Banning flavored e-cigarettes is all the rage among politicians these days. It’s an alarming trend that poses a clear and present danger to public health.

The epidemic of misguided meddling began earlier this month when Michigan Gov. Gretchen Whitmer announced that she planned to unilaterally criminalize the sale of e-cigarettes in flavors other than tobacco. The contagion quickly spread to the White House, where President Donald Trump said his administration plans to impose a similar ban at the federal level; New York, where Gov. Andrew Cuomo this week declared an “emergency” ban; California, where Gov. Gavin Newsom said he would copy Cuomo if it were legally feasible; and Chicago, where Mayor Lori Lightfoot called for legislation aimed at closing “the gateway” to adolescent nicotine addiction.

The official justification for these measures is recent increases in vaping among teenagers, who overwhelmingly prefer the flavors that Whitmer et al. want to ban. Yet those flavors are also very popular among adults who have switched from smoking to vaping, a far less dangerous source of nicotine.

In a 2018 survey of 69,000 adult vapers who were asked which flavors they used regularly, just 8 percent said “tobacco,” while 83 percent said “fruit,” 71 percent mentioned flavors in the “dessert/pastry/bakery” category, 13 percent said “menthol,” and 10 percent picked “mint/wintergreen.” Eighty-one percent of the respondents described themselves as former smokers, 13 percent were still smoking, and 5 percent had never smoked. Among the former smokers, 75 percent had started vaping when they quit.

Surveys of former smokers find that flavor variety plays an important role in the process of switching to vaping. The Food and Drug Administration (FDA) has acknowledged “the role that flavors…may play in helping some smokers switch to potentially less harmful forms of nicotine delivery.”

Former FDA chief Scott Gottlieb, notwithstanding his concerns about underage vaping, recognized the enormous harm-reducing potential of e-cigarettes, describing them as a “tremendous public health opportunity.” Yet the FDA now plans to ban nearly all of the vaping products used by former smokers, which is likely to drive many of them back to a much more dangerous habit while deterring current smokers from making a switch that could save their lives.

The evidence suggests that vaping is replacing smoking among teenagers as well as adults. The prevalence of cigarette smoking among high school students has fallen to record lows as the prevalence of vaping has increased, and a 2018 study found that the decline in smoking among teenagers and young adults accelerated as vaping became increasingly common.

Some public officials and journalists have insinuated that legal e-cigarettes have something to with recent reports of severe respiratory illnesses among vapers. Yet in the vast majority of those cases, the patients had vaped black-market cannabis products.

The leading theory among state and federal investigators is that the illnesses are caused by additives or contaminants in those products, and possibly also in black-market nicotine e-liquid. One plausible culprit is vitamin E acetate, which was detected in most samples of THC fluid tested by the FDA and New York’s state lab.

“The e-cigarettes and the vaping devices are often used to vape other substances,” such as “THC” and “vitamin E acetate,” Cuomo noted this week. “And many of these other products have no controls on them whatsoever, the so-called counterfeit products. They’re not cleared by the FDA. There’s been no analysis of them at all. So vaping is dangerous.”

Under the cover of “vaping is dangerous,” Cuomo is imposing a ban that will lead to greater use of “counterfeit products” that are “not cleared by the FDA,” have not been analyzed, and “have no controls on them whatsoever.” How does that make sense?

Selling e-cigarettes to minors is already illegal. Instead of enforcing age restrictions, the prohibitionists want to prevent adults from obtaining the vaping products they demonstrably prefer, which will predictably result in more smoking-related disease and death. That’s a pretty strange way to protect public health.

© Copyright 2019 by Creators Syndicate Inc.

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2019-09-18 04:15:41

I rarely watch cable news anymore. It’s all hysteria, all the time.

CNN: “We are destroying the planet.”

MSNBC: “The middle class is disappearing!”

President Donald Trump says drug trafficking “is worse than ever!”

I’m glad my favorite magazine, Reason, cuts through the gloom and tells us the truth: There is less war and more food. We live healthier and longer lives. HIV will soon be history. We are increasingly free to be whoever we are and love whom we want. Even work has become more pleasant.

It’s a surprising message, since most journalists tell us everything’s terrible.

“They’re wrong,” says Katherine Mangu-Ward, Reason‘s editor-in-chief, in my new video.

Why is the media so negative?

