Tag: in-the-news

New Trump Administration Regulations Say That Affordable Housing Is Fair Housing

A major Trump administration rewrite of the fair housing regulations that govern federal development grants is inching closer to completion.

In late December, the U.S. Department of Housing and Urban Development (HUD) sent Congress a proposed rule that would ask localities receiving federal housing funding to report on their housing market outcomes, and then propose concrete steps for improving housing affordability.

HUD would then use the data it collects to rank and incentivize local jurisdictions. Localities that either have affordable housing, or see housing become more affordable over a five-year time period, would be rewarded with additional grant money and other incentives. The department says it would “focus remedial resources and potential regulatory enforcement actions” against the lowest-performing jurisdictions, who potentially could lose access to HUD grants entirely.

The rule, which has yet to be made public, is a marked change from prior regulations issued by the Obama administration in 2015. Those required grantees to collect voluminous amounts of demographic data and then use that data to craft plans on combating racial segregation and concentrated poverty.

The Trump administration argues those rules were “overly burdensome” in their requirements and “too prescriptive” in their desired outcomes.

In early 2018, it delayed the implementation of the Obama-era regulations. In August of last year, HUD Secretary Ben Carson announced that fair housing rules would be rewritten entirely to encourage local jurisdictions to add housing supply by loosening regulation.

The proposed rule still leaves a lot of details to be sorted out. Its early circulation has already provoked a storm of controversy between those who see free, well-functioning markets as the best guarantor of fair housing, and others who argue for a much more proactive federal response.

HUD’s proposal “incentivizes a race to the top among localities based on housing affordability and availability and then offers a chance to put some teeth behind that,” says Michael Hendrix, the director of state and local policy at the Manhattan Institute.

The proposed rule focuses HUD on the things that really matter when it comes to fair housing, he tells Reason, while also reducing the regulatory burden on local governments.

Other housing advocates are less pleased, arguing the new rule is much too narrow and actually weakens, not strengthens, the federal government’s enforcement powers.

“The proposed rule entirely ignores the essential racial desegregation obligations of fair housing law,” Diane Yentel, president of the National Low Income Housing Coalition, told the Washington Post, saying that Carson “is scrapping years of extensive input and intensive work that went into the fair housing rule and essentially reverting to the agency’s previous flawed and failed system.”

The root of this regulatory dispute goes back to the 1968 Fair Housing Act (FHA), which outlawed housing discrimination for a number of protected classes—including race, religion, and disability—and required that HUD programs be administered “in a manner that affirmatively furthers fair housing.”

What exactly is meant by affirmatively furthering fair housing, however, is not defined by the FHA, leaving it up to regulators and the courts to hash out.

For most of the FHA’s history, HUD required communities receiving federal housing money to produce analysis of impediments (AI) reports, which detail obstacles to fair housing.

Those rules were widely considered to be a toothless rubber stamp that did nothing to satisfy the government’s fair housing obligations.

Under the old AI process, for instance, HUD did not give any guidance on what might count as an impediment to fair housing, or what steps localities might take to overcome those impediments. It did not even review the AI reports that localities produced, and did not specify how often they had to be updated.

So in 2015, the Obama administration issued a new rule, called Affirmatively Furthering Fair Housing (AFFH), which was much more complex in its requirements and much more ambitious in its aims.

The text of the rule says it would empower grant recipients “to foster the diversity and strength of communities by overcoming historic patterns of segregation, reducing racial or ethnic concentrations of poverty, and responding to identified disproportionate housing needs.”

The 2015 rule required local governments to complete lengthy fair housing assessments that included some 92 questions on a huge array of topics, including everything from access to transportation and education to labor market outcomes. Jurisdictions that did not complete these assessments to HUD’s satisfaction were required to do them again.

The 2015 rules “asked too much and asked too little at the same time,” Hendrix says. The number of things jurisdictions were asked to report on saw some cities produce tome-sized AFFH assessments, while other localities struggled to complete them at all.

Philadelphia’s AFFH assessment was over 800 pages long. Los Angeles’ was over 400. Meanwhile, of the 49 jurisdictions that were the first to turn in AFFH assessments between October 2016 and December 2017, 63 percent of them either failed to meet HUDs standards or managed to do so only after preparing subsequent drafts, according to the text of Trump’s proposed AFFH rule.

At the same time, the 2015 rules did too little in that they did not require localities to take any specific actions besides completing the AFFH assessments.

This was part of a deliberate effort to allow local communities to set their own priorities based on their local knowledge. But it ended up making the 2015 rule as defanged as the AI process it was replacing, says Salim Furth, a senior researcher at George Mason University’s Mercatus Center.

“There were no consequences,” he tells Reason. “It was never spelled out in the Obama rule what happened if they don’t like your proposals except you have to do them again. It was like you were going to keep redoing your homework until the professor liked it.”

In January 2018, the Trump administration started to chip away at Obama’s AFFH rule, suspending most localities’ reporting requirements until 2025. Then in August of that year, Carson announced that the administration would be rewriting AFFH completely.

The new rule, he said, would only focus on encouraging jurisdictions to add more housing supply, in contrast to the Obama-era rules that considered housing supply as just one factor among many that needed to be considered when assessing access to fair housing.

