Tag: in-the-news

China’s Skynet and Sharp Eyes projects aim to comprehensively surveil China’s 1.4 billion people by 2020 through a network of 626 million video cameras stationed in public spaces monitored using facial recognition technologies optimized via artificial intelligence. These vast video surveillance systems will help enforce the Chinese government’s social credit system that awards points to citizens who behave and docks those who commit crimes, fail to pay bills, or criticize the communist regime. Folks who get put on the government’s “List of Untrustworthy Persons” due to their low scores are forbidden from purchasing such items as high-speed rail and air tickets or hotel rooms, among other punishments. Five million people have been barred from high-speed trains and 17 million from flights under the scheme, according to Time magazine.

Although it is hard to gauge real public sentiment in authoritarian China, there is some evidence that many Chinese citizens feel safer knowing that Big Brother is watching over them. On the other hand, The New York Times reports in an article published as part of its superb Privacy Project that the Chinese government has built out a video surveillance system designed to ethnically profile and track millions of its restive Uighur citizens. This is possible because Central Asian Uighurs in general look somewhat differently from China’s majority Han population.

“The facial recognition technology, which is integrated into China’s rapidly expanding networks of surveillance cameras, looks exclusively for Uighurs based on their appearance and keeps records of their comings and goings for search and review,” reports the Times. “The practice makes China a pioneer in applying next-generation technology to watch its people, potentially ushering in a new era of automated racism.”

Clare Garvie, an associate at the Center on Privacy and Technology at Georgetown Law told the Times,”If you make a technology that can classify people by an ethnicity, someone will use it to repress that ethnicity.”

To see how effective facial recognition video surveillance might be in the United States, the Times ran a test using off-the-shelf Amazon facial recognition technology to filter images captured from video cameras located in Bryant Park behind the New York Public Library’s main branch. The Times ran the Bryant Park images through a database it built using public photos of people who work in the area. The result:

Our system detected 2,750 faces from a nine-hour period (not necessarily unique people, since a person could be captured in multiple frames). It returned several possible identifications, including one frame matched to a head shot of Richard Madonna, a professor at the SUNY College of Optometry, with an 89 percent similarity score. The total cost: about $60.

As government and private face databases expand and real time video detection accuracy improves, the cost of tracking us will fall ever lower. The Times notes that New York city police have access to 9,000 camera feeds in lower Manhattan alone. Jennifer Lynch, surveillance litigation director at the Electronic Frontier Foundation, told the Times that because of how quickly the technology has advanced, she would now support a wholesale ban on government use of facial recognition.

In the Times’ article detailing how the Chinese government uses facial recognition to monitor the Uighurs, MIT artificial intelligence researcher Jonathan Frankle warned, “I don’t think it’s overblown to treat this as an existential threat to democracy. Once a country adopts a model in this heavy authoritarian mode, it’s using data to enforce thought and rules in a much more deep-seated fashion than might have been achievable 70 years ago in the Soviet Union. To that extent, this is an urgent crisis we are slowly sleepwalking our way into.”

Yes it is.

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On Tuesday morning, Florida Judge Leonard Hanser agreed to temporarily seal the footage of New England Patriots’ owner Robert Kraft visiting Orchids of Asia spa in Jupiter, Florida.

More than two months have now passed since the headline-grabbing busts there and at several Southeast Florida massage parlors, places police insisted on national TV were dens of sexual slavery. Since then, authorities have been forced to admit that their claims were unfounded and have had their use of hidden cameras challenged by both men charged with soliciting prostitution and massage customers not accused of illegal activity.

That Kraft was one of the men charged by Florida prosecutors helped propel this story across national news and give it sticking power. But it’s also assured that there’s a defendant with resources and a reason to fight back—and in turn, that the press has remained interested in the case. (It’s a beautiful bit of irony, all told.) Kraft rejected a plea deal offered by prosecutors and has pleaded not guilty.

He’s also fighting the disclosure of footage from secret video cameras police installed for days at Orchids of Asia. And there seems to have been a ripple effect, with lawyers for other solicitation defendants fighting back, too.

