Category: reason

High-speed rail lines began popping up in Europe and Asia in the early 1980s. Passengers were exhilarated by the futuristic trains rocketing between cities on glass-smooth rails at upwards of 200 miles per hour.

With high-profile roll-outs in France and Japan, bullet train mania was underway. And then reality set in.

“The costs of building such projects usually vastly outweigh the benefits,” says Baruch Feigenbaum, assistant director of transportation policy at the Reason Foundation, the 501(c)(3) that publishes this website. “Rail is more of a nineteenth century technology [and] we don’t have to go through these headaches and cost overruns to build a future transportation system.”

Supporters, who claim that most high speed rail systems operate at a profit, use accounting tricks like leaving out construction costs and indirect subsidies. If you tabulate the full costs, only two systems in the world operate at a profit, and one breaks even.

But politicians can’t resist the ribbon cutting ceremonies and imagery of sleek trains hurtling through the lush countryside. So the projects keep coming.

California’s high speed rail line was sold to voters on the bold promise that it will someday whisk passengers between San Francisco and Los Angeles in under three hours. Nine years later, the project has turned into such a disaster that its biggest political champion is now suing to stop it.

An icon of California politics known as the “Great Dissenter,” Quentin L. Kopp introduced the legislation that established the rail line, and became chairman of the High-Speed Rail Authority. He helped convince voters in 2008 to hand over $9 billion in bonds to the Rail Authority to get the project going. Since he left, Kopp says the agency mangled his plans.

“It is foolish, and it is almost a crime to sell bonds and encumber the taxpayers of California at a time when this is no longer high-speed rail,” says Kopp. “And the litigation, which is pending, will result, I am confident, in the termination of the High-Speed Rail Authority’s deceiving plan.”

Click below for full text, links, and downloadable versions.

Subscribe at YouTube.

Like us on Facebook.

Follow us on Twitter.

Subscribe to our podcast at iTunes.

View this article.

Yes, a school in Canada banned cartwheels. What’s worst about this is the school’s reasoning:

Cartwheels have been banned at M.T. Davidson Public School in Callander.

Cartwheels are not permitted on school property in the playground rules section of the school’s draft handbook for 2017-18. The rule came into effect this school year even though injuries have not been reported, principal Todd Gribbon admitted.

“The activity can cause concussions, and neck and wrist injuries,” he said.

True—any activity, including a cartwheel, can cause injury. Walking down the stairs can cause falls resulting in concussions, neck, and wrist injuries. Walking outside can get you hit by a car. Swimmers can drown. Bakers can catch their hair on fire. Those brave enough to consume solid food can choke. Students sitting still too long can get embolisms.

The precautionary principle—why do something that could cause harm?—seems prudent until you realize it often doesn’t distinguish between a calculated risk and what if something terrible happens? Recall that just the other day, a New York Times reporter said it was a bad idea for a kid to mow a lawn, even if it’s the White House lawn, because there could be an accident. Really, we are idiots when it comes to risk. We think that there’s risk vs. no risk—so why would any ever choose the former?

In the real world, it’s always risk vs. other risk. The risk of walking to school seems too great to many people, who forget there’s a risk in being driven. There’s a risk in doing cartwheels that is offset by the risk of not doing cartwheels. Kids playing, loving the outside, running around, being active, learning balance—all aspects of cartwheeling—may heighten their risk of wrist injuries while lowering their risk of obesity, heart disease, and school-hating-syndrome. The risk of learning to take a risk decreases the crippling fear of risks. The crippling fear of risks (also known as “insurance brain”) leads to faulty risk assessments.

Which leads to no carthwheels.

• President Trump said he has come to a decision on the Iran nuclear deal. The Iranian president called Trump a “rogue newcomer” in his United Nations speech.
• Hurricane Maria has knocked out power in all of Puerto Rico.
• A federal lawsuit accuses police in Columbus of exhibiting a pattern of excessive force against black residents.
• A dispute over a speeding ticket in Iowa reaches the state’s Supreme Court.
• Researchers in Germany claim right-wing U.S.-based online accounts are “meddling” in the elections there.
• The president of Catalonia accused the Spanish government of suspending the region’s autonomy as the national police raided multiple regional government offices and arrested 14 senior officials.
• A magnitude 7.1 earthquake hit Mexico City.
• “End-of-life chatbot can help you with difficult final decisions“

What happens when California progressives have to choose between using the heavy hand of government to subsidize electric vehicles and using the heavy hand of government to boost labor unions?

