Tag: in-the-news

In one North Carolina school district, students may soon find an unusual new directive in their school’s dress code policy: a ban on “furry” costumes.

Officials in the Iredell-Statesville School District, which serves a suburb of Charlotte, North Carolina, appear to be undertaking a strange response to a social media hoax. According to Queen City News, a local news station, the school district was recently inundated with emails alleging that students identifying as “furries” had been coming to schools dressed as animals and bringing litter boxes into school bathrooms. While officials determined that the reports were false, some school board members appear to believe there is some danger to the hoax. As a result, board members have proposed an amendment to the district dress code to officially bar students from wearing “furry” costumes to school, “including tails, gloves, ears, or collars.” 

However, the proposed amendment will likely act to stoke overblown culture war fears, not calm them. Not only is a ban on animal costumes an overzealous reaction to a nonexistent problem, but it will also ultimately give ammunition to feckless culture warriors looking for proof, however flimsily, that an internet rumor of wokeness gone awry is true.

Rumors of students identifying as “furries,” or animals with a cartoonish animal alter-ego, and using litter boxes in school bathrooms began to circulate in late 2021, with the earliest acknowledgment of the phenomenon by a school district coming in October of that year. The hoax gained widespread traction in January 2022 after the Twitter account Libs of TikTok tweeted a video of a woman at a Michigan school board meeting who claimed that she “heard that at least one of our schools, in our town, has in one of the unisex bathrooms a litter box for the kids that identify as cats.” The post received over 4,500 retweets and quote tweets and spurred national coverage of the hoax.

So far, all reports of schools providing litter boxes for “furry” students have proven to be false, but that hasn’t kept officials at the Iredell-Statesville school district from falling prey to baseless panic, even if they acknowledge that the online claims aren’t true.  

During a recent school board meeting, Iredell-Statesville School District officials said that an unspecified TikTok video spurred rumors that the district was providing litter boxes for “furry” or otherwise animal-identifying students. Board members noted that these rumors, like other similar claims, are baseless. “The kitty litter boxes in the bathrooms, that’s not happening,” said Board Member Mark Page. “I’m so tired of hearing comments. It seems like it’s at one and maybe two of our high schools that these kids are just starting this stuff up.”

Despite acknowledging the hoax, the board introduced a proposed amendment to the district’s dress code that would ban “a costume or part of a costume including tails, gloves, ears, or collars.” The policy contains exceptions for spirit weeks or theatre productions. The new policy appears intended to quash rumors that the school district supports “furry” students by explicitly banning animal costumes. “We’re trying to address it before it becomes a major problem,” board member Bryan Shoemaker told Queen City News. The board will vote on the amendment next month.

Rather than prevent a “major problem,” the district’s response seems far more likely to add fuel to furry-rumor flames. After all, why would a school ban animal costumes if fursuit-wearing teenagers weren’t rampant? As Page notes, “The costume issue is very small. It’s just a small group of the kids that are jerking the chains of adults.” However, by suggesting this policy change, it appears that Iredell-Statesville School District officials have allowed a small number of contrarian teenagers to grab their attention—and likely keep rumors about the scourge of “furries” in high schools alive.

The post A North Carolina School District Wants To Ban 'Furry' Costumes appeared first on Reason.com.

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One of the world’s largest automakers is making a huge investment in U.S. manufacturing, but, as usual, local taxpayers aren’t getting off scot-free.

Last week, Ohio Gov. Mike DeWine made a major announcement: Honda, as part of its pledge to sell only electric vehicles (E.V.) by 2040, will spend over $4 billion building up its electric manufacturing capacity in the Buckeye State. That amount includes $3.5 billion to build a new battery plant in partnership with LG Energy Solution, plus $700 million to retool three existing Ohio Honda plants for E.V. production. The Japanese auto giant claimed the investment will create over 2,500 jobs.

The governor’s announcement said the state would “consider a tax credit” and that his administration “plans to work with the General Assembly to secure state funding” for site preparation. Later in the week, the Ohio Department of Development announced that it would be seeking more than $150 million in state incentives: $71.3 million for a 30-year tax credit and $85 million in local infrastructure improvements to support the new plant.

Of course, all of that money comes from state taxpayers, and each dollar spent on Honda is one dollar less spent to the benefit of the Ohioans it came from. And this may just be the start.

“The $150 million price tag isn’t final,” John Mozena, president of the Center for Economic Accountability, which opposes corporate welfare, tells Reason. “The real subsidy money in Ohio comes from JobsOhio.” How? Well, Ohio’s Department of Liquor Control has a monopoly on “the manufacturing, distributing, licensing, regulation, and merchandising” of all alcohol. JobsOhio is a private, nonprofit corporation created by state law that collects the revenues from state liquor activity and invests any profits into state development projects.

Despite receiving public funding and deciding how it’s spent, JobsOhio is exempt from most public ethics laws and the Ohio Public Records Law. A JobsOhio spokesman said last week that the firm would not release information about potential funding for the Honda factories until a final deal was reached.

Citing his organization’s research, Mozena points out that “automotive manufacturers make decisions…based on industry trends and general business conditions, not state subsidies. For instance, it was only two years ago that General Motors shut down its Lordstown plant [in Ohio] despite tens of millions of dollars in ‘job creation’ subsidies in place. But don’t worry about G.M., they still got to keep about $20 million in subsidies for creating jobs that no longer existed.”

Considering that Honda already pledged more than $4 billion to the project and that the company’s market cap is nearly 10 times that amount, forking over $150 million in incentives seems trivial. Plus, JobsOhio could kick in more funding as well. That presents two unappealing possibilities: Either the state gives a small fortune to a company that doesn’t need it, or an unaccountable agency with access to public money kicks in even more funding, money that won’t be used elsewhere on something that benefits the state as opposed to a major automaker.

“Tax incentives to specific companies are not the best way to generate widespread, sustained economic growth,” Rea Hederman Jr., vice president of policy at The Buckeye Institute, an Ohio-based free market think tank, tells Reason. “Instead, better economic policy is to have lower tax rates so all companies from small to large can grow.”

The post Ohio Pledges Over $150 Million in Taxpayer Money for Honda Factories appeared first on Reason.com.

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After an outraged judge issued an order holding the Bureau of Prisons (BOP) in civil contempt for allowing an incarcerated man to waste away from treatable cancer—first reported by Reason last week—the Office of Inspector General for the Justice Department announced on Friday that it is launching an investigation into the case.

Justice Department Inspector General Michael Horowitz said in a press release that his office would investigate the circumstances of federal inmate Frederick Bardell’s death due to colon cancer. U.S. District Judge Roy Dalton for the Middle District of Florida Orlando Division requested the investigation in his contempt order, writing that the Bureau of Prisons’ cruel treatment of Bardell, as well as its misrepresentations to his court, were “inconsistent with the moral values of a civilized society and unworthy of the Department of Justice of the United States of America.”

Sen. Dick Durbin (D–Ill.) tweeted that the case was “appalling” and called for an investigation.

The details unveiled in this case are appalling, and may not be isolated. Given BOP’s disgraceful actions in this case, I'm asking the DOJ IG to investigate BOP’s treatment of medically vulnerable individuals both while incarcerated and upon their release. https://t.co/L3nTxiqiYZ

— Senator Dick Durbin (@SenatorDurbin) October 12, 2022

Bardell was convicted in 2012 of downloading child pornography from a peer-to-peer file-sharing website and sentenced to 151 months in federal prison. In November 2020, he filed a motion for compassionate release, arguing that he likely had advanced colon cancer. An affidavit from a doctor accompanying his motion said he had “a high likelihood of having cancer of the colon with likely metastasis to the liver.”

Dalton denied Bardell’s motion, largely based on reassurances from the BOP that Bardell was receiving adequate treatment and that no one had determined his condition was life-threatening. He was not being treated.

