Originally a horror comic, The Sandman changed what both fans and normies thought comics could be in the early ’90s. The hand of writer Neil Gaiman (American Gods, Coraline, Good Omens) shows in the intelligence, moodiness, and humor of a Netflix series based on his tales of Dream of the Endless, a.k.a. Lord Morpheus.
The best episode is “The Sound of Her Wings,” in which Dream’s sibling Death grants one man a stay of execution in 1389. What follows is a centennial montage about the joys of being human. “I’ll tell you what it’s like,” says the unlikely immortal to a skeptical Dream. “It’s fucking brilliant! It’s all changing!” When pressed, he cites the invention of chimneys, handkerchiefs, playing cards. The Sandman deals with themes of fate, freedom, and choice, but an enduring anthropocentrism is at its heart. “I’m here,” says Dream, “because I’m interested.”
Robbinsdale, Minnesota, officials and the city’s insurer have agreed to pay $70,000 to settle a lawsuit filed by Amy Koopman, who was arrested for livestreaming police holding at gunpoint two men whose car they had pulled over. Koopman, who was standing on the opposite side of the intersection while video-recording the arrest, was charged with obstruction. A judge threw out the charge against her, saying “no reasonable officer” could find her actions obstructed or interfered with “the performance of their duties.”
I’m glad to see co-blogger David Kopel following the very fruitful exchange between Greg Ablavsky and Rob Natelson about the original scope of federal power over Indian affairs (an exchange I tracked earlier here). David mentions and quotes a “cite check” that Natelson recently published taking issue with a number of the citations and quotations in Ablavsky’s 2015 article.
As part of an ongoing and often heated academic disagreement, Robert Natelson recently purported to “cite check” my 2015 Yale Law Journal article Beyond the Indian Commerce Clause. He claims that the article had a “disturbing number of inaccurate, non-existent, and misleading citations, as well as deceptively-edited quotations,” and suggested that the article was likely published only to placate a faculty member or due to left-wing bias.
Given Mr. Natelson’s earlier ad hominem attacks, no one could mistake him for a good faith critic of my work. However, because of the stakes of this dispute, which takes place in the shadow of the upcoming Brackeen v. Haaland case at the Supreme Court, I have taken the time to respond thoroughly to each of his concerns about my article. I group his critiques into three categories:
1) Plain Error: Every single one of the sources Mr. Natelson claimed was “non-existent” is readily available online and confirms my original citation. Unaided by me, my law student research assistants were able to find them in mere moments. I’m honestly quite surprised that a scholar would risk their reputation by making such obvious and easily proven errors in levying serious charges against another scholar.
2) Misleading Use of Context: Mr. Natelson repeatedly argues that the full context of quotations vindicates his position and rules my interpretations not only invalid but deceptive. He does this by writing limiting principles into the plain text of sources that do not contain them, expressing certainty on what the sources really meant even in the face of silence. At best, he has floated possible alternate explanations that I find highly implausible given the evidence. But, though I think my interpretations stronger, I cannot “prove” Mr. Natelson’s view wrong any more than Mr. Natelson can “prove” my view wrong: no responsible historian would assert such certainty in the face of a silent source. The only claim here that I think can be deemed objectively wrong is Mr. Natelson’s claim to definitive authority and knowledge.
3) Asserting Interpretive Disagreements Are Factual Errors: Many of the critiques that Mr. Natelson makes are actually interpretive disagreements that he claims are factual errors. Mr. Natelson is free to dispute my views, which he clearly does. But the idea that I committed scholarly misconduct by offering my interpretations in my own article is laughable. This standard of “cite-checking” decrees as sound scholarship only the interpretations that Mr. Natelson deems correct—a standard ultimately subversive of scholarship itself.
I have not repaid Mr. Natelson’s article with the attention that he has lavished on mine. However, in the course of researching this response, I asked my RAs to examine his evidence from Eighteenth-Century Collections Online that the phrase “commerce with Indians” and its analogs “almost invariably meant ‘trade with the Indians’ and nothing more.” Without any involvement by me, my RAs disagreed with this assessment. They concluded that the phrase only clearly meant trade in a little more than half (58%) of the instances that Mr. Natelson relied on.