We found out on Saturday, when Gov. Jerry Brown signed two bills that set spending priorities for the $1.5 billion generated by the state’s recently renewed cap-and-trade system. The package includes $140 million in subsidies for electric vehicle purchases made through the California’s Clean Vehicle Rebate Project (CVRP). That’s a slight boost from the $133 million appropriated last year—a win for the program’s environmentalist backers.

But that win came at a cost. Thanks to a pressure campaign by the California Federation of Labor, language was inserted into the bill specifying that any manufacturer participating in the program must be “fair and responsible in the treatment of their workers.” California’s labor secretary would be empowered to exclude manufacturers who violate these yet-to-be-established “fair and responsible” criteria.

That could spell big trouble for Nissan and Tesla. Both are major beneficiaries of the CVRP, and both have been tussling recently with the United Auto Workers. The union is currently trying to organize workers at Tesla’s plant in Fremont, California, and the union recently failed in a high-profile effort to do the same at a Nissan plant in Canton, Mississippi. Complaints have been filed against both companies for unfair and anti-union practices.

Given that some 48 percent of last year’s CVRP rebates for all-battery electric vehicles went to purchasers of Nissan and Tesla products, excluding those companies would be a major loss for the program and for California’s dream of 1.5 million zero emission vehicles by 2025.

The bill’s ambiguous language could also be used as a cudgel to get other manufacturers to fall in line with union demands, given how dependent the electric vehicle market is on the rebate program. According to the state’s Air Resources Board, upwards of 81 percent of California’s all-battery electric vehicle purchasers got a CVRP rebate. And almost half of America’s electric vehicle sales take place in California.

State Sen. Scott Wiener (D–San Francisco), one of the legislature’s leading environmentalists, has told the Los Angeles Times that these rules could be “undermining our own goals” of fighting climate change. In a letter to legislators, Global Automakers, a trade group representing Nissan, called the labor provisions in the CVRP program an “unpredictable standard that would be impossible to adhere to while creating uncertainty in an already challenging market.”

The letter isn’t wrong: Those regulations are broad, unspecific, and entirely discretionary. That isn’t how legislation should be written. Still, no one should shed a tear for the plight of these automakers.

Thanks to CVRP, Tesla, Nissan, and other manufacturers have been making out like bandits on a rebate system that effectively taxes poor people’s energy consumption to pay for rich people’s trendy vehicles. A 2016 Berkeley study found that 83 percent of CVRP recipients had incomes over $100,000.

As one California senator has said of the CVRP program, “The state appears to be in the business of subsidizing a billionaire’s company and millionaires who want buy these boutique electric cars.” Now unions are looking to get in on this action, and lawmakers are evidently willing to deal them in.

The New York Times claims Donald Trump “sketched out a radically different vision of the world order than his forebears” by “declaring Tuesday that sovereignty should be the guiding principle of affairs between nations.” That is not remotely true. Nor is Trump unusual in employing “a strikingly selective definition of sovereignty,” which the Times suggests also sets him apart from his predecessors. Still, it is worth considering the role that the concept of sovereignty plays in Trump’s U.N. speech, because it clarifies the limits of international cooperation and illustrates the conflicting impulses that drive U.S. foreign policy.

When Trump talks about sovereignty, he is mostly talking about preserving the status quo by recognizing the authority of existing governments to decide what happens within the territories they control. There is very little moral content to this understanding of sovereignty, which does not begin to address the question of what makes a government or its actions legitimate. But that doesn’t mean this barebones version of sovereignty is not useful. Other things being equal, a world where nation-states respect each other’s borders (no matter how arbitrary they might be) is apt to be more secure, peaceful, and prosperous than a world where they don’t. Each government has an interest in maintaining that principle, creating the common ground on which an organization like the U.N. is built.

Describing the benefits of sovereignty, Trump repeatedly lists peace, security, and prosperity. He says nothing about freedom or individual rights, with good reason. Respect for freedom and individual rights is not part of the international consensus, except perhaps at such a high level of abstraction that the terms become meaningless. “We do not expect diverse countries to share the same cultures, traditions, or even systems of government,” Trump says. “We want harmony and friendship, not conflict and strife. We are guided by outcomes, not ideology. We have a policy of principled realism, rooted in shared goals, interests, and values.”