“I want to encourage the development of mixed-income multifamily dwellings all over the place,” Carson told the Wall Street Journal, saying, “I would incentivize people who really would like to get a nice juicy government grant” to reform their zoning codes.

For that reason, Carson’s proposed rule asks jurisdictions to narrow their AFFH submissions to reporting on measures of housing affordability and quality, with the idea being that these metrics will provide a quantifiable proxy measurement for exclusionary housing regulations that stand in the way of fair housing.

If housing is cheap citywide, the thinking goes, low- and moderate-income people will have the ability to live in neighborhoods that offer more opportunities.

Localities would also have to list at least three concrete steps they intend to take to further fair housing.

The proposed rule “essentially says do you look like a place where people who want to rent a home can rent one and people who want to build a home can build one, or do you look like a place that is making it really hard to live there through regulation?” notes Furth.

To combat discrimination, the Trump administration’s proposal would also examine if jurisdictions had been the subject of a successful fair housing complaint in the last five years. Those that had would lose access to the incentives HUD would provide to high-performers.

Solomon Greene, a researcher at the Urban Institute and former HUD staffer who helped craft the 2015 AFFH rule, says focusing so narrowly on market outcomes and affordability misses the many ways obstacles to fair housing can present themselves, especially for the classes of people the FHA was designed to protect.

“When talking about affordable housing from a fair housing perspective, you have to look at [what’s] affordable for whom,” Greene tells Reason. “Using a lens that looks at affordability from the perspective of protected classes is absolutely important and seems missing from the proposed rule.”

For example, looking at general affordability in a city—as the new HUD rule proposes—might not tell you whether neighborhoods with good access to handicap-accessible public transportation are actually affordable to disabled people.

By collecting neighborhood-level data on demographics, school quality, transportation access, and job opportunities, says Greene, the Obama-era AFFH assessments were able to give a much fuller picture of what roadblocks there were to protected classes finding adequate affordable housing.

By focusing on affordability in general, he says, the new HUD rule is depriving the department of information it needs to accurately assess if communities are, in fact, furthering fair housing.

Greene also says that HUD was proactive in assisting jurisdictions who had difficulty completing the detailed fair housing assessments required by the Obama-era rule.

Others have made similar comments, saying that the new HUD rule effectively throws in the towel when it comes to fighting housing discrimination.

“Discrimination and segregation will continue unabated when HUD doesn’t provide meaningful fair housing oversight of local governments,” Thomas Silverstein, an attorney with the Lawyers’ Committee for Civil Rights Under Law, told the Post.

Yentel, in comments to Mother Jones, also said that Carson is letting “localities off the hook by explicitly stating there will be no consequences if they keep their restrictive zoning laws.”

The latter criticism is one that Furth is sympathetic to. HUD’s new rule might focus on more appropriate measures of fair housing he says, but it will still largely judge localities on the plans bureaucrats produce, not the actions elected officials actually carry out—a flaw it shares with Obama AFFH rule.

“I don’t see a reason these fictional plans written up by bureaucrats seeking money would be any more real under a Carson rule than they would be under a Castro rule,” says Furth, referencing former HUD Secretary Julian Castro.

Furth says localities should have to show HUD that they’ve actually taken some steps to further fair housing, whatever those steps might be.

There are obvious perils in tying many strings to federal grants. Demanding local governments take specific actions when it comes to land-use planning is a huge intrusion of federal authority into a policy area long held to be the sole domain of cities and states.

There’s also the wider question of what libertarians should make of rules governing federal grant programs that probably shouldn’t exist in the first place.

Hendrix cautions against making the perfect the enemy of the good. So long as these grant programs do exist, they should at least be administered in a way that encourages better, freer housing policy.

“So much of what this new rule points to is a more market-oriented approach to housing, which is what we should all be pushing for,” he says.

The Trump administration’s proposed AFFH rule has yet to be published in the federal register. Once that’s done, the public will have 60 days to submit comment before the rule is finalized.

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Don’t Believe Mike Pence’s Spin About Iran and 9/11

In October 2002, when the United States was on the brink of entering a disastrous war in Iraq, a congressman named Mike Pence stood up on the floor of House of Representatives to denounce the television networks for refusing to cover President George W. Bush’s address outlining the case for war.

The Indiana Republian was referring to an October 7, 2002, speech that Bush delivered in Cincinnati, Ohio. In it, the president argued that Saddam Hussein’s Iraqi regime “possesses and produces chemical and biological weapons. It is seeking nuclear weapons. It has given shelter and support to terrorism.”

While CNN and other cable news outlets covered the speech, the major networks did not. That infuriated Pence. And so he denounced “CBS, ABC, and NBC for the total abdication of their public duty in refusing to broadcast the president’s address to America in this hour of national need.”

“Rather than the status of the Iraqi nuclear weapons system, The King of Queens [was] on CBS,” Pence continued. “Rather than telling the American people of Iraqi complicity with terrorism, The Drew Carey Show aired on ABC.”