Bardell filed a second motion for compassionate release in February 2021, this time with an affidavit from an oncologist. The oncologist wrote that a more than year-long delay in getting Bardell a colonoscopy after he first noticed rectal bleeding “allowed this tumor to progress from a stage III with an average cure rate of 71 percent in November 2019 to a stage IV disease in September 2020.” 

That delay would “more likely than not, cost Mr. Bardell his life in a matter of weeks to months,” the oncologist wrote.

The government again opposed Bardell’s motion, arguing that it was still not definitive that Bardell even had cancer. However, this time Dalton ordered Bardell to be released as soon as the U.S. Probation Office crafted a proper release plan for him.

But that’s not what happened. Instead, the BOP immediately released Bardell and forced his parents to pay nearly $500 for a commercial flight to get their dying son home. By that point, Dalton wrote, Bardell “had a tumor protruding from his stomach and was visibly weak and bleeding.” As Reason reported last week:

Although he had to be pushed out of prison in a wheelchair, a BOP van dropped Bardell off on a curb outside the Dallas/Fort Worth airport without a wheelchair and left him there. Bardell was weak, as well as bleeding and soiling himself, but he managed to navigate the airports, layovers, and connecting flights through the help of good Samaritans. When he arrived back in Florida to meet his parents, “his father had to take off his own shirt and put it on the seat of [Bardell’s lawyer’s] car to absorb the blood and feces,” Dalton’s opinion says.

Bardell died in the hospital nine days later. Pictures accompanying Dalton’s order show Bardell severely emaciated.

In his contempt order, Dalton ordered the BOP to reimburse Bardell’s family for the cost of the airline ticket, as well as more than $200,000 in attorney fees for a special master appointed to investigate the case.

BOP director Colette Peters said in a statement to The Washington Post that “my heart goes out to Mr. Bardell’s family, to whom I send my deepest condolences. Humane treatment of the men and women in Bureau of Prisons custody is a paramount priority. In instances where we have failed at upholding our mission, we are taking steps to find out what happened, how it happened, and how we can prevent it from happening in the future.”

The post Justice Department Inspector General Launches Investigation Into Inmate Death Following Judge's Contempt Order appeared first on Reason.com.

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There can be no mistaking the intention of the Merchant Marine Act, the 1920 law more commonly referred to as the Jones Act. Passed in the aftermath of World War I, when demand for shipping services had increased dramatically, its purpose was laid out in the text of the statute itself, which declared the law “necessary for the national defense and for the proper growth of its foreign and domestic commerce.” The intention was to make sure that in times of war or another national emergency, America had a high-quality merchant marine fleet “ultimately to be owned and operated privately by citizens of the United States.” 

When it was passed, the law provided subsidies for the construction of a domestic shipping industry, while imposing various employment rules and other shipping regulations. It has been amended in the century since, but it continues to prohibit foreign-flagged ships from traveling between U.S. ports, and many of its wage and labor regulations are still in effect, making it beloved, almost obsessively, by unions. 

In at least one way, the Jones Act has served at least part of its intended purpose: It has benefited the domestic shipping industry by shielding it from foreign competition. But it has done so at considerable expense to everyone else. 

By restricting and regulating shipping at America’s ports, the Jones Act considerably raises the costs of transporting goods, which in turn raises prices on everything from food to electronics to textiles. In good economic times, the Jones Act is a cost borne by the majority to bolster the fortunes of a few. In periods of global economic instability and high inflation, the Jones Act makes supply chain problems worse and drives prices even higher. On a daily basis, it is a force for impoverishment. 

And in a true emergency, it is a crisis unto itself. After Hurricane Fiona wreaked havoc on Puerto Rico this summer, Jones Act shipping restrictions made it effectively impossible to procure vital supplies, including diesel fuel necessary to power generators. Only after considerable public pressure did the Biden administration waive the rule on a “temporary and targeted” basis. 

The Jones Act, in other words, was a subsidy, labor, and regulatory scheme intended to promote American security and economic interests by giving advantages to a particular domestic industry—a classic example of protectionism and industrial policy. And every single day it is a demonstration of how both fail. 

So it is notable that President Joe Biden has spent the better part of this midterm election year promoting what amounts to a new industrial policy as the centerpiece of his economic agenda. What he appears to want is to take the failed ideas of the Jones Act and apply them to the rest of the economy. The president’s big economic idea is, more or less, the Jones Act—but for everything. 

Biden has focused on promoting manufacturing, making campaign-style appearances at planned factory facilities, and crediting his policies with creating jobs. In September, after Micron announced that it would build a new facility for manufacturing computer memory in Boise, Idaho, Biden said it was a “big win for America.” He called the announcement of the new plant, along with facilities from other companies, such as Toyota and Honda, a “direct result of my economic plan.” 

Just about any time one finds a politician taking credit for specific business decisions by specific companies, one ought to be skeptical, worried, or both. In this case, the proximate cause of much of Biden’s factory-jobs campaigning is the Creating Helpful Incentives to Produce Semiconductors (CHIPS) and Science Act, a $52 billion package of industry subsidies Biden signed into law in August. Manufacturers who stand to benefit from these subsidies have played along, with Micron’s leadership saying that its facility is “the first of Micron’s multiple planned U.S. investments following the passage of the CHIPS and Science Act.” Micron, however, was publicly teasing the possibility of new manufacturing facilities as early as October 2021, long before the CHIPS Act became law. 

Similarly, Biden has touted Intel’s plans for a large computer chip factory outside of Columbus, Ohio, traveling to the state to speak at a groundbreaking ceremony in September. The plan to build the facility was already underway when the CHIPS Act was signed. The initial announcement in January cautioned that the “scope and pace” would depend “heavily on funding from the CHIPS Act.” 

It is almost definitionally true that a company like Intel can be expected to rearrange its plans in order to take maximum advantage of a large stream of government subsidies. But the fact that the company announced a “more than $20 billion” build-out before the CHIPS Act passed strongly suggests that the subsidies were not the deciding factor in the project.

Just as the Jones Act ends up distorting the shipping industry, shaping it in ways that make it less flexible and less responsive to genuine consumer demand, we should expect the CHIPS Act to push the semiconductor industry into labor and production decisions intended to satisfy politically determined subsidy requirements rather than genuine market needs. Subsidies are more likely to incentivize inefficiency and dysfunction than genuinely useful production, inflating prices in the process. When subsidies are driving decisions, that means subsidy programs, not end users, are the true customer. 

Moreover, subsidies often end up benefiting companies that are already doing well and, thus, have the capacity to reorient themselves to obtain the handouts. In January, Intel said that in 2021 it had more than $74 billion in revenue, making for what a company slide described as its “Best Year Ever.” Biden’s industrial policy is doling out big benefits to giant companies that were already riding high. 

None of this has stopped the Biden administration from bragging about its ill-conceived plans. Just this month, the president traveled to Poughkeepsie, New York, to give himself credit for a planned IBM facility. “The industrial strategy is really helping to drive a renaissance in American manufacturing and domestic investment…that we haven’t seen in generations,” White House National Economic Director Brian Deese said during the trip. In the 1990s, IBM somewhat famously moved some domestic manufacturing overseas. Biden played up the reversal, saying: “The supply chain is going to start here and end here, in the United States.” Relatedly, the White House has promoted the idea that the CHIPS Act “will strengthen our national security by making us less dependent on foreign sources of semiconductors.” 

Yet, if the Jones Act has shown us anything over the last century, it is that subsidies, labor requirements, and regulatory schemes intended to protect American jobs and industries deemed vital to national security end up raising costs in ordinary times while leaving America more vulnerable in moments of crisis. 

CHIPS is only one aspect of Biden’s Jones-Act-for-everything approach to the economy. His “Buy American” plan, for example, is a foolhardy attempt to promote domestic manufacturing with a Trump-era rule that mostly drives up prices for American consumers, all under the guise of economic patriotism. 

