Tag: in-the-news

The new President of the Ukraine, Volodomyr Zelensky, is (as I noted in an earlier post) not a career politician, but a prominent actor and comedian. How did he become famous? By playing a non-career-politician who is unexpectedly elected the President of the Ukraine. Anything we can do, he can do meta. The only thing better would have been if his character in the show had been an actor and comedian. (The character was actually a history teacher who first studied law before switching to history; Zelensky is trained as a lawyer.)

For whatever it’s worth, here’s the theme song (which, I’ve just learned, is called “саундтрек” in Russian) to the show, which is called “Servant of the People,” and which Zelensky apparently helped create. I think the song captures well the humor of the show; time will tell what it tells us about Zelensky the President rather than Zelensky the character and producer. Imagine it sung in a jaunty, carefree tone; also imagine it rhyming, which of course it does in Russian:

I love my country
Love my wife
Love my dog
I am a member of everything
Almost Superman
But rarely spoil for a fight.
Everyone knows
What I’m sentenced to—
“Servant of the people.”

I have almost everything
Dignity and honor
And even shouts of “Bravo.”
The people issued me
My personal airplane
And why not? I have the right.
On my belly—right here—
I’ll get a tattoo
“Servant of the people.”

The author is Dmytro Shurov (or Dmitriy Shurov in Russian) of the band Pianoбой.

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Attorney General William Barr and White House aide Stephen Miller have come up with conflicting plans to deal with the rush of fleeing Central American migrants flocking the southern border. Barr wants to deny them bail and hold them in pens on taxpayer dime. Meanwhile, Miller wants to release them to sanctuary cities that are defying Trump’s draconian interior enforcement designs to teach these cities a lesson.

Barr’s plan is idiocy that is unlikely to accomplish anything. But if sanctuary cities play their cards right, Miller’s plan could work out well for everyone and be instructive in ways that he doesn’t even realize.

President Trump had campaigned on controlling the border but, embarrassingly, it’s become an even bigger mess on his watch. Border apprehensions, although nowhere close to the 1.6 million high in 2000, are significantly up. In the last two months alone, about 190,000 asylum seekers have been apprehended compared to 310,000 in all of 2017, the year Trump assumed office.

Barr’s bright idea to deal with the situation is to end the long-standing practice of releasing some asylum seekers who pass the initial “credible fear” screening if they are able to post a bond. The alternative is to hold them for years and years as their case wends its way through hopelessly backlogged asylum courts. The statutory minimum bond amount, which asylum seekers lose if they fail to show up for their hearings, is $1,500. However, last year the Trump administration set the rate at $7,500, an increase of 50 percent from the median bond rate over the last five years, and even $10,000.

He’s giving border agencies 90 days to ramp up their processing and detention capacity. After that, he says that any asylum seeker caught outside of an official port of entry will no longer be eligible for bond. He’ll exempt unaccompanied minors and families with children because they can’t be detained for more than 20 days as per law (although an advisory plan that Trump had convened this week recommended that he pass an emergency regulation to overrule that law). But all singles and childless families will be denied bond.

Barr thinks this will end the so-called practice of catch-and-release and deter asylum seekers from making the schlep to the border. The more likely outcome is that he’ll incentivize even more families to bring kids with them. Either way, it is highly unlikely that his proposal will pass legal muster given that Barr is essentially proposing to give people who’ve merely exercised their legal right to request asylum no option but to remain in indefinite detentions. That should be a relief to taxpayers given that otherwise, instead of gaining millions in bond revenues, they’ll be spending tens of millions for detention since it costs $320 per day to detain just each migrant.

Miller’s plan, on the other hand, which Trump gleefully endorses on a nearly daily basis for all the wrong reasons, is a great idea.

“Democrats must change the Immigration Laws FAST,” Trump tweeted earlier this week. “If not, Sanctuary Cities must immediately ACT to take care of the Illegal Immigrants.”

Asylum seekers are of course not illegal immigrants. But even if they were it would be no catastrophe given that contrary to Trump’s assertions, undocumented migrants aren’t gangbangers and criminals. The best evidence suggests that they commit fewer crimes than natives.

Asylum seekers, who are fleeing violence, are even more law abiding. Indeed, all they are looking for is a safe place where they can work hard and build a life for themselves and their families. That also makes them a major economic boon.