Last month, 15 of the men charged with solicitation in Jupiter filed a joint motion seeking to prevent the public release of imagery from the hidden cameras. Although defendants “dispute the position of the prosecutors that there may be a ‘victim’ of any offense at issue in these cases, that mere possibility provides an additional basis for maintaining the confidentiality of the materials,” states their motion.

A court hearing on the video issue was last held April 12. At that hearing, Assistant State Attorney Greg Kridos said neither state prosecutors nor Jupiter Police opposed release of the video and in fact were planning to release pixelated versions.

Kridos also defended the use of cameras in the first place, saying that they had initially suspected human trafficking may have been at play. He admitted, however, that no such trafficking horrors had actually been found.

“There was nothing approaching the showing of necessity that the Fourth Amendment to the U.S. Constitution requires,” argued Kraft’s lawyers in a March 28 motion. Police “did not seek (or receive) a probable cause finding regarding any human trafficking crimes under Florida law,” and “any suggestion of human trafficking being suspected was unfounded and irresponsible. Indeed, law enforcement peddled these falsehoods to try and manufacture a patina of necessity here, where none exists.” What’s more, information told to a judge to get the warrant for video surveillance relied on “descriptions of statements made by a health inspector, Ms. Herzog” that were in direct contradiction with what Herzog herself said in a signed report, they say.

Kraft’s lawyers call the video evidence “the fruits of an unlawful sneak-and-peek search warrant” and condemn authorities for resorting “to the most drastic, invasive, indiscriminate spying conceivable by law enforcement—taking continuous video recordings of private massages in which customers would be stripping naked as a matter of course—in order to prosecute what are at most (according to Florida’s own allegations) misdemeanor offenses.”

Opposing Kraft and the other defendants on this issue are the Associated Press, ESPN, Gannett Co. , GateHouse Media, ABC, the McClatchy Company, The New York Times Company, Orlando Sentinel Communications Company, Sun-Sentinel Company, and TEGNA (owner of local TV stations WTSp-TV and WTLV/WJXX).

“Defendants have made no valid justification for preventing access to records made public by [Florida’s constitution and law],” states a March 26 motion from the media companies. “The surveillance videos are no different than other records and become public once turned over in discovery. Any purported privacy concerns do not, and cannot, prevent disclosure.”

During the April 12 hearing, Kraft attorney William Burck pointed out that they have not sought to review the video evidence themselves as part of the discovery process, since that would make the videos public record.

A lawyer for the media companies fired back that that doesn’t matter, since the state did not exempt the video from public disclosure. “It’s a public record right now unless and until this court finds another reason that it should be held back,” Dana J. McElroy said.

That court did just that, at least temporarily. In his ruling today, Judge Hanser wrote that Kraft’s “right to a fair trial requires the disputed videotape be withheld…for a limited duration”—until a jury is sworn in, a pleas deal is accepted, or prosecutors drop the case.

“Law enforcement and the state have receded from [the] position” that human trafficking was involved, noted the judge. And everyone acknowledges that the events in question are described fully in police reports. “Clearly, these videotapes are not being sought for the purpose of assistance to identify and apprehend a perpetrator,” Hanser continued, finding “that preventing access at this time to the videotapes sought by the [media groups] is necessary to prevent a serious and imminent threat to justice.”

Meanwhile, men and women who visited Orchids of Asia and were not charged with any crimes have brought their own federal class-action lawsuit against Florida law enforcement. The 31 Jane and John Does are seeking unspecified damages, saying their privacy rights were violated by Jupiter Police Department’s filming them stripping down and getting massages.

Hua Zhang and Lei Wang, a massage-business owner and manager arrested as part of the operation, have also been seeking to prevent widespread release of the surveillance video. Zhang and Wang’s lawyers say some footage was already leaked and is being shopped around to media.

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When an overzealous parking enforcer chalks the tires of a car, a federal court ruled this week, that action counts as trespassing, not as law enforcement.