Biden’s Labor Department also recently proposed a rule that would result in the reclassification of millions of independent contractors as employees. This is being portrayed as a move to protect workers, but by forcing them into full-time status, it would eliminate flexibility and adaptability for vast swaths of the work force, making the American economy less efficient and less resilient. 

The Labor Department proposal is best understood as an extension of Biden’s outspoken fondness for union labor and a stepping stone toward an eventual unionization push for many such jobs. And what are unions if not engines of labor force sclerosis, determined to impose worker rules that make organizations of all kinds less nimble and less adaptable to changing circumstances? It’s not for nothing that unions strongly support the Jones Act. 

Even Biden’s fiscal policy maneuvers have enabled cumbersome forms of industrial policy. As Cato Institute trade policy scholar Scott Lincicome—a sworn enemy of the Jones Act and an exhaustive, entertaining cataloger of industrial policy failures—recently noted on Twitter, states are using excess funds from the American Rescue Plan (ARP) to bid for electric vehicle plants, “costing taxpayers billions for, at best, modest overall economic benefits and, at worst, total boondoggles.” 

States are using leftover (never-needed) American Rescue Plan funds to engage in a bidding war for EV plants, costing taxpayers billions for, at best, modest overall economic benefits and, at worst, total boondoggles.

Industrial policy 101. https://t.co/BYdhofZ2aT pic.twitter.com/5xxYEABCx6

— Scott Lincicome (@scottlincicome) October 14, 2022

This one is worth briefly unpacking, because it demonstrates the ways in which Biden’s economic follies are interwoven. The ARP was a $2 trillion, deficit-funded stimulus package that congressional Democrats passed on party lines shortly after Biden took office in 2021. The bill was sold as an economic lifeline, but economists on the right and left warned that it was oversized and poorly targeted and that it would inevitably result in inflation. The inflation has now arrived, but the poorly targeted funds are still working their way through the economy, with states spending borrowed federal money to finance green energy projects of dubious economic value that will, at best, result in factory jobs at astronomical public cost—in some cases well over $400,000 per permanent position.

Biden’s factory jobs revolution is just a series of expensive, taxpayer-funded boondoggles, and his fanciful vision of a manufacturing economy revitalized by subsidies and labor regulations is, in reality, a vision of vastly expanded Jones Act–style top-down economic planning. That might, as Biden seems so keen to claim, be a direct result of his economic policies, but it’s hardly a win for America. 

The post Biden's New Industrial Policy Will Fail, Just Like Industrial Policy Always Fails appeared first on Reason.com.

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If you’re looking for a website like QAnon, but catering to gun control advocates, you will enjoy some articles from The Trace, a gun control website founded and funded by Michael Bloomberg. In August, The Trace presented a conspiracy about the amicus briefs filed in New York State Rifle & Pistol Association v. Bruen. The article was reprinted by Politico. Will Van Sant, The NRA’s Shadowy Supreme Court Lobbying Campaign, Politico, Aug. 5, 2022.

The 12-brief conspiracy

The Politico reprint of the Trace article opens with snazzy graphics. Forty-nine amicus brief were submitted in the Bruen case: “12 of those briefs were filed by people or institutions who had received millions of dollars from the NRA, a Trace and Politico Magazine investigation found. Only 1 brief disclosed the financial connection.” According to Van Sant, “neither the justices nor the public were told that 11 of these ostensibly independent voices owed their livelihoods in part to the NRA.” Let’s look at some of his examples.

In 1991, the Law Enforcement Alliance of America (LEAA) was created by San Jose police officer Leroy Pyle. The then-police chief of San Jose, Joseph McNamara, was one of the leading gun control spokesmen in America. McNamara attempted to fire Pyle for Pyle’s Second Amendment advocacy. Pyle ended up winning his case, thanks in part to the excellent work of his attorney, who happened to be the daughter of California Senator Dianne Feinstein. Later, Jim Fotis succeeded Pyle as head of LEAA, and LEAA received substantial donations from NRA. Although LEAA is apparently now defunct, in its day it advocated for the viewpoint of most rank and file law enforcement officers: skepticism about gun control and support for strict punishment of violent criminals.

In Bruen, an amicus brief was filed by The League for Sportsmen, Law Enforcement and Defense, which is based in Virginia. Van Sant’s article reports:

“Those of us involved with the League have been involved in 2nd Amendment advocacy for decades,” attorney Christopher Day, counsel of record on the brief, said by email in response to a request for comment. “The League is not affiliated with the NRA, nor received any financial support from them.” The League is led by James Fotis, who for many years oversaw an NRA-supported effort to elect judges and state attorneys general who opposed firearms restrictions.

According to Van Sant, it was “shadowy” for the League’s 2021 brief not to disclose in that brief that the League’s president had, years before, headed an organization that received NRA grants.

That is not what the Supreme Court Rules say, nor should they. Consider some career attorneys at the U.S. Department of Justice. During their employment, they “owed their livelihoods” (Van Sant’s phrase) to the DOJ. Later, they left the DOJ for private practice, and still later they wrote an amicus brief supporting a DOJ position in a Supreme Court case. Per Van Sant’s theory, the former DOJ lawyers must disclose their past DOJ employment in their amicus brief.

A similar situation arises for former NRA General Counsel Bob Dowlut. He retired from the NRA several years ago, when he turned 70. In Bruen, he penned an amicus brief for the Bay Colony Weapons Collectors. According to that organization’s head, Karen McNutt, Bay State paid Dowlut a “nominal sum” and his work was essentially pro bono. She said “I don’t think the NRA was funding this in any way. And I don’t think Bob was getting any money to do this.” Van Sant does not dispute these facts, but he nevertheless calls Dowlut “shadowy” for not disclosing his former employer in the brief.

Then there’s Stephen Halbrook, a private practitioner in Virginia. Starting in the 1980s, he represented the NRA in numerous cases. In those cases and others, he has compiled a 5-0 record in the Supreme Court.

While Halbrook has authored many NRA briefs, his amicus briefs in recent years, including in Bruen, have been on behalf of the National African American Gun Association. No surprise, since Halbrook has done more than any other scholar to research and describe the Reconstruction Era history of gun control laws aimed at disarming the Freedmen, and the congressional response. See, e.g., Stephen P. Halbrook, Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms (2d ed. 2010).

According to Van Sant, because the NRA has been one of many clients in Halbrook’s private practice, he was “shadowy” for not disclosing in a 2021 amicus brief for a different organization that the NRA has also been a client.

Even former Solicitor General Paul Clement is purported to be in on the “shadowy” conspiracy. Clement, the winning attorney in Bruen, joined the board of the Bradley Foundation in 2020. Van Sant writes:

“In 2020 and 2021, Bradley made grants totaling $2 million to groups that filed pro-NRA amicus briefs in Bruen. Grantees included the Independence Institute, Kopel’s Colorado think tank, which received $300,000 during those two years, and the Claremont Institute, which received $200,000 during the same period.”

This was news to me, and unsurprisingly so since I don’t work in Development. When the Independence Institute’s staff are preparing a grant application with a Second Amendment angle, they do ask me for supporting information. I inquired about the Bradley grant and was told that $150,000 annual Bradley grants were given in 2020 and 2021. I was informed: “These funds are restricted to” particular other policy centers at the Independence Institute “and do not fund 2A work at all.” “So this [Trace] article doesn’t have all the facts.” Van Sant had not bothered to ask us.

Van Sant traces his grand conspiracy to a January 2018 meeting of the NRA Civil Rights Defense Fund. According to the minutes of the meeting, the Fund approved a grant to the New York State Rifle & Pistol Association for the case that eventually became Bruen. Like many of the lawyers named in Van Sant’s article, I attended that meeting. NRA members can attend CRDF meetings, and before the pandemic, many pro-Second Amendment lawyers, including me, often attended the thrice-annual meetings of the NRA board and related committees. There, we talked shop, exchanged ideas, and so on.

