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Libertarian Presidential Candidate Jo Jorgensen Releases “Liberty-Minded” SCOTUS Short List

Dr. Jo Jorgensen, the Libertarian Party candidate for the presidency, has released a SCOTUS list of “liberty-minded jurists.” You will see many familiar names on the list:

Richard Epstein is a law professor and director of the Classical Liberal Institute at New York University. A study published in The Journal of Legal Studies identified him as the 12th most often-cited legal scholar of the 20th century.  He is known for his prolific writings on subjects pertaining to law, economics, classical liberalism, and libertarianism.

Judge Andrew Napolitano was a New Jersey Superior Court judge and hosted the daily TV talk show Freedom Watch on Fox Business News. He is a syndicated columnist published in Reason, The Washington Times and elsewhere and is a frequent commentator and news analyst on Fox.

Randy Barnett is on the faculty of the Georgetown University Law Center and a senior fellow at Cato Institute. His eleven published books include Restoring the Lost Constitution: The Presumption of Liberty. He was involved in the legal challenge to Obamacare — National Federation of Independent Businesses v. Sebelius.

Clint Bolick is an associate justice on the Arizona Supreme Court. In 1991 Bolick co-founded the Institute for Justice. In 2007, he became VP of Litigation at the Goldwater Institute where he was a frequent critic of Sheriff Joe Arpaio.

Eugene Volokh has been a UCLA law professor since 1994 and is the originator of the prominent legal blog, the Volokh Conspiracy. He clerked for Judge Alex Kozinski on the 9th Circuit and for Supreme Court Justice Sandra Day O’Connor.

Janice Rogers Brown served as Circuit Judge for the U.S. Court of Appeals for the District of Columbia Circuit and was an associate justice of the California Supreme Court. In a speech to the University of Chicago Law School Federalist Society she said, “Where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies.”

Dana Berliner is the senior vice president and litigation director at the Institute for Justice. She was co-counsel representing the homeowner in Kelo v. New London, the notorious case where SCOTUS ruled that eminent domain could be used by a city for the sole reason of increasing its property tax base.

Anastasia Boden is a senior attorney at Pacific Legal Foundation specializing in litigating against anti-competitive licensing laws and laws that restrict freedom of speech. She graduated from law school at Georgetown where she was Research Assistant to Professor Randy Barnett.

Timothy Sandefur is the vice president for litigation at the Goldwater Institute and an adjunct scholar at the Cato Institute. He’s the author of numerous books including Frederick Douglas: Self Made Man and The Right to Earn a Living. He argued against Obamacare before the U.S. Supreme Court.

Scott Bullock is President and General Counsel of the Institute for Justice. He was co-counsel in Kelo v. New London.

James Ostrowski has practiced trial and appellate work for more than 35 years. He was an attorney for Ron Paul and is the chief organizer of libertymovement.org. He writes extensively on a variety of topics for the Mises Institute and has published four books, including Progressivism: a Primer on the Idea Destroying America.

Alan Gura was co-counsel for the plaintiff in District of Columbia v. Heller, which upheld the individual right to own a firearm. It was one of two landmark constitutional cases that he argued successfully before the U.S. Supreme Court. The National Law Journal named him one of the “100 Most Influential Lawyers in America.”

Jonathan Turley teaches torts, criminal procedure and constitutional law at George Washington University Law School. He is ranked the 38th most cited public intellectual in a study by Judge Richard Posner. He received the columnist of the year award from the Aspen Institute and The Week for his columns on civil liberties.

Damien Schiff is a senior attorney at Pacific Law Foundation where he successfully argued the precedent-setting property rights case, Sackett v. Environmental Protection Agency when he was 33 years old. He was nominated to the Court of Federal Claims but not confirmed.

Clark Neily was co-counsel for the plaintiff in District of Columbia v. Heller, which upheld the individual right to bear arms. He was a senior attorney at the Institute for Justice before joining the Cato Institute in 2017, where he is Vice President for Criminal Justice overseeing civil asset forfeiture, police accountability, gun rights, overcriminalization and constitutional law.

Alan Dershowitz became the youngest full professor in the history of Harvard Law School at the age of 28. He successfully defended Harry Reems, the actor in Deep Throat, arguing that consumption of pornography was not harmful. He served as defense counsel in numerous high-profile cases, including one against Julian Assange.

Nadine Strossen was the youngest person ever to head the ACLU. She is a staunch First Amendment advocate and a founder of Feminists for Free Expression. Among her books is “Hate: Why We Should Resist It with Free Speech, Not Censorship”.

Jacob Hornberger was Director of Programs for the Foundation for Economic Education and founded the Future of Freedom Foundation where he serves as president  He placed second in the delegate count for the 2020 LP nomination for president.

Don Willett serves on the U.S. Fifth Circuit Court of Appeals and was previously a member of the Supreme Court of Texas. According to the outlet SCOTUSblog, “Willett views the role of judges as protecting individual liberty by striking down laws that infringe on it.” Willett has also been named by President Donald Trump as a potential Supreme Court nominee.

Judge Willett may be the only person on the short list of two presidential candidates. Your move Biden.

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On Election Year Supreme Court Vacancies (Redux)

In 2016, after the tragic passing of Justice Antonin Scalia, I blogged a fair amount on the history of election year supreme court vacancies and the ever-worsening judicial confirmation process. In these two posts, I surveyed the history of election year vacancies and confirmations:

I also wrote a short article solicited by the George Mason Law Review arguing against the position (popular at the time in some circles), that the Senate had a constitutional obligation to hold hearings or provide a vote on President Obama’s nomination of Merrick Garland.