Mangu-Ward says evolution wired us to see a world in which things are bad. “If you are a caveman who hears a little rustling in the weeds and you say, ‘Oh, it’s probably fine’ and the other guy says, ‘It’s probably a tiger!’ that’s the guy who lives. That guy was our ancestor.”

So today, as life gets better, my profession wins clicks and ratings points by hyping whatever makes us afraid. Reporters ignore gradual improvement and, sometimes, miracles.

“We live in a world of reliable miracles,” says Mangu-Ward. “When I’m having a bad day, I trawl the internet for videos of happy cyborgs…hearing-impaired people getting cochlear implants turned on for the first time…paraplegics walking with the help of adaptive prosthetics, infants getting their first pair of coke-bottle glasses…things that, in another era, would have caused the founding of an entire religion!”

Even food is better. Meatless meat tastes as good as meat from an animal because “people want to make money by selling you a burger that didn’t hurt a cow,” says Mangu-Ward.

OK, so science moves forward, but how will we pay for it? News anchors tell us “the middle class is shrinking.”

That’s true, says Mangu-Ward, “because people are getting richer!” A chart in Reason shows that Americans moving out of the middle class mostly moved up. There are more high-income people than ever before and fewer low-income households.

Another Reason article points out that “pestilence, war, famine and death are all on the decline.” You wouldn’t know it from other news sources, but it’s true. Deaths from war have declined dramatically.

I pushed back, pointing out that American life expectancy dropped recently. Suicide among white men is up about 40 percent.

“Still, overall, that is the tiniest blip,” says Mangu-Ward. “People are living longer, healthier lives.”

Even work got better.

“If you watch the news, you would think absolutely everyone is America is laboring in an Amazon factory, crying while they fill boxes. That’s just not, on average, what work looks like,” says Mangu-Ward.

“A couple hundred years ago, work was dangerous. It was very easy to die at work,” she reminds us. “Work was extremely boring, even for people that had good jobs. Jobs are pretty interesting now, and they mostly don’t kill you, and we should be grateful for that.”

Reason‘s writers aren’t dumb. They don’t pretend everything is rosy.

The magazine includes reporting on “the terrifying rise of authoritarian populism,” threats to a free internet, and worries that “Americans aren’t saving nearly enough.” But Reason is the rare publication that also points out good news.

When looking at that, Mangu-Ward sees a pattern.

“Everything that’s bad is politics; everything that’s good is the market.”

Markets allow every individual a choice. Products and services must improve, or you won’t buy them. That’s why market competition brings us gradual improvements.

Politics, by contrast, gives us just two choices. Then it forces everyone to obey whatever the majority chose.

“At Reason (we) describe why everyone should have less power over each other…because people are going to make mistakes and hurt each other. Better that they shouldn’t do it with the force of the state behind them,” concludes Mangu-Ward.

She suspects life will continue to get better “if we can just manage to keep politicians from screwing it up.”


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2019-09-18 02:58:26

The Consumer Financial Protection Bureau began investigating the Seila Law for potential violations of federal telemarketing regulations. Seila Law was not cooperative, however. When the CFPB issued a civil investigative demand (CID) for relevant documents, Seila failed to comply. The CFPB went to court seeking an order forcing Seila’s compliance, and Seila responded by contesting the CFPB’s constitutionality. According to Seila, the CFPB’s structure violates the separation of powers.

In May, the U.S. Court of Appeals for the Ninth Circuit rejected Seila’s arguments. Seila responded with a petition for certiorari to the Supreme Court, and prompted an unusual response.

Today, the Department of Justice filed its response on behalf of the CFPB, and it was not the typical brief in opposition. Rather than argue against granting the petition, DOJ endorsed Seila’s call for certiorari, and noted that the CFPB itself now accepts the argument (which DOJ had previously endorsed) that the CFPB, as structured, is unconstitutional. Specifically, DOJ and CFPB accept the argument that the prohibition on removal of the CFPB’s Director absent cause is unconstitutional.

With both Seila Law and the federal government supporting certiorari, there’s a decent chance the Supreme Court will accept this case for review—adding another potential blockbuster to what is already a stacked Supreme Court term. If so, the Court will likely appoint an amicus to argue in defense of the CFPB’s constitutionality. Expect a decision on the petition later this fall.