But Van Sant sees something more. This January 2018 meeting was the birthplace of the grand conspiracy of the supposedly “coordinated” amicus briefs three years later in Bruen. A typical CRDF meeting involves presentations for several dozen grant proposals, most of them involving attorneys representing defendants caught up in unfair enforcement of local gun laws, ranges resisting attempted closure by local officials, and the like. The CRDF board then goes into executive session to consider the grants, and the visiting lawyers and other NRA members must leave the room.

As Van Sant accurately reports, I paid no attention to Bruen until the cert. grant in April 2021. Just as I paid no attention to a variety of other cases that were launched in hopes of eventually getting a cert. grant, such as Rogers v. Grewel (cert. denied 2020, with Justices Thomas and Kavanaugh dissenting). The cases I focus on are the ones I write about, or for which I write amicus briefs; these included two of the cert. petitions that the Court granted, vacated, and remanded the week after Bruen.

At least from my perspective, NRA “coordination” of amicus briefs in Bruen was nonexistent. I have written dozens of amicus briefs, and Bruen was the only time a side that I was supporting refused to supply any information. The normal procedure is that a party’s lawyers know who the friendly amici are and share a list with other friendly amici. That way, all the amici can “coordinate” (as the practice manuals urge) by ensuring that the contents of their various briefs address different topics and do not overlap.

Van Sant writes, “the current disclosure rule doesn’t contemplate the level of coordination that exists between filers and counsel for cases.” Actually, in Bruen the level of coordination was zero.

The Trace pipeline to Whitehouse

The next time Sen. Sheldon Whitehouse (D-R.I) takes the floor to describe his imaginative conspiracy theories about amicus briefs, the recent article from The Trace will likely contribute to his material. Last November, Sen. Whitehouse used a previous article by Van Sant, about me, as part of his amicus conspiracy storytelling.

In October 2021, Van Sant apparently thought that he had discovered a scoop: the Independence Institute, where I work, has received substantial grants from the NRA Foundation. This is not exactly news. The Independence Institute respects the privacy of all our donors, and we disclose them to the extent required by law. However, if a donor chooses to disclose, we will confirm the donor’s statement. For years the NRA Foundation has disclosed all its grants, including the amounts, in its annual reports and public filings.

The first law review article to note the funding was written in 1998 by Carl Bogus, a law professor at Roger Williams College who advocates for gun control. “Libertarian think tanks and the National Rifle Association (NRA) generously funded the research of activist authors such as Stephen Halbrook, Don Kates, and David Kopel.” Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev. 309, 316 (1998)

So when the Washington Post asked me about NRA grants in May 2013, I answered accurately, and the Post described the Independence Institute as “a legal think tank that receives NRA funding.” As debate begins, Senate background check proposal for gun sales lacks necessary votes, Wash. Post, May 2, 2013. To be precise, the Independence Institute is not solely a “legal” think tank. We work on many issues in many ways, and legal work is well under 10% of our total output. In response to other media queries about NRA donations, Independence Institute President Jon Caldara has repeatedly stated that the Institute is “proud” to receive support from “America’s oldest civil rights organization.”

In October 2021, Russian hackers broke into the NRA Foundation’s records, and when the NRA wouldn’t pay ransom, the hackers published the material on the dark web. The material included a grant application I had written. Since the Independence Institute making a grant application to the NRA Foundation is not new news, Van Sant created a fresh angle, claiming that two of my recent Supreme Court amicus briefs should have disclosed NRA Foundation donations.

In June 2021, I had co-authored an amicus brief in New York State Rifle & Pistol Association v. Bruen. The amicus brief was on behalf of “Professors of Second Amendment Law, Weld County, Colorado, Weld County Sheriff Steve Reams, Independence Institute, and Firearms Policy Foundation.” The other amicus brief, filed in 2019 for New York State Rifle and Pistol Association v. New York City, was on behalf of “Professors of Second Amendment Law, Second Amendment Foundation, Citizens Committee for the Right to Keep and Bear Arms, Jews for the Preservation of Firearms Ownership, Millennial Policy Center, and Independence Institute.” In May 2020, the Court ruled 6-3 that the New York City case was moot.

As I pointed out to Van Sant in an email exchange this summer, there was no NRA Foundation grant when I wrote the Bruen brief in April-June 2021. Yet he refused to correct his November 2021 article The NRA Paid a Gun Rights Activist to File SCOTUS Briefs. “Point me to the sentence that is factually incorrect,” he wrote. The sentences that are factually incorrect begin with the first paragraph:

The NRA Foundation has paid an attorney and Second Amendment activist to write favorable briefs in Supreme Court cases, suggests a hacked document released on the dark web last week. Since 2019, that attorney has submitted two briefs backing an NRA affiliate in cases before the court, including one involving New York’s gun licensing requirements that is being heard today. The briefs did not disclose the funding, allowing the NRA to buttress its affiliate’s arguments while concealing the effort from judges and the public.

There are two falsehoods in this first paragraph. First, there was no NRA Foundation grant when I wrote the Bruen brief.

Second, the Independence Institute has never been an “affiliate” of the NRA. An affiliate has some sort of official relationship. For example, the Colorado State Shooting Association is an affiliate of the NRA. Therefore, the NRA Competitions Division recognizes scores from CSSA shooting matches just the same as if the match had been conducted by NRA itself. The think tank where I work, the Independence Institute, has solicited and received grants from the NRA Foundation. That doesn’t make us an “affiliate,” just as we are not an “affiliate” of any other donor.

Although Van Sant refused to correct his November 2021 article, his August 2022 article did include the fact that there was no NRA Foundation grant when I wrote the Bruen brief.

His decision not to correct the November 2021 article, which contains known false statements, violates the Society of Professional Journalists Code of Ethics, which states: “Acknowledge mistakes and correct them promptly and prominently. Explain corrections and clarifications carefully and clearly.”

The actual Supreme Court Rules

Van Sant keeps shifting the standard that he claims to apply. He starts off looking for violations of the actual Supreme Court Rules; finding none, he invents his own standards and calls people unethical for not obeying his imaginary rules. Recall his attacks on Jim Fotis, who presently runs an organization that has never received NRA funding. Per Van Sant, a 2021 amicus brief from Fotis’s present organization should have disclosed that years before Fotis led an organization that did receive NRA funding.

The Trace‘s Van Sant wrote to me in 2021 accusing me of violating Supreme Court Rule 37.6. That rule states:

Except for briefs presented on behalf of amicus curiae listed in Rule 37.4, a brief filed under this Rule shall indicate whether counsel for a party authored the brief in whole or in part and whether such counsel or a party made a monetary contribution intended to fund the preparation or submission of the brief, and shall identify every person other than the amicus curiae, its members, or its counsel, who made such contribution. The disclosure shall be made in the first footnote on the first page of text.

In the article that Van Sant wrote several days later, he quoted Sen. Whitehouse accurately describing the Court’s interpretation of Rule 37.6:

The court itself, Whitehouse stated, has accepted a reading of “preparing or submitting” that is “so narrow as to encompass only the costs of formatting, printing, and delivering the specific brief in the specific case at issue.”

For the 2019 brief and the 2021 brief, the costs of “preparing or submitting”—that is, “the costs of formatting, printing, and delivering the specific brief in the specific case,” were paid by other amici, not by the Independence Institute. Any footnote 1 description of Independence Institute donors would have been improper, according to the Court’s interpretation of the Court’s Rules.

Van Sant’s email to me had argued that a footnote 1 statement was mandatory because the NRA was a “party” in the above cases. In fact, the plaintiffs were the New York State Rifle & Pistol Association (NYSRPA) and individual New Yorkers. None of the plaintiffs have ever made any contribution to the Independence Institute. If the NRA had been a party and the Independence Institute had paid for “preparing or submitting” the briefs, I would have made a disclosure, as I did in my 2009 amicus brief in McDonald v. City of Chicago, which was consolidated with the case NRA v. Oak Park.