I don’t know whether those network executives were right or wrong to pick Kevin James and Drew Carey over Bush and Saddam that October night, but hindsight tells us that Bush was wrong about Iraq’s nuclear weapons program. And the 9/11 Commission—which unfortunately would not finish its report until mid-2004, a year after the U.S. launched its ill-conceived invasion of Iraq—ultimately concluded that there was no secret connection between Saddam and Al Qaeda.

These days, Pence is vice president; and these days, whether or not the broadcast networks are helping you, it’s easier to use social media to peddle pro-war propaganda. And that’s exactly what Pence did this weekend, dusting off the Iraq playbook to argue that an American airstrike that killed Iranian general Qasem Soleimani was totally justified because 9/11.

There is no good reason to believe this is true. (And that goes as well for his follow-up claim about Soleimani plotting “imminent attacks”—more on that here.)

The most obvious problem with Pence’s claim is that 19 terrorists carried out the 9/11 attacks, not 12. We’ll be charitable and assume that was a typo. The 9/11 Commission established that between eight and 10 of the 9/11 hijackers traveled through Iran to get to Al Qaeda training facilities in neighboring Afghanistan. That is, presumably, the straw that Pence is grasping for here.

But the report does not link Soleimani or anyone else in the Iranian regime to the plot. In fact, Soleimani’s name is never mentioned in the commission’s 1,200-page final report.

Here’s what the report does say about Iran’s involvement—or lack thereof:

We have found no evidence that Iran or Hezbollah was aware of the planning for what later became the 9/11 attack. At the time of their travel through Iran, the Al Qaeda operatives themselves were probably not aware of the specific details of their future operation.

The 9/11 hijackers—like Al Qaeda frontman Osama bin Laden—were mostly Saudi nationals. Saudi Arabia and Iran are arch rivals, and much of the post-9/11 chaos in the Middle East is due to those two regional powers jockeying for leverage against one another. Iran, run by hard-line Shiite Muslims, is unlikely to forge an alliance with Al Qaeda, a Sunni group with ties to Saudi Arabia. Indeed, after the attacks Iran actively helped the U.S. round-up members of Al Qaeda, including bin Laden’s son.

Writing at National Review, David Harsanyi argues that Pence’s interpretation of the facts surrounding 9/11 is “mostly right” because Iran has backed other terrorist groups, including Hamas, run by Sunni Muslims. But Harsanyi has to concede that there is “no hard evidence that Soleimani himself was involved” in 9/11, and he admits that the “commission could unearth no evidence proving that the Iranians knew what the 9/11 team was planning (which doesn’t mean they did not).”

Mostly right? No. These arguments do not support Pence’s expansive claims, and they certainly shouldn’t convince anyone to go to war. If anything, that kind of Bush-era connect-the-dots-to-9/11 logic should make Americans more skeptical of the administration’s case for war with Iran, because it is exactly the same playbook—sometimes even using the exact same players—that led the country into the Iraq quagmire.

Needless to say, the fact that Soleimani wasn’t involved in plotting 9/11 does not absolve him from a history of plotting attacks that did kill and maim hundreds of Americans, among others. But the question we should be asking is whether killing him keeps Americans safer. By escalating the threat of war, it does not do that at all.

Meanwhile, most of those deadly attacks were only possible because the targets were Americans in Iraq—and those Americans were in Iraq, at least in part, because Mike Pence was wrong about whether to go to war nearly two decades ago. He’s wrong again now.

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Trump’s Visa Wall Against Foreign Students Is Making Other Countries Great Again

A company that spurned talent it badly needed couldn’t thrive. The same is true for a country.

But that isn’t stopping the Trump administration from blithely driving foreign students into the open arms of other countries with its ill-advised immigration policies.

For three years in a row, the number of new foreign students enrolling in American universities has fallen. In the 2015-16 academic year, 300,743 new foreign students enrolled. That number dropped to 269,383 in 2018–19, a decline of 10.4 percent as per the data of Open Doors, the Institute of International Education’s (IIE) annual report that tracks university enrollments. Nor is the situation likely to improve in the academic year currently underway given that a snapshot survey of 500 universities by the IIE this fall found declining enrollment—although full stats won’t be available until later in 2020.

When enrollments initially started plummeting, many people blamed external factors like better educational opportunities at home or Saudi Arabia’s decision to yank government scholarships from Saudi students studying abroad rather than this administration’s anti-immigration agenda. While other things might have had an effect on the margin, if they were the main cause, then other countries would be experiencing a decline too. The opposite is the case.

National Foundation for American Policy’s Stuart Anderson points out that Canada has been attracting a record number of international students in recent years. In 2017, it experienced a 20 percent spike and then another 16 percent the following year, a phenomenon that Canadians call the “Trump bump.” Meanwhile, Australia experienced a whopping 47 percent increase in new foreign students between 2015 and 2018.

In particular, America is losing Chinese students while Australia is gaining them. One likely reason is that Trump has called them all spies (an absurd accusation given that that nine out of 10 would prefer to stay on and work in America rather than return to the Communist dictatorship) and threatened to ban them from the country in a naked bid to force Beijing to succumb to his trade demands. Trump didn’t make good on that threat. However, since 2018 the State Department has been capping the visa stay of Chinese students in sensitive fields to one year rather than allowing them to stay for the maximum time allowed. This not only made Chinese students feel unwelcome in the United States but also perhaps made it more precarious for them to pursue an education here lest they lose their visas before finishing their program.

