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Published: Thu, 20 Jul 2017 00:00:00 -0400

Last Build Date: Thu, 20 Jul 2017 12:23:49 -0400


Does Donald Trump Have Anything to Do With Constitutional Conservatism?

Thu, 13 Jul 2017 13:17:00 -0400

One of the more interesting, depressing, and still-unresolved questions about the Republican Party in the era of Donald Trump is whether the limited-government philosophy that seemed to animate the Tea Party's ascendance in 2009-2010 is still an active thing. (See the bottom of this post for several links which poke at the issue from various angles.) The question has implications for all kinds of policy questions—from the health care debate, where the Senate's Tea Party caucus currently form the hinge-point on which the legislation balances, to forthcoming debates on taxes, budgets, debt ceilings, surveillance, Russian investigations, and more. Given the wariness with which many libertarians treat the Trump presidency, it came as a surprise for some to read this Politico magazine headline from Tuesday: "Is Trump a Conservative? Mike Lee Says Yes." For instance, Cato Institute Vice President David Boaz in the piece expresses surprise at Lee's assessment: "It seems to me it's pretty obvious that Trump is not a conservative," Boaz said. He prefers to describe Trump as "a scary authoritarian, nationalist, protectionist cronyist." […] Boaz doesn't think there's any way to reconcile Trump with small-government conservatism. […] "One question for intellectual conservatives," Boaz said, "is, 'Have you become such partisans that you've forgotten how to be intellectuals?'" So how does Lee, a senator who on multiple occasions has expressed revulsion at Trumpism, make the constitutional-conservative case for a president he never endorsed? I asked him that Monday, in a Sirius XM interview tied to the release of his new book, Written Out of History: The Forgotten Founders Who Fought Big Government, in the form of soliciting his response to the theory from libertarian-leaning Rep. Thomas Massie (R-Kentucky) that more than philosophy, Tea Party voters "were voting for the craziest son of a bitch in the race. And Donald Trump won best in class, as we had up until he came along." Lee's response pointed heavily to Trump's record on deregulation: Look, the fact is that the wave that swept Donald Trump to power was motivated to a significant degree by people who share these principles, by people who are wanting to restore constitutionally limited government. A good part of "draining the swamp" necessarily entailed identifying those areas in which the federal government has overreached, and identifying respects in which we have violated these twin structural protections in the Constitution, the vertical protection we call federalism, and the horizontal protection we call separation of powers. And so whether we want to call it this or that, whether we acknowledge it as an effort to restore constitutionally limited government or not, that is in fact what it is. And that is in fact going to be what saves our republic from the accumulation of power that's been occurring in Washington over the last 80 years. More from the interview: MW: Although with the exception of deregulation−which is a very important exception in this presidency that isn't getting a lot of ink right now just because there's so many other things to talk about−you don't hear a lot of that kind of talk from the president himself. He's not talking a lot about separation of powers, not talking a lot about devolving power, and that kind of thing. Or am I just missing it? ML: Well, I think it's impossible to extricate federalism from separation of powers. In other words, when he talks about over-regulation, whether he uses these terms or not, he's really referring to the two-step process by which power has been taken from the American people. First it's been taken from them at the state and local level and moved to Washington, and secondly it's been handed over by elected lawmakers to unelected, unaccountable bureaucrats. President Trump recognizes that there's something wrong there, he's trying to restore that balance. And even though he doesn't speak necessarily in those same terms, or quote chapter and verse from constitutional text or from the Federalist Papers, I[...]

GOP Pushes Bad, Punitive Anti-Federalist Immigration Bills Through the House

Fri, 30 Jun 2017 14:20:00 -0400

House Republicans overwhelmingly voted in favor of two bad immigration-focused bills yesterday that potentially punish those in the United States illegally with new harsh prison sentences and attempts to push cities into helping federal authorities deport people. The first bill, popularly known as "Kate's Law," adds new criminal penalties and federal prison sentences to any immigrant who returns to the United States after being deported for criminal behavior. But it also threatens up to 10 years in federal prison for illegal immigrants who repeatedly return to the United States after being deported, even if they've committed no other crimes. It also forbids the immigrant from challenging the legitimacy of any prior removal orders. The second bill, the "No Sanctuary for Criminals Act," attempts to push cities, particularly so-called "sanctuary cities," into cooperating with federal immigration officials to detain and eject those in the country illegally. President Donald Trump (and many, many other Republicans) made a big deal about fighting sanctuary cities—which generally don't ask residents or people who interact with government officials about their citizenship status—on the campaign trail. But after Trump took office, his Department of Justice was faced with an awkward truth: Most sanctuary cities are not defying federal laws at all, and there's not much the government can currently do about them. Federal laws do not require that cities and local law enforcement assist immigration officials by detaining people the feds want to deport. Immigration and Customs Enforcement (ICE) can ask cities to hold illegal immigrants for in "detainer orders." But they're requests. Cities have their own rules about when they'll comply with such orders (often requiring court orders or a warrant for cooperation). Ultimately after the Department of Justice started threatening federal grant money to sanctuary cities, they ended up discovering that really only a handful of governments (eight cities and one county) are behaving in a way that was even remotely in defiance of federal authority. What the "No Sanctuary for Criminals Act" does is forbid municipalities from stopping local law enforcement officials from helping federal immigration officials by complying with detainer orders. In areas of immigration enforcement, it overrules the ability of cities to control the behavior of their own law enforcement officers. The act also classifies specifically which grants the federal government would withhold from sanctuary cities that defy them. Previously the administration through executive order threaten to withhold all sorts of federal grants, but the courts have previously ruled such behavior unconstitutional. The grants have to be connected to enforcing the laws themselves. This act specifically defines which grants could be denied sanctuary cities. The votes fell mostly across party lines—Republicans in favor of the two bills and Democrats against them. More Democrats were willing to cross the aisle to vote in favor of harsher criminal sentences for illegal immigrants than to cut federal grants from sanctuary cities, so make of that what you will. Only one Republican voted against both bills, libertarian Rep. Justin Amash of Michigan. Amash tweeted his reasons why. He found both bills to significantly violate the Constitution and the concept of federalism: I voted no today on two bills that together violate the 1st, 4th, 5th, 10th, and 11th Amendments. I will always defend our Constitution. — Justin Amash (@justinamash) June 29, 2017 A spokesperson for Amash's office told Reason, "Rep. Amash supports securing our borders and has voted to defund sanctuary cities, but these bills go far beyond that and are unconstitutional." Though the legislation passed the House, it has a challenge getting through a Senate where Republicans hold just a slim majority. As it stands, Republican Senators have their own ideas on what this legislation should look like, and they're combining Kate's Law with other punitive im[...]