So far, so good. But Trump adds that “we do expect all nations to uphold these two core sovereign duties: to respect the interests of their own people and the rights of every other sovereign nation.” Although there are bound to be arguments about the details, the duty of nation-states to respect each other’s rights is the basis for a rough consensus. Not so their duty to “respect the interests of their own people,” because who is to say what those are? The concept of sovereignty Trump is advocating implies that each country’s government gets to make that call. If one national government tried to enforce its judgment of whether another was properly serving the interests of its citizens, it would be violating the latter’s sovereignty. Trump’s “two core sovereign duties” contradict each other.

That is just the beginning of Trump’s incoherence. He says North Korea’s nuclear weapons make the world more dangerous, which is an argument for joint action based on a threat to international security. But he also notes that “the depraved regime in North Korea” is “responsible for the starvation deaths of millions of North Koreans, and for the imprisonment, torture, killing, and oppression of countless more.” All of that is horrifyingly true, but if sovereignty requires respect for diverse “systems of government,” it is not an argument for international intervention.

Trump likewise condemns Iran’s mistreatment of Iranians, Syria’s mistreatment of Syrians, Venezuela’s mistreatment of Venezuelans, and Cuba’s mistreatment of Cubans. He says the way those regimes treat their citizens justifies economic sanctions and even military action by other countries. But if sovereignty is agnostic about how people should be ruled, those responses amount to international aggression.

As the Times notes, Trump’s outrage is selective. He praises the autocratic regime in Saudi Arabia for helping to fight terrorism, and he says nothing about human rights violations by U.S. allies or by great powers such as China and Russia. “It is a massive source of embarrassment to the United Nations that some governments with egregious human rights records sit on the U.N. Human Rights Council,” Trump says. That description applies to China as well as U.S. allies such as Egypt, the Philippines, and Saudi Arabia, all of which currently sit on the council.

Contrary to what the Times implies, however, such inconsistency is par for the course when it comes to U.S. foreign policy, which has long been torn between misplaced idealism and grubby realism. Trump calls North Korea’s leaders a “band of criminals,” which is an apt descripton of many national governments (or all of them, depending on your political philosophy). But some criminals are worse than others, and only some pose a threat outside the neighborhoods they control. Trump acknowledged that reality when he declared, during the presidential campaign, that “we can’t continue to be the policeman of the world.”

Yesterday Trump seemed to reject the idea that the United States has a duty to punish dictators, let alone replace them with democrats. Yet he defended U.S. economic sanctions against Cuba and Venezuela as a response to their internal policies and U.S. missile strikes against Syria as a response to the Assad regime’s chemical attack on Syrian civilians. He said the United States has a responsibility to deter the use of chemical weapons, to force “fundamental reforms” in Cuba, and to help Venezuelans “regain their freedom, recover their country, and restore their democracy.” Those goals do not seem to be based on the sober, hardheaded analysis of U.S. interests implied by Trump’s promise to “always put America first.”

Nor are they consistent with the way Trump describes the U.S. government’s sovereignty, which unlike China’s or Saudi Arabia’s depends on the consent of the governed and is subject to constitutional constraints. “In America, the people govern, the people rule, and the people are sovereign,” Trump says. “In foreign affairs, we are renewing this founding principle of sovereignty. Our government’s first duty is to its people, to our citizens—to serve their needs, to ensure their safety, to preserve their rights, and to defend their values.”

While the purported duty to defend American values could be used to justify all manner of foreign meddling, the rest of that formulation seems about right to me. The point is not that foreign governments have a right to treat people however they choose, or that any actions they take should be immune from criticism as long as no borders are crossed. The point is that the U.S. government’s mission does not include righting every wrong committed by every tyrant. It has a duty to its citizens, from whom it derives whatever legitimacy it has, to use their resources on their behalf.

Law enforcement in New York confiscated a record $30 million worth of illicit fentanyl, 195 pounds of it , in two combined seizures from four defendants over the past two months. The haul dwarfs the previous record of 97 pounds, set in June of this year by Drug Enforcement Administration agents in San Diego.

We should expect to see more of it. JFK Airport receives one million pieces of international mail every day. U.S. Customs officials at the facility recently told USA Today they’ve been able to intercept 40 percent of the fentanyl that comes through their doors, which means most of the fentanyl bound for America passes right on through JFK. The same is likely true at other U.S. ports of entry as well as the Mexican and Canadian borders.