I admire the patience both scholars have had for this exchange, and I’d recommend anybody reading Natelson’s critique to read Ablavsky’s response along side it.
From today’s decision in Columbia Housing & Redevelopment Corp. v. Braden, decided today by the Tennessee Court of Appeals, in an opinion by Judge Frank G. Clement, Jr., joined by Judges Andy D. Bennett & W. Neal McBrayer:
On April 19, 2018, Kinsley Braden signed a lease agreement with Columbia Housing for the privilege of residing at 103 West Willow Street in Creekside Acres. The lease agreement incorporated by reference the Community Housing Rules, which prohibited, inter alia, any resident from possessing a firearm on the premises. In relevant part, the Community Housing Rules read: “No Weapons & Firearms. The possession or use of any type of weapon, firearm, or dangerous object is strictly prohibited within the boundaries of the property.”
On November 4, 2020, Columbia Housing learned that Mr. Braden had been keeping a handgun in his residence. As a result, Columbia Housing filed a Detainer Summons against Mr. Braden, seeking to evict him ….
The lower court ruled for Columbia Housing, but the appellate court ruled for Braden, reasoning:
Columbia Housing is a government entity acting as the landlord of the Creekside Acres residences…. For this reason, the actions of Columbia Housing and the policies of Creekside Acres must conform to the Constitution….
[T]he circuit court reasoned that by agreeing to the Community House Rules in the lease agreement, which prohibit possession of a firearm within the leased premises, “Mr. Braden voluntarily waived any rights he may have to possess a firearm on the premises.” However, in reaching this conclusion the circuit court did not consider the unconstitutional conditions doctrine, which “prevent[s] the government from coercing people into giving” up constitutional rights..
The unconstitutional conditions doctrine provides that a governmental entity “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests.” Perry v. Sindermann (1972); see Dolan v. City of Tigard (1994) (explaining that “the government may not require a person to give up a constitutional right … in exchange for a discretionary benefit”)….
Thus, unless an exception applies, requiring Mr. Braden to surrender the “central component” of his Second Amendment rights for the benefit of public housing is an unconstitutional condition. Seealso Holt v. Richmond Redev. & Hous. Auth. (E.D. Va. 1966) (“[A] tenant’s continued occupancy in a public housing project cannot be conditioned upon the tenant’s foregoing his Constitutional rights.”).
One such exception is the concept of “sensitive places,” a concept Columbia Housing relies upon to justify its prohibition. In Heller, the Supreme Court held that the government could constitutionally prohibit possession of firearms in “sensitive places.” Under this exception, numerous courts have held that laws “forbidding the carrying of firearms in sensitive places such as schools and government buildings” do not violate the Second Amendment. See Moreover, and significantly, some scholars believe that the “sensitive places” concept may apply to public housing. See Jamie L. Wershbale, The Second Amendment Under a Government Landlord: Is There a Right to Keep and Bear Legal Firearms in Public Housing?, 84 St. John’s L. Rev. 995, 1018–20 (2010).
More recently, however, the Court in Bruen clarified that, when determining whether a place is a “sensitive place,” courts should look to those places where weapons were historically “altogether prohibited” and determine whether it is “settled that [certain] locations were ‘sensitive places,'” then “use analogies to those historical regulations of ‘sensitive places’ to determine [whether] modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.” Thus, we must determine whether handguns have been historically prohibited in public housing.
Public housing constitutes both an individual’s home and a building owned by a state’s government; however, it remains largely unsettled whether public housing developments could constitutionally prohibit firearm possession under both the Second Amendment to the United States Constitution and nearly identical provisions of certain state constitutions. See, e.g., People v. Cunningham (Ill. App. Ct. 1st Dist. 2019) (holding that a statute prohibiting visitors to public housing units from possessing firearms on the property did not violate the Second Amendment); Doe v. Wilmington Hous. Auth. (Del. 2014) (concluding that the Delaware Constitution prohibited public housing authorities from banning firearms in public housing developments); Lincoln Park Hous. Comm’n v. Andrew (Mich. Ct. App. 2004) (per curiam) (holding that a prohibition on firearm possession in public housing passed constitutional muster under the Michigan Constitution). Noticeably, various states have come to different conclusions regarding whether a ban on firearm prohibition within a public housing development is permissible. Thus, it cannot be said that public housing developments have historically “altogether prohibited” possession of firearms on the property.