Juries Can Acquit the Guilty, 9th Circuit Says, but 'There Is No Right to Nullification'

Tue, 20 Jun 2017 10:15:00 -0400

Advocates of jury nullification argue that jurors have both the power and the right to acquit a guilty defendant if they believe the law or its application is unjust. According to a recent ruling by a federal appeals court, they are half right. USA v. Kleinman involves an operator of medical marijuana dispensaries in California who was convicted of federal drug charges and sentenced to nearly 18 years in prison. Among other things, the defendant, Noah Kleinman, argued that the judge had improperly instructed the jury regarding nullification. The U.S. Court of Appeals for the 9th Circuit agreed but said the error was harmless because "there is no right to nullification." Here is what the judge told the jury: You cannot substitute your sense of justice, whatever that means, for your duty to follow the law, whether you agree with it or not. It is not for you to determine whether the law is just or whether the law is unjust. That cannot be your task. There is no such thing as valid jury nullification. You would violate your oath and the law if you willfully brought a verdict contrary to the law given to you in this case. The 9th Circuit had no problem with the first three sentences, which (not surprisingly) reflect the view of most judges and prosecutors: The jury's job is to determine the facts, not to judge the law. If a juror concludes beyond a reasonable doubt that a defendant's actions meet the statutory definition of the crime with which is charged, the juror's duty is to vote for conviction, even if he thinks the statute is unjust or that applying it to the defendant would be grossly unfair. "If Kleinman's jury had exercised its power to nullify, it presumably would have disregarded the court's instructions on federal drug law and the court's antinullification instructions," the appeals court said. "The court had no duty to make the jury aware of its power to nullify, and properly instructed the jury that it could not (1) substitute its sense of justice for its duty to follow the law, or (2) decide whether a law is just or unjust." But the 9th Circuit said the last two sentences of the jury instruction went too far by implying that a not-guilty verdict in such a case would be legally invalid and that jurors might be punished for it. "The court's statement that the jury 'would violate [its] oath and the law if [it] willfully brought a verdict contrary to the law given to [it] in this case,' may imply punishment for nullification, because 'violate your oath and the law,' coming from the court in a criminal trial, could be understood as warning of a possible violation with associated sanctions. Additionally, the statement that '[t]here is no such thing as valid jury nullification' could reasonably be understood as telling jurors that they do not have the power to nullify, and so it would be a useless exercise. While jurors undoubtedly should be told to follow the law, the statement that there is no valid jury nullification misstates the role of nullification because an acquittal is valid, even if it resulted from nullification." The appeals court nevertheless rejected Kleinman's argument that the erroneous jury instruction required reversal of his conviction. "It is not fundamentally unfair for a defendant to be tried by a jury that is not fully informed of the power to nullify," the court said, "or even that is stripped of the power to nullify, because there is no right to nullification. Although a jury should not be led to believe that jury nullification will result in punishment or an invalid acquittal, the court's misstatement by implication does not rise to the level of denial of Kleinman's due process rights." The decision, which was issued last Friday, also dealt with the proper application of the Rohrabacher/Farr amendment, a spending rider that bars the Justice Department from interfering with the implementation of state medical marijuana laws. Last year the 9th Circuit ruled that the amendment covers prosecution of medical marijuana suppliers who comply w[...]

