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There is no crisis, real or imagined, that government officials don’t see as an opportunity to expand their authority and hurt their enemies. America’s ongoing political tensions, which erupted on January 6 into the Capitol riot, have become an excuse for spurring the latest campaign against “domestic terrorism.” But violent acts, it should be noted, are already illegal under existing law. New “anti-terrorism” tools will inevitably be deployed against those who annoy whoever is currently in office.

“I never expected that … when I returned to the Justice Department to be sworn in on my first day as Acting Deputy Attorney General, that to get to the building, I would have to pass through numerous checkpoints under escort of armed agents in a city under lockdown.  I never expected to have to walk through the Department of Justice hallways filled with hundreds of soldiers positioned to protect the Department from terrorists,” Acting Deputy Attorney General John Carlin huffed during a February 26 briefing. “[W]e must make it known that the Department of Justice is prioritizing the detection, the disruption, and deterrence of the threat of domestic terrorism and violent extremism in all its forms.”

That Carlin’s statement came just days after Brian O’Hare, president of the FBI Agents Association, called for formally “making domestic terrorism a federal crime” provides ample evidence that those work in government see an opportunity to extend their reach and build in some job security. What could improve the prospects for such a law than the aftermath of a lethal outburst that frightened lawmakers? 

Sure enough, a proposed bill—the Domestic Terrorism Prevention Act of 2021—would do the job.

“Following the terrifying attack on the Capitol this month, which left five dead and many injured, the entire nation has been seized by the potential threat of more terrorist attacks in Washington and around the country,” says sponsor Rep. Brad Schneider (D-Ill.). “Unlike after 9/11, the threat that reared its ugly head on January 6th is from domestic terror groups and extremists, often racially-motivated violent individuals. America must be vigilant to combat those radicalized to violence, and the Domestic Terrorism Prevention Act gives our government the tools to identify, monitor and thwart their illegal activities.”

But there’s little evidence that new legislation targeting domestic terrorism is needed at all.

“The FBI already has all the authority it needs to investigate and prosecute perpetrators of white nationalist violence,” Faiza Patel of the Brennan Center for Justice pointed out during a 2019 push for such legislation. “Congress has enacted 51 federal crimes of terrorism that apply to entirely domestic acts and further prohibited material support toward the commission of these violent crimes.”

Even advocates of domestic terrorism laws admit the point.

“To be clear, it is not that there are inadequate criminal statutes on the books,” concedes former Acting Assistant Attorney General for national security Mary B. McCord. With regard to the Capitol riot, she admits that “even though there is not a crime called terrorism that applies to this, this would certainly fit within the definition of crimes intended to intimidate or coerce and influence a policy through intimidation or coercion.”

But McCord complains that existing laws against ideologically fueled violence “fail to equate it under federal law, as it deserves to be equated, with the actions of ISIS-inspired terrorists who engage in violence in pursuit of their equally insidious goals.”

So, the point of a new law is apparently to send a message. But it’s a message that comes at a high cost.

“Throughout its history, the FBI has used its authorities to investigate and monitor political protesters and civil rights activists,” Brenn Center’s Patel added.

“The overwhelming tendency in domestic antiterrorism has been to use invasive and unconstitutional surveillance techniques to criminalize legitimate dissent,” agrees former Sen. Russ Feingold (D-Wis.), who was the only member of the upper chamber to vote against the subsequently much-abused Patriot Act in 2001. “This history was a basis for the recent statement by 135 civil-rights and civil-liberties organizations, including the American Civil Liberties Union, Amnesty International and the NAACP, in opposition to any new domestic terrorism laws. I am proud to echo their call.”

The potential for weaponizing efforts against domestic terrorism was illustrated when then-Attorney General Bill Barr insisted during last summer’s riots that “the violence instigated and carried out by Antifa and other similar groups in connection with the rioting is domestic terrorism” and promised federal intervention—often over the objections of state and local officials.

Since then, of course, political fortunes have reversed, and the White House is now held by Democrat President Joe Biden. Instead of the left-wing radicals who troubled Barr, Schneider’s bill calls out “White supremacists and neo-Nazis.” In their statements, Schneider and his allies troublingly broaden their concerns, warning of vaguely defined “extremists.”

“[T]his is an issue that all Democrats, Republicans, independents, Libertarians should be extremely concerned about, especially because we don’t have to guess about where this goes or how this ends,” cautions former Rep. Tulsi Gabbard (D-Hawaii). She calls the proposed domestic terrorism bill “a very dangerous undermining of our civil liberties, our freedoms in our Constitution, and a targeting of almost half of the country.”

