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Artificially hiking the price of steel and aluminum is bad enough, but one of the really galling parts of the Trump administration’s tariff policy is the Commerce Department’s process for determining which businesses are exempt from paying these import taxes. As I’ve written before, the so-called “tariff exclusion process” is opaque, confusing, completely lacking in due process, and infested with cronyism.

It’s good to see some members of Congress calling out the administration for this mess. That’s what Sen. Elizabeth Warren (D–Mass.) does in a letter sent Wednesday to Commerce Secretary Wilbur Ross, the guy who is supposed to be overseeing the tariff exemptions.

Unfortunately, a significant part of Warren’s letter makes the argument that what’s needed is more protectionism, not less.

“You appear to be implementing the tariff exemption program in a way that undermines American steel producers—by allowing large tariff-free imports of foreign steel—and harms American-owned steel-dependent companies instead of improving their competitive advantage over companies headquartered in China and other foreign countries,” Warren writes. Specifically, she says granting tariff exemptions to Chinese- and Japanese-owned companies with U.S. subsidiaries constitutes “a major loophole.”

When the steel and aluminum tariffs were implemented in March, Ross promised that the department would operate a “fair and transparent process” to determine which businesses should be exempt from the tariffs. According to the government’s websites outlining the tariff exclusion process for steel and aluminum, the exemptions would be granted for businesses that could demonstrate that there was not adequate domestic supply of the type of steel or aluminum they needed. There is virtually no information about who is deciding which exemptions get granted, or why, or how. It leaves the impression that the department is trying to make a high-stakes game that’s full of political influence look like a rote bureaucratic operation.

Problems with the process emerged almost immediately. Businesses have complained to congressional committees about a lack of transparency from the Commerce Department, about the inability to appeal the Commerce Department’s decisions, and about the influence exerted by American steelmakers on the outcome of exemption applications.

“No forum is provided for interaction with those determining the merits of either the petitioners’ or the objectors’ arguments,” Willie Chiang—vice president of Plains All American GP, a Texas-based pipeline company that’s been on the losing end of the exemption process—told the House Ways and Means Committee in July. “In addition, there is no opportunity to respond to objections—even if the objections contain incorrect information.”

Some Republican lawmakers, including House Ways and Means Committee chairman Kevin Brady (R-Texas), and Sen. Ron Johnson (R-Wis.) have criticized the exemption process and called for changes, seemingly to no avail.

As of mid-October, the Commerce Department had received more than 30,000 steel tariff exclusion requests, and approved about 11,000 of them. Warren’s staff analyzed the first 909 decisions posted, and found that 81 percent of the exemptions granted were awarded to companies headquartered outside the United States. More than half of those exemptions were awarded to Japanese-based businesses and more than 80 percent to Chinese- and Japanese-owned businesses, she says in the letter to Ross.

“How is this outcome,” she asked, “consistent with President Trump’s claims that the tariffs and the tariff exemption process were designed to help American steel producers and users?”

Let’s be clear: The exemption process is a horror show. It’s fundamentally unfair to have government officials in Washington, D.C., deciding that one company has to pay an additional 25 percent for imported steel while some of its competitors are able to avoid those added taxes. The fact that those decisions are made without any recourse or due process is more infuriating still.

But the problem isn’t that the majority of the exemptions are going to foreign-based firms. At most, that’s a symptom of the issues created by the tariffs and the tariff exemption process. If the majority of the exemptions were granted to American firm, the process would be just as broken.

Warren’s letter leaves the impression that she thinks the Commerce Department is being too lenient about granting exemptions. But short of repealing the tariffs entirely, the best possible outcome would be for Congress to instruct the department to approve all exemption applications, regardless of whether they come from American-owned or foreign companies. Her complaint that the Trump administration is not doing enough to favor American firms over foreign competitors is not a criticism of the tariffs themselves; it’s an indication that Warren would have no qualms with the president wielding those same powers as long as they were applied in a slightly different way.

Politically, this is an attempt to beat the Trump administration at its own game. That might be politically useful for Democrats who want to wrestle blue-collar voters away from Trump. Indeed, one way to look at Warren’s letter is as a trial balloon for how to attack Trump’s tariffs in 2020. But it ends up being an argument for more protectionism, and it essentially turns the tariff debate into a question of which side can promise to erect more barriers to foreign imports. That’s a debate in which America loses, no matter which party wins.