PRIME Act Would Help Put the 'Local' Back in Local Meat Production

Sat, 17 Jun 2017 08:00:00 -0400

Locally raised meats might soon also be regularly slaughtered and sold locally, under a bipartisan bill now winding its way through Congress. The PRIME Act, first introduced two years ago, would allow each state to set its own rules for slaughtering cattle, pigs, and most other livestock and processing their meat, so long as that meat is sold only within the state's borders. States have been prohibited from setting their own inspection rules since Congress passed the Wholesome Meat Act 50 years ago. Under current law, meat processed via "custom slaughter"—at independent slaughter facilities not subject to USDA rules—may not be sold commercially. Consolidation in the wake of the law has resulted in fewer and fewer slaughter facilities, a problem I detail at length in my recent book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable. That's meant fewer choices for small farmers and consumers alike. The paucity of slaughter facilities in this country is truly startling. For example, a new USDA slaughter facility recently opened in Wyoming, making it the only such facility in a state that boasts 1.3 million head of cattle. This lack of slaughter facilities at a time of rising demand for grassfed beef—typically produced by small farmers—is a huge problem. The Wholesome Meat Act was intended to improve food safety. At a signing ceremony for the law, Pres. Lyndon Johnson said the bill would put "shady processors" out of business. "[O]ne filthy plant is one too many," Johnson proclaimed. But neither the Wholesome Meat Act nor USDA inspection has been any sort of panacea. For example, in a lengthy piece last month for the New Food Economy, I describe how the USDA's inspection regime is effectively broken. In the piece, I detail how a 2014 recall of nearly 9 million pounds of meat illustrates how a chain of USDA "actions were careless, secretive, and incompetent from the start, and likely played a role in the need for a recall." Criticism of the Wholesome Meat Act is nothing new. In fact, opposition to the law was immediate. "The new legislation provides for US government takeover if states do not meet US government set standards, whether based on sound public health reasoning or not," wrote Oscar Sussman, a New Jersey doctor of veterinary medicine, in a 1968 letter to the editors of the American Journal of Public Health, which had published an editorial in support of the new law. (emphasis in original) "The new Wholesome Meat Act of 1967 sets an unwarranted precedent of federal takeover, under the guise of public health need, of functions normally required of state government," Sussman wrote. "The establishment of this precedent can and will lead to future unnecessary extension of big federal bureaucracies in other areas." The unholy precedent of which Sussman speaks—not new at the time but, rather, traceable at least to the Supreme Court's wrongheaded decision in Wickard v. Filburn twenty-five years earlier—is Congress's delegation to the USDA of an authority Congress itself does not possess: the ability to regulate wholly intrastate commerce. "It is hereby found that all articles and animals which are regulated under this Act are either in interstate or foreign commerce or substantially affect such commerce," the Act's findings declare. (Readers interested in what exactly "substantially affect" means might enjoy (or not) the three-part test discussed here.) Two key PRIME Act sponsors told me this week why they've put their weight behind the bill. "The PRIME Act will maintain high quality standards while easing burdens on producers, which means lower costs for consumers and greater opportunity to support local farmers," Senator Rand Paul (R-Kentucky) tells me. "A lack of available processors is something I hear about from farmers in my District constantly," says Rep. Chellie Pingree (D-Maine). "The PRIME Act would change burdensome federal regulations to make it easier to process meat loc[...]

The Federal Government Ruined Puerto Rico

Fri, 16 Jun 2017 09:30:00 -0400

Puerto Rico voted to become a U.S. state this week. Needless to say, we should all be deeply concerned about the island's engorged debt, destructive fits of socialism, and terrifying chupacabras. But Puerto Rican statehood also represents a unique opportunity to reform American federalism. Accepting a new state with markedly different problems and programs means acknowledging that states aren't interchangeable. We should welcome Puerto Rico and, while we're redefining what constitutes our union, rexamine the power dynamic between Washington and the states. Puerto Rico is a test case in one-size-fits-all solutions and federal intervention ruining an economy. The island has significantly lower income and productivity than the continental United States, but it is still subjected to a national minimum wage crafted for the mainland. That disparity squeezes entry-level jobs out of the market and ratchets up unemployment rates. The slumping job market is worsened by the fact that federal programs like food stamps, Social Security benefits, education grants, and disability payments aren't pegged to local cost of living. In a region poorer than America's poorest state, it's not surprising that people would opt for generous federal handouts over scrambling for jobs the minimum wage hasn't yet outlawed. Puerto Rico would benefit from an opt-out clause on the mininum wage—an option that should be available to all states. Because Puerto Rico is an unincorporated territory and not a state, it's more vulnerable to federal intervention. The Jones-Shafroth Act exempted Puerto Rican bonds from local, state, and federal taxes. The feds might as well have sprinkled cocaine and cronuts over the bonds. Investors bought dumpsters full of Puerto Rico's sovereign debt, leading the island to further lurch into exorbitant deficit spending. Federal trade laws also hobble Puerto Rican prosperity. The Jones Act prohibits foreign ships from moving goods between American ports. That means a foreign flagged vessel can't stop at Puerto Rico on its way to or from the mainland, but must instead offload and reload goods at another American port so a more expensive U.S. ship can transport them. Peter Schiff explains: "Even though median incomes in Puerto Rico are just over half that of the poorest U.S. state, thanks to the Jones Act, the cost of living is actually higher than the average state." The Jones Act would be a great issue to bring up when Congress deliberates on Puerto Rican accession. Abolishing it would benefit everyone, most of all Puerto Rico. All of this may be incidental to the issue most likely to trouble Americans: How the hell are we going to shoehorn another star onto our flag? If we admitted Puerto Rico it would completely screw up the Stars & Stripes. Check out what the new mutant flag would look like: As you can see, this hideous abomination is utterly unrecognizable. Fortunately, I've devised a way we can admit Puerto Rico without having to go out and buy a 51-star devil flag. At this point in our history I think we can all agree that Florida is a freak state. When it's not too busy irresponsibly losing its emus, it's violating the Geneva convention with silly driving laws. I'm not opposed to taking away their electoral votes and giving it to someone more responsible, such as Canada, or possibly my improv team. They certainly don't deserve to have a star. So we could take Florida's star away and give it to Puerto Rico. I spent all night running that scenario through complicated graphic algorithms and came up with this model: This week's vote was a non-binding resolution, but the island will hold another vote in October. If Puerto Rico petitions Congress to join the Union, limited government proponents could rightly point out that federal programs operating in Rhode Island have disastrous effects on the island of Puerto Rico. Surviving Goldwater acolytes advocate a federal government that concerns itself primarily with issu[...]