“The sheer volume of fentanyl pouring into the city is shocking,” New York City Prosecutor Bridget G. Brennan told NBC.

We can thank our own stubborn refusal to embrace harm reduction strategies, and, of course, China. According to a report from the U.S.-China Economic Security Review Commission, the PRC and Hong Kong “continue to divert chemicals from legitimate pharmaceutical uses and adulterate legitimate pharmaceuticals during production” due to the “fragmented and disorganized administrative system overseeing chemical production and exports.”

With roughly 160,000 Chinese chemical facilities operating legally and illegally, it shouldn’t surprise us that the second largest pharmaceutical market in the world and the largest global producer of chemical precursors has a major diversion problem. It also shouldn’t surprise us that we don’t have enough drug-sniffing dogs, Customs agents, or screening devices to catch all the fentanyl coming through the mail.

We do have one thing going for us, however, which is that most of the people who use fentanyl-tainted heroin just want the heroin. A 2015 study in the Harm Reduction Journal found that 73 percent of heroin users whose urine tested positive for fentanyl didn’t know they’d taken any fentanyl at all. The sample size for this study was small, but it squares with what I’ve heard from non-medicinal opioid users in the U.S.: Most people take fentanyl inadvertently. They’d rather not take it at all, considering both how deadly it is and the fact that a person needs substantially more naloxone to reverse an overdose.

And before many Americans turned to heroin, many of them just wanted to use prescription pills, which is the safest option of the three. But we also made that incredibly difficult by cracking down on prescribing practices and requiring pharmaceutical companies to introduce tamper-proof formulations.

Every day of this horrendous epidemic has been a good day to ask why we don’t just allow people to take heroin. The Swiss pursued this line of investigation at the height of their own HIV/AIDS epidemic, which was driven by injectable drugs. After the launch of the country’s first heroin-assisted treatment clinic in 1994, Switzerland saw huge declines in drug-related deaths, drug-related crime, and AIDS-related deaths. Participants were given clean, accurately-dosed heroin three times a day under doctor’s supervision. As a result, researchers saw “major disengagement from criminal activities,” reductions in the use of heroin obtained outside the program, and “marked improvements in social functioning.”

Heroin-assisted treatment isn’t cheap: Countries with HAT programs spend roughly 15,000 Euros annually per patient, compared to roughly 2,000 Euros for medication-assisted treatment (which is also too scarce in the U.S.). But according to the European Monitoring Centre for Drugs and Drug Addiction, “If an analysis of cost utility takes into account all relevant parameters, especially related to criminal behaviour, [HAT] saves money.”

Or, you know, we could keep doing what we’re doing.

In his first address to the United Nations, President Trump displayed both his show business chops and the contradictions inherent in his foreign policy choices. Many of those choices are far more mainstream than Trump’s rhetoric, or the commentary on it, suggests.

Trump says he wants a July 4 military parade that mirrors the French’s Bastille day festivities, with a celebration of military strength. That’s certainly different, but not substantively, from Trump’s predecessors, who were often laudatory of and deferential to military leaders.

Trump is reportedly looking to expand the drone war. Obama did a good job maintaining an illusion of accountability for the CIA’s drone program. Trump may dispel this illusion, but he’s not changing the nature of the program—it was always a dangerous program with little transparency and no effective accountability.

Since his election, Trump’s foreign policy has not looked that much different from his predecessors. On Afghanistan, for example, Trump made the decision to stay, as did Presidents Obama and Bush. He merely couched it in different language.

Trump talks about the need for Europe to take more responsibility for its own defense and contribute more to NATO, yet he has embraced NATO as well as its ill-advised expansion.

His administration had taken the same meddling posture as past establishment foreign policy figures when it comes to respecting the rights of sovereign countries to govern their own affairs.

At the UN speech itself, Trump intoned that Americans “do not expect diverse countries to share the same cultures, traditions, or even systems of government.”

Yet, later in the same speech, he praised U.S. sanctions on Venezuela and insisted that the internal situation in Venezuela was “completely unacceptable” and that the U.S. could not “stand by and watch.”

“As a responsible neighbor and friend, we and all others have a goal, Trump told the U.N. “That goal is to help them regain their freedom, recover their country, and restore their democracy. I would like to thank leaders in this room for condemning the regime and providing vital support to the Venezuelan people.”

Remarkably, Trump recently said explicitly that the military option was on the table for the South American country.