In addition, his travel ban has subjected foreign students from Iran and various Muslim countries to extreme vetting.

He has also proposed rules that would make it easier to brand foreign students as being “unlawfully present” and to ban them from the country for 10 years. The courts have put this rule on hold for now but the uncertainty can hardly make American universities attractive.

Trump has also doubled down on sting operations to crack down on visa fraud. Last year Immigration and Customs Enforcement (ICE) arrested 250 foreign students, mostly from India, whom it lured into the University of Farmington, a fake university that it set up in metro Detroit. For tuition fees much lower than normal, this university handed these students transcripts to satisfy the terms of their visas and, more importantly, obtain CPT (Curricular Practical Training) status. This status lets the foreign students sign up for a paid internship off-campus and helps offset their steep tuition costs, a tempting deal because it enables them to work for more than 20 hours and get off-campus jobs. Many foreign students quit legitimate universities to join this fake one only to get caught in ICE’s dragnet.

But it’s not just draconian enforcement tactics that are turning away foreign students. The administration’s immigration policies are also making an American education an unattractive value proposition compared to other countries.

Trump is doing everything in his power to make it more difficult for foreign students to work in America after they graduate, making the high cost of an American education a bad investment. Right now, international students in highly-coveted STEM fields can obtain something called the Optional Practical Training visa to work in the country for 36 months after graduation. This allows them to recover some of their tuition costs before returning home. Trump is proposing rules to cut this back dramatically.

Likewise, his administration is also making it more difficult for foreign techies to work in the country long-term by rejecting new H-1B visa applications at a historically high rate. And he is making it much more difficult for those who have these visas to renew them.

This is the exact opposite of what Sen. Mitt Romney (R–Utah) said the country should be doing when he ran for the presidency in 2012. He had promised to staple green cards—not just H-1Bs—to the diplomas of foreign graduates, especially in STEM fields, because it made no sense for America to lose American-trained talent to other countries. Instead, it is Canada that is running with Romney’s suggestion. It is handing foreign graduates from Canadian universities many additional points when they apply for permanent residency so that they just stay in Canada rather than return to their native countries.

Turning away foreign students is particularly stupid—not only because we need their skills but also their tuition dollars. Over 66 percent of them, especially undergraduates, pay top dollars for their education from out-of-pocket or through outside sources, allowing universities to subsidize tuition costs for American students. Many international graduate students, meanwhile, provide teaching and research services in exchange for a tuition reprieve, especially in STEM fields, something that allows universities to offer a more cost-effective education than if they had to hire faculty for the same jobs.

Furthermore, foreign students contribute $37 billion to the American economy and create or support 450,000 jobs, according to NAFSA: Association of International Educators, an outfit that promotes the professional development of American college officials. Indeed, without them, the shortage of Americans in STEM fields would become even more acute because there wouldn’t be enough people to train Americans, generating a downward spiral of STEM scarcity.

But the most vital contributions of international students are intangible. Had it not been for them, America may not have spearheaded the information technology revolution. That’s because 57 percent of Silicon Valley’s STEM workers were born outside the country and many of them came to the United States as students and stayed on. Many iconic IT companies such as Microsoft and Google are currently being headed by foreigners who came to America as graduate students.

Instead of draining the swamp, Trump is draining talent from America that other countries are eagerly sucking up. This is a formula for making them great, not America.

A version of this column originally appeared in The Week.

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NYPD Officers Are Warned That Parking Violation Crackdowns Are Coming

An internal New York Police Department (NYPD) email is warning officers not to use their police parking placards to park illegally.

Some NYPD officers use their placards as a free parking pass in areas where the rules clearly dictate the opposite. While parking in those areas would earn a civilian a ticket or a parking boot, placard abuse by the NYPD is pervasive enough that an entire Twitter account is dedicated to documenting violators. Tweets show NYPD officers parked in bicycle lanes, in bus lanes, and in fire hydrant zones in non-emergency situations.

The New York City Council has found nearly 9,000 placard abuse complaints since May 2017. More than 5,000 of those have resulted in no action taken against the violators. Fewer than 800 have led to a ticket.

In November, the council passed a set of bills aimed at combating placard abuse. Before this, parking violators got away with their actions because fellow officers frequently failed to enforce the law. When officers did try to apply the law equally, they sometimes faced retaliation—for example, when a traffic agent was suspended for a month without pay after ticketing the NYPD chief of transportation.

Enforcement of the new laws is supposed to begin today. The New York Daily News has acquired an internal NYPD email warning officers about the crackdown. “Guys please share with other officers [especially] if they are doing paid detail or live in the city. Looks like it’s our time again to get beat up in the Papers,” the email said.

The email cautioned that units have been tasked with identifying violators and documenting the offending officer’s vehicle, plates, and placard for the New York City Department of Investigation. Any violator is supposed to receive not just a ticket for the parking violation but a ticket for misusing the placard.

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Was there a Nondelegation at the Founding?