Van Sant’s original theory was that disclosure was required in NYSRPA v. Bruen because one member of the NYSRPA board of directors, President Tom King, is also a member of the NRA’s 76-person board of directors. In New York and other states, there are competitive shooting and training associations that are legally affiliated with NRA. All of these associations, including NYSRPA, are self-governing and incorporated in their home states.

Compliant with Van Sant’s stated deadline for a response, Independence Institute President Jon Caldara sent Van Sant the following:

Mr. Van Sant:

The Independence Institute respects the privacy of all our donors and employees.

As you are likely aware, for years the NRA Foundation has, via its public filings, disclosed grants to the Independence Institute, and the Independence Institute has confirmed to media the receipt of those grants. There is no secret about this.

The Independence Institute, including David Kopel, participates in amicus briefs on many topics. None of our donors choose which cases we are involved in.

Supreme Court Rule 37.4 [sic, 37.6] applies to “counsel for a party…or a party.” The NRA Foundation was not a party in either of the New York State Rifle & Pistol Association cases. Neither was the NRA.

There are thousands of gun clubs and state or local associations that have chosen to have a formal relationship with NRA. These include the New York State Rifle & Pistol Association. By Supreme Court rules, these organizations are plainly not treated as if they were the NRA itself. If the Supreme Court considered them to be the same as the NRA for the purpose of Supreme Court rules, then these organizations would not have been allowed to file amicus briefs in cases where the NRA itself was a party, such as NRA v. Oak Park.

Sincerely,

Jon Caldara

President, Independence Institute

Meanwhile, I was busy writing articles for the Volokh website about some of the briefs in the Bruen case. One of those articles examined a brief by Everytown for Gun Safety. Like The Trace, Everytown was created and funded by Michael Bloomberg. My article argued that Everytown’s amicus brief had chopped historical quotes to alter their meaning and had cited sources that, when reviewed, actually said the opposite of what Everytown claimed.

A few hours later, Van Sant published his article. It was headlined: “The NRA Paid a Gun Rights Activist to File SCOTUS Briefs. He Didn’t Disclose it to the Court. Hacked documents provide a rare glimpse into the gun group’s efforts to seek influence at the Supreme Court, which is now hearing a major public carry case.”

Van Sant’s article did not address his earlier theory that NYSRPA being a party meant that the NRA was also a party. His new theory, never announced in his emails to me, what that I had violated a different portion of Supreme Court Rule 37, which requires amici to disclose who “made a monetary contribution intended to fund the preparation or submission of the brief, and shall identify every person other than the amicus curiae, its members, or its counsel, who made such contribution.” For the moment, put aside the fact that the Supreme Court says this applies only to printing and delivery costs, neither of which Independence Institute paid.

Applying Van Sant’s idea would mean that the Independence Institute (and, presumably, every other amicus organization) should disclose every donor in the first footnote of every brief, or at least every donor whose donation was intended in part to help with amicus briefs in general. This would include every donor who contributes to the Independence Institute, since our donors know that some of our work includes amicus briefs.

These days, grant applications, including for the NRA Foundation, often include a section for metrics, and so the Independence Institute’s grant applications list all our outputs that can be quantified. My proposal enumerated the following quantifiable metrics: books, scholarly journal articles, newspaper or magazine op-eds, amicus briefs, media appearances on national and local television and radio and internet media, and citations in judicial opinions, newspaper and magazine articles, scholarly journals, books, and other media. The Trace quoted a political science professor who said that including amicus briefs among the metrics meant that I was supposed to list the NRA Foundation in footnote 1 of all my amicus briefs. But that is incorrect as a matter of law—as Senator Whitehouse accurately stated.

Rather than adhering to The Trace‘s fanciful interpretation of Supreme Court Rules, the Independence Institute adheres to the rules themselves. So do the briefs filed by Everytown for Gun Safety, The Trace‘s sister organization. Everytown amicus briefs never disclose donors, including donors who contributed with the intent that some of the donation would be used to fund amicus briefs.

Nevertheless, Senator Whitehouse took to the Senate floor on November 17, 2021, for another episode in his long-running series of speeches and poster boards about “dark money.” As has been observed by the Wall Street Journal, the Washington Examiner, National Review, and Prof. Jonathan Adler’s Senate testimony, Whitehouse’s performances about conservative “dark money” are sometimes factually inaccurate, and always ignore the large amount of “dark money” that goes to left-wing groups, including those who write amicus briefs. Senator Whitehouse is reticent about his own benefits from leftist “dark money.”

On the floor of the Senate, Whitehouse reprised The Trace‘s article, although without mentioning me by name. He excitedly described information that he had gleaned from “Russian hackers.” If Senator Whitehouse were truly a sleuth, he would have learned such information long ago, by reading the Washington Post or the NRA Foundation’s disclosures. On the floor of the Senate, Whitehouse did not repeat his statement to The Trace that my briefs adhered to Supreme Court Rules.

Not “donor driven”

In nonprofits these days, “donor driven” is a popular buzzword. That is, the organizational fundraising is geared to projects selected by donors. The Independence Institute is among the rare nonprofits that are expressly not “donor driven.”  We greatly appreciate all our donors, but they do not decide our projects for us. We do not file briefs, publish policy papers, or do anything else just because a donor wants it.

We pick the projects that we think are best for advancing our mission, which by our articles of incorporation is “founded on the eternal truths of the Declaration of Independence.” In fundraising, not being donor-driven is a disadvantage.

We do not placate donors by altering our views. The Independence Institute has lost many donors over the years because of, inter alia, our opposition to corporate welfare in all its guises, to the excesses of the War on Drugs, and to tax increases and other wrong-headed (in our view) proposals pushed by leading Colorado Republican officials.

The same rules apply to firearms policy. While the NRA opposes “red flag” laws, I support them, provided they have strong due process protections. See, e.g., my article Red Flag Laws: Proceed with Caution, 45 (Alabama) Law & Psychology Review 39 (2021). I have testified in support of properly-written red flag laws in the U.S. Senate Judiciary Committee (Mar. 26, 2019), the Senate Subcommittee on the Constitution (Apr. 28, 2021), and in the Colorado state legislature. I debated an NRA representative on the topic at a Mountain States Legal Foundation event.

These days, many people on the far left, including the gun control lobby, attempt to delegitimate all institutions and voices that they cannot control. The targets include the United States Supreme Court, and lawyers who present arguments to the Court that the hard left doesn’t like. These left-wing semi-fascists, like their right-wing semi-fascist counterparts, reject the rule of law.

Historian Richard Hofstadter’s famous essay The Paranoid Style in American Politics described the “heated exaggeration, suspiciousness, and conspiratorial fantasy” in America “that is far from new and that is not necessarily right-wing.” Mr. Van Sant’s conspiracy articles are part of an American tradition as old as purported exposes of the Illuminati in the 1790s and the Masons in the 1820s.

Without needing to fabricate a conspiracy, one can find a much simpler explanation for why Mr. Bloomberg et al. keep losing in the U.S. Supreme Court: Since 1988, Republican presidential candidates have won four elections, in part because they promised to appoint originalist Justices. Notwithstanding the fiddle-faddle of some writers who support the Bloomberg cause, the original documents overwhelmingly show that the Second Amendment was intended to protect a right to “keep” arms in the home (District of Columbia v. Heller) and to “bear” arms in public places (Bruen). A mountain of original materials demonstrate that Congress passed the Fourteenth Amendment to make the Second Amendment enforceable against the States (McDonald).