The ruling came in the case of Taylor v. Saginaw. In 2017, Alison Patricia Taylor sued the city of Saginaw, Michigan, and a parking enforcer named Tabitha Hoskins. Hoskins chalked the tires of Taylor’s car 15 times between 2014 and 2017. This was done to determine if Taylor had driven her vehicle away from the parking spot and later returned to it, or stayed parked for longer than the permitted time. The multiple markings resulted in numerous citations. Taylor’s suit argued that the chalking of her tires was an unreasonable search that violated the Fourth Amendment. Hoskins maintained that she had qualified immunity.

On Monday, the U.S. Circuit Court of Appeals for the Sixth Circuit ruled in favor of Taylor. According to the court’s decision, the city failed to prove how Taylor’s car being parked in a certain spot for a certain amount of time threatened an orderly parking system. Because of this, the chalking of Taylor’s car did not qualify for an exemption from the Fourth Amendment’s warrant requirement.

As for the trespassing aspect, the court maintained that the act of chalking the car fit the definition of “common-law trespass upon a constitutionally protected area.” A common-law trespass is defined here as physical contact with property that belongs to someone else.

As The Volokh Conspiracy‘s Orin Kerr has observed, the allegations in this case are pretty uncommon. But it’s likely that the court’s decision here applies broadly to all car owners, not just Taylor.

Could this ruling set a new legal precedent for otherwise run-of-the-mill city operations? Only time, and more lawsuits, will tell.

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It’s rare that U.S. Customs and Border Patrol (CBP) and the American Civil Liberties Union (ACLU) are on the same side. Yet this week, both outfits have criticized a right-wing paramilitary group for detaining immigrants at the southern border.

Over the weekend, video surfaced of the United Constitutional Patriots (UCP), a vigilante group, detaining some 200 migrants, including many women and children, at the border near Sunland Park, New Mexico.

The video sparked criticism from the ACLU and from New Mexico state officials, with both agreeing that private citizens shouldn’t be enforcing the country’s immigration laws.

Democratic Gov. Michelle Lujan Grisham tells The New York Times that it “was unacceptable” that migrant families “might be menaced or threatened in any way, shape or form when they arrive at our border,” adding that “it should go without saying that regular citizens have no authority to arrest or detain anyone.”

“The vigilante members of [United Constitutional Patriots]…are not police or law enforcement and they have no authority under New Mexico or federal law to detain or arrest migrants in the United States,” said the New Mexico ACLU in a letter to state officials. “We cannot allow racist and armed vigilantes to kidnap and detain people seeking asylum.”

CBP was more muted, but also distanced itself from UCP, with an agency spokesperson telling the Times it “does not endorse private groups or organizations taking enforcement matters into their own hands.”

After alleged UCP leader Larry Hopkins was arrested on federal weapons charges Saturday, New Mexico Attorney General Hector Balderas issued a statement saying “today’s arrest by the FBI indicates clearly that the rule of law should be in the hands of trained law enforcement officials, not armed vigilantes.”

Given the unsavory history of Hopkins and the UCP, not to mention the shocking video of the group detaining migrant families, it’s understandable why the ACLU, state officials, and even federal immigration authorities, are not happy to have the group around. What’s less clear is what exactly makes Border Patrol agents any better.

If we are to judge government officials and private citizens by the same standards, there’s not a huge difference between immigration officials detaining peaceful immigrants and private paramilitaries doing the same thing.

And indeed, there’s a very good case for not making a distinction between the actions of private citizens and government agents, according to Jason Brennan, Georgetown University philosophy professor.

As Brennan wrote for Reason in January: “Imagine thugs beat up a drunken trucker, the mafia hacks into people’s computers and phones, or your neighbor throws people in his basement to punish them for smoking pot. Now imagine the same situation, except the perpetrators are government agents acting in their capacity as such: The police beat Rodney King, the National Security Administration hacks your phone and email without a warrant, or the sheriff arrests you for pot possession. Does that change things?”

Brennan’s answer was no, it doesn’t change things at all. He argued that the morality of an action isn’t affected by the person committing it. If it’s wrong for a private citizen to steal, kidnap, or murder, it is just as wrong for a government agent to do those things too, even if that agent is abiding by the letter of the law.

With that principle in mind, it’s hard to see much daylight between the actions of UCP members and those of Border Patrol agents on the southern border.