Moreover, while the United States Supreme Court has identified “legislative assemblies, polling places, and courthouses” as “sensitive places,” the Court has continued to emphasize that the Second Amendment must protect the right of “law-abiding citizens to use arms in defense of hearth and home.” For this reason, we cannot say that an individual’s public housing unit is analogous to that of other established sensitive government buildings. Thus, in light of the Supreme Court’s most recent decision in Bruen and keeping in mind the presumptively unconstitutional status of Columbia Housing’s policy based on the Supreme Court’s decision in Heller, we conclude that a total ban on the ability of law-abiding residents—like Mr. Braden—to possess a handgun within their public housing unit for the purpose of self-defense is unconstitutional under the Second Amendment….
Note that the court doesn’t resolve whether much more modest restrictions, such as requirements that any guns be loaded with rounds that are designed to minimize the risk of going through walls, might be constitutional. (The government as landlord does have some extra power, stemming from its ownership interests, to control behavior on its property, including constitutionally protected behavior, though the court pointed out that this power is not unlimited.) For more, see pp. 1473-75 and 1529-33 of this article.
Congratulations to David G. Sigale and Eugene R. Hallworth, who represented the tenant.
Today the Supreme Court rejected former President Donald Trump’s effort to reimpose a district court order blocking the Department of Justice from continuing its review of classified documents seized by federal agents at Mar-a-Lago. This is another (unsurprising) legal setback for the former President.
On October 4, Trump’s attorneys filed an application to vacate the Eleventh Circuit’s stay with the Supreme Court. This application was submitted to the circuit justice for the Eleventh Circuit, Justice Thomas, who requested the Justice Department respond to the request by October 11. This was an early sign that the Court was skeptical of Trump’s filing, as it demonstrated no sense of urgency.
Today, without comment or noted dissent, the Supreme Court denied Trump’s application with a single sentence order: “The application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit on September 21, 2022, presented to Justice Thomas and by him referred to the Court is denied.” There was no noted dissent.
The Supreme Court’s action should not have been a surprise, as Trump’s filing (like the initial trial ourt order it sought to restore) lacked legal merit. It is a shame that some folks at either extreme of the political spectrum who somehow thought this motion had a chance.
The U.S. Court of Appeals for the Sixth Circuit released a potentially important decision concluding that a Michigan county over-reached when it seized an individual’s property to satisfy a tax debt and did not refund the surplus to the property owner. Judge Kethledge wrote for the court in Hall v. Meisner.
Here is the brief summary from Judge Kethledge’s introduction:
In this case the defendant Oakland County took “absolute title” to plaintiff Tawanda Hall’s home—worth close to $300,000, on the facts alleged here—to satisfy a $22,262 tax debt, and then refused to refund any of the difference. The other plaintiffs shared a similar fate with their homes. Under Michigan law—and the law of virtually every state for the past 200 years—a creditor can divest a debtor of real property only after a public foreclosure sale, after which any surplus proceeds in excess of debt are refunded to the debtor. The return of that surplus compensates the debtor for her equitable interest in the property—which in common speech is called the “equity” in real property, and which English and American courts for centuries have called “equitable title.” Yet the Michigan General Property Tax Act created an exception to this rule for just a single creditor: namely, the State itself (or a county thereof), which alone among all creditors may take a landowner’s equitable title without paying for it, when it collects a tax debt. In that respect the Michigan statute is not only selfdealing: it is also an aberration from some 300 years of decisions by English and American courts, which barred precisely the action that Oakland County took here.
The government may not decline to recognize long-established interests in property as a device to take them. That was the effect of the Michigan Act as applied to the plaintiffs here; and we agree with the plaintiffs that, on the facts alleged here, the County took their property without just compensation. We therefore reverse the district court’s dismissal of their claim against the County under the Takings Clause of the U.S. Constitution.