Which half of the country is targeted will depend on who wields the authority to battle “domestic terrorism.” Elections come and go, but laws remain to be turned by those in office against whoever is out of favor. And, if terrorists can’t be found to justify expanded powers, perhaps they’ll be made.

“Indeed, in some cases the Federal Bureau of Investigation may have created terrorists out of law-abiding individuals by conducting sting operations that facilitated or invented the target’s willingness to act,” Human Rights Watch reported in 2014 of existing laws against terrorism.

All of this to target acts that even advocates of new laws admit are already illegal under existing legislation. The United States doesn’t need more laws against “domestic terrorism,” it needs to prosecute those who violently attacks others, to respect the free speech rights of people who anger the powerful, and to reject government officials’ self-serving calls for job security.

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Libertarians are sure to be unhappy with plenty of President Joe Biden’s judicial picks. But there is one glimmer of hope on the courtroom front. The Biden team is looking to bring some much-needed professional diversity to the federal bench.

On December 22, incoming White House Counsel Dana Remus asked Democratic lawmakers to start identifying judicial candidates “whose legal experiences have been historically underrepresented on the federal bench,” such as criminal defense lawyers, public defenders, and civil rights litigators. That is welcome news.

As Cato Institute criminal justice scholar Clark Neily pointed out in Slate, there is a “wild imbalance” on the federal bench “between judges who used to represent the government in court and judges who used to challenge the government in court.” Given that “nearly every court case pitting a lone citizen against the state represents a David-versus-Goliath fight for justice,” Neily wrote, “to further stack the deck with judges who are far more likely to have earned their spurs representing Goliath than David is unfair to individual litigants and a bad look for the justice system as a whole.”

That is one point on which libertarian and progressive legal activists can agree. “The federal courts have largely become peopled with lawyers who are former prosecutors, which has entirely skewed the lens through which the law is seen,” Sherrilyn Ifill, head of the NAACP Legal Defense and Education Fund, told journalist Anand Giridharadas in December. “Public defenders have essentially been shut out. So I’m not interested in a lot of black prosecutors being appointed to the federal bench….I’m not interested in cosmetic diversity. I’m interested in substantive diversity.”

Joe Biden is not the most promising figure from the standpoint of criminal justice reform. During his long career in politics, he stood out as an inveterate drug warrior and law enforcement booster. But it is never too late to make amends. If Biden is even remotely serious about turning over a new leaf, one positive thing he can do as president is to appoint more judges whose experience includes battling the government in court.

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The Harris County, Texas, sheriff’s office says it is investigating a deputy caught on video pulling a gun on a motorist and threatening to kill him. George Dickerson says a deputy riding a motorcycle in front of him slammed on his brakes, forcing him to also stop suddenly. There was a second deputy, also riding a motorcycle, behind Dickerson. Dickerson said that second deputy got angry with him and pulled his gun on him. Neither of the deputies was named by local media.

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Politicians have too much power over our lives.

Many used the pandemic as another excuse to take more.

Early on, politicians declared that they would decide who was “essential.” Everyone else was told to stay home.

Much of the economy stopped. Millions were laid off.

Then politicians relaxed the rules for industries that they deemed “essential.”

“You can’t just call somebody essential without implicitly suggesting that half the workforce is not essential,” points out Mike Rowe, host of the surprise hit TV series, “Dirty Jobs.”

That’s a big problem, says Rowe, because people find purpose in work.
Now the Biden administration is eager to give money to people not working. It’s pushing a new stimulus package that would pay the unemployed an additional $400/week.

Since states like mine tack on as much as $500/week in unemployment benefits, many people learn that the $900/week. leaves them with more money if they don’t go back to work.

So, many don’t.

But staying home imposes costs, too. Calls to suicide hotlines are up. Domestic violence is up.

“It’s happening because people simply don’t feel valued,” says Rowe.

Politicians claim they save lives when they order businesses to close. When Governor Andrew Cuomo announced a lockdown, he said, “If everything we do saves just one life, I’ll be happy.”

Rowe mocks that in my new video this week.

“Let’s knock the speed limit down to 10 miles an hour… make cars out of rubber… make everybody wear a helmet,” he says. “Cars are a lot safer in the driveway… ships a lot safer when they don’t leave harbor, and people are safer when they sit quietly in their basements, but that’s not why cars, ships and people are on the planet.”

Rowe points out that working and accomplishing things are big parts of what makes life worth living. He runs a foundation that gives scholarships to people to help them learn trades like construction.

Of course, construction is dangerous. Some people get killed. Cuomo, should we stop building things?