This Bill Would Protect Medical Marijuana Suppliers From Jeff Sessions' Whims

Thu, 15 Jun 2017 08:30:00 -0400

Today a bipartisan group of senators plans to introduce a new version of the CARERS Act, which aims to protect medical use of marijuana in the 29 states that allow it. Among other things, the bill would provide a more permanent shield from prosecution and forfeiture than the Rohrabacher/Farr amendment, the spending rider that bars the Justice Department from interfering with the implementation of state medical marijuana laws. As Mike Riggs noted on Tuesday, Attorney General Jeff Sessions sent congressional leaders a letter urging them not to include the rider, which has to be reapproved each fiscal year, in the DOJ appropriations bill enacted last month. After Congress rejected Sessions' request, President Trump signed the bill but issued a statement implying that he might ignore the rider if that was necessary to meet his "constitutional responsibility to take care that the laws be faithfully executed." Such a scenario is hard to imagine, since those laws include the restrictions imposed by the Rohrbacher/Farr amendment. It's not clear how significant the letter and the signing statement are as indicators of Sessions' intentions because the Obama administration also opposed the Rohrabacher/Farr amendment and urged courts to read it narrowly. Under Eric Holder, the DOJ argued that the rider covered only direct legal challenges to medical marijuana programs. Last year the U.S. Court of Appeals for the 9th Circuit rejected that interpretation, ruling that the rider also prohibits the prosecution of people who supply or possess marijuana for medical use in compliance with state laws. Despite opposing the rider, the Obama administration eventually settled on a policy of prosecutorial restraint, generally tolerating state-licensed marijuana businesses, including those serving recreational consumers, unless they violated state law or impinged on "federal law enforcement priorities." Sessions has said he agrees with much of that policy but thinks it was not applied vigorously enough—an attitude that, along with his well-known anti-pot prejudices, could signal a crackdown. But so far Sessions has not tried to shut down state-legal cannabusinesses, which federal prosecutors could easily do simply by writing some threatening letters. Nor has he challenged state marijuana laws in federal court, even as lawsuits by other parties (neighboring states, local law enforcement officials, and anti-drug activists) have fizzled out. Sessions' restraint may have something to do with positions taken by his boss before and after the presidential election. During the campaign, Trump repeatedly said states should be free to legalize marijuana, and he has consistently said medical use should be permitted. A crackdown on medical marijuana would break Trump's promises, and it would stir up a lot of political trouble with no obvious upside, other than gratification of Sessions' prohibitionist impulses. Still, it would be nice to have some lasting protection from the attorney general's whims. In addition to prohibiting federal prosecution of patients and their suppliers, the CARERS Act would eliminate some obstacles to marijuana research, allow doctors employed by the Veterans Health Administration to recommend medical marijuana in states where it is legal, and remove cannabidiol, a nonpsychoactive but therapeutically promising component of marijuana, from Schedule I, the most restrictive category under the Controlled Substances Act. The bill, which was originally introduced in 2015, no longer includes provisions that would have removed marijuana from Schedule I and protected banks that serve the cannabis industry. Those provisions were cut in the hope of attracting broader support for the bill. The initial sponsors this year include Sen. Mike Lee (R-Utah) and Lisa Murkowski (R-Alaska), who did not back the 2015 version, as well as Sens. Rand Paul (R-Ky.), Cory Booker (D-N.J.), Kirsten Gillibrand (D-N.Y.), and Al F[...]

