Tag: in-the-news

The Department of Justice recently raised some eyebrows by announcing that it wouldn’t appeal a ruling striking down 18 USC § 116, the federal ban on female genital mutilation (FGM). The Solicitor General’s explanatory letter “condemns this practice in the strongest possible terms.” But it also argues that the FGM ban lacks a sufficient connection to Congress’s powers under the Constitution, and it suggests that Congress enact a new ban with a clear jurisdictional nexus—for example, forbidding conduct that takes place within D.C. or federal territories, or conduct using the channels and instrumentalities of interstate commerce.

This is a perennial problem for Congress, which often writes broad legislation without too much attention to the limits on its powers. So maybe Congress should supply a nexus, not just for the FGM statute, but for every statute at once.

Imagine a Jurisdictional Nexus Act, added to Title 1, Chapter 2 of the U.S. Code, that says something like the following:

Sec. 115. Jurisdictional Nexus

A criminal offense established by act of Congress that would otherwise exceed the powers of Congress in at least one of its applications shall be construed, with respect to such applications, to extend only to offenses committed by means of at least one act or omission of any person—

(a) within the District of Columbia, any territory or possession of the United States, or the special maritime and territorial jurisdiction of the United States;

(b) involving the use of a means, channel, facility, or instrumentality of, or occurring in or otherwise affecting, interstate or foreign commerce; or

(c) who is, or to the injury of a person who is, protected under Sections 351, 1114, or 1751 of Title 18 [e.g., federal officers and employees, including the uniformed services—ed.].

This is a back-of-the-napkin version, but a real statute like this would have several advantages:

1. As a background rule of construction, along with much of the rest of Title 1, the statute can do its job even when a future Congress forgets about it. Like other legal rules of interpretation—RFRA, the Dictionary Act, the general savings statute (1 U.S.C. § 109), and so on—it silently amends past statutes and changes the effect of future ones, until a future Congress indicates otherwise. So Congress can keep on passing bills in general terms, without putting quite so much pressure on the courts to uphold them (or else to let bad actors go free).

2. The statute would only matter for offenses that fail for lack of constitutional power, not offenses that directly abridge constitutional rights. The key language here is the word “otherwise.” A law banning Methodism might exceed the powers of Congress (“Congress shall make no law…”), but limiting it to Methodists in D.C. and the territories wouldn’t help. The offense wouldn’t “otherwise exceed” those powers, as compared to a world with the Nexus Act in place. So the Nexus Act would leave the Methodism law to fail on its own.

3. The statute would leave constitutional applications of existing statutes alone. Suppose that a statute can be applied in fifty-three ways, fifty of which are constitutionally fine, but three of which would exceed the powers of Congress. Using the Nexus Act to limit the whole statute would be inappropriate, especially because some of those fifty ways might be justified by other powers not listed above (the patent power, the counterfeiting power, etc.). Instead, the Act deals specifically with a statute’s otherwise-unconstitutional applications. It offers a rule of construction only “with respect to such applications,” so we don’t have to spend much time thinking about the constitutional ones.

4. Although the statute might have the effect of expanding the reach of the criminal law (preserving offenses that would otherwise be struck down), it doesn’t actually criminalize more conduct than Congress intended to reach. The statute acts only by limiting the scope of a criminal law, providing that the government can secure certain convictions only if it goes on to prove various additional elements. So it helps achieve Congress’s goals, while also fitting well with a preference for lenity.

5. When the constitutional issues are murky, a statute like this still offers an easy procedural means of satisfying its requirements. Suppose we’re not sure whether a given prosecution under a given statute is constitutional. If it is, everything proceeds as normal. If it isn’t, the Nexus Act applies, and additional elements are needed. So whenever the government expects a constitutional challenge, it can simply draft the indictment to include one of the listed elements (which usually aren’t very hard to prove).

This would have the effect of curing any error based on the absence of congressional power. When the court draws up the jury instructions, the defendant would have a choice: (1) to insist on the jury’s finding that the nexus exists, or (2) to waive the issue by asking for the instructions to leave the nexus out. In the first case, if the jury convicts, we don’t need to decide whether a nexus-less prosecution could have succeeded on its own; the government will already have proved any additional facts it might need. And in the latter case, the defendant would hardly be heard to complain of a constitutional violation, having just won a ruling that the charged conduct was constitutionally punishable as written and that no additional elements needed to be proved. Only if the government couldn’t prove the additional nexus—or didn’t want to try—would we have to consider the hard constitutional questions.