As some of the arguments and history recounted in that piece seem relevant today, here are a few excerpts (footnotes omitted).

The argument that the Senate has a constitutional obligation to act on a Supreme Court nomination is anything but “clear.” This claim finds no support in the relevant constitutional text, constitutional structure, or the history of judicial nominations. While there are strong policy and prudential arguments that the Senate should promptly consider any and all nominations to legislatively authorized seats on the federal bench, and on the Supreme Court in particular, the argument that the Senate has some sort of constitutional obligation to take specific actions in response to a judicial nomination is erroneous. Interestingly enough, the argument that the Senate has an obligation to consider judicial nominations is not new. In the face of Senate intransigence on some of his judicial nominees, President George W. Bush declared that: “The Senate has a Constitutional obligation to vote up or down on a President’s judicial nominees.” The argument was wrong then, and it is wrong now. . . .

. . .

The last time a Supreme Court vacancy arose in the calendar year of a Presidential election and was filled prior to an election was in 1932, when the Senate confirmed Benjamin Cardozo to fill the seat vacated by Justice Oliver Wendell Holmes. Facing a Senate that was split down the middle, and an impending election, President Herbert Hoover, a Republican, decided to nominate a prominent Democrat to fill the seat.

In June 1992, when considering the possibility of an election-year vacancy to the Supreme Court, then-Senator Joseph Biden spoke on the Senate floor of “the tradition against acting on Supreme court nominations in a Presidential year.” In extended remarks, the then-Chairman of the Senate Judiciary Committee reviewed the history of Supreme Court nomination fights, explained why he believed Senate Democrats would be justified in delaying action on any prospective Supreme Court nominee should a vacancy occur prior to the election, and discussed how the Senate and President should work together on future Supreme Court nominations in future years. Senator Biden argued that should there be a Supreme Court vacancy that year, the President “should consider following the practice of a majority of his predecessors, and not—and not—name a nominee until after the November election is completed.” He added further that were such a nomination made, and the President were to go “the way of Presidents Fillmore and Johnson” and “press[] an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the campaign season is over.” Senator Biden further noted that “no Justice has ever been confirmed in September or October of an election year—the sort of timing which has become standard in the modern confirmation process.”

Then-Senator Biden no doubt overstated the existence of a meaningful tradition against confirming Supreme Court justices in election years. There is no such meaningful tradition, but nor is there a meaningful tradition of filling Supreme Court vacancies that arise in election years either. In some cases, Presidents have refrained from making such appointments until after the election. In other cases, when nominations were made, the Senate refused to act prior to voters casting their ballots. Where the Senate responded quickly to pre-election nominations, it has usually been when the Senate majority and the President were of the same political party and the overall balance of the Court was not at stake.

All told, there have been 15 occasions in which a vacancy arose in an election year, defined as a vacancy that occurred within a year prior to the election. Only seven of these vacancies were filled by a nominee confirmed by the Senate prior to the election.80 In two others, a president’s election year nominees were confirmed after the election, but in both of these cases the nomination was not made until after the election either (and in one, the nominee was the sixth sent up for that seat). The remaining vacancies were not filled until later, usually by subsequent presidents. Justice Anthony Kennedy was confirmed in a presidential election year, 1988, although the vacancy arose and his nomination was first made in 1987, after two prior nominations had failed. In sum, there are too few instances of election-year vacancies upon which to build any claim of historical practice, in either direction, let alone the sort of unbroken tradition that could ripen into a constitutional norm obligating the Senate to act. . . .

. . .

There are strong political and prudential arguments for prompt consideration of all nominees, but not particularly strong constitutional ones.

Ending the ever-worsening conflict over judicial nominations will not be achieved by playing an imaginary constitutional trump. Rather, it will occur when the competing sides of this conflict are willing to recognize the harm this conflict does to the judiciary, and the importance of a more regular and rational confirmation process. It will also likely occur only when each side is willing to engage in compromise. In short, the answer to the judicial confirmation mess lies in politics, and not in overstated appeals to constitutional principle.

 

UPDATE: On the somewhat related question of whether there was a norm of requiring super-majority support for judicial confirmations, here’s a post in which I address the “mythical history of nomination filibusters”

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Unlock the Damned Playgrounds, Already

closed

“While much else” in California “has been allowed to gradually reopen—bars, restaurants, gyms, the zoo, even museums,” KPBS San Diego reported earlier this month, “playgrounds appear to be closed indefinitely.”

Young kids contract, suffer from, and transmit Covid-19 at significantly lower rates than adults. Their mental health during the pandemic has taken “a serious hit,” studies keep showing (and personal experience keeps reaffirming), due to the social isolation and familial cabin fever. High among the most coronavirus-safe activities children can engage in with people outside their immediate family is playing outdoors.

Nevertheless, politicians persist in wrapping police tape around facilities where kids might find some relief. Worse yet, in some misgoverned jurisdictions there are no stated criteria for letting them play.

“There is little mention of playgrounds in the most updated Guidance Documents from the California Department of Public Health, which indicate playgrounds should be closed,” wrote State Sen. Lorena Gonzalez (D-San Diego) in a Sept. 16 letter to Gov. Gavin Newsom. The Golden State’s reopening plan, she wrote, “does not appear to include any reference to under what tier playgrounds or sport amenities in public parks may reopen, leaving cities, counties, and families confused.”

Newsom, who like his New York counterpart Andrew Cuomo loves to dress up his questionable policies in the pompous robes of “science” (recent example, in the service of his plan to ban fracking and gas-powered automobiles: “We need to reconcile that fact that there are no Democratic thermometers and no Republican thermometers. There is fact and there’s reality as well as observed evidence. It’s not a belief system, it’s an acknowledgment: the facts are the facts”), has not only failed to answer Gonazalez’s simple request, but his agencies also keep issuing crackpot justifications for its sandbox lockdowns.