Therefore sanctuary cities should not just roll out the welcome mat, as many of them are pledging to do if Trump makes good on his threat. They should go a step further and offer to pick up the tab for transporting these migrants so long as the administration gives them work permits right off the bat, as I recently suggested, not after six months as is currently the case. The permits could confine the asylum seekers to working in the sponsoring city for a while, but that would be a whole lot better than being in a detention camp. They could, however, petition other participating jurisdictions for sponsorship if they wanted to move. If they skipped town, that could count against their asylum petition. But to minimize that eventuality, sanctuary cities can send emissaries to the border to inform asylum seekers of the kind of local work that is available and let them choose the place that best suits their skills and experience.

There are about 300 state and local governments that are considered sanctuary jurisdictions. Even if they had to absorb a million asylum seekers this year, that would work out to an average of 3,333 per jurisdiction. That should be manageable for any city. Florida took in 125,000 low-skilled Cuban convicts in 1980 without any discernible economic or other ill-effects when Cuban dictator Fidel Castro dumped them on the state during the notorious Mariel Boatlift episode.

Many mayors and governors who have for years been pleading with Uncle Sam to give them special visas to recruit immigrants to relieve labor shortages or to boost flagging population can jump in on the action. If they aren’t already sanctuary jurisdictions, they can declare themselves such.

Some will object that this will turn amnesty into a guest worker program. But if a proper guest worker program with Central American countries existed and asylum seekers used it to gain entry to the United States, would they object to that? The fact is that even folks in the most dangerous countries have multiple motives for seeking a particular destination country. Central American migrants looking for work would no more move to Raqqa even if ISIS paid them handsomely than asylum seekers would move to poverty-stricken Lesotho just because it is safe. The only way to ensure purity of motive is to have both an adequate asylum program and a guest worker program. But America’s guest worker program is worse than its asylum program, which is why Central Americans are trying to push their way through the latter. But asylum also taxes border resources more than any other admission route. So the best way to relieve pressure on the border and restore order is to create a proper guest worker program, exactly what Trump won’t even consider.

For now, the beauty of the plan to let sanctuary jurisdictions sponsor asylum seekers is that it would be a mini-experiment in federalizing immigration policy, something that many immigration reform proponents, including me, have been recommending since before Trump became president. Those jurisdictions that feel that asylum seekers will strain their resources more than they contribute to the economy don’t have to admit them. But those who believe the opposite don’t have to be deterred by such objections. Whoever turns out to be right will become an example for others without the federal government having to impose a one-size-fits-all solution on the whole country.

Between Barr and Miller, Miller is the implacable foe of immigration. Barr had no particular record of hostility toward immigrants before joining the White House. It would be delicious irony if Miller is the one who gets the ball rolling on something remotely good for immigrants.

This column originally appeared in The Week

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For the next four mornings I’ll be sitting in the guest-host chair for Stand UP! with Pete Dominick on Sirius XM Insight (channel 121) from 9–12 a.m. eastern time. There will be a LOT of discussion about the 2020 presidential election, actual government policies that affect actual humans, and (as ever) things that make me go heh. Today’s guest-list includes:

* Beloved Reason criminal justice reporter C.J. Ciaramella, who will talk about the latest reform efforts on the state, local, and federal levels; where the 2020 candidates stand on incarceration and weed, and maybe a bit on the state of government transparency.

* Documentary filmmaker Rachel Lears, director of the brand new film Knock Down the House, which follows four upstart Democratic women candidates who sought to primary incumbents in 2018. You might recognize the one who won. Here’s the trailer, which was released Monday:

* Washington Examiner Executive Editor Phillip Klein, who yesterday stone cold got ratio’d for this tweet:

New post: "Elizabeth Warren's plan to cancel student loan debt would be a slap in the face to all those who struggled to pay off their loans" https://t.co/4g6No2MRVm

— Philip Klein (@philipaklein) April 22, 2019

* Brookings/Tablet/Deep State** contributor Jamie Kirchick, author of a forthcoming history of gay D.C., who will talk about the meaning and import of South Bend Mayor Pete Buttigieg‘s surprisingly traction-gaining candidacy for president.

(**I am kidding, though also eager to ask about this 2016 piece.)

* Shit-stirring New York writer Molly Jong-Fast, who will talk about why “Bill de Blasio 2020 Is a Terrible Idea.”

You can call into the program at any time, 1-877-974-7487, to heckle either me or the guests, though please do treat the latter with at least token decorum.