6. By setting out a list of individual jurisdictional hooks, instead of relying on all of Congress’s powers all at once, the statute avoids a potential vagueness challenge. By contrast, imagine a “Minimal Nexus Act”:

Any criminal statute that violates the Constitution shall be narrowly construed until it doesn’t.

Defendants faced with a general statute like that would be entirely in the dark as to what portions of their conduct were actually criminal, or what power might some day be pulled out of a hat to justify their prosecution. (The Treaty Clause? The Twenty-Sixth Amendment enforcement power?) Instead, the grounds listed above cover a very large proportion of the categories the federal government would actually want to go after, without leaving us guessing about the scope of our criminal code.

7. For the same reasons, the statute avoids what might otherwise be a complex severability analysis. To use an example that Will Baude and I have batted around, suppose that Congress just chose to ban shoes, giving no jurisdictional nexus or even any explanation. (“It is hereby unlawful to possess shoes.”) Assuming that the statute is severable, how exactly would you sever it? Does it apply to shoes moving in interstate commerce or through the U.S. mails, shoes worn on military bases or post offices or national parks, shoes possessed by federal officers or employees or contractors or by members of the unorganized militia or by 501(c)(3) nonprofits or by persons applying for Medicare reimbursements or federal research funds or federally guaranteed student loans…?

This might have been one reason why the Court in Lopez just struck down the relevant provision of the Gun-Free School Zones Act instead of searching, Salerno-like, for some grounds on which it might have been constitutionally applied. (For example, on the “self-insurance” argument well-beloved of the ACA’s defenders, perhaps Lopez was engaged in the self-provision of security services, for which he might alternatively have contracted on the interstate market.) As Scott Keller and Misha Tseytlin have discussed, the Court hasn’t always been clear about when it will allow a facial challenge—or when it thinks an as-applied challenge is required, with other applications of the statute to be preserved. The Nexus Act does some of this work for us, providing a safe harbor for certain applications even after a successful constitutional challenge to others.

8. Finally, a Nexus Act would allow for focused debate on the scope of Congress’s powers and the appropriate range of federal criminal law. For those who take, say, a somewhat narrower view of the Commerce Power, one problem in implementing this view is the sheer number of statutes that might need to be revised if it were correct. Having a Nexus Act in place would allow those statutes to “fail gracefully,” diminishing the legal turmoil from the courts’ adopting a different view.

A Nexus Act would also help members of Congress to act without waiting for the courts to go first. If Congress thinks that a criminal offense exceeds its lawful powers, it can always repeal or amend it. But instead of having to dig through the code and amend thousands of statutes piecemeal, members of Congress could simply amend the Nexus Act, which would automatically narrow the scope of a variety of statutes. And in debating over the Nexus Act, they might have to articulate their views of the Constitution—which, one might think, is already part of their job.

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A new criminal justice reform push is building in Congress. The Clean Slate Act would help diminish the destructive power of previous drug convictions, automatically sealing records of simple marijuana possession charges. It would also let people with other sorts of nonviolent offense convictions on their records petition to have those sealed, too.

A bipartisan measure (which doesn’t spell disaster for a change), the bill comes from U.S. Reps. Lisa Blunt Rochester (D–Del.) and Guy Reschenthaler (R–Pa.). “I’ve seen so many stories of people who, because of a minor offense, it has stuck with them for the rest of their lives,” Blunt Rochester told Politico.

“We are still in the early stages for this bill, but I believe the prospects are good for strong, bipartisan support, especially given the White House’s continued push for criminal justice reform,” said Reschenthaler in a statement.

The bill (H.R. 2348) says that “at the time of sentencing of a covered individual”—covered individuals being anyone convicted of a federal, nonviolent possession offense involving marijuana—“the court shall enter an order that each record and portion thereof that relates to the offense shall be sealed automatically on the date that is one year after the covered individual fulfills each requirement of the sentence, except that such record shall not be sealed if the individual has been convicted of a subsequent criminal offense.”Additionally:

Sixty days after the date on which a covered individual is acquitted, exonerated, or otherwise subject to a judgment which did not result in a conviction for a Federal offense, each record or portion thereof that relates to the Federal offense shall be sealed automatically.