So I’ll keep on writing amicus briefs on a variety of topics, including the First, Second, Fourth, Fifth, and Eighth Amendments; the Recess Appointment, Interstate Commerce, Republican Form of Government, and Necessary and Proper Clauses; and the Colorado Constitution. And I will continue complying with the actual rules of every court where I file briefs.

The post The paranoid style in gun control politics appeared first on Reason.com.

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Last Thursday, the Supreme Court spurned Donald Trump’s request that the Court intervene in the ongoing dispute over the Department of Justice’s review of documents seized at Trump’s Mar-a-Lago resort. Trump and his attorneys had asked the Court to vacate the Eleventh Circuit’s partial stay of Judge Aileen Cannon’s order barring federal investigators from continuing to examine seized documents bearing classificaiton markings, but the Court showed no interest in getting involved.

In the wake of the Supreme Court’s rebuff of Trump’s filing, the Justice Department filed a brief with the Eleventh Circuit seeking to put an end to Judge Cannon’s intervention altogether. In the brief, the Justice Department argues that Judge Cannon never had jurisdiction to appoint a special master to review any of the seized documents in the frst place, and further explains why there are no plausible bases for claims of Executive Privilege that would justify judicial intervention. The force of the brief is strengthened by its reliance upon the Eleventh Circuit’s previous decision, staying portions of Judge Cannon’s order.

From the brief:

District courts have no general equitable authority to superintend federal criminal investigations; instead, challenges to the government’s use of the evidence recovered in a search are resolved through ordinary criminal motions practice if and when charges are filed. Here, however, the district court granted the extraordinary relief plaintiff sought, enjoining further review or use of any seized materials, including those bearing classification markings,”for criminal investigative purposes”pending a special-master review process that will last months. . . .This Court has already granted the government’s motionto stay that unprecedented order insofar as it relates to the documents bearing classification markings. The Court should now reverse the order in its entirety for multiple independent reasons.

Most fundamentally, the district court erred in exercising equitable jurisdiction to entertain Plaintiff’s action in the first place. The exercise of equitable jurisdiction
over an ongoing criminal investigation is reserved for exceptional circumstances, and
Plaintiff failed to meet this Court’s established standards for exercising that jurisdiction
here. The district court itself acknowledged that there has been no showing that the government acted in “callous disregard” of Plaintiff’s rights. As a panel of this Court
rightly determined, that by itself “is reason enough to conclude that the district court
abused its discretion in exercising equitable jurisdiction here.” Trump v. United States,
2022 WL 4366684, at *7 (11th Cir. Sept. 21, 2022) (granting motion to stay). The
remaining factors under this Court’s precedent likewise dictate that the district court’s exercise of jurisdiction was error. The Court should therefore vacate the district court’s
order with instructions to dismiss Plaintiff’s civil action.

I would think that the Justice Department has a reasonable likelihood of success with these arguments, in particular because an Eleventh Circuit panel has already indicated its agreement with key portions of the government’s arguments. It may take some time, however, as the briefing in this appeal will not be complete until the middle of next month.

The post Justice Department Takes Aim at Judge Cannon appeared first on Reason.com.

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A couple of climate activists caused global outrage by throwing soup at Vincent van Gogh’s painting Sunflowers. Should free-speech absolutists join in?

While other forms of peaceful protest are defensible, there is a compelling reason to draw the line at vandalism.

“Lots of conduct ‘sends a message’ but is nevertheless both immoral and illegal, like killing a political opponent, hijacking a plane, or torching a place of worship,” says Will Creeley, legal director at the Foundation for Individual Rights in Education. “Likewise, committing vandalism by soup to send a message about climate change may be ‘expressive,’ but attempting to destroy someone else’s work of art crosses moral and legal boundaries.”

The soup-throwers are affiliated with Just Stop Oil, a U.K.–based group that has been partial to such destructive tactics in recent months, ostensibly to raise awareness of the environmental impact of oil and gas production. In July, members of the organization glued themselves to a 500-year-old reproduction of Leonardo da Vinci’s The Last Supper.

Not only is such conduct unprotected in the United Kingdom, where speech laws are much less permissive than in the United States, but it would also leave activists open to vandalism and property destruction charges if they pulled the same stunt on U.S. soil.

Activists with @JustStop_Oil have thrown tomato soup on Van Gogh’s Sunflowers at the national Gallery and glued themselves to the wall. pic.twitter.com/M8YP1LPTOU

— Damien Gayle (@damiengayle) October 14, 2022

The protest was probably ineffective on its own terms too. Throwing a can of tomato soup at a precious work of art has little to do with fighting fossil fuels.

After the soup incident, according to The Guardian, the activists were arrested and charged with criminal damage and aggravated trespass. Officials from the National Gallery in London, where the painting is housed, say the picture was protected by a pane of glass and was not harmed, though the frame suffered minor damage.

The protest attracted harsh criticism even from those normally supportive of environmentalism. As one witness told The Guardian, “They may be trying to get people to think about the issues but all they end up doing is getting people really annoyed and angry.”

The post Should Free-Speech Absolutists Defend Vandalism of Precious Artwork? appeared first on Reason.com.

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As he works to unseat two-term incumbent Sen. Mike Lee (R–Utah), Republican-turned-independent Evan McMullin has been eager to frame himself as the good guy.

In campaign ads, McMullin promises to be a “compassionate, selfless, and independent” candidate who won’t get caught up in partisan extremism. Lee sold out his reputation and his values by engaging with former President Donald Trump’s attempt to subvert the results of the 2020 election, McMullin argued to Politico a few months ago. “That’s not what a constitutional conservative does,” he said. On his campaign website, McMullin outlines 12 principles that he promises to adhere to if elected next month—including “reaffirm our founding beliefs,” “defend the constitution,” and “seek and promote truth.”

And how better to illustrate all that than to have Luke Skywalker—that is, actor Mark Hamil—endorse McMullin’s plucky underdog effort during the home stretch? “The Force is with us!” McMullin declared after the announcement.

Framing the race that way might work. In other Republican states, having Trump’s endorsement and tenuous connections to the January 6 riot might be a boon for Lee. But in a place where Trump has never been very popular and where the other sitting senator is the famously Trump-skeptical Mitt Romney, that’s not necessarily the case. Polls show Lee holding a slim lead, but McMullin is closing ground. The two candidates are scheduled to debate tonight at Utah Valley University.

But that frame should inspire a closer look at McMullin’s own biography. McMullin’s claims of being the morally upstanding character in this contest—not merely the Never Trump choice in this race, but the good guy—sit somewhat uncomfortably alongside his connections to one of the ugliest scandals in recent American history.

McMullin joined the CIA while still an undergraduate student at Brigham Young University, and he claims in campaign videos to have been at the CIA’s headquarters in Langley, Virginia, on September 11, 2001. Shortly after the terrorist attacks, he was deployed to Southwest Asia on an assignment of “gathering information on the Taliban, developing intelligence for strikes on terrorists and searching for high-value al-Qaeda leaders, including Osama bin Laden,” according to a Washington Post profile published while McMullin was running for president in 2016. Though the details of his deployment are classified, several former CIA officers have vouched for his track record as an exemplary agent.

Fair enough. But McMullin’s career as an intelligence officer during the War on Terror overlaps with the CIA’s clandestine torture regime, which was detailed in an explosive report assembled by the Senate Intelligence Committee in 2014. According to a 500-page executive summary of that report—the full report remains classified—CIA officers subjected detainees to waterboarding, forced feeding (including anal feeding), sleep deprivation, and other physical and psychological tortures at secret prisons known as “black sites.” The Senate report also found that torture “was not an effective means of acquiring intelligence or gaining cooperation from detainees.”

McMullin did not know about the torture, says Kelsey Koenen Witt, a spokesperson for McMullin’s campaign.

“Though he was aware of ‘black sites’ where some captured terrorists were held, he never visited any of the installations and was unaware of the enhanced interrogation program,” Koenen Witt writes in an email. “He was never involved in the program and was never read into it.”