Insulting Muhammad is a risky business these days. Not only in Muslim-majority nations with stiff blasphemy laws, but also in supposedly enlightened Europe. Yes, even on a continent that loves to trumpet its commitment to freedom of speech, mocking Muhammad can land you in hot water.

Consider the recent trials of two women who committed the speech crime of insulting the Prophet, one in Pakistan and the other in Austria.

In Pakistan, Asia Bibi, a Christian, has finally had her death sentence for blasphemy overturned.

Bibi was found guilty of blasphemy in 2010 after she got into a row with neighbours during which they insulted her Christian faith and she fired back with a swipe at Muhammad. (She has always denied doing this.)

Under Pakistan’s cruel, archaic blasphemy laws—first introduced by the British Raj in 1860 and strengthened under the military rule of General Muhammad Zia-ul-Haq in the 1980s—it is a crime to insult religious beliefs, willfully desecrate the Koran, or insult the Prophet.

The price for destroying a Koran? Life in prison. For mocking Muhammad? Death, writes Brendan O’Neill in his latest piece for Reason.

View this article.

Abortion, politics, and the law. In Alabama, a 2016 law banned abortion by “dilation and extraction” (D&E), the most common procedure used to perform abortions after the first trimester. The law was rejected by a federal judge, in a decision upheld in August by the 11th Circuit U.S. Court of Appeals. Now Alabama Attorney General Steve Marshall’s office is hoping to take the case to the Supreme Court.

On Tuesday, the office indicated that it would file a petition for the Court to review the case but needed additional time to file. “The constitutionality of a state ban on dismemberment abortion is an important question of national significance,” wrote Alabama lawyers in their motion.

Reproductive freedom has taken a backseat to immigration and other cultural flashpoints in the Trump era, but legal battles and political drama surrounding abortion have still been raging in some states. For instance, California’s “FACT Act”—deemed unconstitutional by the Supreme Court in June—just got a final blow from the lower court that it was sent back to. The federal district court order permanently bans enforcement of the law, which would have required anti-abortion pregnancy centers to post signs advertising state aid for abortion.

And next week’s midterm elections feature some states voting on referenda directly related to abortion and others where the issue has become a major sparring theme between gubernatorial candidates.

• West Virginians will be asked to vote on a measure (Amendment 1) saying nothing in the state constitution “protects a right to abortion or requires the funding of abortion.”
• Voters in Alabama will consider a similar initiative (Amendment 2).
• In Oregon, Measure 106 would ban the use of public funds for abortions unless they are deemed medically necessary by a doctor.

Abortion “has consistently animated Republican voters more than Democrats,” points out Daniel Cox today at FiveThirtyEight. “Two new surveys, however, reveal a remarkable shift in how important the issue of abortion is to Democrats and Republicans ahead of the 2018 midterm election.”

A PRRI survey found 47 percent of Democrats say abortion is a critically important issue to them, compared to 40 percent of Republicans. Meanwhile, Pew found that “abortion is a far more central voting concern for Democrats today than it has been at any point in the last decade,” notes Cox.

Ten years ago, just 38 percent of Democratic voters said abortion was very important to their voting decisions that year. In the most recent survey, 61 percent of Democratic voters said it was very important.

FREE MINDS

No talking about diet without a license? New Jersey is considering new rules for nutritionists and anyone offering healthy eating advice.

“Many of the states in America with the lowest obesity rates — including New Jersey — are ones that do not currently have strict nutritional licensing laws.” https://t.co/7JOsWT7dl5 @NJBIZ @cjdieterle

— Shoshana Weissmann, Regulatory Reform Muse (@senatorshoshana) October 31, 2018

FREE MARKETS

Lawsuit offers new details on Operation Choke Point.