You can read the whole thing here.

“People have paid their debt, they just need a slate that’s clean so that they can go to work, so that they can get a home, so that they can go to college,” Blunt Rochester told Delaware’s NPR station. “But around the country, we need to do this in every state as well.”

Right- and left-leaning groups back the bill. “Both the Center for American Progress on the left as well as the American Conservative Union Foundation and the Koch-brothers-backed FreedomWorks have endorsed the new bill,” notes Marijuana Moment.

Sen. Bob Casey (D–Pa.) will reportedly file a companion bill in the Senate.

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FREE MARKETS

Freer marijuana markets not a voter priority. “A majority of Americans support legalizing cannabis, but a recent CBS News poll found the issue may not have have much sway from voters,” CBS reports. “According to the poll, 65 percent of Americans think marijuana should be legal, but 56 percent said the issue wouldn’t sway their vote for a candidate across party lines.”

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FOLLOW UP

Another woman has been arrested for prostitution in conjunction with January video surveillance at a Palm Beach County, Florida, massage parlor.

The woman’s identity and alleged activities have been known by police since raids and arrests in February. But police documents suggest they were trying to get her to cooperate as a “victim” and testify in the human trafficking case they were trying to build.

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FOLLOWUP

The question isn’t “should this particular terrible criminal get to vote?”

It’s “should the party in power be able to reshape the electorate to its advantage with criminal laws that target their opposition’s voters en masse?”

— Jacob T. Levy (@jtlevy) April 24, 2019

“I’m a prosecutor,” says Harris. After telling a televised town hall audience Monday that we should “have a conversation” about voting rights for the incarcerated, senator and presidential candidate Kamala Harris amended her answer on Tuesday. “Do I think that people who commit murder, people who are terrorists should be deprived of their rights?” asked Harris, answering her question:

Yeah, I do. I’m a prosecutor. There has to be serious consequences for the most extreme types of crimes.

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QUICK HITS

• During a White House meeting Tuesday with Twitter CEO Jack Dorsey, the president “spent an inordinate amount of time complaining about lost Twitter followers, according to a source familiar with the conversation.”
• Axios has a good guide to upcoming Supreme Court cases.
• Panic about “Internet Addiction Disorder” threatens free speech, writes surgeon and Cato Institute fellow Jeffrey Singer.
• California may ban mini-shampoo bottles in hotels.
• Kohl’s department stores nationwide are going to start accepting Amazon returns.
• Marijuana paradox: “The arrival of corporate giants and K Street firms represents a tipping point for the mainstreaming of marijuana legalization in Washington, even while marijuana remains illegal at the federal level.”
• Jesse Singal on “the near meltdown” of Roxane Gay and Christina Hoff Sommers’s #Feminist mini-tour in Australia.
• “Following the Trend, Kamala Harris promises to be a tyrant if elected,” quips National Review about Harris’ Tuesday night comments on CNN.
• Listen: “The 26 Words that ‘Created the Internet’—and Why They May Be on the Chopping Block.”

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Tanveer Basith and Abuzaffer Basith were married in India in 1979. In September 2017, Tanveer sought a divorce, in Illinois court; she says that the parties are Illinois residents. (All the facts and quotes here are drawn from In re Marriage of Basith, decided last week.)

Abuzaffer moved to dismiss the divorce petition, “assert[ing] that the parties’ marriage had already been dissolved in India on May 10, 2017, and that Tanveer had accepted a financial settlement of … about $447. Because she had accepted the financial settlement, Abuzaffer argued that Tanveer’s action was barred by res judicata.” Tanveer responded, “assert[ing] that she was never properly served with notice of the petition for dissolution filed in India, nor did she consent to the entry of that judgment.”

… Abuzaffer filed a reply. He asserted that Tanveer had requested a divorce. Therefore, pursuant to their culture and religion, he went to India in order to grant her request and obtain a divorce.

Abuzaffer further stated that as he and Tanveer were pious Muslims, his actions complied with sharia law that governs aspects of Islamic life for pious Muslims. As the trial court had the right to consider sharia law, Abuzaffer requested that the Indian divorce decree be upheld and Tanveer’s action be dismissed….