That’s subtly different from how McMullin explained things when he was running for president six years ago. Then, in an interview with Buzzfeed, McMullin said he was “aware of” the CIA’s torture program, though he similarly denied being involved.

“I was aware of it by virtue of where I was,” he said. “I was serving in a place that was the kind of place where people entered that program from that place, but I never participated in it, I never went to a black site, never met with a detainee.”

The shifting explanation is at once subtle and telling. Claiming to be unaware of what was happening at those CIA “black sites,” as McMullin now says he was, might absolve him of some moral culpability. It might also be an easy way to avoid obvious follow-up questions about what exactly he knew and when he knew it.

On other aspects of the CIA’s torture program, McMullin’s answers have similarly evolved over time.

In that same 2016 interview with Buzzfeed, McMullin said that he did not support the use of torture against suspected terrorists—but he made a distinction for waterboarding.

“I don’t believe in taking it easy on terrorists when they’re incarcerated. But I also don’t support the use of torture. There are gray areas,” he said. “I believe that waterboarding is in a gray area.”

To be clear, there is no grey area when it comes to waterboarding. The United Nations considers it a form of torture. It is prohibited by the U.S. Army Field Manual, which governs soldiers’ behavior on the battlefield. In 2006, President George W. Bush signed a law forbidding the use of torture by the military—though the bill deliberately exempted the CIA.

McMullin offered that opinion of the technique two years after the Senate Intelligence Committee report had described the use of water-boarding as “physically harmful, inducing convulsions and vomiting,” two years after the report detailed incidents where suspects were waterboarded until they passed out or required medical attention. One prisoner, Abu Zubaydah, was waterboarded at least 83 times.

John Kiriakou, a former CIA officer and one of the first whistleblowers to inform the Senate of the CIA’s use of torture against Al Qaeda prisoners, tells Reason that McMullin’s 2016 description of waterboarding is “utterly disingenuous.”

“At the time that he made this statement, the Senate Torture Report already had been published. It was crystal clear, even to waterboarding supporters, that the act was a form of torture,” says Kiriakou. “It was crystal clear that not only was waterboarding illegal, immoral, and unethical, it simply didn’t work. McMullen makes a lot of his faith. I highly doubt that his faith would mandate waterboarding a prisoner.”

McMullin’s opinion on the matter has now changed, Witt tells Reason.

“Evan opposes torture including waterboarding and believes it is critical for the United States government to respect basic human rights at all times,” she writes.

McMullin has not read the Senate’s report on the CIA’s use of torture, Koenen Witt writes, but he “believes the CIA and its vital mission is strengthened with strong congressional oversight and when it respects basic human rights.”

That’s exactly the answer that you’d expect from the current iteration of McMullin, the patriotic conservative who defends the constitution. But voters will never know anything more than McMullin is willing to share about his CIA career. His history will remain classified, even though the wars in Afghanistan and Iraq are over.

The one thing we do know is that, unlike Kiriakou, McMullin didn’t blow the whistle about the CIA’s torture regime. Is that because he didn’t know, or because he didn’t care? More vital to this campaign might be a slightly different version of that same question: If McMullin wins, can Americans count on him to be an impartial investigator in the event of another CIA scandal?

“While Evan served as an undercover CIA operations officer, he was committed to the duties of that role. If he prevails in the Utah Senate race, he will approach his new role with the same commitment,” Witt tells Reason. “Evan has always believed that the Agency and the nation are well-served when the intelligence community has strong congressional oversight.”

One last thing worth noting is how much media coverage of the Utah Senate race is seemingly uninterested in McMullin’s history with the CIA and his connections to the torture scandal—even though it drew scrutiny from the Post, Buzzfeed, and others during his quixotic presidential run in 2016.

The New York Times and Politico recently dedicated long feature pieces to the Utah Senate race, and both naturally included significant detailing of Lee’s texts with White House Chief of Staff Mark Meadows in the run-up to January 6. But neither piece even made a passing mention of McMullin’s CIA tenure or his previous wishy-washy responses when asked about waterboarding and the use of torture in America’s post-9/11 wars.

In a recent interview with the Times, McMullin said Lee’s involvement with the January 6 protests was “one of the most egregious betrayals of the American republic in its history.” But history did not begin in January 2021. There’s no need to downplay or dismiss Lee’s involvement in Trump’s attempt to cling to power, but a proper perspective on the Utah Senate race would show that both leading candidates have stains on their records.

The post In Utah Senate Race, Evan McMullin Has To Reckon With an Ugly History appeared first on Reason.com.

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I am reprinting a post from 2012, again pertinent given that the Supreme Court is about to hear arguments in the Harvard and UNC affirmative action cases. (Harvard is a private university, but under precedent it’s held to the same anti-discrimination standards as public universities via Title VI of the 1964 Civil Rights Act).

The Constitutional Accountability Center has filed an interesting amicus brief in the Fisher affirmative action case on behalf of six prominent law professor amici. The brief tries to exploit a weakness in conservative Justices’ affirmative action opinions, which is that these Justices have almost entirely ignored the question of whether an originalist interpretation of the Fourteenth Amendment would allow for race-based legislation meant to advantage African Americans. The brief therefore concentrates on showing that the same Congress that enacted the Fourteenth Amendment passed several race-conscious measures intended to aid African Americans, that these measures were denounced by opponents as class legislation, and that the same Congress rejected versions of the Fourteenth Amendment that would have explicitly banned race-conscious legislation.

I have neither the time nor inclination to check the brief’s citations. So let’s assume that not just the brief’s facts but also the interpretation of those facts (e.g., in terms of which laws count as race-conscious) are accurate. It nevertheless strikes me as only marginally helpful, at best, for at least two reasons.

First, unless I somehow missed it, every piece of race-conscious Reconstruction-era legislation mentioned in the brief is federal legislation. None of the legislation in question grants authority to states to engage in race-conscious legislation. In Fisher the underlying issue is whether a state university may engage in race-conscious admissions. The authors not only don’t defend, but don’t even raise, the claim that the Reconstruction Congress thought that the same standards of race-neutrality should apply to the federal as to state and local governments.

And indeed, we know that Congress didn’t think that, because it passed a Fourteenth Amendment that applied only to the states, and did not deign to apply any sort of new equal protection standard to the federal government, which in turn was not covered by any explicit equal protection guarantee of the sort contained in the Fourteenth Amendment. So I think the brief makes a provocative case that perhaps the federal government should be subject to more lenient standards of race neutrality than the states, an argument that the Supreme Court itself has adopted at times, but abandoned in the Adarand case. And while it’s true that the Court now holds that all levels of government are subject to the same equal protection standard, the black letter law is that the federal government is subject to the Fourteenth Amendment’s standards, and not the states to whatever standard the federal government should theoretically be held too.

Second, it strikes me that if I were to find the brief persuasive on the Fourteenth Amendment issue, it would only persuade me that all levels of government may at times engage in race-conscious legislation on behalf of African Americans. But in a state like Texas, with a much larger Hispanic population than black population, the primary beneficiaries of affirmative action preferences are Hispanics. The authors provide no evidence that the Framers would have allowed race-conscious preferences for groups other than blacks (and indeed, I believe that Mexican-Americans, the primary Hispanic group in Texas, were (a) in any event considered “white” under federal law and that (b) they were nevertheless subject to federal discrimination, not federal favoritism, at the time the Fourteenth Amendment was being enacted).

More generally, most “minorities” in the United States are not African Americans, with Hispanics outnumbering blacks, plus an additional six percent Asian Americans (who don’t usually benefit from admissions preferences–quite the opposite–but who are eligible for many other affirmative action programs), plus another several million Native Americans. Even among African Americans, a significant percentage of the beneficiaries of affirmative action programs, especially on university campuses, are blacks who were never subject to American slavery because they or their ancestors immigrated from Africa or the Caribbean long after the Civil War.