“New documents introduced into a lawsuit stemming from the Obama administration’s ‘Operation Choke Point’…show that powerful bank regulatory agencies engaged in an effort of intimidation and threats to put legal industries they dislike out of business by denying them access to the banking system,” reports John Berlau at Forbes. More:

While I am often outraged about things the government does, now I am truly scared and frightened about the ability of government bureaucrats to shut down arbitrarily whole classes of businesses they deem to be “politically incorrect.” As one who champions the FinTech sector and the benefits it can bring, I also worry that such powers may be uses to shut down innovative new industries, such as cryptocurrency, that carry some perceived or real risks.

Choke Point was a multi-agency operation in which several entities engaged in a campaign of threats and intimidation to get the banks that they regulate cut off financial services—from providing credit to maintaining deposit accounts—to certain industries regulators deemed harmful a bank’s “reputation management.” The newly released documents—introduced in two court filings in a lawsuit against Choke Point—show that the genesis of Choke Point actually predated Barack Obama’s presidency, and began when President George W. Bush was in power.

For Reason‘s previous coverage of Operation Choke Point, see:

• Goodbye & Good Riddance to Operation Choke Point
• Choke Point Check-In: Constitutional Concerns in DOJ Targeting ‘Risky’ Businesses
• DOJ’s ‘Operation Choke Point’ May Be Root of Porn Star Bank Account Closings

FOLLOW-UP

U.S.-Mexico border could see up to 15,000 U.S. troops. President Donald Trump’s demonization of the Central American migrant caravan continues, as do his pledges to send ever-more-ridiculous numbers of troops to America’s southern border.

WASHINGTON (AP) — Trump says number of military troops deployed to US-Mexican border could go as high as 15,000.

— Zeke Miller (@ZekeJMiller) October 31, 2018

Yesterday, Trump shared an anti-Democrat, anti-refugee video that’s being widely panned as racist and irresponsible.

QUICK HITS

• When considering whom to vote for, the question isn’t just “what their stated positions are, but whom are they willing to recognize and listen to?”
• Vice finds that “just about anyone can buy an ad identified as ‘Paid for by’ by a major U.S. politician.”
• The existence of intersex people doesn’t mean sex is a spectrum, argues Debra Soh. “Certainly, research has shown that as many as 1 percent of the population is intersex, a medical condition denoting that an individual possesses anatomy characteristic of both sexes, such as a combination of vulvar and testicular tissue. Statistically speaking, however, this means that the vast majority of us fall into one category of sex or the other.”
• A city ordinance let officers harass strippers as part of a licensing inspection process. A judge ruled it unconstitutional, and now cops must pay $1.5 million.

Between this and the Sotomayor pinch from the beginning of term, it’s beginning to look like the “Gorsuch is an a-hole and everyone else on SCOTUS hates him” narrative was overhyped https://t.co/xUA727E9CO

— Dara Lind (@DLind) October 31, 2018

• Department of Don’t-Believe-Everything-You-See-Online: Nearly 30 percent of anti-Semitic comments on Twitter come from bots.
• A new plan from the Federal Reserve could bring a lot less regulatory burden to smaller banks.
• Republicans are failing to make the case for capitalism.
• Seattle-area police continue to “save” women from prostitution.

Police in #Seattle are entrapping and robbing women involved in #sexwork. Below are public records of the arrests and robberies (aka civil asset forfeiture). This is how #police “save” sex workers. Is this how you would like to be “saved”? #rightsnotrescue pic.twitter.com/D0IJjv6rpV

— Ms. Savannah Sly (@SavannahSly) October 30, 2018

In the past few years, a larger share of Americans has opted not to identify as either a Republican or Democrat than at any point since pollsters began regularly asking about party affiliation. In 2015, according to Pew Research Center, some 40 percent of adults in the country self-described as “independents” rather than choosing one of the two major parties. That’s up from a low of just 20 percent in 1961, writes Stephanie Slade.

View this article.

Support for protectionism and its ugly sister, “fair trade,” is sweeping the globe yet again. President Donald Trump’s actions in the White House have made it painfully obvious that, despite a strong consensus in favor of trade among academic economists, efforts to build support among the general public have largely been unsuccessful. There remains a profound misunderstanding about the benefits of a free flow of goods and the conditions under which these benefits materialize.

First, let’s tackle the mistaken view that international trade is an arena of “win or lose” competition between nations, writes Veronique de Rugy in the latest issue of Reason.

View this article.