Abuzaffer’s attorney acknowledged that Tanveer “didn’t have formal notice that we talk about in our country [i.e., the United States]” regarding the dissolution proceedings in India. Nonetheless, Abuzaffer’s attorney argued that Tanveer’s petition should be dismissed anyway. The trial court [Lake County Judge Raymond D. Collins] agreed and dismissed Tanveer’s petition. The trial court made the following comments that reflected its reasoning:

“Well, when they were married in India, are there certain restrictions and guidelines that they need to follow? That’s what I don’t know. If [and] when they get married there, the marriage is valid if they follow certain rules, and I’m assuming they’re religious about getting divorced, then they would have jurisdiction, if she accepted the jurisdiction of the country when they got married there….

“But my question is, when they got married in India, there were certain things that they signed and agreed to when it comes to getting divorced. And, again, I’m assuming that’s religious in nature that they have to agree to, then they would have jurisdiction. So because it’s inequitable, that’s not a reason to dismiss it….

“[T]hey were following strict Muslim religion when they got married and he was following it when they got divorced[.]

“Well, it may be egregious in that the disposition of property may not have been equitable, but I don’t think I have any choice but to dismiss under 2-619 [presumably the part providing that a case should be dismissed if “the cause of action is barred by a prior judgment”-EV].”

The Appellate Court reversed:

Comity has been defined as the “recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to the international duty and convenience and to the rights of its own citizens who are under the protection of its laws.” Under the doctrine of comity, Illinois courts may choose to recognize orders issued by foreign courts, although recognition may be withheld where the foreign court lacked jurisdiction over the cause and the parties….

Here, the trial court abused its discretion in granting comity to the Indian divorce decree. This was because Tanveer was never afforded the opportunity to appear, present her case, and be heard before the Indian tribunal. Thus, that tribunal never obtained personal jurisdiction over her.

Moreover, the trial court’s decision constituted an abuse of discretion because the Indian tribunal’s decision violated the laws and public policy of this state. The Illinois Marriage and Dissolution of Marriage Act provides that marital property must be divided in “just proportions” considering all relevant factors. The Act also provides that maintenance should be awarded if it is just and equitable. Here, the Indian tribunal awarded all of the marital assets to Abuzaffer except for approximately $447 that it awarded Tanveer. The Indian tribunal also did not award Tanveer any maintenance despite Tanveer earning substantially less than Abuzaffer during the parties’ more than 37 years of marriage. As the Indian tribunal’s decision was inconsistent with Illinois concepts of fairness and equity, the trial court should not have granted it comity….

Finally, we note that we find the trial court’s ruling troubling. The trial court’s comments reflect that, in dismissing Tanveer’s petition, it did not consider American law and fundamental precepts of due process such as the right to notice and the right to defend one’s interests. Rather, the trial court’s reasoning indicates that its decision was based on what it assumed the law was in India for pious Muslims…. We therefore strongly encourage the trial court to be more cognizant of the parties’ fundamental rights and controlling case law before dismissing an action….

Sounds right to me; for more on this general topic, see Religious Law (Especially Islamic Law) in American Courts and Foreign Law in American Courts. Note also that under American law a divorce must be obtained in the jurisdiction in which the parties are domiciled, rather than in the jurisdiction where the parties were married (often decades ago).

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Last month, the libertarian-leaning Sen. Rand Paul (R–Ky.) introduced along with Sen. Tom Udall (D–N.M.) the American Forces Going Home After Noble (AFGHAN) Service Act, which would pull within one year all U.S. troops out of Afghanistan with the exception of diplomatic protection and intelligence operatives. The bill, which also sunsets the 2001 Authorization for the Use of Military Force (AUMF) that the war has been fought under, makes manifest a theme Paul has sounded since entering the Senate in 2011—why not, at long last, declare victory and come home?

It’s not just America’s longest war that Paul wants to end. He wants no more troops in Syria, no more support for Saudi Arabia’s war against Yemen, and no more end-of-fiscal-year spending boondoggles to keep the Pentagon perennially flush. In all of these efforts, the war skeptic is attempting to bend the ear of President Donald Trump, whose foreign policy track record and roster of advisers are decidedly mixed on the questions of intervention and deployment.

I am scheduled today to ask Paul about his Trump-whispering campaign, and related efforts to get the troops home from Afghanistan, during the second of my four-day hosting stint on Sirius XM Insight’s Stand UP! with Pete Dominick program, which runs from 9 a.m. to 12 p.m. ET on channel 121.