The interventionist stance on Venezuela Trump expressed at the United Nations could have easily been articulated by most of his predecessors. The difference, as always, is largely rhetorical.

In his speech, Trump also blasted Iran as part of a “small group of rogue regimes” and said the U.S. would “totally destroy” North Korea if it had too.

Rhetoric aside, his approach toward Iran and North Korea has been relatively tame. Trump has so far declined every opportunity he’s had to withdraw from the Iran nuclear deal. There’s been little substance behind his anti-Iran showmanship.

On North Korea, Trump has made efforts to engage China on the North Korea and to, in general, seek diplomatic solutions. His rhetoric may be more colorful than his predecessors, but here even his rhetoric is not all that different.

At the UN, Trump said the U.S. could destroy North Korea. Obama, too, has noted that the U.S. could destroy North Korea with its arsenal. It’s a true statement and one of the facts acting as a deterrent to a North Korean nuclear strike.

Nevertheless, Trump’s UN speech lead to predictable responses from foreign leaders, not just from countries like Iran but from European allies too.

“It was the wrong speech, at the wrong time, to the wrong audience,” Swedish Foreign Minister Margot Wallstrom said.

American presidents have been very good at masking destructive U.S. foreign policy in lofty rhetoric. Trump isn’t. But that should be welcomed as an opportunity to make U.S. foreign policy less destructive. Hiding flaws in rhetoric had never been a real solution.

At Marginal Revolution, George Mason University economist Alex Tabarrok offers some interesting thoughts on Richard Rothstein’s new book The Color of Law: A Forgotten History of How Our Government Segregated America. “Rothstein is no libertarian,” Tabarrok writes, “but to his credit he does acknowledge that one of the few anti-segregation forces in the early twentieth century was the Lochner influenced reasoning of the Supreme Court.”

Tabarrok refers to the 1917 case of Buchanan v. Warley, in which the Court struck down a Louisville, Kentucky, ordinance that segregated residential housing blocks by race. The Court invalidated that Jim Crow regulation as an unconstitutional violation of property rights and economic liberty under the 14th Amendment.

Here is how Rothstein summarizes Buchanan v. Warley in The Color of Law:

The Court majority was enamored of the idea that the central purpose of the Fourteenth Amendment was not to protect the rights of freed slaves but a business rule: “freedom of contract.” Relying on this interpretation, the Court had struck down minimum wage and workplace safety laws on the grounds that they interfered with the right of workers and business owners to negotiate individual employment conditions without government interference. Similarly, the Court ruled that racial zoning ordinances interfered with the right of a property owner to sell to whomever he pleased.

The central holding of Lochner v. New York (1905) was that the 14th Amendment protects a fundamental right to economic liberty, including the right to liberty of contract. It is not an unlimited right; it is subject to reasonable government regulation. But in order for such regulation to pass muster in court, it must serve a legitimate and demonstrable public health or safety purpose. That same reasoning underlines the Court’s opinion in Buchanan v. Warley.

The libertarian lawyer Moorfield Storey argued and won Buchanan before the Supreme Court. A thoroughgoing individualist, Storey championed laissez-faire economics, denounced militarism, and opposed the rise of the populist Democrat William Jennings Bryan. In addition to serving as the president of the American Bar Association, Storey was a founder and president of the Anti-Imperialist League and was the first president of the NAACP.

Storey led the NAACP’s fight against the Louisville segregation law. In his brief to the Supreme Court, Storey (with co-lawyer Clayton B. Blakely) argued that the law “destroys, without due process of law, fundamental rights attached by law to ownership of property.” The law’s purpose was not “to prevent conflict and ill-feeling” between the races, as it claimed, but rather “to place the negro, however industrious, thrifty and well-educated, in as inferior a position as possible with respect to his right of residence, and to violate the spirit of the Fourteenth Amendment without transgressing the letter.”

Lochner v. New York was one of the legal authorities cited in support of those arguments.

In its brief, the state of Kentucky argued that the federal courts had no business interfering with the power of local majorities to enforce their social and economic preferences via regulation. “Whether the legislation is wise, expedient, or necessary, or the best calculated to promote its object,” the state maintained, “is a legislative and not a judicial question.”

The Supreme Court disagreed and nullified the Jim Crow law. It was a far-reaching decision. At that time, other municipalities around the country were considering or even implementing their own residential segregation schemes. Buchanan stopped those schemes once and for all. According to Storey’s colleague at the NAACP, W.E.B. DuBois, Buchanan should be credited with “the breaking of the backbone of segregation.”