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In a new case, Taylor v. City of Saginaw, the Sixth Circuit has ruled that the common practice of parking enforcement officers “chalking” a tire to see if the car has been moved violates the Fourth Amendment.  I’m not sure the decision is correct.  But it’s plausible on current law, and it raises some really interesting conceptual issues.

Here’s an overview of the new case and some thoughts on whether it is correct.

First, the facts.  Alison Taylor gets a lot of parking tickets, and she decided to make a federal case out of it.  Specifically, she sued the city of Saginaw in federal court.  She alleged that her constitutional rights were violated by practice of “chalking” her tire to figure out if she had overstayed the time she was permitted to park her car.

I don’t know of any other cases in which “chalking” was alleged to violate the Fourth Amendment.  But the Sixth Circuit ruled that it did, in a decision authored by Judge Donald joined by Judge Kethledge and Judge Keith.  And the court’s reasoning seems to apply broadly to everyone’s car, not just Alison Taylor’s.

Here’s the court’s thinking.  First, the court reasons that the chalking is a search of the car because it is a trespass on to the car to obtain information under United States v. Jones.  It’s a trespass under Jones, the court says, because it satisfies the common law trespass test:

In accordance with Jones, the threshold question is whether chalking constitutes common-law trespass upon a constitutionally protected area. Though Jones does not provide clear boundaries for the meaning of common-law trespass, the Restatement offers some assistance. As defined by the Restatement, common-law trespass is “an act which brings [about] intended physical contact with a chattel in the possession of another.” Restatement (Second) of Torts § 217 cmt. e (1965). Moreover, “[a]n actor may . . . commit a trespass by so acting upon a chattel as intentionally to cause it to come in contact with some other object.” Id. Adopting this definition, there has been a trespass in this case because the City made intentional physical contact with Taylor’s vehicle. As the district court properly found, this physical intrusion, regardless of how slight, constitutes common-law trespass. This is so, even though “no damage [is done] at all.” Jones, 565 U.S. at 405 (quoting Entick v. Carrington, 95 Eng. Rep. 807, 817 (C.P. 1765)).

Next, it is an act conducted to obtain information, as Jones requires:

[O]nce we determine the government has trespassed upon a constitutionally protected area, we must then determine whether the trespass was “conjoined with . . . an attempt to find something or to obtain information.” Id. at 408 n.5. Here, it was. Neither party disputes that the City uses the chalk marks for the purpose of identifying vehicles that have been parked in the same location for a certain period of time. That information is then used by the City to issue citations. As the district court aptly noted, “[d]espite the low-tech nature of the investigative technique . . . , the chalk marks clearly provided information to Hoskins.” This practice amounts to an attempt to obtain information under Jones.

Having concluded that the chalking was a search, the court then concludes that it was unreasonable and therefore unconstitutional.   The basic idea here is that no exceptions to the warrant requirement apply, so by default the warrantless search is unlawful.  First, the automobile exception does not apply:

The automobile exception permits officers to search a vehicle without a warrant if they have “probable cause to believe that the vehicle contains evidence of a crime.” United States v. Smith, 510 F.3d 641, 647 (6th Cir. 2007) (citation omitted). No such probable cause existed here. Thus, the automobile exception is inapplicable.

Next, the search was not reasonable under the community caretaker exception:

The City fails to carry its burden of establishing that the community caretaker exception applies in this instance. First, on these facts, the City fails to demonstrate how this search bears a relation to public safety. The City does not show that the location or length of time that Taylor’s vehicle was parked created the type of “hazard” or traffic impediment amounting to a public safety concern. Nor does the City demonstrate that delaying a search would result in “injury or ongoing harm to the community.” Washington, 573 F.3d at 289. To the contrary, at the time of the search, Taylor’s vehicle was lawfully parked in a proper parking location, imposing no safety risk whatsoever. Because the purpose of chalking is to raise revenue, and not to mitigate public hazard, the City was not acting in its “role as [a] community caretake[.]” Id. at 287.

And finally, the search was not justifiable based on a general interest in having an orderly parking system:

While the City is entitled to maintain efficient, orderly parking, the manner in which it chooses to do so is  not without constitutional limitation. As the Supreme Court explains, “the [Fourth] Amendment does not place an unduly oppressive weight on [the government] but merely . . . an orderly procedure. . . .” Jeffers, 342 U.S. at 51 (citation omitted).