The Peel, Ontario, school board has urged teachers not to use To Kill a Mockingbird in their classrooms. A directive sent to teachers notes the n-word appears 19 times in the book. And in a sign that board members possibly haven’t actually read the book and certainly didn’t understand it if they did, the memo notes that the book’s “racist themes make it violent and oppressive for black students.”

As reported here back in August, a cabal of federal and state agencies conducted a campaign of onerously harassing car stops and subsequent drug arrests on the main road heading to the Burning Man festival in the weeks ramping up to its start.

Many of those stopped, and the Burning Man organization itself, made noise, complaining that there were obvious Fourth Amendment issues raised by the excuses for the stops and the subsequent dog-triggered searches, ticketing, and arrests. The feds insisted the Burning Man connection was pure coincidence, and that this was just part of an existing Bureau of Indian Affairs (BIA) campaign to stop opiate trafficking in tribal lands.

Now the Reno Gazette-Journal reports that the courts are agreeing with those who saw something fishy about the pullovers and arrests. The Washoe County District Attorney’s Office “chose not to pursue seven of the nine cases.” According to documents obtained by the Gazette–Journal, the district attorney’s office said “the cases would not hold up in state court.”

Despite the “opioid eradication” excuse, none of the drug arrests were for opioids.

The Gazette-Journal also reports that:

During one of the stops, the officers appeared to hold the suspect beyond the designated time limit in Nevada for a Terry stop, or a brief detention under reasonable suspicion of criminal activity.

“Police must diligently pursue a means of investigation during a Terry stop that is likely to dispel their suspicions quickly,” the district attorney’s office wrote, noting the 79-minute length of the suspect’s detention…

“The Fourth Amendment issues are troublesome,” wrote the district attorney’s office in one of the cases submitted.

In the case, no probable cause is listed for the initial traffic stop, which later led to a search and seizure of what appeared to be cocaine, according to the arrest report. The report did not specify the quantity of the controlled substance…

In another case, the report lacked enough information about the time of the stop, the reason for the stop and the length of the stop. The stop led to a K9 search of the vehicle and a federal agent found mushrooms and acid tablets during the vehicle search, according to the arrest report.

“I do not believe I can prove this case beyond a reasonable doubt at trial,” wrote the district attorney’s office.

As reported in August, the Burning Man organization was contemplating suing over the apparent rights violations and their effect on the event’s operations, but such a suit has not yet been filed. However Burning Man spokesman Jim Graham told the Gazette-Journal they still consider it “clear from the outset the BIA was targeting Burning Man participants with their traffic stops.”

I wrote the first history of the Burning Man event in my 2004 book This is Burning Man.

San Diego County may not remove children from their homes and subject them to highly intrusive physical examinations without parental permission, the U.S. Court of Appeals for the 9th Circuit has ruled.

This ruling was eight years in the making. The case stems from an April 2010 incident involving Michael and Melissa Mann and their four young children. The Manns had apparently spanked at least one of the kids with a wooden spoon as a form of punishment—a dreadful thing, to be sure—which attracted the attention of San Diego’s Health & Human Services Agency. The county took the children away from their parents and placed them in a temporary shelter, the Polinsky Children’s Center, while the parents went to court to regain custody.

At Polinsky, a doctor performed a 22-step medical exam requiring “blood samples and a gynecological and rectal exam,” according to the Associated Press. The 9th Circuit’s decision elaborated on what this entailed:

For the gynecological exam, Dr. Graff testified that she asked the girls to “kind of drop their legs into a frog leg situation,” and “separate[d] the labia and look[ed] at the hymen . . . .” Staff also administered tuberculosis tests, requiring pricks of the children’s skin, and the children gave blood and urine samples for drug screening. If staff observed signs of abuse, the County required them to photograph the abuse for the children’s records. No one notified Mark and Melissa that their children were examined.

County officials did not obtain a court order authorizing these examinations, nor did the parents sign off. Indeed, the Manns didn’t even know what had been done to their kids until one of them said something about it later.