5 Thoughts on the St. Louis 'Abortion Sanctuary City' Mess

Mon, 12 Jun 2017 15:10:00 -0400

Should municipalities be able to set themselves up as "abortion sanctuary cities," where anyone who has had the procedure or is considering do so is given special legal protections? St. Louis tried to do just that earlier this year, when the board of aldermen passed an ordinance making it illegal for an employer or housing provider to discriminate against women for their "reproductive choices." The state House responded with a bill to override the local law, but it stalled in the state Senate. Now, Republican Gov. Eric Greitens has called an emergency session, bringing lawmakers back to the capital to try again. What should libertarians make of this hullaballoo? Below are five points worth considering. 1. The St. Louis ordinance is troubling from a libertarian perspective. Whatever your feelings about the right to terminate a pregnancy, "abortion sanctuary cities" ought to be opposed on libertarian grounds. This law creates a new protected class in the form of women who have gotten an abortion or are thinking about doing so, opening up countless private organizations to the threat of lawsuits. More to the point, it infringes on the associational liberty of individuals and groups by saying that lawmakers' values trump their own. I've written (not once but twice) that religious employees also should not get special legal protections, and for the same reason: In a free country, people have to be allowed to make decisions for themselves about whom to enter into business relationships with, and whom not to—even when they make choices the rest of us don't like. 2. The St. Louis ordinance threatens the existence of crisis pregnancy centers and other pro-life groups. Ask yourself whether the state of Missouri would be a better or a worse place if Our Lady's Inn were driven out of business. The network of maternity homes has for 35 years given support and resources to pregnant women and new mothers who opted not to abort their babies. The St. Louis Review reports: "The ordinance prevents me from hiring only individuals who support our alternatives to abortion mission," said president and executive director Peggy Forrest. "It also requires Our Lady's Inn to house women who intend to have an abortion. ... This forces us to be complicit in that decision." Since the ordinance's passage, the agency has had a couple of instances in which women have called inquiring about services, but seemed to have questionable motives, Forrest said. "The potential is really large, since the passage of this ordinance, that women either pretending to need services or knowing full well they don't want the services that we provide will engage us just to see if they can catch us in violating the ordinance," Forrest said. "It's insincere and takes up time for women who really are interested in our services. Pro-choicers often accuse pro-lifers of caring about unborn children to the exclusion of the well-being of their moms. Abortion opponents are denounced for not doing enough to aid women who face difficult circumstances such as poverty, homelessness, lack of health insurance, or abusive relationships. Our Lady's Inn, like scores of crisis pregnancy centers around the country, put their money and their man-hours where their mouths are by offering needed services to women so they won't feel so much pressure to choose abortion. As thanks, St. Louis passed an ordinance that undermines these groups' ability to operate. 3. There is no bright line between discrimination based on a choice and discrimination based on a category of person. Back in January, some liberal fashion designers announced a boycott of incoming first lady Melania Trump, even though they had happily created custom apparel for Michelle Obama. "The Sophie Theallet brand stands against all discrimination and prejudice," one designer explained, and as a result she would be exercising her right not to associate in any way with the [...]

10th Circuit Allows RICO Suits Against State-Licensed Pot Suppliers

Thu, 08 Jun 2017 08:30:00 -0400

Yesterday a federal appeals court revived a lawsuit in which the owners of a Colorado horse ranch are trying to win damages from state-licensed marijuana growers under the Racketeer Influenced and Corrupt Organizations Act (RICO). At the same time, the U.S. Court of Appeals for the 10th Circuit rejected three attempts to hold state and local marijuana regulators responsible for violating the Controlled Substances Act (CSA). The ruling opens the door to RICO claims by aggrieved neighbors of marijuana businesses, which could prove to be a serious financial drain on the newly legal industry. But the decision also suggests that courts will address the putative conflict between state and federal law only if the Justice Department files a lawsuit aimed at reversing marijuana legalization. Michael and Hope Reilly, who own a piece of land in Pueblo County on which they keep horses, complain that an adjacent marijuana cultivation facility impairs their enjoyment of their property and detracts from its value by generating noxious odors and conspicuously violating federal law. The Reillys are seeking triple damages under RICO, a federal statute that allows private parties to sue when they are injured by an illegal enterprise. A federal judge rejected their claims as speculative, but the 10th Circuit said they should get a chance to prove their case: We are not suggesting that every private citizen purportedly aggrieved by another person, a group, or an enterprise that is manufacturing, distributing, selling, or using marijuana may pursue a claim under RICO. Nor are we implying that every person tangentially injured in his business or property by such activities has a viable RICO claim. Rather, we hold only that the Reillys alleged sufficient facts to plausibly establish the requisite elements of their claims against the Marijuana Growers here. The Reillys therefore must be permitted to attempt to prove their RICO claims. The 10th Circuit did agree with the district court that the Reillys do not have standing to sue state and county officials for authorizing the marijuana grow, which supplies Rocky Mountain Organics, a store in Black Hawk. "Neither the landowners nor the interest group [the Safe Streets Alliance, which joined the lawsuit] purport to have any federal substantive rights that have been injured by Colorado or the county's actions," the appeals court says. "And because they have no substantive rights in the CSA to vindicate, it follows inexorably that they cannot enforce § 903 [the CSA's preemption provision] 'in equity' to remedy their claimed injuries." Applying the same analysis, the 10th Circuit rejected CSA preemption claims brought by sheriffs and county attorneys in Colorado and two neighboring states, Kansas and Nebraska. "The Law Enforcement Officers do not allege any specific substantive rights bestowed on them by the Supremacy Clause or the CSA that they seek to vindicate," the appeals court says. Finally, the 10th Circuit rejected an attempt by Nebraska and Oklahoma to participate in these cases, concluding that their beef is with Colorado. Under federal law, the Supreme Court has "original and exclusive jurisdiction of all controversies between two or more States." Last year the Court declined to hear Nebraska and Oklahoma's lawsuit challenging marijuana legalization in Colorado. Justice Clarence Thomas dissented, noting that "federal law is unambiguous: If there is a controversy between two States, this Court—and only this Court—has jurisdiction over it." Thomas warned that "if this Court does not exercise jurisdiction over a controversy between two States, then the complaining State has no judicial forum in which to seek relief." Nebraska and Oklahoma emphasized that point when they asked the Supreme Court to hear their case. Their only option now, according to the 10th Circuit, is to ask again. The Justice Dep[...]

