatives are veto players because, without their consent, no bill can become a law. The more veto players in a political system—and the United States has an exceptionally high number of them—the more difficult it is to avoid status quo bias and to adopt socially beneficial policy reforms.

Lawyers understand and respect the policymaking process and account for a large share of policymakers, especially in Congress, where 42 per­cent of the seats in the House and 59 percent of the seats in the Senate in the 113th Congress were held by lawyers. However, lawyers, like economists, can be slaves to their training and professional culture. This adversely affects policy. For example, lawyers in government emphasize procedure and advocacy and the prosecutorial style of congressional hearings instead of a systematic, collaborative search for truth.

Lawyers also have a predilection for writing laws and regulations and producing huge volumes that run in the thousands of pages yet nonetheless result in ambiguities and a constant stream of legal challenges, instead of initiating clear and effective policies that help to resolve social problems. Administrative lawyers are especially comfortable with, and, indeed, may welcome, highly detailed regulations and statutes. For example, the Federal Register exceeds 70,000 pages; the Dodd-Frank Act spawned an additional 14,000 pages on top of its initial 2,300 pages; and the Affordable Care Act amounted to 2,700 pages and 1,327 waivers. Some lawyers can be so preoccupied with administering regulations that they neglect to consider whether the regulations are enhanc­ing or harming social welfare.

Phillip Howard’s critique of the legal profession argues that law­yers share a philosophy of the correctness of the law, such as compliance with a rule, regardless of the law’s actual economic and social effects. For more than three years, the Veterans Benefits Administration intentionally stopped redacting names, Social Security numbers, and other personally identifiable information on third-party individuals in claims records provided to veter­ans. Although people could face substantial harm if their information were misused, the Veterans Affairs’ General Counsel’s Office said there was legal support for not redacting the data.

Trouble at the Bar argues that the pervasive role of lawyers in all levels of government has had an adverse effect on the efficacy of public policies in general because lawyers’ training, career development, and policy perspectives have oc­curred in an inefficient environment shaped by regulations that reduce competition and innovation. In addition, legal training and practice does not encourage policymakers to acknowledge and correct policy inefficiencies by subjecting previous decisions to rigorous retrospective cost-benefit analyses and by subjecting new decisions to rigorous prospective cost-benefit analyses. Precedent is, well, precedent. Period.

To be sure, economists have a comparative advantage in performing quantitative studies, but an economic analysis must usually go through lawyers if it is to have any influence on policy. Often such work is simply ignored or dismissed as “gobbledygook” unless the lawyers participating in the policy process believe its message supports their strongly held views.

For example, the available scholarly empirical evidence does not indicate that antitrust policy and enforcement has benefited consumers by promoting competition and by preventing firms from engaging in anticompetitive behavior. Nonetheless, such evidence is not acknowledged by lawyers Tim Wu and Lina Khan who advocate breaking up Big Tech and abandoning the consumer welfare standard in favor of “leveling the playing field” for any and all competitors. This is troubling because Wu and Khan are likely to have considerable influence on the future direction of antitrust enforcement given that President Biden is supporting their appointments to the National Economic Council and the Federal Trade Commission, respectively. One might hope that leveling the playing field promotes consumer welfare, but that is certainly not a given.

Trouble at the Bar also presents evidence suggesting that policy may be compromised because the government does not attract the most able lawyers graduating from the nation’s leading law schools, and when it recruits top lawyers from the private sector for a few years, the effectiveness of those lawyers may be limited by the government’s resource constraints. Although access to justice is a problem of most ordinary Americans, those individuals and firms with the resources to have access are likely to have an advantage in the quality of their legal representation when they oppose the government in a policy dispute.

The shortcomings of the legal profession in government policymaking that I have summarized contribute to status quo bias, which is the strongest explanation for government policy failure. Status quo bias inhibits learning and vision about the long-run effects of a policy, enables significant inefficiencies in part of the economy to persist and interact with inefficiencies in other parts of the economy, and makes it extremely difficult for the government to reform inefficient policies by implementing efficient ones.

Importantly, reforms that do occur may make things worse instead of better because of a lack of learning and vision. Society, of course, has other goals besides economic efficiency, but persistent inefficiencies make it much more difficult for society to accomplish those goals.

The deregulatory reforms of the legal profession that I recommended previously to increase access to justice also could help the legal profession’s influence in policymaking to be more constructive. First, deregulation that generates more competition and reduces the government earnings penalty should help the government to attract more able lawyers. Second, greater competition among legal service providers that improves the culture of law firms to make them more efficient, innovative, and congenial toward all employees could help government performance if lawyers from those firms impart those values when they take leave from the private sector to work in government.

Finally, the development of new specialized legal education programs, which result from eliminating the ABA’s monopoly control over legal education, could greatly im­prove the training of lawyers who pursue specific career paths that lead to long or short-term positions in government. For example, law schools in combination with other university departments could develop programs that blend:

  • Law, economics, political science, and policy analysis for lawyers who want to work in government to help formulate and implement social science-based policies. Such a program would enable lawyers to develop skills to assess and possibly initiate empirical policy analyses that are relevant to their area of responsibility.
  • Law, policy analysis, and STEM disciplines for lawyers who want to advise government officials and judges on policies based on science and engineering.
  • Law and medicine for lawyers who want to work in government on health-related policy issues.

Other programs that could better prepare lawyers who work in government to contribute more effectively to public policy also are likely to be developed.

Lawyers who obtain a broad analytical, multidisciplinary education are likely to be more effective at helping public officials appreciate rigorous policy-based arguments and they may be more likely to advance those arguments when they are able to do so. Lawyers with such an education also are likely to take a less ideological approach to resolving cases; thus, if they become a judge on a lower court or a justice on the Supreme Court, they could help to reduce ideologically based decisions by their own (less ideological) perspective.

Lawyers who oppose deregulating the legal profession reflect status quo bias that benefits a special interest at the expense of society. Those same lawyers, when they occupy influential positions in government, are also likely to enable government policy inefficiencies to persist. If lawyers change their mindset of how they self-regulate the legal profession, they could contribute more effectively to policy reforms that greatly benefit society when they serve in government.

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