Surely these agents have “menaced or threatened” migrants in the process of arresting them as they cross into the U.S., the very same thing that Grisham slammed the UCP for doing.

Absent the reference to “vigilantes,” the ACLU’s criticism that armed persons are being allowed to “kidnap and detain people seeking asylum” could just as easily be applied to the Border Patrol agents.

Indeed, the video of UCP members detaining migrants is an excellent example of just how shallow any distinction between the actions of government agents and these vigilantes really is. At the beginning, one armed group (the UCP) is holding huddled migrants against their will. Later, a different armed group (Border Patrol agents) shows up to take the migrants away. If you were one of those migrants, how much of a distinction would you draw between the two groups?

To be sure, Border Patrol agents are supposed to go through an extensive vetting process and months of training before being put into the field, making them far less likely than untrained vigilantes to cause harm to the immigrants they’re detaining.

Yet it is also the case that, despite their ostensible training, a number of Border Patrol agents have engaged in some pretty loathsome behavior, including fatally shooting an unarmed Mexican teenager through a border fence, and allegedly going on a sex worker murdering spree. Not to mention the numerous reports of neglect and abuse reported by detained migrants at CPB facilities.

If detaining non-violent people at gunpoint is wrong, then the ACLU and New Mexico state officials are dead-on in their criticism of the UCP. But the idea that this same behavior is fine when done by government agents is far less convincing.

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When the Supreme Court ruled in Kelo v. City of New London in 2005 to allow local governments to use eminent domain to seize private property and turn it over to private developers, many states and communities—sometimes under pressure from citizens—put into place their own laws and regulations to stop it anyway.

But not, of course, Connecticut, which is where New London and Susette Kelo’s former property can be found. The private development that prompted the property seizures—for the benefit of pharmaceutical company Pfizer—ultimately never even happened. Kelo’s former property is now an empty lot.

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.

New London wasn’t the only Connecticut city to turn to eminent domain for a private commercial development. The city of West Haven followed in New Haven’s footsteps in 2015 and authorized the use eminent domain to get property so that private developers could build an “upscale outlet mall.”

Attorneys for the Institute for Justice, who represented Kelo in her fight, have also been assisting citizens of West Haven who wanted to resist being forced to sell by the city. In an opinion piece in the Hartford Courant today, Renée Flaherty, an Institute for Justice Attorney who represented West Haven property owners, and Carol Platt Liebau, of the Yankee Institute for Public Policy, call for Connecticut to join most of the rest of the country in putting some restrictions on how eminent domain may be used:

In the wake of Kelo, eminent domain reform spread across the country. Twenty-three states enacted substantive reforms that have almost entirely eliminated eminent domain for private development. Eleven of those states passed constitutional amendments that strictly limit the use of eminent domain to transfer property to private developers. In addition, 10 state high courts have either rejected Kelo or made it more difficult for government to engage in takings for private development. All told, since the Kelo decision, 47 states have strengthened the rights of private property owners in either the statehouse or the court house.

To its shame, Connecticut remains one of only three states that continues to embrace eminent domain abuse. For example, West Haven recently joined New London in embarking on ill-advised deals with private developers. The city of West Haven’s redevelopment plan sought to take land—by eminent domain if necessary—and transfer it to a private developer who could then displace the existing commercial and residential properties with a luxury shopping center.

As in New London, nothing has yet been built in West Haven, though the first phase of the project’s plan was approved last summer. The project has a second phase, and should it actually move forward, the passage of HB 5123 would stop city leaders from forcing additional property owners to sell their homes and businesses so that a private developer can build there.

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.

Reason‘s Damon Root explains here why the Kelo decision is one of the worst Supreme Court rulings of the past 50 years. Little Pink House, the 2017 movie adaptation of the Kelo fight, is available for rent on Amazon Prime for a mere $2.99.

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Over at the Niskanen Center, I have posted some thoughts on volume two of the report by special counsel Robert Mueller. The second volume addresses President Trump’s response to the investigation of Russian interference with the 2016 presidential election and whether any of those actions constituted criminal obstruction of justice. As I told Vox, “If this is what complete and total exoneration looks like, I’d hate to see a damning report.” Quite simply, the president behaved very badly, and his administration seems to have been saved by the willingness of his subordinates to ignore his rants and directives. This look inside the Trump White House is disturbing and should not let anyone rest easy, confident that the office of the presidency is in good hands. Unfortunately, we already knew that.