Playgrounds are closed, an unnamed California Department of Health spokesman told KPBS, in part because of “the possible large number of individuals touching the same surface, particularly younger children who are less likely to practice hand hygiene and wear masks consistently.”

In other words, children are being punished for California bureaucrats’ failure to keep up with the science, which by July was definitive: Covid-19 is just not being spread on surfaces. That hasn’t stopped the state from issuing The Boy in the Plastic Bubble-like restrictions on sharing equipment and airspace for those athletes and teams fearless enough to consider, you know, practicing (obviously, competition is still off the table).

If I sound contemptuous and dismissive, that’s because I am. Even way back in April we knew enough about the virus to determine that it’s safer to let a dude surf rather than drag him away in handcuffs. I can see freaking out about, say, elementary schools back when the science was more sketchy and the epidemic more acute. But summer camps did not feature significant spread, schools have reopened to far less infection than feared, and even in the recently corona-surged California the infection rate was down to 2.8 percent last week and hospitalizations “dropped to a level not seen since the first week of April.”

As the Centers for Disease Control (CDC) stated in its 2006 Implementation Plan for the National Strategy for Pandemic Influenza, “Timely, accurate, credible, and coordinated messages will be necessary during a pandemic, and…inconsistent reporting or guidance…can lead to confusion and a loss of confidence by the public,” the plan advises. A “guidance” on indefinite playground-shutdowns that includes neither a credible scientific explanation nor specific benchmarks and timetables for cutting the police tape is not timely, not credible, not consistent, and decidedly not helpful.

Actually, more than “not helpful”—it’s actively, wickedly harmful. Here’s an old California friend of mine, mother of three, snapping like a twig on Twitter earlier this week:

Another old baseball-coach friend of mine, as I mentioned on The Reason Roundtable this week, has taken to organizing a kind of Prohibition Little League, complete with lookouts, code words, and so forth. More pervasively, in two trips to Southern California over the past month I experienced a palpable sense of fearful people being at their absolute wit’s end, reporting crisis-spike levels of irritability, anger, and depression. Minus the apocalyptic fires, it reminded me very much of New York City three months ago…when the playgrounds were still closed.

Back then, my 5-year-old would routinely say eerie/ominous things like, “How do I know I’m even a person anymore?” Her very first post-lockdown playmate, first visit to the playground, first trip (via COVID-car!) outside the city, first day of summer day camp, were all experienced as moments of tear-inducing liberation. Humans, and kids most of all, are not hardwired to be hamsters, stuck for months on end in Habitails, watching the plastic slowly move in. They need movement, contact, interaction, or they will be damaged.

The abstract of a recent study in Science puts the case succinctly: “Children have a low risk of COVID-19 and are disproportionately harmed by precautions.” In slightly longer form:

[E]xisting evidence points to educational settings playing only a limited role in transmission when mitigation measures are in place, in marked contrast to other respiratory viruses. In the event of seemingly inevitable future waves of COVID-19, there is likely to be further pressures to close schools. There is now an evidence base on which to make decisions, and school closure should be undertaken with trepidation given the indirect harms that they incur. Pandemic mitigation measures that affect children’s wellbeing should only happen if evidence exists that they help because there is plenty of evidence that they do harm.

Italics mine, to pre-confess that if I hear one more smug politician cluck glibly about “following the science” while continuing to support child-harming policies based largely on superstition and/or public sector union muscle, I’m going to lose the last of what remains of my California mellowness. Where the community spread is under control, just open the damned parks.

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On Election Year Supreme Court Vacancies (Redux)

In 2016, after the tragic passing of Justice Antonin Scalia, I blogged a fair amount on the history of election year supreme court vacancies and the ever-worsening judicial confirmation process. In these two posts, I surveyed the history of election year vacancies and confirmations:

I also wrote a short article solicited by the George Mason Law Review arguing against the position (popular at the time in some circles), that the Senate had a constitutional obligation to hold hearings or provide a vote on President Obama’s nomination of Merrick Garland.

As some of the arguments and history recounted in that piece seem relevant today, here are a few excerpts (footnotes omitted).

The argument that the Senate has a constitutional obligation to act on a Supreme Court nomination is anything but “clear.” This claim finds no support in the relevant constitutional text, constitutional structure, or the history of judicial nominations. While there are strong policy and prudential arguments that the Senate should promptly consider any and all nominations to legislatively authorized seats on the federal bench, and on the Supreme Court in particular, the argument that the Senate has some sort of constitutional obligation to take specific actions in response to a judicial nomination is erroneous. Interestingly enough, the argument that the Senate has an obligation to consider judicial nominations is not new. In the face of Senate intransigence on some of his judicial nominees, President George W. Bush declared that: “The Senate has a Constitutional obligation to vote up or down on a President’s judicial nominees.” The argument was wrong then, and it is wrong now. . . .

. . .

The last time a Supreme Court vacancy arose in the calendar year of a Presidential election and was filled prior to an election was in 1932, when the Senate confirmed Benjamin Cardozo to fill the seat vacated by Justice Oliver Wendell Holmes. Facing a Senate that was split down the middle, and an impending election, President Herbert Hoover, a Republican, decided to nominate a prominent Democrat to fill the seat.