That is the landmark case whose reasoning Rothstein slights as a “business rule.”

It is also worth noting that the same “business rule” that helped protect black Americans from Jim Crow in Kentucky also helped to protect Chinese-Americans from racist government abuse in California.

In 1882 the city of San Francisco passed an ordinance that required anyone seeking to operate a laundry business within city limits to first obtain “the consent of the board of supervisors, which shall only be granted upon the recommendation of not less than 12 citizens and taxpayers in the block in which the laundry is proposed to be established, maintained, or carried on.”

That law’s real objective was to prevent Chinese immigrants from further establishing themselves in the laundry business. One of those would-be laundry operators, Quong Woo, filed suit in federal court, arguing that the ordinance served no lawful government purpose.

The court agreed. Writing for the Circuit Court for the District of California, Justice Stephen Field, one of the intellectual architects of the Supreme Court’s later Lochner-ian jurisprudence, held that government regulations may not be used “as a means of prohibiting any of the avocations of life which are not injurious to public morals, nor offensive to the senses, nor dangerous to the public health or safety.” Justice Field struck down the law for violating the 14th Amendment.

The city’s requirement that prospective business owners first receive permission from their neighbors, Field observed, cannot possibly be justified on health or safety grounds. All the requirement did was subject the exercise of a basic economic freedom to “the favor or caprice of others.” Quong Woo, Field pointed out, was more than happy to abide by local regulations and to pay whatever fees the city required; yet on account of the “great antipathy and hatred towards the people of his race,” he simply could not locate twelve neighbors willing to green light his enterprise.

Once again, the “business rule”—otherwise known as the fundamental right to economic liberty under the 14th Amendment—put a stop to an act of racist government abuse.

Two senators announced today that they will reintroduce a bipartisan bill to overhaul federal sentencing guidelines. The legislation failed to pass Congress last year, much to the disappointment of criminal justice reform groups.

The Sentencing Reform and Corrections Act, originally introduced by Sens. Chuck Grassley (R-Ia.) and Dick Durbin (D-Il.) in 2015, would reduce the mandatory-minimum sentencing guidelines for repeat drug offenders without serious violent felonies and would broaden the “safety valve” exception to federal mandatory minimum sentences. It would also add new mandatory minimum sentences for interstate domestic abuse and for providing support for terrorists, while strengthening penalties for certain other crimes.

Grassley and Durbin say they will reintroduce the bill this year, although they did not say when.

“While the political landscape in Washington has changed, the same problems presented by the current sentencing regime remain,” Grassley said in a statement, “and we will continue to work with colleagues in Congress and the administration, as well as advocates and members of the law enforcement community, to find a comprehensive solution to ensure justice for both the victims and the accused, and support law enforcement in their mission to keep our communities safe.”

The legislation was hammered out in 2015 and then revised again in 2016 as part of a compromise between skeptical Republicans, like the traditionally law-and-order Grassley, and a bipartisan group of Democrats and Republicans who support reducing or eliminating mandatory minimum sentencing guidelines.

Criminal justice reform advocates saw the bill as their best chance in years to get a major piece of legislation through Congress, but despite passing the Republican-controlled Senate Judiciary Committee the bill never made it to the Senate floor for a vote.

Senate Majority Leader Mitch McConnell (R-Ky.), facing opposition to the bill from within his caucus, said he was waiting on the House to pass a package of similar legislation first. Speaker of the House Paul Ryan (R-Wisc.) said he was committed to bringing that package to the floor—but in the midst of a bitter election year, as well as disputes with Democrats over some provisions in the House bill, neither chamber of Congress found the will or time to bring the legislation to a full vote.

Reformers’ disappointment was compounded when President Donald Trump tapped Jeff Sessions to be attorney general. As a senator, Sessions was one of a small but vocal group of Republicans who staunchly support mandatory minimum sentencing and 1980s-style law enforcement.

Yet Jared Kushner, Trump’s son-in-law and all-around White House point man, has been meeting privately with senators, including Durbin and Grassley, to discuss criminal justice reform. The subject is reportedly one of Kushner’s areas of personal interest—his father was sentenced to two years in federal prison for tax evasion—and last week he hosted a bipartisan meeting on improving job training and re-entry programs for federal inmates. Kushner’s support could provide valuable political cover for Republicans.