Once you get past the description of the dysfunctional workplace that is the Trump White House, you find a very interesting set of legal arguments. Mueller’s obstruction investigation faced a variety of serious legal challenges, including whether presidential actions to impede the investigative work of an executive branch officer can constitutionally or statutorily amount to obstruction of justice and what the appropriate role is of a special counsel who can not bring a criminal indictment against the target of his investigation. Mueller’s legal analysis is best read alongside the analysis offered by William Barr when auditioning for the thankless role of Trump attorney general. I’m more sympathetic to Barr’s formalism than Mueller’s functionalism, but these are interesting and difficult issues.

To the disappointment of some, Mueller made the right call to lay out his factual findings and the legal issues as he understood them and let others—the attorney general, Congress, and the voters—decide how best to respond to the results of the special counsel investigation. I think Barr made the right call as well in determining that this presidential misconduct should not give rise to criminal charges. Unfortunately, the president has through his own words and deeds strengthened the hand of his opponents who would like to see him impeached and removed from office. He ignored the first law of holes, and when he found himself in one he just kept digging.

You can read my extended discussion of volume two here.

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Psst…do you want to know the 26 words that, in the opinion of today’s guest on the Reason Podcast, “created the internet?”

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

That’s part of Section 230 of the Communications Decency Act, a federal law that was passed in 1996, as part of a larger piece of legislation updating telecommunications regulations. Section 230 grants broad immunity to websites and internet service providers from legal actions such as being sued for libel and defamation. It’s the reason why Reason can’t be sued for libelous or defamatory content posted in our comments section (though the authors of such comments can be).

Section 230 is the law that has enabled the internet to become driven by user-generated content, from YouTube videos to Yelp reviews to basically all of Twitter. You get rid of Section 230 and all that—and much more—is toast. In its first decade, Section 230 was mostly celebrated for allowing free expression and new economic models, but these days it is under attack from conservative Republicans such as Sens. Ted Cruz and Josh Hawley and from liberal Democrats such as Speaker Nancy Pelosi and Sen. Elizabeth Warren, all of whom have expressed interest in ripping up Section 230 and regulating social media.

Today’s guest Jeff Kosseff is sweating bullets over all this. A former journalist who has been nominated for a Pulitzer Prize, he teaches law and cybersecurity at the United States Naval Academy and is the author of the urgent new book, The Twenty-Six Words That Created the Internet. In a wide-ranging conversation, Kosseff tells Nick Gillespie about the unlikely partnership between a conservative Republican (former Rep. Chris Cox of California) and a liberal Democrat (future Sen. Ron Wyden of Oregon) in the mid-1990s that gave rise to Section 230; why today’s internet is “unimaginable” without it; how the European Union’s approach to online speech is incompatible with America’s; and why we might be witnessing the death not just of Section 230 but of the free speech ethos of the internet and World Wide Web. Kosseff tells Gillespie that he started out writing “a biography” of Section 230 but is now worried that he in fact has written “an obituary” for it.

Audio production by Ian Keyser.

Links related to today’s podcast:

The Twenty-Six Words that Created the Internet, by Jeff Kosseff

Jeff Kosseff’s faculty page at the United States Naval Academy

“Nancy Pelosi Declares a ‘New Era’ of Internet Regulation; E.U. Threatens Same,” by Nick Gillespie

“Mark Zuckerberg Calls for Government Regulation of Political Speech on Facebook,” by Nick Gillespie

“Sen. Josh Hawley Rails Against ‘Big Tech,’ Anti-Conservative Bias, and Section 230,” by Robby Soave

“4 Cases That Show the Scope of Services, Speech, and Conduct Protected by Section 230,” by Elizabeth Nolan Brown

 

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Over at the Niskanen Center, I have posted some thoughts on volume one of the report by special counsel Robert Mueller. The first volume addresses Russian interference in the 2016 presidential election and the extent to which the Trump presidential campaign participated in that interference. The good news is that the campaign did not actively conspire with Russian operatives to influence the election and that the Russian efforts at interference were not terribly effective. The bad news is that Russian operatives clearly did try to influence the election and that the Trump campaign was at best unconcerned about Russian meddling and at worst would have been happy to encourage and benefit from it. You can read the whole thing here.