In June 1992, when considering the possibility of an election-year vacancy to the Supreme Court, then-Senator Joseph Biden spoke on the Senate floor of “the tradition against acting on Supreme court nominations in a Presidential year.” In extended remarks, the then-Chairman of the Senate Judiciary Committee reviewed the history of Supreme Court nomination fights, explained why he believed Senate Democrats would be justified in delaying action on any prospective Supreme Court nominee should a vacancy occur prior to the election, and discussed how the Senate and President should work together on future Supreme Court nominations in future years. Senator Biden argued that should there be a Supreme Court vacancy that year, the President “should consider following the practice of a majority of his predecessors, and not—and not—name a nominee until after the November election is completed.” He added further that were such a nomination made, and the President were to go “the way of Presidents Fillmore and Johnson” and “press[] an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the campaign season is over.” Senator Biden further noted that “no Justice has ever been confirmed in September or October of an election year—the sort of timing which has become standard in the modern confirmation process.”

Then-Senator Biden no doubt overstated the existence of a meaningful tradition against confirming Supreme Court justices in election years. There is no such meaningful tradition, but nor is there a meaningful tradition of filling Supreme Court vacancies that arise in election years either. In some cases, Presidents have refrained from making such appointments until after the election. In other cases, when nominations were made, the Senate refused to act prior to voters casting their ballots. Where the Senate responded quickly to pre-election nominations, it has usually been when the Senate majority and the President were of the same political party and the overall balance of the Court was not at stake.

All told, there have been 15 occasions in which a vacancy arose in an election year, defined as a vacancy that occurred within a year prior to the election. Only seven of these vacancies were filled by a nominee confirmed by the Senate prior to the election.80 In two others, a president’s election year nominees were confirmed after the election, but in both of these cases the nomination was not made until after the election either (and in one, the nominee was the sixth sent up for that seat). The remaining vacancies were not filled until later, usually by subsequent presidents. Justice Anthony Kennedy was confirmed in a presidential election year, 1988, although the vacancy arose and his nomination was first made in 1987, after two prior nominations had failed. In sum, there are too few instances of election-year vacancies upon which to build any claim of historical practice, in either direction, let alone the sort of unbroken tradition that could ripen into a constitutional norm obligating the Senate to act. . . .

. . .

There are strong political and prudential arguments for prompt consideration of all nominees, but not particularly strong constitutional ones.

Ending the ever-worsening conflict over judicial nominations will not be achieved by playing an imaginary constitutional trump. Rather, it will occur when the competing sides of this conflict are willing to recognize the harm this conflict does to the judiciary, and the importance of a more regular and rational confirmation process. It will also likely occur only when each side is willing to engage in compromise. In short, the answer to the judicial confirmation mess lies in politics, and not in overstated appeals to constitutional principle.

 

UPDATE: On the somewhat related question of whether there was a norm of requiring super-majority support for judicial confirmations, here’s a post in which I address the “mythical history of nomination filibusters”

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Unlock the Damned Playgrounds, Already

closed

“While much else” in California “has been allowed to gradually reopen—bars, restaurants, gyms, the zoo, even museums,” KPBS San Diego reported earlier this month, “playgrounds appear to be closed indefinitely.”

Young kids contract, suffer from, and transmit Covid-19 at significantly lower rates than adults. Their mental health during the pandemic has taken “a serious hit,” studies keep showing (and personal experience keeps reaffirming), due to the social isolation and familial cabin fever. High among the most coronavirus-safe activities children can engage in with people outside their immediate family is playing outdoors.

Nevertheless, politicians persist in wrapping police tape around facilities where kids might find some relief. Worse yet, in some misgoverned jurisdictions there are no stated criteria for letting them play.

“There is little mention of playgrounds in the most updated Guidance Documents from the California Department of Public Health, which indicate playgrounds should be closed,” wrote State Sen. Lorena Gonzalez (D-San Diego) in a Sept. 16 letter to Gov. Gavin Newsom. The Golden State’s reopening plan, she wrote, “does not appear to include any reference to under what tier playgrounds or sport amenities in public parks may reopen, leaving cities, counties, and families confused.”

Newsom, who like his New York counterpart Andrew Cuomo loves to dress up his questionable policies in the pompous robes of “science” (recent example, in the service of his plan to ban fracking and gas-powered automobiles: “We need to reconcile that fact that there are no Democratic thermometers and no Republican thermometers. There is fact and there’s reality as well as observed evidence. It’s not a belief system, it’s an acknowledgment: the facts are the facts”), has not only failed to answer Gonazalez’s simple request, but his agencies also keep issuing crackpot justifications for its sandbox lockdowns.

Playgrounds are closed, an unnamed California Department of Health spokesman told KPBS, in part because of “the possible large number of individuals touching the same surface, particularly younger children who are less likely to practice hand hygiene and wear masks consistently.”

In other words, children are being punished for California bureaucrats’ failure to keep up with the science, which by July was definitive: Covid-19 is just not being spread on surfaces. That hasn’t stopped the state from issuing The Boy in the Plastic Bubble-like restrictions on sharing equipment and airspace for those athletes and teams fearless enough to consider, you know, practicing (obviously, competition is still off the table).

If I sound contemptuous and dismissive, that’s because I am. Even way back in April we knew enough about the virus to determine that it’s safer to let a dude surf rather than drag him away in handcuffs. I can see freaking out about, say, elementary schools back when the science was more sketchy and the epidemic more acute. But summer camps did not feature significant spread, schools have reopened to far less infection than feared, and even in the recently corona-surged California the infection rate was down to 2.8 percent last week and hospitalizations “dropped to a level not seen since the first week of April.”

As the Centers for Disease Control (CDC) stated in its 2006 Implementation Plan for the National Strategy for Pandemic Influenza, “Timely, accurate, credible, and coordinated messages will be necessary during a pandemic, and…inconsistent reporting or guidance…can lead to confusion and a loss of confidence by the public,” the plan advises. A “guidance” on indefinite playground-shutdowns that includes neither a credible scientific explanation nor specific benchmarks and timetables for cutting the police tape is not timely, not credible, not consistent, and decidedly not helpful.