The City does not demonstrate, in law or logic, that the need to deter drivers from exceeding the time permitted for parking—before they have even done so—is sufficient to justify a warrantless search under the community caretaker rationale. This is not to say that this exception can never apply to the warrantless search of a lawfully parked vehicle. Nor does our holding suggest that no other exceptions to the warrant requirement might apply in this case. However, on these facts and on the arguments the City proffers, the City fails to meet its burden in establishing an exception to the warrant requirement.

Here are a few thoughts on the case:

(1) From a practical perspective, this is a really important decision.  It concludes that a routine practice that wasn’t thought to be illegal (if it was thought of at all) is actually unconstitutional. I’m not sure if the decision is correct.  And as I’ll explain below, there are several plausible but debatable moves in the opinion.  But this decision is now binding in the Sixth Circuit and may also be followed elsewhere:  Traffic enforcement officers around the country should be paying attention to this.

(2)  Is the decision right?  As I said above, I’m not sure.  United States v. Jones introduced the idea of the trespass or physical intrusion test for searches in 2012.  As I’ve written before, Jones could mean a lot of different things. It’s just not yet clear what the standard is or how it should apply.  Given that, I think the result in Taylor is plausible but that it’s also subject to several plausible objections.

(3) Start with the question of trespass.  First, the court takes from Jones the idea that the test is “common law trespass.”  Maybe that’s the test.  But maybe it’s not.  The Court in Florida v. Jardines notably did not describe the Jones test as a trespass test. Instead, Jardines described the test as “physical intrusion.”  That’s potentially pretty different.  And assuming the test is common law trespass, figuring out what kind of trespass test that meant is actually pretty tricky.  Maybe it’s the Restatement test, but maybe it’s something different.

(4) I’m also not sure of the court’s  conclusion that the chalking was “to obtain information,” needed to satisfy the search test from Jones.  That’s certainly a possible result.  But it also strikes me as a somewhat awkward fit.

Here’s the context.  In Jones, the officer installed the GPS device on a suspect’s car and then obtained GPS info from it as the car was tracked for 28 days.  The majority ruled this a search in part on the ground that installing the GPS was done to obtain information—specifically, the stream of data from the GPS that would provide the location of the car to which it was attached.  Here’s the most relevant discussion of the intent test from Footnote 5 of Jones:

Trespass alone does not qualify, but there must be conjoined with that what was present here: an attempt to find something or to obtain information.

Related to this, and similarly irrelevant, is the concurrence’s point that, if analyzed separately, neither the installation of the device nor its use would constitute a Fourth Amendment search.  Of course not. A trespass on “houses” or “effects,” or a Katz invasion of privacy, is not alone a search unless it is done to obtain information; and the obtaining of information is not alone a search unless it is achieved by such a trespass or invasion of privacy.

The Sixth Circuit in Taylor sees that element satisfied by the chalking.  And it is no doubt true that the officer chalked the car with the ultimate goal of finding out a fact—whether the car had moved.  That may be right under Jones.

On the other hand, it seems like a somewhat unusual application of the intent test.  I would think the Fourth Amendment idea of a “search” of a person’s “effects” ordinarily implies intent to obtain information from the effect searched.  Normally, searching a box means getting information from inside the box.  Searching a home means getting information from inside the home.

In Taylor, however, the officer’s plan is to place his chalk on the car and then come back later and see if the chalk moved—thus giving the officer a clue about whether the car moved.  That’s information about the car, but it seems removed from a search of the car itself.  After all, the car is just out in public.  It is sitting on a public street for anyone to see.  And the officer is just looking at the chalk the officer placed.  Is it really a search of the car at Time A to see at Time B if the chalk moved between Time A and Time B?

Maybe yes.  Maybe the problem is that Jones itself was an awkward fit.  The obtaining of information in Jones was also just ultimately about the car and where it had been in public, as well. And the Supreme Court apparently found that sufficient.  But it’s at least a question worth raising: Are there limits on what kind of information the government needs to want to obtain, and from what, and when, to satisfy the Jones test?

(5)  Assuming the chalking is a search, the next question is whether it is constitutionally reasonable.  I agree with the Court’s analysis of the automobile exception and the community care-taking exception.  But I suspect some courts might disagree with the Sixth Circuit’s reasonableness analysis on the ground that chalking is a de minimis search as part of a regulatory scheme.  It’s just putting a temporary mark on a tire, it causes no damage, and it doesn’t reveal anything.  Some courts have articulated doctrines that allow low-level searches as reasonable based on a balancing of interests without particularized suspicion.   I can imagine that as a possible path for other courts.  We’ll see.