The Trump Administration's Extraordinary Plans to Use Local Cops for Immigration Enforcement

Wed, 07 Jun 2017 10:45:00 -0400

Attorney General Jeff Sessions, whose future in his job is a bit uncertain right now, issued a memo two weeks ago clarifying that he'd employ a narrow definition of sanctuary cities when determining which cities to target for defunding. This might make it easier for the Trump administration to defend its executive order cracking down on these cities in court. However, that doesn't mean that its efforts to coax, cajole and coerce local cooperation for immigration enforcement are constitutionally unproblematic. In fact, they may pose the biggest challenge to federalist principles since the Civil Rights era. Following the July 2015 murder of Kate Steinle by a clearly deranged undocumented immigrant in San Francisco, a sanctuary city, then-candidate Trump declared that he would end sanctuary cities. "Cities that refuse to cooperate with federal authorities will not receive taxpayer dollars," he assured. But exactly which jurisdiction counts as a sanctuary city is up for debate. There is no definition in law or regulation. According to the most common usage of the term, these are cities that refuse to honor "detainers" issued by the Immigration and Customs Enforcement agency to hold undocumented Immigrants until its agents can take them away. However, several federal courts have ruled that local authorities can't detain anyone—even undocumented immigrants—for longer than warrants based on the infraction for which they were brought in without running afoul of the Fourth Amendment. This opens communities to lawsuits, which they are understandably eager to avoid. But that's not the only reason that many of them decline to honor these detainers. They also argue that detainers distort their crime fighting priorities, forcing them to divert precious law enforcement resources from bigger violent crimes to minor non-violent infractions. And in immigrant-heavy communities, such efforts breed fear and distrust of the local police, discouraging people from reporting serious crimes. More to the point, as a matter of law, detainers are merely requests, not legal orders. And the federal government cannot defund cities for not honoring something that it cannot order. That's why a California judge last month halted the implementation of the administration's executive order, noting that, as written, it was too ambiguous and could potentially target jurisdictions that merely refuse to obey detainers. Sessions' new guidance tries to address that objection by clarifying that the order's defunding threat would apply only to localities that violate 8 U.S.C. Section 1373. This law prohibits jurisdictions from barring their officials from sharing immigration and citizenship information with federal authorities. This likely makes the executive order more defensible in court. But here's the thing: it'll apply only to a handful of cities since there are very few cities that actually bar such information sharing. But even they can ultimately escape the defunding threat by simply opting not to collect this information in the first place. The Justice Department last week asked the court to vacate its order based on this exact argument—the order, and the memo, essentially do nothing. Even though the prospects of a legal defeat may have forced this administration to water down its anti-sanctuary city executive order, that does not mean that it has given up on trying to commandeer a local immigration enforcement force. Earlier this year, ICE started issuing—and updating every week—a "shame list" of jurisdictions that decline to honor its detainer requests. However, it paused updating this list in April after only three weeks when some cities objected that the list contained significant errors, including on the list cities that honored detainers. But that does not exhaust the administration's efforts. Its recently released budget call[...]

Jeff Sessions Wants to Recruit Local Cops for Border Patrol: New at Reason

Wed, 07 Jun 2017 10:45:00 -0400

(image) Thanks to the massive legal pushback, perhaps-soon-to-be-ex Attorney General Jeff Sessions was forced to water down his executive order threatening to defund sanctuary cities. But that does not mean that the Justice Department has given up on its efforts to rope in local cops for immigration enforcement purposes. In fact, the Bipartisan Policy Institute's Theresa Brown reveals that beyond deputizing locals for "interior enforcement," the administration is trying to get them to assist in border patrol functions, which have to date been an uncontroverted federal responsibility. This in an unprecedented move that may pose the "biggest challenge to federalist principles since the Civil Rights era," she writes.

Surprise: Republicans Have a Sensible Plan to Fix Immigration

Mon, 15 May 2017 10:30:00 -0400

President Trump is a man who prefers blunt instruments: He thinks he can solve America's complex immigration issues with a "big, beautiful wall." Meanwhile, two members of his party—Sen. Ron Johnson of Wisconsin and Rep. Ken Buck of Colorado—have come up with a vastly more elegant solution to help the country meet its future labor needs. (Sen. John McCain has signed on as a cosponsor, too.) There are no walls involved—just a plan to let states set up their own guest worker programs. Besides being inherently sound, the great upside of this approach is that it would sidestep the messy politics in Washington that have long made sensible immigration reform well nigh impossible. And we know that it works: It already does in Canada. You wouldn't know this from all the restrictinionist screaming about mass immigration, but the American labor market is very tight, and growing tighter, as the latest jobs numbers show. On the high end, companies need at least twice as many foreign tech workers as Uncle Sam will let them hire. As usual, this year's annual H-1B visa cap for 85,000 high-skilled workers filled up within days of opening. Companies that don't land a visa this year will have to wait a year before they can re-enter the H-1B lottery—by which time the foreign techie they were planning to hire will be working for an Australian or Singaporean company. But high-tech companies are the lucky ones. Matters are far worse on the low-skilled front. Farmers need H-1A visas to hire farmhands. But the requirements for these visas are so onerous and the outcome so uncertain that they are practically unusable. Meanwhile, the demand for seasonal laborers in industries such as construction, landscaping, and hospitality is about four times the annual allotment of visas. The worst part, though, is that by the time federal bureaucrats are done processing the applications, the season is done. Johnson and Kirk want employers to have options beyond the rotten choices Uncle Sam makes available. Their bill, called the State-Sponsored Visa Pilot Program Act of 2017, would give each state a modest 5,000 annual allotment to hire whoever it wants from abroad regardless of skill level, confining the federal government's role to conducting security and health checks. This allotment would be adjusted each year based on economic growth. The foreign workers brought in on these visas would be confined to working in the sponsoring state—or states that form a compact to honor each others' visas — which is a whole lot better for workers than being tethered to the sponsoring employer. States that feel strongly about keeping out foreign workers don't have to participate. And to ensure that these workers don't skip town and illegally take up employment elsewhere, the participating states would require these workers to post a $4,000 bond that would be returned at the end of their term if they stayed put. States that have more than a 3 percent non-compliance rate would lose 50 percent of their visa allotment the following year (and would be required to up their bond amount by $1,000 per visa). Conversely, those that meet the stipulated compliance rate—which won't be hard to do given that only 2 percent of illegal overstays involve guest workers—would be rewarded with a 10 percent increase in their visa quota in subsequent years. These elaborate provisions were included to placate restrictionist states that don't want to be flooded with foreigners. But it's actually overkill, at least if the experience of our neighbor to the north is any indication. Canada implemented a similar Provincial Nominee Program 20 years ago. And even without bonding and other requirements, provinces on average are able to retain 80 percent of the sponsored workers. This is particularly remarkable given th[...]