Justice Gorsuch’s Gundy dissent urged the Supreme Court to reconsider the nondelegation doctrine. Justice Alito’s concurrence in that case also expressed a willingness to take a second look at this long moribund principle. And more recently, in Paul v. U.S., Justice Kavanaugh signaled his agreement with Justice Gorsuch. By my count, there are now five Justices willing to rekindle the nondelegation doctrine. Indeed, I’ve wrote an amicus brief urging the Court to use the DACA case as an appropriate vehicle.

But is the nondelegation doctrine correct as an original matter? Julian Davis Mortenson and Nick Bagley wrote new article titled “Delegation at the Founding.” They contend that the nondelegation doctrine was not part of the original understanding of the Constitution. Here is the abstract:

This article refutes the claim that the nondelegation doctrine was part of the original constitutional understanding. As a matter of theory, the founding generation saw nothing untoward about delegating the authority to make rules so long as Congress did not irrevocably alienate its power to legislate. Any particular use of such delegated authority could validly be characterized as the exercise of either executive or legislative power, depending on the relationships a speaker wished to emphasize. Either way, there was no basis to claim that the Constitution prohibited administrative rulemaking. As a matter of practice, the early federal Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct for private parties on some of the most consequential policy questions of the era. Yet the people who drafted and debated the Constitution virtually never raised objections to delegation as such, even as they feuded bitterly over many other questions of constitutional meaning.

Ilan Wurman wrote a reply at the Yale JREG blog. He agrees with some of Mortenson and Bagley’s claims, but draws different conclusions from the statutes passed by the First Congress. Here is the introduction:

At the outset, it’s important to establish correctly the existing originalist claims. The standard originalist position is that there are certain kinds of things that Congress must do and the executive (or judicial) branch may never do, namely the formulation of rules regulating private conduct, i.e. telling private people (as opposed to government officials) what they can and can’t do or altering their rights or obligations. Yet Mortenson and Bagley often describe the originalist position as being that any “rulemaking” is an exercise of legislative power that cannot be delegated. I know of no originalist who actually holds such a view, and I encourage Mortenson and Bagley to remove the several characterizations to the contrary. (For example, p. 21: “First, the critics have argued that rulemaking is an exercise of legislative power that may not be delegated by the legislature. Second, they insist that rulemaking can’t qualify as an exercise of executive power, which is limited to the particularized application of existing rules.”)

The paper’s central problems, however, relate to its interpretation of the evidence of “what the Founders said” and “what the Founders did.” This post challenges the paper’s interpretation of “what the Founders said” on two counts: their understanding of nonexclusive powers, and the distinction between delegation and alienation. It then argues that the paper’s evidence of “what the Founders did” does not prove what Mortenson and Bagley think it does. Their evidence from the First Congress does, I think, establish that the modern originalist “private conducts/private rights” nondelegation test might have to be modified—and here their paper contributes the most to the scholarship and originalists must take its claims seriously. But the evidence does not prove there was no nondelegation doctrine at all.

I have only had a chance to skim Mortenson and Bagley’s thorough 108-page article. I hope to have a more detailed response in due course.

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Divided Appeals Panel Slaps Federal Judge for Allowing Jury Nullification Defense

It’s not news that most judges balk at the prospect of jury nullification—the right and power of juries to bring “not guilty” verdicts when defendants violate laws that jurors consider unjust or wrongly applied. It is news when judges take a high-profile slap at a colleague who endorsed jury nullification in his own courtroom. And it’s an even bigger deal when they barely assemble a majority to join in the public shaming.

That’s exactly what happened last month when a divided three-judge panel of the U.S. Second Circuit Court of Appeals rebuked U.S. District Judge Stefan Underhill, who presided over what he called “a shocking case” in his court “that calls for jury nullification.”

The prosecution that shocked Underhill was a dubious federal “child pornography” case growing out of a state statutory rape case. It was summarized by the feds themselves in a U.S. Attorney’s Office press release, which alleges that defendant Yehudi Manzano “sexually assaulted a 15-year-old female victim in Connecticut, video recorded the assault with his cell phone, and uploaded the video to his Google account.”

“The only people who ever saw it were the guy who made it, the girl who was in it, and the federal agents,” Norman Pattis, Manzano’s attorney, told me about the video.

How did the feds get jurisdiction in what would normally be a state criminal case?

The feds chose to pile on a questionable prosecution for acts already being addressed in the state courts. “Apparently, the mere fact that the recording equipment was manufactured outside Connecticut is sufficient to meet the interstate commerce requirement of the [child pornography] statute,” as Judge Underhill marveled.

You would think a federal judge would have learned by now that the mere invocation of “interstate commerce” is the legal equivalent of muttering “Beetlejuice” three times, causing federal lawyers in ill-fitting suits to materialize amidst clouds of sulfurous smoke.

And materialize they did, with high stakes for the defendant.

“The charge of production of child pornography carries a mandatory minimum term of imprisonment of 15 years and a maximum term of imprisonment of 30 years, and the charge of transportation of child pornography carries a mandatory minimum term of imprisonment of five years and a maximum term of imprisonment of 20 years,” the U.S. Attorney’s press release notes.

Such a sentence would be in addition to the one to 20 years in prison faced by Manzano for sexual assault in the second degree, a class B felony in Connecticut, for sex with a 15-year-old who was legally incapable of consenting to the relationship.