(5) I have to wonder how much this issue matters in a world of smart phones.  Everyone is now carrying around a camera.  Instead of chalking the tire, the parking folks can just take a picture of the car.  They can figure out if the car moved by comparing the pictures at Time A and Time B to see if the car is in the same place.  It may be more complicated or expensive than chalking, but it avoids the Fourth Amendment concern by just observing what is in public without any physical attachment to property.

(6) Finally, it’s not at all clear what if any remedies may be applicable.  Chalking is common and hasn’t been though to be illegal.  Given that, qualified immunity should attach and civil suits against the officers won’t work.  And it’s not clear that there is any exclusionary rule available in an enforcement action to pay the parking ticket, as that is a civil proceeding and the exclusionary rule may not apply under United States v. Janis.

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One of the Supreme Court’s cert grants yesterday was Putnam Investments, LLC v. Brotherston, a case about the burden of proving causation for losses in ERISA suits. There is a 6-4 circuit split about whether the ERISA plaintiff or the fiduciary defendant has the burden of persuasion regarding whether the fiduciary defendant’s breach caused the loss. Here is how the first Question Presented reads:

The cert petition presents the ordinary rule in U.S. law (i.e., outside of ERISA) as being that the plaintiff has the burden of showing causation. The cert petition notes, however, that the court below recognized “that it ‘has long been the rule in trust law’ that ‘the burden of disproving causation [rests] on the fiduciary.’ Pet. App. 32a-33a (citing Tatum v. RJR Pension Inv. Comm., 761 F.3d 346, 363 (4th Cir. 2014)).”

How could it possibly be that the fiduciary defendant has the burden of disproving causation? With the caveat that I haven’t yet explored this case in detail, there are at least three reasons to think the fiduciary defendant has this burden. (Note that these reasons aren’t truly independent as much as overlapping and reinforcing.)

First, ERISA relies on, and in significant respects incorporates, the common law of trusts. (For a careful statement of this point, with qualifications, see John H. Langbein, What ERISA Means by “Equitable”: The Supreme Court’s Trail of Error in Russell, Mertens, and Great-West, 103 Colum. L. Rev. 1317, 1324-1329 (2003).) By “common law” in this paragraph I don’t mean “common law vs. equity,” since the law of trusts is and was equitable—rather, “common law” in the sense of law recognized, developed, and formulated by judges.

Second, equity has different rules for “damages,” i.e., loss-based monetary remedies. This is something I address in my Fiduciary Remedies chapter in the Oxford Handbook of Fiduciary Law (2019). Here is my discussion of “equitable compensation,” minus the footnotes, and with emphasis added to highlight a point of relevance for Putnam:

Equitable compensation is a remedy that looks like damages. It even travels under names like “equitable damages” and simply “damages,” as well as names more redolent of trusts, “surcharge” and “falsification.”  This, too, is a frequently sought remedy when a beneficiary sues a trustee for breach of duty, especially for a breach of the duty of care.  Unlike accounting for profits and constructive trust, equitable compensation is loss-based. Instead of stripping gains from the defendant, it makes the defendant compensate the plaintiff (or the trust itself) for something that has been lost.

What name is used for this remedy may seem inconsequential. But there are reasons to avoid conflating it with legal damages.

First, damages is the central remedy in tort, and it expresses the remedial aspiration of tort law: to make the defendant restore the plaintiff to the position he was in before the defendant’s wrongful act. Tort damages look back to the rightful position. But the focus of fiduciary remedies is not on loss. Their primary function is not to compensate.  They look forward to the rightful position.

Thus equitable compensation is not the paradigmatic remedy for a breach of fiduciary duty, as damages is in tort. Indeed, equitable compensation as a distinctive remedy emerged out of accounting. It was a shortcut: without going to the trouble of an accounting, a beneficiary could sue for what might be called the expected results on the negative side of the ledger.  According to its “traditional principles,” equitable compensation “focused on the trustee’s obligation to account for his or her stewardship of the trust property, and [t]he form of relief [was] couched in terms appropriate to require the defaulting trustee to restore to the estate the assets of which he deprived it.”

There may be analytical advantages to separating “accounting for profits” from “equitable compensation,” as well as advantages to thinking of them as profit and loss of a single remedy of accounting for what the fiduciary has done with the beneficiary’s resources. Either way, the affinity between these remedies is a hint that “equitable compensation” is not the same as damages in tort.