No Joke: Republicans Have An Excellent Plan to Fix Immigration

Tue, 09 May 2017 12:16:00 -0400

Associating great ideas with Republicans on Capitol Hill might seem like an oxymoron these days. But they have actually produced one. Last (image) week Wisconsin's Sen. Ron Johnson introduced a bill in the Senate Judiciary Committee to give states more authority in recruiting foreign workers. Dubbed the State-Based Guest Worker bill, it would hand each state a 5,000 quota (less in a companion bill sponsored by Rep. Ken Buck (R-Colorado) to sponsor foreigners that best meet their local labor needs. This is a less radical version of Canada's highly successful Provincial Nominee Program that allows provinces to actually sponsor permanent residents, not just temporary guest workers. Even so, it's a giant step in the right direction if for no other reason than that it moves America's immigration conversation away from building walls and creating deportation task forces in the Age of Trump, I noted in my column at The Week.

It'll also sidestep Washington's messy politics that have stymied reform and let states make their own bets about immigrants: Spurn them because they fear a drain on public resources or welcome them because they spur the economy.

Also, I discussed this proposal, which Sen. John McCain also jumped in to co-sponsor at the last minute, at Fox Business' Kennedy Nation:(image) :

Trump's Medical Marijuana Threat Contradicts the Law and His Own Position

Mon, 08 May 2017 08:00:00 -0400

The appropriations bill that President Trump signed on Friday renews a rider that bars the Justice Department from interfering with the implementation of state laws allowing medical use of marijuana. But Trump signaled in a signing statement that he may decide to ignore that restriction, known as the Rohrabacher-Farr amendment, notwithstanding his repeatedly expressed support for medical marijuana and for respecting state policy choices in this area. "Division B, section 537 provides that the Department of Justice may not use any funds to prevent implementation of medical marijuana laws by various States and territories," Trump says in the signing statement. "I will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed." The implication is that Trump's duty to enforce the federal ban on marijuana, which makes no exception for medical use, could compel him to disregard the bill's limits on the use of DOJ money. That position makes no sense, since Trump's duty to take care that the laws be faithfully executed includes this law, which explicitly tells the Justice Department to refrain from interfering with state medical marijuana programs. Last August the U.S. Court of Appeals for the 9th Circuit ruled that the Rohrabacher-Farr amendment prohibits the Justice Department from prosecuting medical marijuana suppliers who comply with state law, and the same analysis would also apply to civil forfeiture actions. As Steve Bell, a senior adviser at the Bipartisan Policy Center, told Bloomberg News, "It is the constitutional prerogative of the Congress to spend money and to put limitations on spending." Bell described Trump's signing statement as "an extremely broad assertion of executive branch power over the purse." Trump is not only trying to usurp the congressional power to decide how taxpayers' money will be spent; he is threatening to interfere with the autonomy that states are supposed to have under the 10th Amendment. He is also contradicting his own position both before and after his election. At the Conservative Political Action Conference in March 2015, Trump said he was leery of legalizing marijuana for recreational use, but "medical marijuana is another thing." He said he was "100 percent" in favor of medical use. He made similar statements while campaiging in Nevada that October, in New Hampshire the following January, and in Michigan two months later. White House Press Secretary Sean Spicer reiterated Trump's support for medical marijuana in February. "There's two distinct issues here: medical marijuana and recreational marijuana," Spicer said. "I think medical marijuana, I've said before that the president understands the pain and suffering that many people go through who are facing especially terminal diseases and the comfort that some of these drugs, including medical marijuana, can bring to them. And that's one that Congress, through a rider...put in an appropriations bill saying the Department of Justice wouldn't be funded to go after those folks. There is a big difference between that and recreational marijuana." The rider to which Spicer referred is the very one Trump has now signaled he may flout. Mind you, Trump has said states should be free even to legalize marijuana for recreational use, although he does not think that's a good idea. In the case of medical marijuana, he has taken the further step of saying he supports the policy, which makes this latest threat all the more puzzling. "Donald Trump continues to send mixed messages on marijuana," says Michael Collins, deputy director of the Drug Policy Alliance. "After stating during the campaign that he was '100 percent' in support of medical marijuana, he now issues a[...]