Judge Kethledge was joined by Judges Bush and Nalbandian. The Pacific Legal Foundation represented the homeowners.
As a general matter, lawyers tend to be conservative. Not in the sense that they are right-of-center. Indeed, lawyers skew left. Rather, attorneys favor stability: support ideas they know, approved by people they trust, that are communicated through established channels. That preference for the status quo can be altered in one of two ways. The first approach is familiar: a slow, iterative process, in which marginally-revised ideas percolate by established elites, who then use traditional mediums to reflect the fact that the idea has gained mainstream support. After the idea reverberates around the echo chamber long enough, the idea is now part of the new normal. By contrast, the second approach bypasses all of those traditional trappings: a person with the requisite clout proposes a radical new concept, which shocks the elites into fierce oppositions, thus legitimating the idea, and bringing the idea into the mainstream. In politics, this process is known as shifting the Overton window. In law, we can call it shifting the Hoverton window.
Of course, I write about Judge James Ho. Two weeks ago, Judge Ho delivered a short speech at the Kentucky Chapters Conference of the Federalist Society. His proposal shocked the mainstream conscience: going forward, he would no longer hire graduates of Yale Law School. Ho’s remarks, which have now been published by the Texas Review of Law & Politics, anticipated and addressed most of the criticisms he would ultimately receive. Indeed, it is apparent that Judge Ho recognized that he would be attacked for his views. But such withering criticism is a feature, not a bug to change the discourse.
In the abstract, if a person has an awful idea, the most effective strategy is to ignore the apostasy, and marginalize the speaker. (Several academics openly employ this strategy against me.) In time, the disruption will die down, and the status quo will resume. But disruptive ideas are hard to ignore. First, you have the social media hot takes. Blue check marks looooveeee to dunk on some crazy new idea that conflicts with their priors. Anyone with thumbs and a spool of thread emoji can become a self-proclaimed expert on anything. Second, you have the more sober responses that take the idea seriously, but ultimately reject it out of hand. These pieces invariably find some common ground, and in the process, strengthen the proposal. And third, you have the peers, who call their colleague out for heresy. Along the way, the mainstream press writes about the firestorm. Of course, they quote all the critics, but most journalists have some responsibility to seek out sources from other side. This balancing creates what Linda Greenhouse derided as a “false equivalency.” And in time, the radical proposition makes its way into the realm of reasonableness.
Now, not every idea can traverse this labyrinth. In my mind, there are three prerequisites to shift the Hoverton window. First, the speaker must have sufficient intellectual gravitas. Specifically, he must be able to generate a novel idea, that departs sufficiently from conventional wisdom, but also anticipates and preempts the most likely response. He must also have a reputation which warrants his ideas being taken seriously. Second, the speaker must have secure tenure-in-office. To challenge the status quo, you need decisional independence. No one can override your position, or worse, tell you to stand down after an uproar emerges. (Tenured academics and Article III judges are among the few people who fit in this category.) Third, the speaker must have courage. You must be willing to publicly articulate your principle, knowing full well that you will be savagely attacked from all corners. (Very few academics and Article III judges fit in this category.) As a frequent target of social media firing squads, I can attest how unpleasant the feeling is. For good reason, I no longer look at Twitter or my mentions. I am nearly three years Twitter sober. I take some satisfaction knowing that my Twitter detractors are yelling into an empty void.
This background brings me back to Judge Ho’s proposal. He announced it on September 29, 2022. Shortly thereafter, a dozen anonymous judges signed onto his program. Judge Lisa Branch (CA11) publicly agreed to join the boycott. Judge Edith Jones (CA5) voiced support for Ho’s proposal. Judge Jerry Smith (CA5), who was Ho’s boss in a bygone era, criticized Ho, and invited more Yalies to apply for clerkships. Judges McKee (CA3) and Wilkinson (CA4) lined up with Smith. Some judges privately supported Ho. Even more judges privately seethed at Ho.