Manzano’s attorneys argued that the feds were overreaching and that their client should be allowed to inform the jury of the potential sentence and argue for jury nullification. Judge Underhill agreed.

“This is a shocking case,” Underhill wrote. “This is a case that calls for jury nullification. …  I am absolutely stunned that this case, with a 15‐year mandatory minimum, has been brought by the government. …  I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct or the lack or seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way, to what end I’m not sure.”

Prosecutors promptly filed an emergency motion seeking a writ of mandamus—an order from a higher court that would bar Judge Underhill from permitting the defense to inform the jury of the potential sentence and to argue in favor of jury nullification.

Given the judicial system’s strong aversion to loosening the puppet strings judges and prosecutors routinely fasten on jurors, it’s no surprise that two of the three appeals court judges hearing the case sided with the prosecution.

“Our case law is clear: ‘it is not the proper role of courts to encourage nullification,'” Judge Richard J. Sullivan wrote in a ruling joined by Judge Denny Chin “As a practical matter, there is no meaningful difference between a court’s knowing failure to remove a juror intent on nullification, a court’s instruction to the jury that encourages nullification, and a court’s ruling that affirmatively permits counsel to argue nullification.”

The appeals court did not agree to bar Underhill from allowing sentencing information to be presented to the jury, since there are potentially grounds other than nullification that could justify its introduction.

More surprising is that the decision was close, with Judge Barrington D. Parker opposing writs of mandamus regarding both sentencing and jury nullification.

“An especially unsettling aspect of this case is that the record the prosecution presented to the District Court and to this Court is barren of anything that would explain, much less justify, the prosecutors’ decision to file the most serious child pornography charges available to them against a man who made a single video which no one else ever saw and which he then attempted to erase,” Judge Parker argued in his dissent.

“Faced with the Government’s charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted,” Parker continued. “But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back. I believe that most conscientious jurists would have done the same. I have no difficulty concluding that Judge Underhill was right to do so. … I respectfully dissent from the majority’s grant of a writ directing the District Court to allow no arguments for jury nullification.”

Those are strong words. But, since they’re on the losing side, Manzano won’t be allowed to argue in his defense in favor of jury nullification. His trial will feature jurors informed that they must abide by the federal government’s legal-contortionist interpretation of the law—though they may be told about the draconian potential sentences in the case.

But Judge Parker’s dissent, following Judge Underhill’s willingness to entertain jury nullification arguments in his court, have provided dramatic fodder for headlines. A public pissing match between federal prosecutors and judges features in news stories exposing the public to judges’ doubts about the wisdom and humanity of the criminal justice system.

An appeals court decision allowing Manzano to argue in favor of jury nullification would have been a better outcome in this case—short of the feds entirely leaving the matter to the state. But despite the loss, we’re getting an eyeful of how the system works, and how responsible jurors can bring otherwise-lacking judgment and mercy to courtrooms.

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Trump Wants to Target Iranian Cultural Sites, Says His Tweets Shall Serve as Notice to Congress

Should Iran retaliate for an American drone killing commander Qassem Soleimani last Friday, the U.S. will start targeting Iranian “cultural sites,” said President Donald Trump. “Iran has been nothing but problems for many years,” the president tweeted on January 4.

“Let this serve as a WARNING that if Iran strikes any Americans, or American assets, we have targeted 52 Iranian sites (representing the 52 American hostages taken by Iran many years ago), some at a very high level & important to Iran & the Iranian culture, and those targets, and Iran itself, WILL BE HIT VERY FAST AND VERY HARD.”

When asked about this comment, Trump again expressed an intent to go after cultural sites, saying: “They’re allowed to kill our people. They’re allowed to torture and maim our people. They’re allowed to use roadside bombs and blow up our people. And we’re not allowed to touch their cultural site? It doesn’t work that way.”

Destruction of cultural heritage sites and artifacts is opposed by the U.N. Security Council. The council—of which the U.S. is a permanent member—in 2015 condemned “the destruction of cultural heritage in Iraq and Syria … whether such destruction is incidental or deliberate, including targeted destruction of religious sites and objects.”

And condemning destruction of cultural sites and objects goes much further back than that. As the Los Angeles Times points out, the Hague Convention of 1907 said “all necessary steps must be taken” to spare “buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected.”

And the Geneva Convention states that “any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples.”

Acts such as these are considered by many to be a war crime, and a lot of U.S. media has been condemning them as such, as have some Democratic politicians. “Targeting civilians and cultural sites is what terrorists do. It’s a war crime,” tweeted Sen. Chris Murphy (D–Conn.).

“The President of the United States is threatening to commit war crimes on Twitter,” said Rep. Ilhan Omar (D–Minn.).

Trump also announced over the weekend that his tweets shall serve as official notice to Congress of his intent to engage in military action against Iran.

“These Media Posts will serve as notification to the United States Congress that should Iran strike any U.S. person or target, the United States will quickly & fully strike back, & perhaps in a disproportionate manner,” Trump tweeted on Sunday evening.

Rep. Justin Amash (I–Mich.) says all that needs to be said on this one:

But for the record, here’s how the House Foreign Affairs Committee responded:

Quippy principles from Democratic leaders ring hollow, however, when party members in Congress have repeatedly voted against measures to rein in presidential war powers or require more congressional oversight.