Rowe likes the phrase, “Safety third!” as a response to people who constantly preach, “Safety first!”

“The ones who really get it done—they’re not out there talking about safety first. They know that other things come first… Every single time I’ve hurt myself, it’s always been in that fraction of a moment where I take my eye off the ball and I start to think that maybe somebody somewhere cares more about my well-being than me,” he says.

Rowe says COVID-19 challenges us “to figure out how to live in a dangerous world. But guess what? That that’s always been the case.”

He cites C.S. Lewis’ essay, “On Living in an Atomic Age,” in which Lewis asks: “How are we supposed to live in a world with atomic weapons when everything could be over like that?” Lewis answered: “The same way we lived in a world when the Vikings could land on the shore a thousand years ago and raid villages.”

There’s more to life than worrying about our death, writes Lewis: “We must resolutely train ourselves to feel that the survival of Man on this Earth… is not worth having unless it can be had by honorable and merciful means.”

COVID-19 is “just different,” says Rowe. “We’d be well-advised to understand where the risks are. And then we’d be better advised to go about the business of living the only life we have.

COPYRIGHT 2021 BY JFS PRODUCTIONS INC.
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By the time he took office, President Joe Biden had abandoned his campaign promise to require that all Americans cover their faces in public, admitting that such an order was beyond his authority. But that concession did not stop the Biden administration from imposing a nationwide eviction moratorium with an equally dubious legal basis.

Last week a federal judge in Texas ruled that the Constitution does not give the federal government the power to decree that landlords across the country must house tenants who do not pay their rent. That case, along with a challenge to Arizona Gov. Doug Ducey’s pandemic powers that the state Supreme Court will hear next Tuesday, is part of an overdue reexamination of the assumption that politicians can do whatever they deem necessary to fight COVID-19.

The eviction moratorium, which the Centers for Disease Control and Prevention (CDC) originally issued in September, was renewed by Congress in December, then extended again by the Biden administration. It is based on a breathtakingly broad reading of the CDC director’s authority to “take such measures” he “deems reasonably necessary” to stop the interstate spread of communicable diseases.

The CDC reasoned that evicted tenants might “become homeless” or “move into close quarters in shared housing,” thereby increasing the risk of virus transmission. That rationale suggests the CDC’s authority is vast, encompassing any policy that is plausibly related to disease control, including business closures and a national stay-at-home order as well as the face mask requirement that Biden ultimately decided could not be imposed by executive fiat.

Even with congressional approval, Judge J. Campbell Barker of the U.S. District Court for the Eastern District of Texas ruled last week, blocking the enforcement of rent obligations exceeds the federal government’s authority to regulate interstate commerce. Barker noted that the blanket ban on evictions, which the government claimed it could impose even in the absence of a public health threat like COVID-19, was historically unprecedented, did not involve interstate commerce, and was not necessary to enforce a broader scheme of economic regulation.

Barker emphasized that the case had no bearing on the constitutionality of state or local eviction regulations. His ruling hinged on the distinction between the federal government, which has no more authority than the Constitution grants, and the states, which retain a broad “police power” that extends much further.

The challenge to Ducey’s COVID-19 rules, by contrast, is based on the division of powers between the governor and the legislature. Arizona State University law professor Ilan Wurman, who represents a group of bar owners, argues that Ducey’s restrictions, which forced his clients to close their businesses for a total of nearly five months and continue to threaten their livelihoods, amount to unconstitutional legislation by the executive branch.

Ducey’s regulations are based on a statute that purports to grant him “all police power” during an emergency that he alone has the authority to declare. As Ducey reads that law, Wurman notes, “the Governor is empowered to do anything that in his mind is necessary to resolve the emergency.”

In practice, that has included detailed, ever-shifting codes of conduct for various industries that ordinarily could be regulated only based on specific legislative authority. But the power claimed by Ducey goes even further.

“The Governor could order everyone to stay home for six months,” Wurman says. “He can pick and choose what businesses to leave open and what businesses to close. He can tax the rich and redistribute to the poor to help them seek shelter.”

Last fall, the Michigan Supreme Court concluded that a similarly broad authority granted by that state’s legislature violated the separation of powers. The court emphasized “the sheer magnitude of the authority in dispute” and “its concentration in a single individual.”

Pandemic-inspired restrictions have clearly demonstrated the necessity of explicitly protected rights such as religious freedom. But as these cases show, structural limits on government, which tell us who may exercise which powers, are at least as important in protecting liberty from overreaching politicians.

© Copyright 2021 by Creators Syndicate Inc.

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