But the message apparently got through to its intended audience, Dean Gerken. On October 12, Yale Law School issued a statement to alumni at Yale Law School concerning free speech. The timing of this statement seems related to Ho’s proposal. Eugene wrote that “calls [for a boycott] might have helped prompt this message.” Brian Leiter was more direct: “This seems a victory for Judge Ho.” It is impossible to know what impact Ho’s speech had on Yale Law School. But his willingness to be the first to speak, and change the conversation, likely nudged Gerken to speak out.
The Hoverton window has been shifted here. It was not the first time. (See pp. 374-376 of my article Judicial Courage.) And it will not be the last time.
It seems many American high schoolers are not just unprepared for college; it appears they also lack the basic knowledge a high school education is meant to provide.
According to a recentreport examining national ACT scores, American high school students’ ACT scores have dropped dramatically in the past year. The released data highlights the staggering fact that few high school students, even before the pandemic, are academically prepared to attend college. While the most recent decline shows the impact of COVID-era school closures on students’ learning, consistently low scores draw attention to the fundamental flaws at the core of many of America’s government-run schools.
TheACT, along with the SAT, is a college entrance exam used to measure students’ preparedness for undergraduate study at American universities. The test is broken down into four sections, covering reading, math, science, and English. Each section is awarded a score from 1 to 36, and the rounded average of the four scores is recorded as the student’s “composite score.” The test is mostpopular in the South and Midwest, while the SAT is preferred in east and west coast states (though it iscommon for motivated students to take both tests). While many colleges have dropped the test in recent years,citing equity and diversity concerns, the ACT and SAT remain cornerstones of the college application process—as well as commonly utilized measures of whether a student is academically prepared for college.
On Wednesday, the ACT, or the American College Test, released areport examining test takers’ performance over the past year. Theaverage ACT score has consistently hovered just above 21 for the last decade. However, a steady decline began after the pandemic, with the average score falling to 20.3 in 2021 and 19.8 in 2022. The 2022 drop was particularly stark, as the half-point decline from 2021 marked the decade’s largest one-year drop in scores.According to the Associated Press, 2022 marks the first year since 1991 that the average ACT score dipped below 20.
While recent declines in student performance may appear small, its impact is a telltale sign of trouble in American high schools. “When we’re talking about over a million students, then seeing a half-point drop in one year is a big decline… We haven’t seen a change like that in the last 10 years or even in the last 30 years,” Rose Babington, senior director for state partnerships at ACT, tells Reason.“Seeing a change that’s not just 0.1 or 0.2 points from year to year is something that is definitely, definitely something we’re paying attention to. That being said,” she continued, “looking back to the past decade, two decades, three decades, this is part of a trend that, while more severe this year, has been happening for a long time.”
There was also a drop in the percentage of students meeting the ACT’s “College Readiness Benchmarks.” These benchmarks are minimum scores in each subject area, which are statistically correlated with success in freshman-level college courses. For example, a student must score at least a 22 on the mathematics section to meet the minimum level linked to success in college-level algebra. The percentage ofstudents meeting all four benchmarks is down from 25 percent in 2021 to 22 percent in 2022 —also the largest decline of the decade. In all, 42 percent of test-takers met no ACT College Readiness Benchmarks in 2022.
“The score decline really reflects students’ lack of access to a rigorous high school curriculum… The scores themselves are really a direct reflection of the standards and skills that we want students to have to be successful in their freshman college courses,” Babington says. “So for us, the declines are telling this bigger story, that a lot of students don’t have access to the level of rigor that we’d like them to in high school.” She says this is especially true for low-income students or those from rural areas.
The low percentage of high school students meeting College Readiness Benchmarks is particularly concerning, especially as it appears that many students are attending four-year colleges despite not meeting the benchmarks. For example, in Alabama, only15 percent of high school graduates met all four ACT College Readiness Benchmarks in 2020, yet 30 percent enrolled in a four-year college. Thisindicates that a significant proportion of Alabamian four-year college students were, in at least one core subject, unready to attend college by ACT measures.
It is incredibly troubling that thousands of American college students may be academically unprepared to succeed in higher education. Not only is this worrisome for the students themselves, who may end up dropping out of school because of academic struggles (while still being on the hook for some, if not all, of their student loans), but it also spells trouble for higher education as a whole, since universities might lower the rigor of many courses to avoid pushing students out.