Since hair-sniffer Joe Biden had been scheduled to announce his candidacy for president Wednesday (it is now slated for Thursday, though I’ll believe it when I see it), we have prepared an otherwise Biden-tastic episode to set the campaign mood. Guests include:

* Beloved Reason contributor Daniel Drezner, who will talk about his current issue (May) cover story, “Will Today’s Global Trade Wars Lead to World War III?”

* Progressive media/politics New York character Nomiki Konst, who will talk about some of Biden’s policy and personality problems.

* Mother Jones Editorial Director Ben Dreyfuss, who will talk about how maybe Democratic Twitter isn’t exactly the Democratic Party, and what that might portend for the Biden conversation.

* CNN politics number-cruncher Harry Enten, who will divine what the numbers say about Biden and the rest of the field.

You can call throughout the program at 1-877-974-7487.

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Perrysburg, Ohio, police have charged Mehros Nassersharifi, a student at Perrysburg High School, with telecommunications harassment after he created the Twitter account “Perrysburg Girls Ranked.” The site ranked female students based on their looks and personalities and contained remarks such as “Passable with a lot of makeup, but still looks like a goblin” and “If you thought high school would change these girls’ bodies, you were wrong. She looks like an 8-year-old boy.” Nassersharifi also faces disciplinary action from the school.

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For two years Donald Trump told us the truth over and over again: Neither he nor his presidential campaign illegally conspired with Russian agents to influence the 2016 election. But Trump also lied to us over and over again, which cast doubt on his assertions of innocence.

I was never much impressed by the evidence of “collusion” between the Trump campaign and Russia, an allegation that was conclusively debunked by Special Counsel Robert Mueller’s report, which was released by the Justice Department last Thursday. The one thing that made me think there might be something to the conspiracy theory was the fact that Trump kept denying it.

The president’s habitual dishonesty justifies a rebuttable presumption that the truth is the opposite of whatever he says. That rule of thumb led many of his critics astray in this case, but it also illustrates the practical advantages of telling the truth, since Trump’s weaselly ways prolonged the Russia investigation and lent credence to the suspicion that he had something to hide.

“I have nothing to do with Russia,” Trump insisted in July 2016. Yet his lawyer, Michael Cohen, was working on a licensing deal for a Trump Tower in Moscow as late as the previous month and giving his boss regular updates on the project. When Cohen suggested to Trump that his statement was misleading, he told Mueller, Trump replied, “Why mention it if it is not a deal?”

A year later, when The New York Times reported that Trump’s son, son-in-law, and campaign chairman had met in June 2016 with a Russian lawyer promising “dirt” on Hillary Clinton, Trump edited a public statement about the meeting, excising any reference to that offer. When his communications director, Hope Hicks, suggested that Trump come clean about the motivation for the meeting, he told her, “You’ve given a statement. We’re done.”

When Trump fired James Comey in May 2017, angry that the FBI director had refused to publicly say he was not a target of the Russia investigation, he claimed he had acted based on a recommendation from Deputy Attorney General Rod Rosenstein, who had decided “on his own” to review Comey’s performance. As the Mueller report notes, Trump abandoned that preposterous cover story two days later, but only because Rosenstein refused to go along with it.

When Comey said the president had privately pressed him for a promise of personal loyalty and encouraged him to drop the FBI’s investigation of former National Security Adviser Michael Flynn, Trump flatly denied Comey’s account of those one-on-one conversations, even implying he might have “tapes” that would show Comey was lying. The Mueller report accepts Comey’s account, which is supported by documentation of the meetings, a memo that Comey wrote at the time, and his contemporaneous conversations with other officials.

The report likewise credits former White House Counsel Donald McGahn’s testimony that Trump repeatedly asked him to fire Mueller. Trump publicly denied he said any such thing, and he privately urged McGahn to recant his statements about those episodes.

The Mueller report also addresses the 2016 hacking of embarrassing emails from the Democratic National Committee and Clinton’s campaign chairman, which were published by WikiLeaks, much to candidate Trump’s delight. Politico counted more than 140 occasions when Trump praised WikiLeaks during the campaign. Yet after WikiLeaks founder Julian Assange was arrested this month, Trump claimed, “I know nothing about WikiLeaks. It’s not my thing.”

The report does not discuss the hush payments that Cohen arranged for women who claimed to have had affairs with Trump, a case that was referred to the U.S. attorney in Manhattan. But Trump lied about those too, claiming he had no knowledge of them at the time.