Indeed, in some jurisdictions there are a number of fairly subtle differences between “damages” and “equitable compensation,” though the extent to which these are recognized by courts will depend on their familiarity with equity. One is that a rigorous showing of causation is not required in equitable compensation, at least if it is seen as a kind of direct “negative accounting.”  Another is that courts may allow offsets for services rendered by the fiduciary. This, too, is in keeping with the roots of the remedy in accounting, but is at odds with ordinary calculations of legal damages. Yet another difference, at least in some common law jurisdictions, is that a court awarding equitable compensation may choose to allow the plaintiff to recover the lost value as of the time of the decree, not as of the time of breach, on the theory that what the beneficiary is owed is a continuing obligation of prudent administration by the fiduciary—an obligation that, if performed by the fiduciary, would have obtained the assets’ appreciation.  A further difference is that equitable compensation allows no recovery for non-pecuniary losses, such as emotional distress.  This limitation is consistent with the theory that equitable compensation is requiring a fiduciary to make up what is lacking, due to breach of a duty, in the trust corpus (or more generally in the beneficiary’s resources that are in the hand of the fiduciary.)

The general principle is, as the U.S. Supreme Court put it, that for the remedy of equitable compensation “any requirement . . . must come from the law of equity.”  Sometimes this remedy is more generous than legal damages, sometimes less so. These divergences are not random. They are due to the fact that equitable compensation is tied to the fiduciary’s duties. In the words of one scholar, “If the fiduciary no longer has the original property, and cannot therefore specifically perform his or her obligation, the claim will be that he or she must perform by payment of a monetary equivalent.”  In such a case, equitable compensation “does not extend to loss suffered beyond that which is mandated by the scope and purpose of the duty,” yet it is “denied or reduced only in those circumstances where such denial or reduction is consistent with the reach of and expectations engendered by the duty.”

By using distinctive terminology, such as “equitable compensation” rather than “damages,” courts and scholars can show their awareness that what they are discussing is a distinctive monetary remedy. “Labels . . . shape the connotation of a legal principle and thus the way people think about it.”

Second, the use of distinctive terminology helps avoid misunderstanding about this remedy’s classification. A typical award of damages in tort or contract is a legal remedy. But when a court awards equitable compensation against a trustee for breach of fiduciary duty, the court is not giving a “legal” remedy.  The entire field of trust law was developed in equity; it is in equity’s exclusive jurisdiction.

This conclusion that equitable compensation is equitable has a number of implications in U.S. law, including that a claim for this remedy should be subject to equitable defenses such as laches and unclean hands, and that the remedy should not be awarded by a jury.

Finally, there is a point I raise in a footnote in the passage just quoted. After saying that one difference between legal “damages” and equitable compensation “is that a rigorous showing of causation is not required in equitable compensation, at least if it is seen as a kind of direct ‘negative accounting'”—a proposition for which I quote the world’s leading equity treatise, Meagher, Gummow & Lehane—I then add this sentence: “The explanation for this may not be specific to equity, but instead may be due to the fact that the plaintiff is enforcing the primary right, rather than seeking damages for loss caused by a wrong.”

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Barber Brennon Jones has been giving free haircuts to the homeless in Philadelphia for years, and even made national headlines in 2017 for his charitable efforts. But recently a police officer tried to shut him down. The cop said his sergeant wanted Jones to stop cutting hair and leave the area. But when Jones said he was going to call the mayor, the officer made a call and came back and said Jones just needed to make sure to clean up the hair when he was finished.

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Social Security will be insolvent and unable to pay the full value of promised benefits by 2035—that’s one full year later than previously expected—and Social Security’s costs will exceed its income by 2020, according to a new report published Monday by the program’s trustees.

At the end of 2018, Social Security was providing income to about 67 million Americans. About 47 million of them were over age 65, and the majority of the rest were disabled. If nothing changes, the Social Security Trust Fund will be fully depleted by 2035 and the program would impose across-the-board cuts of 20 percent to all beneficiaries. That may sound like it’s a long way off, but 51-year-old workers today will be just hitting retirement age when the cuts kick in. Some current retirees will still be younger than 80.

By that point, some parts of Medicare will already be unable to cover the full cost of benefits.

The trustees’ report released Monday shows that the trust fund for Medicare Part A, which covers hospital and nursing home costs, will be gone by 2026. Medicare Part B, which covers routine medical care like visits to the doctor, and Medicare Part D, which covers prescription drugs, are on more solid footing and will remain solvent “indefinitely.”