Actually, more than “not helpful”—it’s actively, wickedly harmful. Here’s an old California friend of mine, mother of three, snapping like a twig on Twitter earlier this week:

Another old baseball-coach friend of mine, as I mentioned on The Reason Roundtable this week, has taken to organizing a kind of Prohibition Little League, complete with lookouts, code words, and so forth. More pervasively, in two trips to Southern California over the past month I experienced a palpable sense of fearful people being at their absolute wit’s end, reporting crisis-spike levels of irritability, anger, and depression. Minus the apocalyptic fires, it reminded me very much of New York City three months ago…when the playgrounds were still closed.

Back then, my 5-year-old would routinely say eerie/ominous things like, “How do I know I’m even a person anymore?” Her very first post-lockdown playmate, first visit to the playground, first trip (via COVID-car!) outside the city, first day of summer day camp, were all experienced as moments of tear-inducing liberation. Humans, and kids most of all, are not hardwired to be hamsters, stuck for months on end in Habitails, watching the plastic slowly move in. They need movement, contact, interaction, or they will be damaged.

The abstract of a recent study in Science puts the case succinctly: “Children have a low risk of COVID-19 and are disproportionately harmed by precautions.” In slightly longer form:

[E]xisting evidence points to educational settings playing only a limited role in transmission when mitigation measures are in place, in marked contrast to other respiratory viruses. In the event of seemingly inevitable future waves of COVID-19, there is likely to be further pressures to close schools. There is now an evidence base on which to make decisions, and school closure should be undertaken with trepidation given the indirect harms that they incur. Pandemic mitigation measures that affect children’s wellbeing should only happen if evidence exists that they help because there is plenty of evidence that they do harm.

Italics mine, to pre-confess that if I hear one more smug politician cluck glibly about “following the science” while continuing to support child-harming policies based largely on superstition and/or public sector union muscle, I’m going to lose the last of what remains of my California mellowness. Where the community spread is under control, just open the damned parks.

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Department of Labor Proposes New Rule Protecting the Right To Be a Gig Worker

A proposed new rule from the Department of Labor will protect the flexibility and freedom enjoyed by gig workers and independent contractors, but it likely won’t settle the debate over how those workers should be classified.

The Labor Department’s new proposed rule, issued on September 22, is a reaction to California’s recent legislation in the other direction. Assembly Bill (A.B.) 5, a California labor law passed in 2019, imposed a three-part “ABC” test to determine if someone is an employee or an independent contractor. Essentially, unless someone can prove that they are free to not work, that they perform work outside of the course of their employers’ usual business, and that they usually work in an independent business in the same field as whomever hired them, they count as an employee.

This was a devastating blow to a whole variety of industries, from delivery and ridesharing services to journalism, photography, and even opera. Uber and Lyft nearly pulled out of California entirely and Vox Media severed ties with hundreds of freelance journalists.

The new rule “is definitely a reaction” to the California law, says Sean Higgins, a research fellow at the Competitive Enterprise Institute. The Labor Department’s proposal “goes back to the nuts and bolts of the federal definition of what a contractor is,” Higgins says, “and just sort of updates it and gives it a facelift.”

There are new considerations for determining if someone is a contractor, like whether a person can get identical work from other employers—Uber and Lyft have the same sort of work and contractors can drive for both. There’s also consideration given to whether and how individual initiative affects a worker’s compensation. The Labor Department advises “that the actual practice is more relevant than what may be contractually or theoretically possible.” It emphasizes flexibility and reasonableness.

“I think it’s a win for independent contractors,” says Patrice Onwuka, a senior policy analyst at the Independent Women’s Forum. “It would really bring clarity to what is the most basic employment question.”

Currently, the federal government doesn’t have a strict definition of what a contractor is,  as opposed to an employee. Each agency and state at present “have their own test on what is an independent contractor,” according to Onwuka. It’s the courts who have been the arbiters.

The rule is being pushed through the new rule proposal process with only a 30-day public comment period, rather than the typical 60 days. “[The Department of Labor] wants to get this done now, while there is still time left on the calendar,” Higgins says.

With Election Day less than six weeks away, the Trump administration is operating on a ticking clock. Under the Congressional Review Act, Congress has 60 days following the publication of a proposed rule to issue a joint resolution to dismiss it; the Department of Labor needs to get the rule finalized before November 20 to avoid having it dismissed by a possible Democratic Senate majority in January.

Even if the Trump administration beats the clock, the rule could be rescinded or replaced by an incoming Democratic administration, leaving gig workers saddled with uncertainty.

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The Legal Response to Breonna Taylor’s Death Shows How Drug Prohibition Transforms Murder Into Self-Defense

Breonna-Taylor-selfie

Three Louisville, Kentucky, police officers executed the fruitless drug raid that killed Breonna Taylor, an unarmed 26-year-old EMT, in the middle of the night on March 13. But just one faces criminal charges, and those charges have nothing to do with Taylor’s death.

State prosecutors concluded that the two other officers were justified in returning fire after Taylor’s boyfriend, Kenneth Walker, shot one of them in the leg. Yet local prosecutors decided not to pursue an attempted murder charge against Walker.

Those seemingly contradictory decisions reflect Kentucky’s standards for self-defense, which make it possible that Walker and the cops were both legally justified in using deadly force. But that puzzling situation also has to be understood in the context of the war on drugs, which frequently involves armed home invasions that invite potentially deadly confusion. That unjustified violence is the root of the problem highlighted by Taylor’s senseless death and the unsatisfying legal response to it.