The county’s actions violated the Manns’ Fourth and Fourteenth Amendment rights, the court ruled:

The Manns were deprived of their right to raise their children without undue interference from the government, the right to make medical decisions for their children, and the right to privacy in their family life. The Mann children were subjected to invasive, potentially traumatizing procedures absent constitutionally required safeguards. Although we must balance these fundamental rights against the state’s interest, we conclude that the County is constitutionally required to provide parental notice and obtain parental consent or judicial authorization for the protection of parents’ and children’s rights alike.

This case calls to mind the insane actions of police in Manassas, Virginia, who sought—and obtained—a warrant to give a 17-year-old boy an erection so they could photograph it as evidence in a teen sexting matter. To protect children from things like spanking and sexting, the authorities evidently believed it was necessary to subject them to sexual abuse.

Over at The Daily Beast, Spencer Ackerman takes note of the cross-ideological alliance trying to put an end to the U.S. military’s participation in Saudi Arabia’s deadly activities in Yemen. The alliance itself is not new. Libertarian-leaning Republicans like Rep. Justin Amash (Mich.) and Sens. Mike Lee (Utah) and Rand Paul (Ky.) have long been critical of our involvement with and funding of military actions that have killed innocents, especially since we are not officially at war with any of the nations involved.

What’s new, Ackerman notes, is that the Charles Koch Institute is briefing conservative lawmakers about a resolution introduced by Rep. Ro Khanna (D-California) that would direct the president to end all military action in Yemen that is not covered by the 2001 Authorization for Use of Military Force (AUMF). To keep U.S. forces involved in the conflict, the White House would need to seek an explicit declaration of war from Congress.

The resolution has 69 co-sponsors right now, only three of which are Republicans (Rep. Thomas Massie of Kentucky among them). The Koch Institute and libertarian-conservative FreedomWorks are going to be pushing Republicans to try to get a vote in November, after the midterms. Whether such a resolution would actually change anything is a question that deserves our skepticism. Every presidential administration since that of George W. Bush has used the AUMF to justify military activity against any terrorist organization overseas.

The subheadline of Ackerman’s piece calls the Koch Institute’s involvement “unexpected.” Media companies should be past this by now, particularly since they’ve obsessed over the Kochs for nearly a decade. The Koch Institute’s foreign policy page is very clear that while it supports a strong military, it’s opposed to the sort of interventionist adventures associated that have defined our activities in the Middle East for years now. Here’s a blog post from 2016 expressing concern about military actions in Yemen and the negative consequences of our alliance with Saudi Arabia.

In fairness, Ackerman’s reporting does not treat it like an unexpected development. He notes that FreedomWorks has been lobbying for a year on a failed effort by Lee and Sens. Bernie Sanders (I-Vt.) and Chris Murphy (D-Conn.) to force a vote on military action in Yemen.

But it’s nevertheless frustrating that the headlines tend to treat the Koch brothers’ very common libertarian attitudes toward a number of policies as surprising. We saw it happen years ago where people seemed to be surprised at David Koch’s position in support of gay marriage recognition in 2012, even though he, like many libertarians, had felt that way for quite a while (before many Democratic leaders, in fact). Media outlets seem to frequently feign surprise that the Kochs favor criminal justice reforms, even though they’ve supported such efforts for years.

There’s a tendency among some media outlets to approach the Koch’s libertarian brand of conservatism as though the brothers’ deviation from typical Republican stances are unusual for them. They’re not. When media outlets write this way, it tells libertarian audiences that they know very little about the Kochs and what separates libertarians from conservatives. Disappointing libertarians may seem like small potatoes, but it also misinforms people who know little about what distinguishes libertarians from Republicans. I would argue that this is actually bad: it allows Republicans to pass as lovers of liberty even when they’re not, and—perhaps in rarer instances—it allows libertarians to join ranks with Republicans when they shouldn’t. Treat them as distinct, and you make it harder for both groups to say one thing and then do another without consequence.

Disclosure: David Koch sits on the Board of Trustees for the Reason Foundation, which publishes this site.

You’re probably a good person, or at least you try to be. You want to do the right thing. But are you having trouble shaking the sense the you might have better things to do next Tuesday than voting?

Instead of trying to motivate yourself and others to do a thing that feels pointless, why not stop to consider the possibility it actually is pointless? And not in a “all of human endeavor is pointless” kind of way. In a highly specific way that can actually be dealt with productively.

