Month: June 2022

As the most momentous Supreme Court term in recent memory comes to a close, are things better or worse for libertarians?

Georgetown Law’s Randy Barnett is arguably the most important and influential libertarian legal scholar walking the planet today. Over the years, he’s argued against Obamacare and for medical marijuana in front of the Supreme Court. In books like Restoring the Lost Constitution and The Structure of Liberty, he’s developed the concept of what he calls “judicial engagement,” or the idea that judges need to be more forceful in striking down laws that restrict rights guaranteed by the Constitution. At the same time, he’s a powerful critic of liberal judicial activism where judges effectively create law out of ideological preference and he pushes back against conservative majoritarianism, which holds that legislatures can basically do whatever they want.

In a nearly two-hour-long conversation, I talk with Barnett about the Dobbs decision that struck down a women’s right to an abortion, the Bruen decision that struck down a New York state law limiting the ability of gun owners to carry weapons, and other major rulings. We talk about the general direction of the Supreme Court and whether it’s headed in a more—or less—libertarian direction. And we discuss the treatment of Ilya Shapiro, the former Cato staffer who was going to join Barnett at Georgetown until a controversy erupted over one of Shapiro’s tweets.

Today’s sponsor:

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The post Randy Barnett: Abortion, Guns, and the Future of the Supreme Court appeared first on Reason.com.

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Today the Supreme Court decided Torres v. Texas Department of Public Safety, in which a 5-4 Court concluded that state sovereign immunity does not prevent Congress from authorizing suits against states pursuant to its power to raise and support armies. Justice Stephen Breyer wrote for the majority, in what may have been his last majority opinion as a Supreme Court Justice. He was joined by the Chief Justice and Justices Sotomayor, Kagan, and Kavanaugh. Justice Thomas dissented, joined by Justices Alito, Gorsuch, and Barrett.

Torres was a definite win for federal power, which would seem fitting for Justice Breyer’s last opinion. Other than joining parts of the Chief Justice’s opinion in NFIB v. Sebelius, Justice Breyer has been a fairly consistent vote against limitations on federal power, including (as relevant here) claims that the federal government may not subject state governments without their consent to suit due to sovereign immunity.

In Torres, Breyer drew upon las term’s decision in PennEast to conclude that the federal government may subject nonconsenting suits to state when exercising powers that are exclusively held by the federal government, such as those powers related to national defense. Here is how he summarized his own opinion:

The Constitution vests in Congress the power “[t]o raise and support Armies” and “[t]o provide and maintain a Navy.” Art. I, §8, cls. 1, 12–13. Pursuant to that authority, Congress enacted a federal law that gives returning veterans the right to reclaim their prior jobs with state employers and authorizes suit if those employers refuse to accommodate them. See Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U. S. C. §4301 et seq. This case asks whether States may invoke sovereign immunity as a legal defense to block such suits. In our view, they cannot. Upon entering the Union, the States implicitly agreed that their sovereignty would yield to federal policy to build and keep a national military. States thus gave up their immunity from congressionally authorized suits pursuant to the “‘plan of the Convention,'” as part of “‘the structure of the original Constitution itself.'” PennEast Pipeline Co. v. New Jersey, 594 U. S. ___, ___ (2021) (slip op., at 14) (quoting Alden v. Maine, 527 U. S. 706, 728 (1999)).

He further explained why the Chief Justice’s PennEast decision allowed for suit here.

Last Term, in PennEast Pipeline Co. v. New Jersey, 594 U. S. ___, we considered whether Congress could, pursuant to its eminent domain power, authorize private parties to sue States to enforce federally approved condemnations necessary to build interstate pipelines. We held that “when the States entered the federal system, they renounced their right to the ‘highest dominion in the[ir] lands,'” meaning they agreed their “eminent domain power would yield to that of the Federal Government.” . . . Congress could therefore authorize private actions against States.

PennEast defined the test for structural waiver as whether the federal power at issue is “complete in itself, and the States consented to the exercise of that power—in its entirety—in the plan of the Convention.” . . .  Where that is so, the States implicitly agreed that their sovereignty “would yield to that of the Federal Government ‘so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution.'”. . . By committing not to “thwart” or frustrate federal policy, the States accepted upon ratification that their “consent,” including to suit, could “never be a condition precedent to” Congress’ chosen exercise of its authority. . . . The States simply “have no immunity left to waive or abrogate.” . . .

Congress’ power to build and maintain the Armed Forces fits PennEast‘s test. The Constitution’s text, its history, and this Court’s precedents show that “when the States  entered the federal system, they renounced their right” to interfere with national policy in this area.

While there are distinct parallels between the issues in this case and those in PennEast, the Court’s lineup is slightly different. Justice Kagan, who had dissented in PennEast, joined the majority this time. She explained her vote in a short concurring opinion explaining that she believes Torres was controlled by PennEast.  Torres was still a 5-4 decision, however, because one of the justices who had been in the majority there, Justice Alito, was now in dissent. Unlike Justice Kagan, Justice Alito did not explain his switch.

The post Justice Breyer's Final(?) Majority Opinion Is A Win For Federal Power appeared first on Reason.com.

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There’s a clear lesson emerging from the first cities that have legalized “missing middle” housing. The more rules you lift on the construction of these two-, three-, and four-unit homes, the more you’ll actually see built.

San Francisco politicians have absorbed this information and are now using it for evil. On Tuesday, the San Francisco Board of Supervisors passed an ordinance theoretically legalizing fourplexes in the city’s lowest density neighborhoods, but only under conditions that will ensure almost none of this housing actually gets built.