Trump’s dangerous Twitter tantrums come as Iranian people have been pouring out in mourning over Soleimani, (“for now, Iran is united—in anger at the United States,” says The New York Times) and the Iraqi parliament has voted the U.S. military out.

Owing to that last bit, Trump has started threatening Iraq again.

“If they do ask us to leave, if we don’t do it in a very friendly basis. We will charge them sanctions like they’ve never seen before ever. It’ll make Iranian sanctions look somewhat tame,” the president said.

Meanwhile, it hasn’t taken long for the administration’s justification for murdering Soleimani to start unraveling. Trump and company initially insisted that Soleimani’s death was necessary because he posed an “imminent” threat to American citizens and was planning an upcoming attack that would cost hundreds of U.S. lives. But a range of administration officials suggest that Trump’s political image was the only thing under imminent threat. The option of attacking Soleimani had been floating around as a potential (but not optimal) plan for months.

In other Iran developments, Eric Boehm reports:

The Pentagon has approved plans to send 3,000 more troops to the region. But the debate over the next steps must now shift to Congress, as the Constitution demands. Sen. Tim Kaine (D–Va.) has announced plans to introduce a war powers resolution in the Senate, forcing a debate over whether the U.S. should go to war with Iran or place limits on Trump’s ability to engage in hostilities.

On Sunday, House Speaker Nancy Pelosi (D–Calif.) announced a resolution similar to Kaine’s would be put forth in the House.

Also on Sunday, Iran announced that it would be pulling out of the 2015 nuclear deal that the Trump administration pulled the U.S. out of in 2018.

QUICK HITS

  • How Fox News learned to embrace the deep state again:

  • Kate McKinnon paid tribute to the TV show Ellen and its namesake at last night’s Golden Globes:

  • “Fighting human trafficking” as empty corporate cause continues apace:

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Espinoza School Choice Case and Discrimination Against Religion

When I moderated a debate on Espinoza v. Montana Dep’t of Revenue, I had a question for one of the Institute for Justice lawyers who represents Ms. Espinoza (and others, including Linda Greenhouse, had asked the same question as well). Here’s the issue:

  1. A Montana school choice programs let parents use certain tax credits to pay for education at private schools, whether religious or secular.
  2. The Montana Supreme Court held that this violates a Montana Constitution provision, which bars the government from making “any direct or indirect appropriation or payment from any public fund … for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”
  3. But rather than limiting the tax credit program to apply only to nonreligious private schools (which would have been much like what the Missouri government had done for the playground resurfacing grants in Trinity Lutheran Church v. Comer (2017)), the Montana court struck down the tax credit program altogether, as applied to secular schools as well as religious ones.
  4. The plaintiffs argue that this decision violates the Free Exercise Clause because it is religiously discriminatory.
  5. But, I asked, is it really religiously discriminatory, given that now all Montana private schools, religious and secular, are equally denied the tax credit?

The IJ people gave an answer there, and IJ’s David Hodges has kindly written it up for me to post:

In September, Linda Greenhouse of the New York Timesnoted something “odd” about Espinoza v. Montana Department of Revenue, a case that the Institute for Justice (IJ) will be arguing before the Supreme Court on January 22. Espinoza will determine whether the Montana Supreme Court was correct to shut down a school choice program that allowed parents to select religious schools as part of a generally available tax credit scholarship program. That court ruled that the program violated the state constitution’s prohibition on “indirect” funding of religious institutions.

What was odd to Greenhouse is IJ’s argument that a decision that prevented everyone—including the religious—from receiving a benefit could violate the religious neutrality principle of the First Amendment. After all, Greenhouse wrote, the Supreme Court in Palmer v. Thompson upheld a city’s decision to defy a swimming pool-integration order by closing the pool on the grounds that both the white and black residents of the town were equally deprived of a place to swim. The logic in Espinoza would seemingly follow: If a benefit is denied to everyone—black and white, religious and secular—then how can it discriminate against anyone? Put another way, so long as the effect is the same, how can the cause matter?

The answer lies in an Anatole France quote that the justices sometimes use to needle one another when they see a law as having an obvious pretext: “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” For the Montana Supreme Court, the majestic equality of the law forbids both the religious and nonreligious to attend parochial school.

The underlying dynamic in Espinoza is not new to the Court. The desegregation era was replete with examples of cities justifying discrimination against African Americans by claiming the laws applied to everyone. For example, in Orleans Parish School Board v. Bush, the Court affirmed an injunction against Louisiana when it closed its public schools to avoid a desegregation mandate. In Griffin v. County School Board, the Court held that eliminating a public program to prevent the inclusion of a protected class is the same kind of unconstitutional discrimination as excluding that class in the first place. Finally, in Village of Arlington Heights v. Metro House Development Corporation, the Court explained that “[w]hen there is a proof that a discriminatory purpose has been a motivating factor in the decision…judicial deference is no longer justified.”

Given this context, Palmer is an outlier. In Palmer, the Court wrote that it was unclear whether the pool was closed for discriminatory reasons or benign ones like economic considerations. Absent more compelling evidence, the Court did not want to assume motive.