Sessions-Shy Colorado Legislators Gut Bill Authorizing Cannabis Consumption Clubs

Fri, 14 Apr 2017 11:10:00 -0400

If cannabis consumers in Colorado continue to have trouble finding places outside their homes where they can legally enjoy the marijuana they can legally buy, they can thank Attorney General Jeff Sessions. Yesterday Collorado legislators gutted a broadly supported bill that would have authorized cannabis consumption clubs, citing uncertainty about how a Justice Department run by an old-style pot prohibitionist might respond. Amendment 64, the 2012 ballot initiative that made Colorado the first state to legalize marijuana for recreational use, allows adults 21 and older to smoke, vape, eat, or drink cannabis products at home. But Amendment 64 does not apply to "consumption that is conducted openly and publicly," which remains a petty offense punishable by a $100 fine. Because the meaning of "openly and publicly" is a matter of dispute, consuming cannabis outside of private residences remains legally perilous in many jurisdictions. Denver, for example, has a bunch of businesses where you can legally buy marijuana but none where you can legally use it. S.B. 184, introduced by Rep. Dan Pabon (D-Denver) and Sen. Bob Gardner (R-Colorado Springs), defined "openly and publicly" to exclude consumption on private property that is shielded from public view or to which access is restricted. The bill, which was approved by the state Senate last month and was on the verge of approval in the House, would have let people bring their own marijuana to use inside members-only clubs except where prohibited by local law. The clubs would have been forbidden to sell marijuana, alcohol, or food aside from light snacks. Gov. John Hickenlooper had threatened to veto S.B. 184, partly because he views it as contrary to voters' intent in passing Amendment 64 and partly because he did not want to provoke Sessions, who has repeatedly criticized marijuana legalization and suggested he will crank up enforcement of the federal ban. "It was explicit in [Amendment 64] that it would not be for public consumption," Hickenlooper told The Denver Post last month. "So I'm just trying to defend the will of the voters." In an earlier interview with the Post, he also cited the risk of federal intervention. "Given the uncertainty in Washington, this is not the time to be…trying to carve off new turf and expand markets and make dramatic statements about marijuana," he said. "The federal government can [wield] a pretty heavy hand on this, and I think we should be doing everything we can to demonstrate…we are being responsible in how we implement the will of our voters." Yesterday S.B. 184 was amended to eliminate the language authorizing "marijuana membership clubs" and to broaden the definiton of "openly and publicly," which now covers any "place to which the public or a substantial number of the public has access." But the revised bill authorizes local governments to allow "marijuana consumption locations" as long as "the locations are not accessible to the public or a substantial number of the public without restriction, including, but not limited to, restrictions on the age of the members of the public who are allowed access to such location." In other words, the bill would explicitly allow what some jurisdictions have already decided to do: permit cannabis consumption in restricted-access locations, as a local ballot initiative approved by Denver voters in November is supposed to do. "I'd like to see [a bill] that goes much further, and that does a lot more," Rep. Jonathan Singer (D-Longmont) told the Associated Press. "But in a year with Jeff Sessions, a small first step is better than no step at all." Sen. Tim Neville (R-Boulder), who sponsored a competing bill that would have allowed on-site consumption in b[...]

Trump Adviser Urges Him to Keep Sessions From Harassing State-Legal Pot Suppliers

Mon, 03 Apr 2017 07:00:00 -0400

(image) Roger Stone, the longtime Republican operative and adviser to Donald Trump, is publicly urging the president to reject Attorney General Jeff Sessions' "outmoded thinking on marijuana" and keep him from harassing state-licensed cannabusinesses. In a recent blog post, Stone, a self-described libertarian, reminds Trump that as a presidential candidate he repeatedly said marijuana legalization should be left to the states.

"Tens of millions of Liberty minded Americans believed him when he said this and took his message to heart, fully expecting him to end the ineffectual and wasteful War on Weed," Stone writes. "I urge President Trump to honor his word and keep his promise, irrespective of what his Cabinet members may say. There are so many other ways that law enforcement can be put to good use rather than to persecute harmless farmers and shopkeepers who are abiding by State law."

Stone says Sessions' anti-pot prejudices should not dictate federal policy. "As a product of the Religious South, it is natural that AG Sessions would take the dimmest view of marijuana," he writes. "Jeff Sessions states his position plainly: 'Good people don't smoke marijuana.' This plainly false statement, made in all earnestness, clearly demonstrates how far from the mainstream Sessions is on this topic. Very few Americans would agree with him on this, as evidenced in the wave of legalization that washed over the United States over the past five years."

In addition to "states rights," Stone marshals support from the Bible, wherein God gives humans "every seed-bearing plant on the face of the whole earth and every tree that has fruit with seed in it...for food," and Thomas Jefferson, who remarked that "was the government to prescribe to us our medicine and diet, our bodies would be in such keeping as our souls are now." Stone argues that "marijuana prohibition laws...were formulated as a tool to bludgeon both the poor and minorities" and notes that legalization enjoys broad popular support, especially in states where voters have approved it through ballot initiatives.

"This was clearly the Will of the People," Stone says. "It is not Jeff Sessions' place to prosecute his version of morality and President Trump should not allow him to do so."

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