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2019-09-17 21:10:43

Minneapolis, Minnesota, has passed a strict new law regulating the ability of landlords to screen potential tenants by researching their credit scores, criminal backgrounds, and eviction histories.

On Friday, the City Council unanimously approved an update to the city’s Renter Protection Ordinance, requiring landlords to apply “inclusive screening criteria” when selecting applicants or else follow an onerous “individualized assessment” process.

“This ordinance provides a necessary protection for residents by ensuring they are not exploited with excessive move-in costs and have a fair opportunity to access housing,” said City Council President Lisa Bender in a statement following the vote.

Under the inclusive screening process, property owners are forbidden from rejecting a potential tenant for having an insufficient credit score, or for having insufficient credit history.

Landlords are also forbidden from turning down potential tenants for any misdemeanor convictions older than three years and for most felony convictions older than seven years. The law does allow landlords to reject applicants that have been convicted of murder, manslaughter, kidnapping, or first-degree criminal sexual conduct, but only if those convictions were within the last 10 years.

The inclusive screening process also prevents landlords from rejecting tenants for evictions older than three years.

Rental property owners who use the individualized assessment process are allowed to reject applicants because of their criminal record, credit score, or eviction history. Before they do so, however, the landlords must first give tenants the opportunity to provide supplemental information about the nature and severity of potentially disqualifying past behavior. A landlord who still wants to reject someone after considering this supplemental information must provide a written reason for denying their application, a copy of which must be filed with the city.

The new Minneapolis law also forbids landlords from charging security deposits that exceed a single month’s rent.

City landlords are predictably upset about the new requirements, saying that it gives them little room to decide who they rent their properties to while raising their costs of doing business.

One landlord told the Star Tribune that the new screening requirements would leave him “at a loss for how we’re supposed to figure out who the good tenants are and who the bad tenants are.” He said that he would likely raise rents at his properties or sell them in response to the new law.

Other landlords, in public comments submitted to the city council, said that the ordinance would raise insurance rates, and therefore rents, at rental properties. Still others complained that the individualized assessment procedures outlined in the law are unworkable and will leave landlords vulnerable to housing discrimination lawsuits.

The Minneapolis law also raises some constitutional red flags, says Ethan Blevins, an attorney with the Pacific Legal Foundation, a public interest law firm.

“You have a fundamental right with respect to the right to exclude people from your property and you don’t abandon that when you decide to become a landlord,” says Blevins. “Arguably these things burden that right because you are unable to use relevant factors in deciding whether or not you want someone to occupy your property.”

Blevins and the Pacific Legal Foundation are currently suing Seattle, Washington, over similar rental regulations that bar landlords from considering tenants’ criminal history.

Proponents of such regulations have argued that a criminal record is a poor predictor of tenant behavior, and that credit scores don’t accurately reflect people’s history of paying rent. Using these metrics to screen tenants, they say, makes finding housing even harder for folks who are already struggling.

Given that landlords are the ones assuming the risk of renting to a tenant, however, it seems reasonable to leave it to them to decide how to screen their tenants.

Blevins argues that it’s up to the government to tackle any disproportionate impact from landlords’ use of sensible screening methods, possibly by making it easier to expunge one’s criminal history, or by creating a certification program for rehabilitated ex-offenders.

Minneapolis’ new tenant screening regulations go into effect in June 2020 for landlords who own 15 or more units. Those with fewer units have until December 2020 to comply with the new law.

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2019-09-17 20:25:25

The Trump administration is ramping up pressure on Congress to pass a rewritten version of the North American Free Trade Agreement (NAFTA) before the end of the year, but the new deal is likely promising more than it will actually deliver.

In a speech to conservative policymakers and members of Congress on Tuesday, Vice President Mike Pence argued that Congress should pass Trump’s much-ballyhooed United States-Mexico-Canada Agreement (USMCA) because the new trade deal will boost the U.S. economy. Specifically, Pence singled out automakers as one of the big winners under the proposed trade deal, which still has to be ratified by all three nations before it takes effect.

Passage of the USMCA would “make sure there’s more autoworkers’ jobs for decades to come,” Pence said Tuesday during an event hosted by the Heritage Foundation, a conservative think tank.