Yesterday a grand jury charged Detective Brett Hankison with three counts of wanton endangerment in the first degree for blindly firing 10 rounds from outside Taylor’s apartment. At a post-indictment press conference yesterday, Kentucky Attorney General Daniel Cameron noted that Hankison fired through a sliding glass patio door and a bedroom window, both of which were covered by blinds or curtains. Some of those bullets entered the unit behind Taylor’s, which was occupied by a man, a pregnant woman, and a child. Hence the three counts of wanton endangerment.

When acting Police Chief Robert Schroeder fired Hankison in June, he said the detective “displayed an extreme indifference to the value of human life” by “wantonly and blindly fir[ing] 10 rounds” into Taylor’s apartment. Schroeder’s language tracks Kentucky’s definition of first-degree wanton endangerment, which happens when someone “wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person” in “circumstances manifesting extreme indifference to the value of human life.” That’s a Class D felony, punishable by up to five years in prison for each count.

Cameron said “there’s no conclusive evidence” that any of the rounds fired by Hankison struck Taylor, who was hit six times. According to “medical evidence,” the attorney general said, just one of those bullets was fatal, and it would have killed Taylor within two minutes. While a state ballistic analysis could not determine who fired the fatal shot, the FBI’s lab concluded that it came from Detective Myles Cosgrove’s gun. Cosgrove fired 16 rounds at Walker and Taylor, and Sgt. Jonathan Mattingly, the officer who was hit in the leg, fired six. So in response to a single bullet fired by Walker, the three officers fired a total of 32 rounds.

Although prosecutors concluded that Hankison’s behavior was criminally reckless, they determined that Mattingly and Cosgrove acted legally in self-defense. “Our investigation found that Mattingly and Cosgrove were justified in their use of force after having been fired upon by Kenneth Walker,” Cameron said. “According to Kentucky law, the use of force by Mattingly and Cosgrove was justified to protect themselves. This justification bars us from pursuing criminal charges in Miss Breonna Taylor’s death.”

How did Cameron reach that conclusion? He did not examine the genesis of the dubious search warrant that the three officers were serving, an issue the FBI is still investigating. He began with the premise that Mattingly, Cosgrove, and Hankison were acting in good faith based on information provided by others and executing a warrant they believed was lawful. He also accepted their account that they knocked on the door and announced themselves, notwithstanding a warrant that authorized them to dispense with that step.

Although there is no video of the raid, Cameron said, “evidence shows that officers both knocked and announced their presence at the apartment. The officers’ statements about their announcement are corroborated by an independent witness who was…in proximity to [Taylor’s apartment]. In other words, the warrant was not served as a no-knock warrant.”

After knocking and receiving no response, Cameron said, the officers used a battering ram to break in the door. Mattingly, “the first and only officer to enter the residence,” saw a man and woman standing next to each other “at the end of the hall.” The man “was holding a gun, arms extended, in a shooting stance.” Mattingly “saw the man’s gun fire, heard a boom, and immediately knew he was shot as a result of feeling heat in his upper thigh.” Mattingly “returned fire down the hallway,” while Cosgrove, who “was also in the doorway,” opened fire “almost simultaneously.” All of this “took place in a matter of seconds.”

On these facts, the legal analysis is straightforward. Kentucky allows someone to use deadly force when he “believes that such force is necessary to protect himself against death [or] serious physical injury.” It was reasonable for Mattingly and Cosgrove to believe that in the circumstances described by Cameron.

Now let’s look at the situation from Walker’s perspective. He and Taylor were asleep when the cops, who were wearing plain clothes rather than uniforms, approached the apartment around 12:40 a.m. Walker said he heard someone banging on the door for 30 seconds or so but did not hear any indication of who was there. The New York Times interviewed “nearly a dozen” neighbors, and only one “reported hearing the officers shout ‘police’ before entering.” That neighbor might be the “independent witness” mentioned by Cameron.

Even if the cops did shout “police,” that announcement could easily have been missed by someone who had just been rudely awakened in the middle of the night. Walker said he grabbed his gun because he believed criminals were breaking into the apartment. That is consistent with the alarmed telephone calls he made that night, including a 911 call in which a distraught Walker said, “I don’t know what’s happening. Somebody kicked in the door and shot my girlfriend.”

You can begin to see why local prosecutors, who initially charged Walker with attempted murder of a police officer, dropped that charge in May. Under Kentucky law, a person who uses deadly force in defense of a dwelling is “presumed to have held a reasonable fear” of “death or great bodily harm” when he “had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.”

There is an exception to that presumption when force is used against a police officer who enters a residence “in the performance of his or her official duties” if “the
officer identified himself or herself in accordance with any applicable law or
the person using force knew or reasonably should have known that the person
entering or attempting to enter was a peace officer.” In this case, there is a dispute about whether the cops identified themselves, and it is pretty clear that Walker did not know they were police officers. Nor is it reasonable, given the circumstances, to think he “should have known” that. And even without the presumption of “reasonable fear” for people attacked at home, Walker could have made a compelling case that he acted in defense of himself and his girlfriend if prosecutors had decided to try him for attempted murder.

Legalities aside, it is clear that Mattingly, Cosgrove, and Hankison were the aggressors in this situation. The warrant that authorized their home invasion was based purely on guilt by association: Taylor’s continued contact with an ex-boyfriend who was arrested for drug dealing that same night. The warrant was served in a reckless manner, using tactics that have led to fatal misunderstandings in cities across the country over and over again. And it was based on the immoral assumption that violence is an appropriate response to peaceful activities that violate no one’s rights.