The measure passed by the Board yesterday officially gets rid of the city’s exclusively single-family zoning, which allowed only one primary residence per property. Duplexes will now be allowed by default in those neighborhoods.

Property owners will also be allowed to build four-unit homes in those areas too, but only if they’ve owned the property for five years (or inherited it from a family member) and place the new units under the city’s rent control ordinance.

The former requirement effectively excludes professional developers from building missing middle housing and instead relies on longer-term homeowners to do it themselves. The rent control requirements will likely make it financially unfeasible for mom-and-pop operations to redevelop their properties.

When combined, those two elements will likely stop anyone from taking advantage of the opportunity to build three- and four-unit homes. The duplexes the city just legalized aren’t subject to these conditions, but it’s probable that few of them will be built either.

A California state law, S.B. 9, passed last year already requires cities to allow people to divide single-family zoned lots and build a duplex on each half.

Crucially, S.B. 9 also requires cities to approve those duplexes and lot splits “ministerially,” meaning they can’t require projects to undergo lengthy approval processes that give neighbors the opportunity to weigh in and politicians the discretion to impose conditions or deny permits.

But because S.B. 9 only applies in single-family zoned areas, and San Francisco just got rid of single-family zoned areas, this requirement to ministerially approve duplexes is now toothless.

Instead, potential duplex builders will still face the possibility of going through the city’s “discretionary review” process. That process allows opponents of a new duplex to drag the project sponsor before the Planning Commission, which could impose new conditions not mandated by the zoning code or even reject the project entirely.

The process is expensive and time-consuming for the project sponsor, even if they win. City staff have already identified discretionary review as an obstacle to building, particularly in low-density zones where duplexes are now legal.

Supervisors who supported yesterday’s ordinance have been explicit about their desire to preserve discretionary review.

Other supervisors have been quite critical about the effort to route around S.B. 9.

“I think it’s an attempt to thwart our state bill,” said Supervisor Ahsha Safaí at yesterday’s board meeting. “I think this legislation, actually in the end, will end up making it more difficult than it will be to make it easier to achieve the goal of building more housing.”

Safaí had authored a separate, failed fourplex bill that would have preserved S.B. 9’s streamlining provisions. He was one of four supervisors to vote against yesterday’s ordinance. Another six supported it.

San Francisco’s planning director likewise told the San Francisco Chronicle that the impact of the legislation would be “fairly small.”

The experience of other cities suggests that’s right.

Minneapolis was the first city in the country to end single-family-only zoning, legalizing triplexes on residential land citywide. The reform took effect in January 2020 and has thus far produced only about 100 newly legal duplexes and triplexes.

One reason for the modest results of reform is that the city allowed more units to be built, but largely left regulations about the size of homes in place. So, a three-unit home in Minneapolis will generally have to fit in the same “envelope” as a single-family home.

San Francisco’s newly passed ordinance likewise legalizes more units per property, while making no or very modest changes to allowable building sizes. That would kill off a lot of potential development, even without the rent control and ownership requirements.

Portland, Oregon, has probably adopted the most liberal missing middle zoning reforms and has had the best results. Builders get density bonuses so that duplexes can be bigger than single-family homes, triplexes can be bigger than duplexes, etc., etc.

The process for approving this housing is by-right, meaning no discretionary review is needed. It doesn’t mandate rent control on new three- and four-unit developments. The city hasn’t tried to force out developers with ownership requirements, and as a result, a new breed of missing middle builders is now springing up to build newly legal fourplexes and cottage clusters.

Portland’s reforms went into effect in August 2021, and have thus far produced just under 100 units. Housing policy wonks and industry participants expect that a subsequent round of reforms passed by the Portland City Council earlier this month will accelerate development.

To be sure, even the best missing middle housing reform isn’t going to cure a high-cost city’s affordability problems overnight. But these changes do make homeownership possible for a larger swath of buyers.

Portland builder Eric Thompson told Reason earlier this month that his city’s missing middle reforms have allowed his company to build units that are less than half as expensive as the single-family homes they used to construct. “We’re able to maintain profitable projects while hitting price points that the vast majority of the buying public can afford,” Thompson says.

That’s not something you’ll likely see under San Francisco’s latest reforms.

The post San Francisco Legalizes 'Missing Middle' Housing in the Worst Way Possible appeared first on Reason.com.

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Divided Argument, my podcast about the Supreme Court with Dan Epps, has been in high season this month, as the Court has released the majority of its important opinions. Here are the episodes from this month so far:

SMUGLER: We discuss the Bivens decision in Egbert v. Boule and the problem of constitutional remedies. But first we catch up on the Court’s pace of opinions, the Dobbs leak investigation, the attempted attack on Justice Kavanaugh, and Puerto Rico (United States v. Vaello-Madero).

COBRA: We focus on two Indian law decisions — Ysleta del Sur Pueblo v. Texas and Denezpi v. United States — as well as the arbitration case of Viking River Cruises, Inc. v. Moriana, and the DIG in Arizona v. San Francisco. Dan offers some health insurance advice.

Character Sketches: In our longest episode yet, we break down two massively consequential cases — Dobbs v. Jackson Women’s Health Organization and New York State Rifle & Pistol Association v. Bruen. I make the extremely controversial claim that Justice Kavanaugh doesn’t particularly care what most people think about him, and that isn’t why he writes those concurrences.

We also have transcripts for 2/3 of the episodes already (and the third will come soon) for those who apparently don’t listen to things while they drive, walk, work out, or do housework.

The post Recent episodes of Divided Argument appeared first on Reason.com.

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