From the conclusion of the Niskanen Center post:

One need not deny the reality or legitimacy of Trump’s electoral victory to recognize that the Russian threat should be addressed. The significance of the findings in volume one of the Mueller report should not be a partisan issue. Though the report might support the conclusion of “no collusion,” it thoroughly undermines the president’s own favored narrative that American intelligence agencies were worried over nothing in 2016. Both Russia and the Trump campaign created plenty of reasons for national security professionals to worry and to see the need for a more thorough investigation. That only one of Trump’s campaign managers found himself imprisoned in the aftermath of the election or that Donald Trump’s son-in-law thought it was a “waste of time” when a meeting failed to deliver the promised incriminating Russian government files is no cause for celebration.

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Despite what the MAGA memes and lefty conspiracy theories might suggest, President Donald Trump is not a particularly muscular chief executive. He’s not an omnipotent, swaggering presence bending the country to his will—no matter how many times he points out that, yes, he won the election.

There are many things to be gleaned from the 448-page report released last week by Special Prosecutor Robert Mueller (my colleagues have noted many of the most important details already), but one of the most under-appreciated might be just how weak Trump appears to be, even within his own administration. In incident after incident in the Mueller report, Trump’s underlings and subordinates ignore or contradict his direct orders—and may have saved the president from committing serious crimes in the process.

“The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests,” the report states.

Consider two telling examples from the Mueller report. When Trump was trying to get then-Attorney General Jeff Sessions to un-recuse himself from the Russia investigation, Trump called Cory Lewandowski—a private citizen, not a member of the administration—into the Oval Office and dictated a message to be delivered to Sessions. Lewandowski, apparently unwilling to deliver the message directly to Sessions, set up a meeting with another White House official, Rick Dearborn, and asked him to pass the message along to Sessions instead.

“The message ‘definitely raised an eyebrow’ for Dearborn, and he recalled not wanting to ask where it came from or think further about doing anything with it,” according to the Mueller report. “Dearborn also said that being asked to serve as a messenger to Sessions made him uncomfortable. He recalled later telling Lewandowski that he had handled the situation, but he did not actually follow through with delivering the message to Sessions.”

Or consider what happened in June 2017, when Trump reportedly sought to fire Mueller. Rather than calling Assistant Attorney General Rod Rosenstein with the order to terminate the investigation, Trump called then-White House Counsel Don McGahn at his home and insisted that McGahn tell Rosenstein to fire Mueller.

“McGahn was perturbed by the call and did not intend to act on the request,” the Mueller report states. “To end the conversation with the President, McGahn left the President with the impression that McGahn would call Rosenstein. McGahn recalled that he had already said no to the President’s request and he was worn down, so he just wanted to get off the phone.”

Instead of following the order, McGahn drafted a letter of resignation.

There are other incidents in the Mueller report that follow the same basic outline. They give the impression of a president who is weak both personally and professionally—unable to summon the testicular fortitude to directly confront his own attorney general, for example, while also being routinely ignored by those lower down on the chain of command. That conclusion can be drawn not only from the Mueller report but from other accounts of the inner workings of the administration—including an incident documented in Bob Woodward’s book, Fear, in which Gary Cohn, economic adviser to the White House, literally stole a letter off of Trump’s desk to prevent the president from signing it and thereby terminating a U.S.-South Korea trade deal.

This is not a new observation. Conservative New York Times columnist Ross Douthat has called Trump “extraordinarily weak” and has authored multiple columns detailing the president’s inability to assert himself “against restraints imposed by his allies or advisers.” Reason’s Jesse Walker has highlighted how federal institutions have constrained Trump in some ways even as they have been empowered by him in others. “Power isn’t flowing to the executive so much as it’s flowing to whole swaths of the executive branch,” Walker wrote in the Los Angeles Times last year.