“This legislation is the product of more than five years of work on criminal justice reform,” Durbin said in a statement. “It’s also the best chance in a generation to right the wrongs of a badly broken system. The United States incarcerates more of its citizens than any other country on earth. Mandatory minimum sentences were once seen as a strong deterrent. In reality they have too often been unfair, fiscally irresponsible and a threat to public safety.”

To flush or not to flush? The Kimberly-Clark Corporation is suing D.C. over the question, after a law the city passed last year tried to keep the company from labeling its disposable wipes “flushable.”

The whole matter might seem a little silly for those outside the septic or paper product industries. But it provides a perfect case study in arbitrary regulation and government incompetence.

Under the Nonwoven Disposable Products Act of 2016, passed last December, disposable paper products such as cleansing wipes are forbidden from being labeled as flushable “unless there is competent and reliable scientific evidence to substantiate that the non-woven disposable product is flushable sewer safe, and septic safe.” Products that don’t meet this standard must be labeled with “Do Not Flush.”

Come January 1, 2018, manufacturers of everything from facial tissues to paper towels could face civic penalties and fines for failure to meet the new labeling requirements.

Yet the city has offered no guidance on what counts as “competent and reliable scientific evidence” of flushability, nor information on how the city will test suspicious paper products. And repeated requests by Kimberly-Clark for more information went unanswered.

At hearings about the rule, experts for the city suggested that no disposable cleansing wipe currently on the market was fit to be flushed, and that even some toilet paper wasn’t flushable.

This puts companies like Kimberly-Clark—a major manufacturer of personal care products (including several lines of cleansing wipes that can supposedly be flushed without clogging toilets and pipes)—in a bind. They have no way to determine how to ensure their products will meet D.C.’s standard. But if they fail to follow these unknowable rules, D.C. can punish them.

In a lawsuit filed September 15 in the U.S. District Court for the District of Columbia, Kimberly-Clark contends that the law is unconstitutional for a host of reasons, including its failure to set clear standards for avoiding sanctions.

The suit also argues that D.C. is violating Kimberly-Clark’s First Amendment rights by forcing the company to make untrue statements about its products and that it impermissably seeks to hold Kimberly-Clark “vicariously liable for the actions of others, namely the unaffiliated businesses that buy Kimberly-Clark’s flushable wipes elsewhere in the United States and then—lawfully—choose to resell them to local consumers.”

And then there is the question of the Constitution’s Commerce Clause, which grants Congress the power to regulate interstate commerce. Kimberly-Clark products are made in South Carolina, where labeling the wipes as flushable is legal. Thus, the suit argues, D.C.’s flushable-product policy “invalidly seeks to regulate the conduct of manufacturers in other states by imposing civil sanctions on conduct that is entirely lawful” there. Meanwhile, the act entirely fails to regulate any local activity:

It remains lawful under the Act for retailers to buy wipes labeled as flushable and to resell those products to consumers in D.C., regardless of whether that labeling is deemed consistent with the Act. Likewise, it remains lawful for D.C. consumers to purchase and use those very same products, no matter how they are labeled. But it is the manufacturers who exclusively bear liability for this activity, as the only thing regulated by the Act is non-local manufacturing and labeling activity. Thus, whether construed as a per se invalid regulation of out-of-state commercial conduct or as a regulation that inordinately burdens interstate commerce, the Act violates the Commerce Clause.

According to a company statement, Kimberly-Clark wipes “are engineered to rapidly lose strength as soon as they are flushed” and “meet or exceed widely accepted industry guidelines for flushability.” In the “largest sewer collection study, conducted in New York City in 2016, not a single Kimberly-Clark flushable wipe was found,” it notes. A Federal Trade Commission investigation agreed that the wipes are sufficiently flushable.

The sponsor of the new law, D.C. Councilmember Mary Cheh (D–Ward 3), derided the lawsuit in a WAMU interview. “Honestly, we compel speech all the time,” she said. “We tell food vendors that they have to label their products. We have labeling requirement all the time, and to characterize it as compelled speech is really no argument at all.”

The same goes for Commerce Clause concerns. “Guess what? A lot of our safety regulation affect manufacturers out of state,” Cheh said.

This seems disingenuous, since the suit isn’t arguing that local governments can’t compel some sorts of commercial speech or set some regulations that affect products made out of state. The issue here is that D.C. has set an impossible regulatory standard, one that companies have no way of knowing whether they meet or fail.