It is important to remember that insolvency is not the same as bankruptcy. By 2026 and 2034, respectively, Medicare and Social Security will not have enough money to pay the full cost of their obligations, but that’s not the same as saying they’ll have no money at all.

It’s also important to keep in mind that these projections are constantly shifting based on economic data, demographic trends, and actuarial projections. Last year, Social Security was supposed to hit insolvency in 2034. The year before, the trustees said insolvency wouldn’t hit until 2037. It’s a moving target, but time keeps on slipping and ignoring the looming crisis won’t make it go away.

Still, Congress could be spurred to action by the threat that Social Security will post losses in just two years. The last time that happened, in 1982, it provided an impetus for federal policymakers to make several changes, including an increase to the payroll tax, that kept the federal old-age pension program solvent. Without policy changes, the new report shows that Social Security would start losing money in 2020 and would continue to operate in the red for decades to come—long past the point when the program would be able to fund its promises to retired Americans.

Right now, there’s not much evidence that federal policymakers are ready for that challenge. President Donald Trump has repeatedly promised not to touch Social Security while he’s in office, while Democrats in Congress are eyeing Medicare for All proposals that would likely pile massive new obligations onto a federal entitlement program that’s already struggling under its own weight.

“That fact that we now can’t guarantee full benefits to current retirees is completely unacceptable, and it should be cause enough for every policymaker to rally around solutions to restore solvency to those programs,” said Maya MacGuineas, president of the Committee for a Responsible Federal Budget, a nonpartisan group that advocates for balanced budgets, in a statement. “Certainly we should be focused on saving Social Security and Medicare before we start promising to expand these programs.”

What’s really needed is a complete reconsidering of the relationship between older Americans and those entitlement programs. Both Social Security and Medicare were designed more than half a century ago for an entirely different workforce and population. When Social Security launched in 1935, the average life expectancy for Americans was 61—that means the average person died four years before qualifying for benefits.

Meanwhile, demographics are blowing up the basic premise of how Social Security is funded. There were 2.8 workers for every Social Security recipient in 2017. That’s down from 3.3 in 2007, and that’s way down from the 5.1 workers per beneficiary that existed in 1960.

Today, the two programs function mostly as a giant conveyor belt to transfer wealth from the young and relatively poor to the old and relatively rich, allowing the average person (who now lives to be 78) more than a decade of taxpayer-funded retirement.

When and if Congress gets around to doing anything, both programs should be restructured to ensure they take care of the truly needy, rather than being benefits for anyone who has reached an arbitrary age. As Reason‘s Nick Gillespie and Veronique de Rugy wrote in a still-very-relevant 2012 feature on the future of America’s entitlements, “Focusing on those truly in need instead of automatically shoveling out larger and larger amounts to well-off senior citizens is the best way to avert looming fiscal catastrophe and restore some morality to an indefensible system.”

Those entitlement programs are also the primary drivers of our national debt, which just hit $22 trillion and is on pace to reach levels not seen since World War II by the end of the next decade.

“Every day that passes, the problem gets bigger and the solutions become more difficult to implement,” said MacGuineas.

About the only way Congress will get off the hook is if climate change kills everyone in the next 12 years.

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A case of mistaken identity left a Brown County, Ohio, mother without her job or her children.

Aberdeen, Ohio, police are searching for two people accused of trafficking heroin and fentanyl and possessing drug paraphernalia. They identified two suspects a Facebook post on the department’s page, including a woman named Ashley Foster. About a week after making the post, a deputy in Hamilton County found an Ashley Foster outside of a Target.

It was the wrong woman.

FOX 19 reports that the warrant used to arrest the wrong Foster contained the correct picture, birthday, and Social Security number, but had the wrong address. Though Foster insisted that the officers were mistaken, she was still handcuffed. Her two sons were in the vehicle and Foster said that she was not allowed to feed or change her 8-week-old as he cried. Child protective services took her children after the arrest.

Police booked Foster into jail, where she remained for a week. County rules allowed Hamilton County, to hold Foster for up to three business days until she could be transferred to Aberdeen police custody in Brown County. Because she was arrested on a Thursday, she remained in jail for an additional two days over the weekend. She sat in the Hamilton County cell for five days. While she was jailed, officers were unable to provide Foster with information since the charges were issued outside of their jurisdiction.

Foster struggled to find an explanation even after she was transferred to Brown County. The officers in charge of her transfer were not over the drug case.