The recent decline in ACT scores, coupled with their already staggeringly low pre-pandemic levels, shows just how deficient American schools are—particularly the government-run public schools which educate91 percent of American students. For more students to succeed, we need to take a hard look at public schools and begin holding them to account for their failures.
The mass pardon for low-level marijuana offenders that President Joe Biden announced last week will affect nearly 7,000 U.S. citizens convicted of simple possession under federal law during the last few decades, according to an updated analysis that the U.S. Sentencing Commission (USSC) published yesterday. Within that group, 6,577 cases involved just marijuana, while 415 also involved other drugs, which are not covered by Biden’s proclamation.
An additional 1,132 convictions, including 1,122 marijuana-only cases, involved noncitizens who were legally living in the United States. Within that group, Biden’s proclamation is limited to “lawful permanent residents.”
The USSC analysis covers FY 1992 through FY 2021. Biden’s pardons apply to simple possession cases before and after that period, as long as the defendants committed the offense on or before October 6. The beneficiaries also include people convicted of simple possession under the District of Columbia Code. “Officials estimated that number to be in the thousands,” The New York Timesreports.
All told, then, the total number of beneficiaries may exceed 10,000, which nevertheless represents a tiny percentage of Americans with misdemeanor marijuana records, who typically are prosecuted under state law, not federal law. The Justice Department said it will “expeditiously administer the President’s proclamation.” Toward that end, “the Office of the Pardon Attorney will begin implementing a process to provide impacted individuals with certificates of pardon,” thereby “restoring political, civil, and other rights.”
Although simple marijuana possession is punishable by up to a year of incarceration under the Controlled Substances Act, the USSC reports that no one convicted of that offense remained in Bureau of Prisons custody as of January 29. Biden did not pardon people convicted of growing or distributing marijuana, about 8,700 of whom received federal sentences from FY 2017 through FY 2021. The average prison term during that period was 30 months, although a fifth of the defendants were sentenced to five years or more.
“Your recent executive order, while a great first step, did nothing to address the thousands of federal cannabis prisoners currently incarcerated in federal prison,” 16 drug policy reform groups say in a letter they sent Biden on Monday. “While your recent executive order will help many, it will not release a single one of the nearly 2,800 federal cannabis prisoners.” Although “eighteen states and the District of Columbia have legalized cannabis,” the letter notes, “there are thousands of Americans who are serving long-term prison sentences, including some life sentences, in federal facilities for conduct involving amounts of cannabis that are far less than what dispensaries routinely handle on a daily basis.”
In addition to drawing a morally dubious distinction between simple possession and other marijuana offenses, Biden’s proclamation excludes noncitizens who are not legal permanent residents. The upshot, as Reason‘s Fiona Harrigan notes, is that even residents who are legally allowed to remain in the United States, such as refugees and asylum applicants, will still suffer from the ancillary penalties associated with marijuana misdemeanors, including vulnerability to deportation. Marijuana convictions also can exclude people from entering the country to begin with or prevent them from becoming citizens.
According to the USSC’s analysis, about four-fifths of federal convictions for simple marijuana possession involved men. Forty-one percent of the defendants were white, while 32 percent were Hispanic and 24 percent were black.
Virginia accounted for 10 percent of the convictions, which presumably reflects the prevalence of federal property in that state. Border states also accounted for outsized percentages of the simple possession cases: The share was about 17 percent for Arizona, 15 percent for Southern California, and 12 percent for Texas. Those numbers reflect people caught with pot at the border.
As Reason‘s C.J. Ciaramella notes, a 2016 USSC report “found that most people charged by the feds with simple possession are either caught coming over the U.S.-Mexico border with small amounts, or caught on federal property, such as a military base, national park, or Veterans Affairs facility.” These convictions account for a very small share of all simple possession cases, which are rarely prosecuted in federal court.
Since 1965, police in the United States have made nearly 29 million marijuana arrests, the vast majority for possession rather than cultivation or trafficking. Rep. Dave Joyce (R–Ohio), co-chair of the Congressional Cannabis Caucus, estimates that “more than 14 million cannabis-related records at the state and local level continue to preclude Americans from stable housing and gainful employment.” Biden has no power to lift those burdens, although he urged governors to do so for people convicted of simple possession.