In Espinoza, by contrast, the Montana Supreme Court explicitly struck down the program because it included religious options. Simply put, if there were no religious options, the program would stand, but since there were religious options, the program had to go. Also unlike Palmer, there was no ambiguity in the record about whether the program was ended for discriminatory or budgetary reasons. (And this is without even addressing the sordid national and state history of anti-Catholic animus behind the Montana constitutional provision at issue known as the Blaine Amendment.) Finally, even if there were no “bad motives,” the text of the state constitutional provision itself clashed with the federal Constitution by disqualifying educational options because of religion—and nothing more.

In any event, both the perspective of time and subsequent caselaw have cast doubt on “neutral” laws and provisions that, as in Palmer, only seem to disadvantage one type of party. As the Court ruled in Trinity Lutheran Church of Columbia, Inc. v. Comer, a case that involved a state provision similar to that in Espinoza, excluding a party “from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

In Espinoza, where the public benefit is for an individual, not a church, it would be an even greater constitutional injury to deny that benefit merely because it might be used at a religious school. As it was in matters of race, so too must it be in other consequential areas of constitutional law.

I’m on balance tentatively persuaded by this argument, but I’d be glad to also post a response, if someone is inclined to offer it.

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A New ABA Model Rule 8.5 to Promote Diversity and Inclusion?

David Douglas authored an essay in the ABA Journal, titled “The ethics argument for promoting equality in the profession.” He proposes a modification to ABA Model Rule 8.5.

The first portion of the rule would impose a duty on all attorneys to promote diversity and inclusion.

As a learned member of society with an ethical obligation to promote the ideal of equality for all members of society, every lawyer has a professional duty to undertake affirmative steps to remedy de facto and de jure discrimination, eliminate bias, and promote equality, diversity and inclusion in the legal profession.

The second portion of the rule is aspirational: lawyers should try to spend at least 20 hours a year to promote diversity and inclusion.

Every lawyer should aspire to devote at least 20 hours per year to efforts to eliminate bias and promote equality, diversity and inclusion in the legal profession. Examples of such efforts include but are not limited to: adopting measures to promote the identification, hiring and advancement of diverse lawyers and legal professionals; attending CLE and non-CLE programs concerning issues of discrimination, explicit and implicit bias, and diversity; and active participation in and financial support of organizations and associations dedicated to remedying bias and promoting equality, diversity and inclusion in the profession.

I have long criticized ABA Model Rule 8.4(g). It imposes an unconstitutional speech code for attorneys. In addition, Rule 8.4(g)’s comment creates a special carve-out for speech that promotes diversity and inclusion:

Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.

This comment creates an unconstitutional form of viewpoint discrimination. Eugene Volokh and I discussed this comment in a letter submitted to the Iowa Supreme Court:

Here, the critical language is “conduct undertaken to promote,” which in this context obviously includes speech promoting “diversity and inclusion.” Yet, this provision explicitly exempts one perspective on a set of divisive issues—affirmative action, alleged systemic prejudice, implicit bias, and the like—while continuing to potentially punish as “harassment” those who promote the opposite perspective. That disparate treatment constitutes unconstitutional viewpoint discrimination.

Consider a debate hosted by a bar association about affirmative action. One speaker promotes racial preferences as a means to advance diversity. His speech would be entirely protected under the proposed amendments. Another speaker critiques racial preferences in ways that some people view as racially “offensive.” His speech would not be protected under the proposed amendments.

The proposed ABA Model Rule 8.5 would suffer the same problem as the comment from 8.4(g). The Rule adopts a specific philosophical viewpoint–promoting diversity and inclusion–and makes it the orthodoxy for attorneys. Under this proposed rule, those who do not adopt that philosophy will be violating a “duty” and “ethical obligation.” Those who choose not to attend certain CLE classes would not be disregarding an aspirational goal.

Scott Greenfield pithily encapsulates the problem with this proposed rule:

You want to be a hero to the cause? Go for it. I’m just a lawyer trying to save lives one at a time.

Not every attorney agrees that “every lawyer has a professional duty to undertake affirmative steps to remedy de facto and de jure discrimination, eliminate bias, and promote equality, diversity and inclusion in the legal profession.” Far too many attorneys–especially academics–take this statement as an unassailable fact of life. It’s not.

Bar associations exist to promote and regulate the legal profession. They do not exist to promote specific ideologies. Indeed, they lack the power to promote ideologies. In my article, I discuss the limits on this authority:

As speech bears a weaker and weaker connection to the delivery of legal services, the bar’s justification in regulating it becomes less and less compelling. The bar lacks a sufficiently compelling interest to censor an attorney who makes a remark deemed “demeaning” at a CLE lecture, or makes a comment viewed as “derogatory” at the dinner table during a bar association gala. These are the sorts of problems that can be resolved by refusing to re-invite offending speakers—not by threatening to suspend or revoke a lawyer’s license. Here, the nexus between the bar’s mission to regulate the practice of law is far too attenuated to justify this incursion into constitutionally protected speech.

Bar associations should resist the urge to stray from their core functions. Not every lawyer wants to be a hero. Some simply want to be attorneys.

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