Trump’s lawyers wisely rebuffed Mueller’s attempt to follow up on the president’s evasive responses to written questions and stopped him from sitting for an interview. Trump thereby avoided a “perjury trap” that he would have walked into just by being himself.

© Copyright 2019 by Creators Syndicate Inc.

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The Green New Deal’s goal is to move America to zero carbon emissions in 10 years.

“That’s a goal you could only imagine possible if you have no idea how energy is produced,” James Meigs, former editor of Popular Mechanics magazine, says in my latest video.

“Renewable is so inconsistent,” he adds. “You can’t just put in wind turbines and solar panels. You have to build all this infrastructure to connect them with energy consumers.”

Because wind doesn’t always blow and the sun doesn’t always shine, “renewable” energy requires many more transmission lines, and bigger batteries.

Unfortunately, says Meigs: “You have to mine materials for batteries. Those mines are environmentally hazardous. Disposing of batteries is hazardous.”

“Batteries are a lousy way to store energy,” adds physicist Mark Mills, senior fellow at the Manhattan Institute. Also, the ingredients of green energy, like battery packs, are far from green.

“You have to consume 100 barrels of oil in China to make that battery pack,” he explains. “Dig up 1,000 pounds of stuff to process it. Digging is done with oil, by big machines, so we’re consuming energy to ‘save’ energy—not a good path to go.”

Still, wind turbines and solar batteries are 10 times more efficient than when they were first introduced! That’s not good enough, writes Mills, to make “the new energy economy” anything more than “magical thinking.”

“They hit physics limits. In comic books, Tony Stark has a magic power source, but physics makes it impossible to make solar 10 times better again.”

The dream of “green” causes us to misdirect resources. Even after billions in government subsidies, solar still makes up less than 1 percent of America’s energy—wind just 2 percent. And even that energy isn’t really “clean.”

“We use billions of tons of hydrocarbons to make the windmills that are already in the world, and we’ve only just begun to make them at the level people claim they would like them to be built,” says Mills. “Pursue a path of wind, solar and batteries, we increase how much we dig up and move by a thousand-fold.”

“You gotta clear-cut the forest. These machines kill a lot of birds,” says Meigs. “I agree that we should bring down our carbon emissions…but we should also make sure we’re spending money on stuff that really works.”

There is one energy source, though, that efficiently produces lots of power with no carbon emissions: nuclear.

But people fear it. They point to the Chernobyl plant accident in Ukraine, and Fukushima in Japan.

“The Chernobyl plant design was idiotically bad,” says Meigs. They don’t make nuclear plants like that anymore.

What about Fukushima?

“Fukushima helps prove how safe nuclear power really is. No one was killed.”

I pointed out that people were killed during the evacuation.

“Fear of radiation killed people,” responded Meigs. They evacuated older people who didn’t need to go.

People fear what they don’t understand and what they can’t see.

“A dam breaks, and hundreds of thousands of people die. Nuclear plants, their safety, ironically, is actually evident in their accidents!” says Mills.

“More people have fallen off of roofs installing solar panels than have been killed in the entire history of nuclear power in the U.S.,” adds Meigs.

Yet after Fukushima, Germany shut down its nuclear plants. That led to higher electricity prices and increased carbon emissions because Germany burned coal to make up for the loss of nuclear power.

Likewise, “in Bernie Sanders’ home state of Vermont, they shut down their nuclear plant. Guess what happened? Carbon emissions went up,” recounts Meigs. “This supposedly green state, ultra-liberal Vermont, went backwards.”

If a Green New Deal is ever implemented, says Mills, it would rob the poor by raising energy costs, while “giving money to wealthy people in the form of subsidies to buy $100,000 cars, to put expensive solar arrays on their roofs or to be investors in wind farms.”

“It’s upside-down Robin Hood,” he adds. “That’s a bad deal.”

Yet a majority of Americans—including Republicans surveyed—say they support some version of it.

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Some fourteen years after a controversial Supreme Court decision upheld the use of eminent domain to seize homes for transfer to private developers, the state where the case originated may finally pass a law that curtails such abuses.