When Aberdeen Police Chief David Benjamin finally interviewed Foster in the jail, he concluded that his officers had made a mistake. She was released and all of the charges were dropped.

Brown said that the ordeal caused her to lose her job.

Foster has since been reunited with her children, but not before Clermont County Job & Family Services interviewed her to determine her competency as a mother and inspected her home.

BREAKING NOW & ONLY ON @FOX19 Clermont mom gets custody of her two sons back after being mistakenly jailed 7 days “I got custody back!!! Everything went so smoothly! Were doing family easter tomorrow with both boys!!” – Ashley Foster #PrayersAnswered on this #GoodFriday pic.twitter.com/zOuOassbRX

— Stef DiPietrantonio (@StefDFOX19Now) April 19, 2019

The department is conducting an investigation into the events and Foster is planning to meet with a lawyer.

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Indeed, according to an exit poll, Volodomyr Zelensky, the President-elect, won over 70% of the vote. Zelensky is a political novice; he is an actor and comedian, and the star of the popular Ukrainian (though Russian-language) TV show Servant of the People, where he plays a schoolteacher who unexpectedly becomes elected President of the Ukraine. In honor of his election, I watched the first episode of the show, which is actually not bad.

In any event, I have no deep connection to the land of my birth; I was seven when our family left, and the one real link I have to that part of the world—my native language—ties me more to Russian culture than to Ukrainian. I also have no reason to think that Zelensky will be a particularly effective public servant, though who knows? But I was happy to see that anti-Semitism in the Ukraine seems to have retreated so much that this could happen.

(Note that Jews are 1% of the population, so I doubt that his Jewishness won him many votes. And while there are occasional accounts of Jewish stereotypes cutting in favor of Jews among some non-Jews, for instance when it comes to Jewish doctors or lawyers, we Jews are not an ethnic group known for having a genius for self-government. “Elect a Jewish President and Prime-Minister, and you’ll have as effective a government as Israel does” doesn’t sound like a winning argument ….)

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In this episode, Nick Weaver and I discuss new Internet regulations proposed in the UK. He’s mostly okay with its anti-nudge code for kids, but not with requiring proof of age to access adult material. I don’t see the problem; after all, who wouldn’t want to store their passport information with Pornhub?

Sri Lanka’s government has suspended social media access in the wake of the Easter attack. As Matthew Heiman notes, the reaction in the West is more or less a shrug – far different from the universal contempt and rejection displayed toward governments who did much the same during the 2011 Arab Spring rebellions. What made the difference? I argue that it’s Putin’s remarkably successful 2016 social media counterattack on Hillary Clinton as payback for her social media campaign against him in 2011.

DNS hijacking is just getting more brazen, according to a new Cisco Talos report. Nick and I talk about why that is and what could be done about it.

Paul Rosenzweig, back from hiatus and feisty as ever, mocks the EU Commission for its on-again, off-again criticism of Kaspersky’s security. Short version: The Commission wants badly to play in cybersecurity because it’s the Hot New Thing, but it has no institutional competence there, in either sense of the word. Speaking of Kaspersky, someone is doing a bad job of trying to compromise its critics with ham-handed private investigator-imposters.

Naked Kitten? Nick and I have a good laugh at the doxxing of Iranian government hackers, including their tools (and, naturally, their girlfriends).

Man bites dog: The Trump Administration is taking interagency processes seriously, and doing a better job than Obama’s team – at least when it comes to use of Cyber Command. Matthew dives into the repeal of PPD-20.

Paul brings us up to date on the Mar-a-Lago Thumb Drive Affair. Maybe it wasn’t malware after all. My guess? Schizophrenia.

Remember that face recognition software that the NGOs said was so crappy it had to be banned? Now, the New York Times reports that it’s so good it has to be banned. Not so fast, says Microsoft: Our face recognition software is still so crappy that it can’t be sold to law enforcement, and it ought to be export controlled so that China can sell – and keep improving – its own face recognition tools.

Bet you thought we forgot the Mueller Report. Nope! In fact, I offer the one conclusion about the report that everyone across the political spectrum can agree on. Anti-climactically, Paul and I point out that the report throws sidelights on the “Going Dark” debate and Bitcoin anonymity. Nick points out that we already knew everything the Mueller Report tells us on those topics.

Finally, Nick and I wrangle over the lessons to be drawn from Facebook’s privacy travails.

Download the 260th Episode (mp3).

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The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

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