So the CAC brief may provide originalist evidence that the U.S. government should be given more leeway in regard to race-conscious policies than the states get, and, more generously, may provide originalist evidence that even the states may engage in race-conscious programs that benefit the descendants of American slaves. But I’m not persuaded that it’s at all helpful in showing that states may willy-nilly benefit any ethnic group it chooses at the expense of any other ethnic group, as, for example, University of Texas does in preferring Hispanic applicants (who are deemed “underrepresented”) and disfavoring Asian-Americans (who are deemed “overrepresented”).

UPDATE: It’s also worth noting that many Hispanics are solely or primarily of European heritage, and about 50% identify themselves as ‘white’ on census bureau forms. UT’s approach, in common with how preferences work in general, is that a state university can and should favor white descendants of Spanish conquistadors or Italian immigrants to Argentina or Jewish Mexicans of Eastern European descent, solely because the former have Spanish-speaking ancestors. (Indeed, the “diversity” rationale for affirmative action seems to demand such a policy. In Grutter, the district court found that Michigan Law School gave preferences only Mexican American and mainland Puerto Ricans, but Michigan vigorously denied this, assumedly because it conflicted with the diversity rationale and suggested an illicit social justice rationale for its policies. Grutter’s attorneys didn’t pursue this point.) So for the brief to be persuasive in defending UT’s policies, it seems to me it would need to persuade readers that the fact that the the Reconstruction Congress allowed for race-conscious federal legislation benefiting slaves and descendants of slaves somehow means that the same Congress would have endorsed state preferences based on linguistic heritage, regardless of race and regardless of whether the individuals received the preference or their ancestors had even been subject to de jure discrimination in the United States. That seem like quite a stretch.

The post On the Originalist Case that Racial Preferences by Government are Constitutional appeared first on Reason.com.

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Bans on gender transition treatments for minors are in federal court this week. Such laws are becoming popular among conservative legislators across the U.S. The law in court this week comes from Arkansas, which in 2021 passed the Save Adolescents From Experimentation (SAFE) Act, a.k.a. Act 626.

Arkansas’ Act 626 was the first in the country to prohibit doctors from providing “gender transition” care—which includes surgical procedures as well as less invasive options like puberty blockers and hormone treatments—to people under age 18. “Any referral for or provision of gender transition procedures to an individual under eighteen (18) year of age is unprofessional conduct and is subject to discipline by the appropriate licensing entity or disciplinary review board,” states the law, which allows people to cite “an actual or threatened violation” of the law as a claim in civil lawsuits. It also allows the state attorney general to enforce compliance and states that health insurance plans “shall not include reimbursement for gender transition procedures for a [minor].”

A group of doctors, parents, and transgender kids has challenged the law in federal court. They’re represented by the American Civil Liberties Union of Arkansas.

The case comes before U.S. District Judge James Moody of the U.S. District Court for the Eastern District of Arkansas. In July 2021, Moody temporarily halted enforcement of the law.

The state appealed, and this past August the U.S. Court of Appeals for the 8th Circuit upheld the injunction. “The 8th Circuit panel agreed transgender children would suffer irreparable harm if the law took effect,” reports the Arkansas Advocate. “The appellate panel also agreed with Moody that the law likely discriminated against Arkansans on the basis of sex.”

The case is now back before Moody, with the trial expected to last throughout this week.

Moody’s decision could have big implications for the treatment of transgender minors far beyond Arkansas. Since the state passed Act 626, several more states—including Alabama and Arizona—have passed similar laws, while others have either defined gender transition treatment for minors as child abuse (Texas) or are attempting to do so (Michigan).

“In 2022, 15 states are considering 25 similar pieces of legislation,” the Kaiser Family Foundation reported in June.

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FREE MINDS

Rethinking “zombie cells.” Some “zombie” cells—a nickname given to the senescent cells thought to cause age related diseases—may actually play a beneficial role in helping repair bodily damage, according to a new study published in the journal Science. Lead researcher Tien Pen, an associate professor of pulmonary, critical care, allergy, and sleep medicine at the University of California San Francisco, “said it was understandable that scientists at first viewed senescent cells as purely detrimental,” according to a university press release:

As people age, senescent cells accumulate that have characteristics of old, worn-out cells, including the inability to make new cells.

Instead of dying like normal aged cells, they to live on, spewing a cocktail of inflammatory compounds that form the senescence associated secretory phenotype (SASP). These factors are linked to Alzheimer’s disease, arthritis, and other age-related maladies including cancer.

The catchy name “zombie cells” was coined for them.

Using senolytics that target and kill “zombie cells,” researchers made the exciting discovery that clearing senescent cells from animals thwarted or diminished age-related disease and extended the lifespan of the animals. Thereafter, a boom of activity ensued in research labs and pharmaceutical companies focused on discovering and refining more powerful versions of these drugs.

But killing off senescent cells has dangers, Peng said. For one thing, this current study showed that senescent cells also possess the ability to promote normal healing through activation of stem cell repair.

“Our study suggests that senolytics could adversely affect normal repair, but they also have the potential to target diseases where senescent cells drive pathologic stem cell behavior,” said Peng.

You can find the full study here.

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FREE MARKETS

Trumpworld drama and cronyism reportedly plaguing Truth Social and Trump Media.  Trump Media should have been a major success. Executives imagined the company as a multifaceted endeavor, branching out into social media, payment processing, and other elements of digital life currently cornered by companies with little will to stand up to progressive pressure campaigns. There’s a huge market for this—not just among the Trumpist right but among all sorts of people with heterodox views.

A lot of this was in the works already when the company tapped Trump to be the face of the brand. And perhaps that was their first mistake. While the former president provided publicity to the company and its social platform, Truth Social, he and his family have also caused a lot of headaches—and potential legal issues—according to whistleblower Will Wilkerson. Among Wilkerson’s claims: Trump tried to force him to give some of his shares in the company to Melania Trump, and was retaliated against when he did not. A lengthy article in The Washington Post details this and other claims from Wilkerson, as well as why the Securities and Exchange Commission is looking into the company.

In related news, Kanye West is moving to buy the right-leaning social media platform Parler. “In a statement, Parler’s parent company Parlement Technologies said it has entered into ‘an agreement in principle’ to sell Parler to Ye for an undisclosed amount,” reports Axios.

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THREAD: In @SenatorLeahy's new memoir, there's a wild story in it that I haven't ever seen before—a rare glimpse into the shadowy way that the intel agencies interact with Members of Congress. It feels ripped from a political thriller movie…: https://t.co/XrkKeGGjwJ

— Garrett M. Graff (@vermontgmg) October 14, 2022

• Hearing aids are now available over the counter.

• New cannabis shops are revolutionizing dispensary design.

• A congressional candidate in New York has deliberately released a sex tape as “a conversation piece.” The candidate, Mike Itkis, is running as an independent on a platform that includes a “sex positive approach” to domestic policy. His issue positions include decriminalizing sex work and “actively oppos[ing] the conservative idea that sex should only happen between a man and a woman who are married to each other.”

• Michigan’s House of Representatives unanimously passed legislation to crack down on fraudulent certification letters for emotional support animals. “The bill would require a provider-patient relationship of 30 days before receiving certification” and ongoing monitoring, reports The Detroit News. People providing a certificate outside these circumstances “could be ordered to pay a fine of up to $1,000 for a first offense and up to $2,000 for a second offense.”

• Climate activists decry “the expansion of energy supply, on the grounds that fossil fuels are pushing the world toward climate apocalypse, and the energy supply’s constriction, on the grounds that higher prices are cruel to struggling households,” writes Ross Douthat. But the two goals are in tension with one another.

• Republicans are gaining ground in midterm election polls.

The post Arkansas Ban on Gender Transition Treatments for Minors Hits Federal Court appeared first on Reason.com.

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