The infamous, $113-billion-and-counting California high-speed rail line between San Francisco and Los Angeles, which was supposed to be completed by 2020 for a cost of $33 billion yet has only begun tinkering on a 171-mile stretch in the Central Valley, is not really “an existing project,” says former California High-Speed Rail Authority (CHSRA) Chair Quentin Kopp. “It is a loser.”
Added ex-chair Michael Tennenbaum: “I don’t know how they can build it now.” And California State Assembly Speaker Anthony Rendon (D–Lakewood): “There is nothing but problems on the project.”
All these quotes come from a much-discussed article in Sunday’s New York Times detailing the grossly politicized decision making that has plagued the proposed bullet train ever since California voters foolishly approved an initial $9.95 billion bond measure to jumpstart it in November 2008.
“Only now,” asserts author Ralph Vartabedian, “is it becoming apparent how costly the political choices have been. Collectively, they turned a project that might have been built more quickly and cheaply into a behemoth so expensive that, without a major new source of funding, there is little chance it can ever reach its original goal of connecting California’s two biggest metropolitan areas in two hours and 40 minutes.”
At the risk of nitpicking an otherwise useful autopsy, there never has been, at any stage of this living monument to political unseriousness and hubris, even a “little chance” that the S.F.-L.A. line would zip passengers between the cities in just 160 minutes, let alone deliver on the whole ragbag of laugh-out-loud promises that the state and federal political establishment delivered with a straight face.
“The Rail Authority claims it will hit average speeds that are not being achieved by any other high-speed rail system in the world,” Reason Foundation Vice President of Policy Adrian Moore once observed. “A trip from San Francisco to Los Angeles would allegedly take 2 hours and 40 minutes, averaging 197 mph. France’s TGV-Est train averages 174 mph, the TGV Paris-Avignon averages 159 mph, Japan’s bullet train averages 159 mph, and Taiwan’s high-speed rail averages 152 mph….Those are the fastest ones out there. And they can use light, fast trains, because they run on their own tracks. California will have to use heavier, slower trains because the plan is run on the same tracks as freight trains, and federal safety rules require heavier passenger trains in the event of a collision.”
Those words, heavy on incontrovertible fact, were published in September 2008. Reason Foundation, the nonprofit that publishes this website, has for decades operated a public policy shop whose core areas of expertise have always included transportation (including rail), as well as California writ large. In August 2008, the foundation put out a 196-page due diligence report eviscerating the shoddy and shockingly expensive ($58 million already by then) work of the CHSRA, and predicting many of the pitfalls that have been plunged into since.
“There are no genuine financial projections that indicate there will be sufficient funds to complete Phase I, much less Phase II or any other phases,” the report concluded. “It is possible that the system will either be built only in part or not at all….[The] system as envisaged in state statute appears highly unlikely to be delivered under the present plan….There is little likelihood that the passenger or revenue projections will be met, that the aggressive travel times will be achieved, that the service levels promised will be achieved, that the capital and operating costs will be contained consistent with present estimates, that sufficient funding will be found, or that the system will be profitable. It is likely that these circumstances will represent an expensive and continuing drain on the state’s tax resources.”
Even the crass, project-delaying political horse-trading that the Times focuses on was itself predictable at the outset by those who actually studied how massive infrastructure projects get done in the United States.
“[The project] is already turning into a money-grab for local governments and transportation authorities,” the foundation’s Adam Summers wrote in July 2008. “The wildly exaggerated claims of high-speed rail proponents and the attempts by legislators from across the state to put their hands into the high-speed rail money pot should serve as warnings against providing a commercial service with political means. In the private sector, businesses must satisfy consumer demands and put their own investments at risk in order to survive. Politicians, by contrast, do not have to live by economic realities. They can support any idea that sounds good at the time and keep dipping into the taxpayer well to pay for it, regardless of whether or not it makes sense.”
Yes, the Reason Foundation is a libertarian think tank, interested in limiting the size of government and using market means to policy ends. But the foundation’s transportation work in particular, spearheaded by the legendary Bob Poole, has long been respected across the political spectrum for its seriousness and attention to detail. And, in the case of the bullet train fiasco, that work was not an outlier.