Earlier I said Walker “believed criminals were breaking into the apartment.” It would be more accurate to say that criminals were breaking into the apartment—a reality that everyone would recognize but for the war on drugs. Taylor’s death has been widely cited as an example of police abuse—actions that exceed the bounds of the law. But the real horror is what the law allows in the name of stopping Americans from consuming arbitrarily proscribed intoxicants.

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The Dead Can Vote (at least on the Massachusetts Supreme Court)

Today the Supreme Judicial Court of Massachusetts decided Commonwealth v. McCalop, in which the court  concluded that the trial court erred in denying Khamal McCalop’s motion to investigation allegations that racial bias tainted the jury. What is particularly interesting about this case, however, is that the opinion was authored by Chief Justice Ralph Gants.

Under normal circumstances, it is hardly a surprise when the Chief Justice of a court writes an opinion. What is odd about the McCalop opinion, however, is that Chief Gants died on September 14, ten days before the opinion was issued. This is noted in the first footnote of the opinion, which reads: ” Chief Justice Gants participated in the deliberation on this case and authored this opinion prior to his death.”

As readers may recall, there was some controversy when the U.S. Court of Appeals for the Ninth Circuit issued opinions in which Judge Stephen Reinhardt participated and, in at least one case (Altera Corp. v. Commissioner, cast the deciding vote on a divided panel. The Supreme Court ultimately took notice, rebuking the Ninth Circuit and reminding its judges that “federal judges are appointed for life, not eternity.”

McCalop is apparently not the only decision released by the Massachusetts Supreme Judicial Court since September 14 to include the late Chief Justice Gants, but it appears to be this first attributed to him. I am also not aware of any cases in which he cast what would have been the deciding vote. Nonetheless, it seems odd for a court judgment to issue under his name from beyond the grave.

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Department of Labor Proposes New Rule Protecting the Right To Be a Gig Worker

A proposed new rule from the Department of Labor will protect the flexibility and freedom enjoyed by gig workers and independent contractors, but it likely won’t settle the debate over how those workers should be classified.

The Labor Department’s new proposed rule, issued on September 22, is a reaction to California’s recent legislation in the other direction. Assembly Bill (A.B.) 5, a California labor law passed in 2019, imposed a three-part “ABC” test to determine if someone is an employee or an independent contractor. Essentially, unless someone can prove that they are free to not work, that they perform work outside of the course of their employers’ usual business, and that they usually work in an independent business in the same field as whomever hired them, they count as an employee.

This was a devastating blow to a whole variety of industries, from delivery and ridesharing services to journalism, photography, and even opera. Uber and Lyft nearly pulled out of California entirely and Vox Media severed ties with hundreds of freelance journalists.

The new rule “is definitely a reaction” to the California law, says Sean Higgins, a research fellow at the Competitive Enterprise Institute. The Labor Department’s proposal “goes back to the nuts and bolts of the federal definition of what a contractor is,” Higgins says, “and just sort of updates it and gives it a facelift.”

There are new considerations for determining if someone is a contractor, like whether a person can get identical work from other employers—Uber and Lyft have the same sort of work and contractors can drive for both. There’s also consideration given to whether and how individual initiative affects a worker’s compensation. The Labor Department advises “that the actual practice is more relevant than what may be contractually or theoretically possible.” It emphasizes flexibility and reasonableness.

“I think it’s a win for independent contractors,” says Patrice Onwuka, a senior policy analyst at the Independent Women’s Forum. “It would really bring clarity to what is the most basic employment question.”

Currently, the federal government doesn’t have a strict definition of what a contractor is,  as opposed to an employee. Each agency and state at present “have their own test on what is an independent contractor,” according to Onwuka. It’s the courts who have been the arbiters.

The rule is being pushed through the new rule proposal process with only a 30-day public comment period, rather than the typical 60 days. “[The Department of Labor] wants to get this done now, while there is still time left on the calendar,” Higgins says.

With Election Day less than six weeks away, the Trump administration is operating on a ticking clock. Under the Congressional Review Act, Congress has 60 days following the publication of a proposed rule to issue a joint resolution to dismiss it; the Department of Labor needs to get the rule finalized before November 20 to avoid having it dismissed by a possible Democratic Senate majority in January.

Even if the Trump administration beats the clock, the rule could be rescinded or replaced by an incoming Democratic administration, leaving gig workers saddled with uncertainty.

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The Legal Response to Breonna Taylor’s Death Shows How Drug Prohibition Transforms Murder Into Self-Defense

Breonna-Taylor-selfie

Three Louisville, Kentucky, police officers executed the fruitless drug raid that killed Breonna Taylor, an unarmed 26-year-old EMT, in the middle of the night on March 13. But just one faces criminal charges, and those charges have nothing to do with Taylor’s death.

State prosecutors concluded that the two other officers were justified in returning fire after Taylor’s boyfriend, Kenneth Walker, shot one of them in the leg. Yet local prosecutors decided not to pursue an attempted murder charge against Walker.

Those seemingly contradictory decisions reflect Kentucky’s standards for self-defense, which make it possible that Walker and the cops were both legally justified in using deadly force. But that puzzling situation also has to be understood in the context of the war on drugs, which frequently involves armed home invasions that invite potentially deadly confusion. That unjustified violence is the root of the problem highlighted by Taylor’s senseless death and the unsatisfying legal response to it.

Yesterday a grand jury charged Detective Brett Hankison with three counts of wanton endangerment in the first degree for blindly firing 10 rounds from outside Taylor’s apartment. At a post-indictment press conference yesterday, Kentucky Attorney General Daniel Cameron noted that Hankison fired through a sliding glass patio door and a bedroom window, both of which were covered by blinds or curtains. Some of those bullets entered the unit behind Taylor’s, which was occupied by a man, a pregnant woman, and a child. Hence the three counts of wanton endangerment.