But the release of the Mueller report freshly underlines the extent to which the Trump administration functions despite the president, not because of him.

Libertarians and others who are concerned about the power of the executive branch might consider all of this a point in Trump’s favor. After all, wouldn’t we prefer a president who is little more than a leader in name only?

But it’s important not to conflate a weak president, like Trump, with a weakened presidency. Indeed, it’s quite clear that the presidency has lost none of its robust, liberty-threatening powers under Trump. On trade, immigration, the ongoing wars in Syria and Yemen, and plenty of other policy areas, the Trump administration has been as powerful as any other in recent history.

“When we consider how many of this president’s abuses, attempted or accomplished, were based on powers his predecessors had already seized, we should consider ourselves lucky things haven’t gone worse,” writes Gene Healy in the May issue of Reason.

The sunny view is that Trump’s aides have somehow discerned the best outcome for the country and are selectively obeying or disobeying the president as a means of steering executive power towards that result.

The most realistic take is that the executive branch of the United States government—the mightiest branch of the most awesomely powerful state in world history—is increasingly run by unelected, unaccountable individuals. Even without considering the implications of what that would mean in the event of a major international crisis, this is a potentially problematic arrangement. It also raises worrying questions in the long run. After Trump is gone, will the executive branch continue to operate in this way? Could a stronger leader with fewer subordinates willing to openly defy his commands do more damage?

Preventing that requires weakening not the president but the presidency. That, in turn, would mean returning to Congress the power to make war and set trade policy. It would mean shutting down swaths of executive branch agencies and returning their regulatory functions to the states.

Getting there would require a determined effort by a committed executive with an electoral mandate and a clear-eyed vision about the appropriate role for his or her office. It would require a president whose strength rested on personal humility and an understanding of the principles that underpin the American government. Trump is not that person, as he demonstrates on an almost daily basis.

And, indeed, one of the primary benefits of a weaker presidency would be that the personal character and political strength of the president would not matter as much.

That the institutions and individuals within the executive branch have corralled some of Trump’s worst impulses is, for now, a small comfort. His personal and professional weaknesses may eventually render Trump little more than a figurehead within his own administration—but the office of the president will survive Trump’s tenure and will remain as potent as ever.

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Illegal Pete’s is a Colorado-based Mexican restaurant chain; starting several years ago, the name has drawn controversy because some view it as an insulting reference to illegal aliens. (The restaurant owners disagree, and say the name was chosen “to convey the unique, countercultural atmosphere [the founder] wanted to foster” and was an homage to the founder’s father, who was “a bit of a good-natured hell-raiser.”)

The owners of Illegal Pete’s wanted to make it a Delaware limited liability company, but the Delaware Secretary of State’s office rejected the application, allegedly on the grounds that the name “has a negative connotation,” and that

Title 8 [of the Delaware Code] permits this office to reject a filing if the use of a corporate name by a corporation “might cause harm to the interests of the public or the State as determined by the Division of Corporations in the Department of State”. As it stands, the document will be rejected unless a modification is made to the name of the corporation in the certificate of conversation [sic] and in its certificate of incorporation.

Yesterday, Illegal Pete’s sued the Secretary of State, arguing that the denial was unjustified by statute—which on its face applies only to names containing the word “bank”—and violates the Due Process Clause and the First Amendment.

And indeed, given the Supreme Court’s decision in the Slants case (Matal v. Tam), the denial does violate the First Amendment. Matal holds that the government can’t deny trademark registration to allegedly racially offensive marks. It follows that the government likewise can’t deny certificates of incorporation (or LLC status) to business names that allegedly offensively refer to illegal aliens (or, for that matter, to marks that seem to praise illegal conduct, if that’s the Secretary of State’s objection).

The case reminds me of Kalman v. Cortes (E.D. Pa. 2010), which struck down a Pennsylvania ban on corporate names that contain “[w]ords that constitute blasphemy, profane cursing or swearing or that profane the Lord’s name” (applied in that case to the name “I Choose Hell Productions”). But following Matal, the matter is even clearer.

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