In 2005, the Supreme Court ruled in Kelo v. City of New London that the government can take private property and transfer it to a new private owner for purposes of promoting “economic development.” Although the Takings Clause of the Fifth Amendment mandates that the government can only take property for a “public use,” a narrow 5-4 majority reaffirmed the rule that virtually any potential benefit to the public counts as a public use. The government does not even have to prove that the supposed benefit will  ever actually materialize. As a result, the New London Development Corporation—a private entity authorized by the City of New London—was able to condemn fifteen residential properties in the Fort Trumbull neighborhood of New London. One of them was Susette Kelo’s “little pink house,” pictured above.

Perhaps even worse, the ill-conceived development project that led to the comdemnation fell through. Even today, almost fourteen years after the litigation ended, nothing has been built on the condemned land. Feral cats are the only regular users of the properties where homes once stood.

 

The Kelo decision sparked a massive public backlash. Polls showed that over 80% of the public opposed the decision, with opposition coming from such unlikely allies as the NAACP, Ralph Nader, Rush Limbaugh, libertarian property rights advocates, and even Bernie Sanders. Widespread revulsion against the Court’s ruling led 45 states to enact new eminent domain reform laws. Some of these reforms provide strong protection for property owners. But many others are ineffective, imposing few or no real constraints on the use of eminent domain to seize property for influential private interests.

Despite being the state where the Kelo case originated, Connecticut enacted one of the weakest post-Kelo reform laws in the entire nation. I summarized it in my book on the Kelo case and its aftermath:

The new Connecticut law merely forbids the condemnation of property “for the primary purpose of increasing local tax revenue….” This restriction does not prevent condemnations for either economic development or blight alleviation [an alternative mechanism for seizing property for private development interests]. Connecticut law allows local governments to condemn property for both purposes…. Even the goal of increasing tax revenue can still be pursued so long as it is part of a more general plan
for local “redevelopment.” In practice, it is likely impossible to prove that a given property is being condemned primarily for the purpose of “increasing local tax revenue” as distinct from the goal of promoting economic development more generally.

A bill currently under consideration by the Connecticut state legislature could change that:

Now there’s a legislative push in Connecticut to finally reform the state’s eminent domain laws to prevent another situation like Kelo’s. HB 5123, introduced by Rep. Tami Zawistowski (R-Suffield) would stop the state and its municipalities from using eminent domain to take property that would be used for any project that generates income for a private commercial purpose….

The bill passed the House’s Planning and Development Committee, 15-6, but does not yet appear to be scheduled for a full House vote.

The text of the bill would ban the use of eminent domain in redevelopment areas “for any purpose that produces income from such real property for a private entity.” This would forbid takings for privately owned “economic development” (as in the Kelo case) and probably also for the alleviation of “blight” broadly defined as anything that potentially constrains economic growth. It would not, I think, forbid takings for privately owned public utilities.  But such condemnations are both more defensible and less prone to abuse than takings for “economic development,” which are easily captured by powerful interest groups and routinely fail to produce the promised economic benefits—as happened in the Kelo case itself.

Although there is some political momentum behind the bill, its passage is not a done deal. HR 5123 faces potential opposition from key members of the state legislature,  some local governments, and private interests who benefit from having governments condemn property for their businesses. State Rep. Zawistkowski, the bill’s sponsor still expects “an uphill battle.” But hopefully the political obstacles will be overcome, and Connecticut will finally get some real eminent domain reform.

In my view, the Kelo decision is based on a serious misinterpretation of the Constitution. I hope the Supreme Court will eventually overrule it. But, in the meantime, state governments should not act to curb such abuses without waiting for federal judges to do it for them. Even if “economic development” takings are not unconstitutional, they are still harmful and unjust.

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The jury has rendered its verdict: plastic is polluting our oceans, and it’s a problem. But it’s one that won’t be solved by straw bans or prohibitions on single-use plastics.

Yet California is poised to do just that with Assembly Bill 1162, which would require that hotels and miscellaneous vacation rentals phase out small plastic bottles of shampoo, conditioner, and body lotion by January 1, 2023. Instead, they’ll need to opt for refillable dispensers or containers that hold 12 or more ounces of product.

“We know we have an enormous problem with our world, we’ve become addicted to [plastic] and it’s caused a major dilemma environmentally,” Democratic Assemblymember Ash Kalra (District 27), who introduced the legislation, told ABC News.