When acting Police Chief Robert Schroeder fired Hankison in June, he said the detective “displayed an extreme indifference to the value of human life” by “wantonly and blindly fir[ing] 10 rounds” into Taylor’s apartment. Schroeder’s language tracks Kentucky’s definition of first-degree wanton endangerment, which happens when someone “wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person” in “circumstances manifesting extreme indifference to the value of human life.” That’s a Class D felony, punishable by up to five years in prison for each count.

Cameron said “there’s no conclusive evidence” that any of the rounds fired by Hankison struck Taylor, who was hit six times. According to “medical evidence,” the attorney general said, just one of those bullets was fatal, and it would have killed Taylor within two minutes. While a state ballistic analysis could not determine who fired the fatal shot, the FBI’s lab concluded that it came from Detective Myles Cosgrove’s gun. Cosgrove fired 16 rounds at Walker and Taylor, and Sgt. Jonathan Mattingly, the officer who was hit in the leg, fired six. So in response to a single bullet fired by Walker, the three officers fired a total of 32 rounds.

Although prosecutors concluded that Hankison’s behavior was criminally reckless, they determined that Mattingly and Cosgrove acted legally in self-defense. “Our investigation found that Mattingly and Cosgrove were justified in their use of force after having been fired upon by Kenneth Walker,” Cameron said. “According to Kentucky law, the use of force by Mattingly and Cosgrove was justified to protect themselves. This justification bars us from pursuing criminal charges in Miss Breonna Taylor’s death.”

How did Cameron reach that conclusion? He did not examine the genesis of the dubious search warrant that the three officers were serving, an issue the FBI is still investigating. He began with the premise that Mattingly, Cosgrove, and Hankison were acting in good faith based on information provided by others and executing a warrant they believed was lawful. He also accepted their account that they knocked on the door and announced themselves, notwithstanding a warrant that authorized them to dispense with that step.

Although there is no video of the raid, Cameron said, “evidence shows that officers both knocked and announced their presence at the apartment. The officers’ statements about their announcement are corroborated by an independent witness who was…in proximity to [Taylor’s apartment]. In other words, the warrant was not served as a no-knock warrant.”

After knocking and receiving no response, Cameron said, the officers used a battering ram to break in the door. Mattingly, “the first and only officer to enter the residence,” saw a man and woman standing next to each other “at the end of the hall.” The man “was holding a gun, arms extended, in a shooting stance.” Mattingly “saw the man’s gun fire, heard a boom, and immediately knew he was shot as a result of feeling heat in his upper thigh.” Mattingly “returned fire down the hallway,” while Cosgrove, who “was also in the doorway,” opened fire “almost simultaneously.” All of this “took place in a matter of seconds.”

On these facts, the legal analysis is straightforward. Kentucky allows someone to use deadly force when he “believes that such force is necessary to protect himself against death [or] serious physical injury.” It was reasonable for Mattingly and Cosgrove to believe that in the circumstances described by Cameron.

Now let’s look at the situation from Walker’s perspective. He and Taylor were asleep when the cops, who were wearing plain clothes rather than uniforms, approached the apartment around 12:40 a.m. Walker said he heard someone banging on the door for 30 seconds or so but did not hear any indication of who was there. The New York Times interviewed “nearly a dozen” neighbors, and only one “reported hearing the officers shout ‘police’ before entering.” That neighbor might be the “independent witness” mentioned by Cameron.

Even if the cops did shout “police,” that announcement could easily have been missed by someone who had just been rudely awakened in the middle of the night. Walker said he grabbed his gun because he believed criminals were breaking into the apartment. That is consistent with the alarmed telephone calls he made that night, including a 911 call in which a distraught Walker said, “I don’t know what’s happening. Somebody kicked in the door and shot my girlfriend.”

You can begin to see why local prosecutors, who initially charged Walker with attempted murder of a police officer, dropped that charge in May. Under Kentucky law, a person who uses deadly force in defense of a dwelling is “presumed to have held a reasonable fear” of “death or great bodily harm” when he “had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.”

There is an exception to that presumption when force is used against a police officer who enters a residence “in the performance of his or her official duties” if “the
officer identified himself or herself in accordance with any applicable law or
the person using force knew or reasonably should have known that the person
entering or attempting to enter was a peace officer.” In this case, there is a dispute about whether the cops identified themselves, and it is pretty clear that Walker did not know they were police officers. Nor is it reasonable, given the circumstances, to think he “should have known” that. And even without the presumption of “reasonable fear” for people attacked at home, Walker could have made a compelling case that he acted in defense of himself and his girlfriend if prosecutors had decided to try him for attempted murder.

Legalities aside, it is clear that Mattingly, Cosgrove, and Hankison were the aggressors in this situation. The warrant that authorized their home invasion was based purely on guilt by association: Taylor’s continued contact with an ex-boyfriend who was arrested for drug dealing that same night. The warrant was served in a reckless manner, using tactics that have led to fatal misunderstandings in cities across the country over and over again. And it was based on the immoral assumption that violence is an appropriate response to peaceful activities that violate no one’s rights.

Earlier I said Walker “believed criminals were breaking into the apartment.” It would be more accurate to say that criminals were breaking into the apartment—a reality that everyone would recognize but for the war on drugs. Taylor’s death has been widely cited as an example of police abuse—actions that exceed the bounds of the law. But the real horror is what the law allows in the name of stopping Americans from consuming arbitrarily proscribed intoxicants.

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