“The Authority’s ridership projections are considerably higher than independent forecasts developed for comparable California systems in studies by the Federal Railroad Administration, the University of California Transportation Center at Berkeley and in the recent Due Diligence Report,” the foundation’s Joseph Vranich testified to the California Senate Transportation and Housing Committee in October 2008. “The current proposal is untenable. The train will be slower than they say it will, will carry fewer people than they claim it will, and will cost much more than they admit it will.”
Vranich was actually a bullet train enthusiast, pronouncing it “the first time I am unable to endorse a high-speed rail plan” (emphasis his). He painted a picture of a planning authority that hadn’t even done the most rudimentary of homework:
I’d like to see high-speed rail built, but not this boondoggle.
High-speed rail holds great promise in certain sections of the country. But the work of the Authority is so deficient that if the current plan is implemented it has the potential of setting back the cause of high-speed rail throughout the United States. The Authority has not learned the lessons: What caused Texas high-speed rail to fail? What caused it to fail in Florida? What caused the prior project to fail between Los Angeles and San Diego?
A common element in the failures were high ridership estimates, low cost estimates, disregard for local environmental impacts and the planners losing credibility. The California Authority is repeating all of the mistakes as if they have never read a single page of history.
There is a point to rehashing these old arguments beyond saying we told you so. The fact is, these reality-based objections were widely known at the time. It’s just that the people who otherwise fashion themselves as serious thinkers about public policy made the conscious choice to jettison rationality in favor of pie-in-the-sky dreaming.
Back in 2008, my former colleagues at the Los Angeles Times editorial board produced one of the most succinct examples of magical policy thinking you’ll ever see:
The projections by the measure’s opponents, led by the libertarian Reason Foundation in Los Angeles, are much less sanguine and more persuasive [than those by supporters]. If voters approve Proposition 1a, it seems close to a lead-pipe cinch that the California High-Speed Rail Authority will ask for many billions more in the coming decades, and the Legislature will have to scrape up many millions of dollars in operating subsidies.
And yet, we still think voters should give in to the measure’s gleaming promise, because it’s in their long-term interest.
Three years later, after the predicted pratfalls, the paper editorialized that, “Yes, the price tag has tripled and its completion date is 13 years later. But it’s still a gamble worth taking.”
The New York Times, whose sober reporting this week launched the latest public discussion of this colossal government failure, was right there editorializing in favor of it in 2014. “Despite modest investments, American lawmakers have not given high-speed rail the priority it deserves,” the paper complained, before getting into some undergraduate-level policy sophistry:
California’s plan to link Los Angeles to San Francisco by high-speed rail is expected to cost $68 billion. Critics argue that such services cannot survive without public subsidies and that the United States has few of the dense urban areas that have made such train services successful in places like France and Japan. But these arguments fail to acknowledge that most forms of public transportation are subsidized somehow by the government; the federal government puts up most of the money to build the interstate highway system. Skeptics also greatly underestimate the country’s long-term transportation needs. The Census Bureau estimates that the American population will cross 400 million in 2051, and the country is becoming more urban, not less. California’s population is predicted to top 50 million in 2049. That growth will put an incredible strain on the nation’s highways and air-traffic system.
Note the tricks: Critics waved off, without hyperlink or citation, for not making a comparative-subsidy analysis that the Times itself fails to meaningfully enumerate. Zero cost-benefit comparisons of different transportation systems. Might as well just grunt “HAVE PROBLEM! THIS SOLUTION!”
We will keep repeating this expensive, life-disrupting folly until we meaningfully address the mindset that enables it. Former Washington Post columnist Robert J. Samuelson identified this mental trap way back in 2010:
President Obama calls high-speed rail essential “infrastructure” when it’s actually old-fashioned “pork barrel.” The interesting question is why it retains its intellectual respectability. The answer, it seems, is willful ignorance. People prefer fashionable make-believe to distasteful realities. They imagine public benefits that don’t exist and ignore costs that do.
We told you so. You chose not to listen. This one’s on you.