First things first: Your vote is wildly, insanely, hugely unlikely to influence the outcome of an election. No presidential election has ever been decided by a single vote. Academic surveys of close elections have turned up one 1910 Buffalo contest that may have been a true single-vote victory, and that’s in 100 years of congressional races. In four of the 10 closest congressional and state legislative races dating back to 1898, further investigations and recounts nearly always unearthed margins significantly larger than what initially appeared in the official record. Your vote is very, very, very, very, very, very, very, very unlikely to change the outcome of an election.

But what about the cascade effect, you ask? Won’t my decision not to vote influence others, reducing voter turnout and thereby the legitimacy of our very form of government, hastening the demise of the American experiment?

Probably not! People are hard to convince. I’m not even convincing you right now! You’re probably not going to vote anyway, and you’re still not convinced by this post! That’s OK. You’re just making my point for me. Your actions are unlikely to influence others in this instance, so you should do what’s right for you. (Alternately, you could skip voting and simply mislead others into thinking you did so. You can order a roll of “I Voted” stickers right now and have them in time for this Election Day and every single one thereafter.)

And listen, if you’re in it for the warm fuzzies and the people-watching, that’s fine. Maybe your own pleasure in the act of voting is the best you can do with your time to make the world a better place. That’s OK. It’s good to do things that make you happy! But for goodness’ sake, stop looking askance at the stickerless.

We have parent-teacher conferences (Why, D.C. Public Schools? Why!?). We have columns to write about the nature of civic virtue. We have a shift at the soup kitchen. We have one stamp and two envelopes to mail. We have a weddings or funerals to attend. We have Kenyan cows to Kickstart. We have a vacation later this year. We have jury duty. We have to correct someone who is wrong on the internet. We have puppies to pet. We have burritos to microwave. Exactly 100 percent of the activities listed above will have more tangible benefit in the world than voting.

To be clear: If someone said to me, “KMW, you are the only voter in this election. What you decide will in fact determine the outcome of the election,” then I would vote. I do not think the act of ballot casting is (necessarily) intrinsically bad for all humans. But neither is it intrinsically good.

If you do want to dig deeper on that intrinsic badness angle angle, may I suggest philosopher Jason Brennan’s book on the topic? In 2012, I was raring to go on the idea that voting might in fact be immoral. But I’ve mellowed in my old age. I don’t want to fight you about whether an uninformed vote may actually cause harm by incentivizing stupider party platforms and rhetoric. I don’t want to squabble about whether believing the candidates or the system are ethically flawed or produce bad results makes voters complicit in the subsequent abuses by the powerful. I don’t want to holler about how damaging the cliche “if you don’t vote you can’t complain” is to the fundamental tenets of free speech. (Hm. I guess I actually still do want to fight about those things.)

Bless this lineup of “young people” who explained to New York magazine why they are not voting. They seems to be the only ones in this crazy world who understand opportunity cost. The article has been shared a lot, and I suspect mostly in the service of vote-shaming and fostering generational warfare. I am in favor of both shame and generational warfare, but this is not the way to go about it. Because, to be honest, nearly each and every one of these 20-somethings is making solid points.

“The idea of leaving work, forwarding all of my calls to my phone, to go stand in line for four hours, to probably get called back to work before I even get halfway through the line, sounds terrible,” says Maria, 26. She goes on to note that she cares deeply about certain issues, including immigration and reproductive rights, but rightly recognizes that standing in line to vote is not an efficient way to further those causes. And there’s Thomas, 28, who says: “Over the years, I’ve started to think maybe we don’t have to frame this so much as an individual act with these moral consequences and that I need to stop being so dramatic about it.” Wise. And of course Tim, the hero of the forum who bravely proclaims: “I hate mailing stuff; it gives me anxiety.”

So here’s a simple a proposition: Instead of voting on Election Day, just do the things that actually benefit you, your family, your community, or the world. Instead of queuing up to enact a symbolic ritual with a vanishingly small chance of altering the course of events, take the time and money you would have spent voting—even if it’s very little time and/or money—and do literally anything else as long as it has real world impact. Including fighting with me on Twitter about this post, if you like.