He isn’t wrong. A great deal of the plastic panic centers around the Great Pacific Garbage Patch—the infamous and mammoth collection of trash floating between Hawaii and California. Its discovery in 1997 and the years-long news coverage that followed prompted a worldwide frenzy to declutter the oceans. Measuring more than 1.6 million square kilometers (and growing), it is more than three times the size of France, and more than twice the size of Texas.

But it isn’t dominated by plastic straws, bags, or erstwhile shampoo bottles. The vast majority of the debris is composed of fishing-related accessories, like nets, ropes, and baskets. An estimated 20 percent came from the 2011 Japanese tsunami.

So what about those single-use plastic items—from water bottles to straws to bags—that have drummed up such animus among environmentalists and animal lovers alike? Approximately 40 percent of plastics are produced for such purposes, according to a study by Roland Geyer, a professor of Environmental Science and Management at the University of California, Santa Barbara and supporter of California’s hotel plastic ban bill.

Precisely how much of that ends up in the ocean is unclear. But recent data show that 60 percent of mismanaged plastic waste, which often makes its way into the water, comes from East Asia and the Pacific. North America—which typically processes its waste quite efficiently—has less than 1 percent.

We do know that 8 million tons of plastic in total enters the ocean annually. A hefty chunk of that comes from microplastics: tiny pieces of debris that measure less than five millimeters long. Those are often digested by birds and fish. The thought is a queasy one, particularly when considering that those animals make it onto many a dinner plate, pushing the carcinogenic substance back up the food chain. But it’s a misconception that single-use plastics are pushing that problem—most microplastics come from the breakdown of synthetic car tires and from washing synthetic clothes.

That California’s bill will have little tangible impact is not lost on its supporters. “It’s mostly symbolic, but symbols can be powerful,” Geyer said. “Hopefully it will show consumers we can stop using plastic products and realize we won’t miss them.” But that symbol fails to capture the actual problem—which is one that has far more to do with abandoned fishing gear, synthetic fibers, and mismanaged waste in the developing world than it does with complimentary bottles of shampoo.

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“If Republicans continue to cower to the NRA,” says Democratic presidential contender Kamala Harris, she will impose new gun controls by “executive action.” If Congress does not change the law, in other words, Harris will, although that is not part of the president’s constitutional job description.

The California senator’s campaign website promises that “if Congress fails to send comprehensive gun safety legislation to Harris’ desk within her first 100 days as president—including universal background checks, an assault weapons ban, and the repeal of the NRA’s corporate gun manufacturer and dealer immunity bill—she will take executive action to keep our kids and communities safe.” Harris does not claim that as president she could unilaterally ban “assault weapons” or repeal the Protection of Lawful Commerce in Arms Act. But she does claim she could change the law in two other significant ways.

Harris thinks the president can “mandate near-universal background checks by requiring anyone who sells five or more guns per year to run a background check on all gun sales.” Since only federally licensed dealers are legally required to run background checks, such a rule would require dramatically expanding that category.

The problem is that federal law defines a gun dealer as someone who is “engaged in the business of selling firearms,” which in turn is defined as a “devot[ing] time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.” The statutory definition explicitly excludes “a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.” Under Kamala’s plan, a hobbyist or collector who sold more than four guns in a single year would be required to obtain a federal license and conduct background checks, which is plainly inconsistent with current law.

Likewise Harris’ plan to “close the ‘boyfriend loophole’ to prevent dating partners convicted of domestic violence from purchasing guns.” Under current law, people convicted of misdemeanors involving “domestic violence” are barred from possessing firearms. But crimes against dating partners count as “domestic violence” only if the perpetrator has lived with the victim or produced a child with him or her. The House version of the bill reauthorizing the Violence Against Women Act would eliminate those requirements. Harris seems to think she can accomplish the same thing without new congressional action, but it’s hard to see how. Congress has defined “misdemeanor crime of domestic violence,” and only Congress can change the definition.

In trying to impose new gun restrictions by presidential fiat, Harris would be taking a page from Donald Trump, who demanded an administrative ban on “bump stocks” that required twisting the statutory definition of machine guns beyond recognition. Barack Obama also tried to expand gun control without congressional approval, although his administration did not go nearly as far as Harris proposes, and it recognized that banning bump stocks was inconsistent with existing law. It is telling that Harris believes voters who are appalled by Trump’s power grabs would welcome a Democratic president who thinks she can ignore the law as long as they like her policies.

 

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