Pence has become the administration’s primary cheerleader for the trade deal—both at public events like the one on Tuesday and others hosted over the past few months, and in private as the administration tries to sway members of Congress. Promising that the USMCA will create more auto-making jobs has been a central part of Pence’s message. The White House has also been touting a more general figure, based on an analysis by the U.S. International Trade Commission (ITC), showing that passage of the USMCA will boost growth by 0.3 percent annually.

Provisions of the trade deal “will eliminate the historic incentive to move manufacturing jobs out of the United States of America,” Pence said Tuesday, while promising that the USMCA “levels the playing field for American workers and American jobs.”

But Pence is overselling what the USMCA would do. In fact, the new trade deal includes a handful of protectionist measures that will likely slow the U.S. economy in general and harm American automakers specifically. At the same time, the ITC analysis of the trade deal is likely overselling the potential benefits.

“On balance, the pact would hurt rather than help the U.S. economy,” wrote Jeffrey J. Schott, a senior fellow at the Peterson Institute for International Economics, a pro-trade think tank.

Rather than boosting growth by 0.3 percent, the ITC analysis actually projects a 0.12 percent decline in growth, Schott argued, because it gives the USMCA credit for some developments—like new rules aimed at “reducing uncertainty in policies on data, e-commerce, and intellectual property rights”—that are already the de facto standard for trade between the three North American nations.

A separate analysis by the C.D. Howe Institute, a Canadian think tank, also concluded that the “negative elements of [USMCA] outweigh the positives and will result in lower real GDP and welfare for all three” countries involved in the deal.

Many of those “negative elements” have to do with new rules the USMCA would impose on automobile manufacturing across North America.

Beginning in 2020, when the USMCA is supposed to take effect, cars and trucks must have 75 percent of their component parts manufactured in North America in order to move across borders tariff-free. That’s a significant increase from the 62.5 percent threshold required under NAFTA. Additionally, 40 percent of all component parts would have to be built by workers earning at least $16 an hour—effectively creating a continent-wide minimum wage that will discourage automakers from building cars in North America.

Both these “rules of origin” requirements and the new minimum wage mandates might undercut the Mexican auto industry, which is a key part of supply chains that crisscross both sides of the U.S.-Mexico border. The Mexican government estimates that about 30 percent of cars currently made there would not meet the new requirements.

Instead of complying with the new regulations to trade duty-free, it’s likely that carmakers would simply pay the higher tariffs and pass those costs along to consumers. Indeed, even the Trump’s administration’s own ITC report says that consumer prices on cars in the U.S. would increase due to the USMCA—and that an estimated 140,000 fewer vehicles would be sold, while auto manufacturing jobs would decline by about 1,500.

If that’s true, however, one might wonder why groups like the American Automotive Policy Council, an auto industry group, have voiced support for congressional approval of the USMCA.

The answer is that they are likely more worried about what could happen if the USMCA doesn’t pass. Trump came into office promising to tear-up NAFTA, and passage of the USMCA seems like it might be the best way to avoid that worse-case scenario.

If the USMCA isn’t as great as Pence makes it sound, it is at least better than the economic damage that would be done to all three North American countries if NAFTA were dissolved without a replacement. That’s the unspoken part of the Trump administration’s pitch for Congress to pass the USMCA: refusing to do so might court chaos.

“Auto companies opposed the USMCA auto provisions during the trade negotiations, though they accepted the final deal for fear that Trump would implement his oft-repeated threat to pull out of NAFTA,” observed Schott. “And that’s why Trump needs to raise U.S. tariffs to prevent increased car imports and why he is using the excuse of a threat to national security…to block foreign shipments to the U.S. market.”

“Simply put,” Schott concluded, “Trump needs to protect U.S. producers against the damage done by his own trade pact.”

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Elizabeth Warren famously has a plan for everything—everything, that is, except financing the single-payer health care system she says she supports. It’s a telling omission that reveals what happens when Warren’s wonky tendencies come into conflict with her campaign mantras. 

Since launching her presidential campaign, the Massachusetts Democrat has rolled out Warren-branded plans for everything from universal childcare to green energy to “economic patriotism.” But on health care, so far, the senator has been content to endorse Bernie Sanders’ Medicare for All plan, which would eliminate most private health insurance and set up a government-run health insurance system, without putting forth one of her own.

The Sanders plan would, according to Sanders himself as well as multiple independent estimates, require new government spending totaling somewhere between $30 and $40 trillion a year. While Sanders has outlined ways to offset some of that cost, he hasn’t put forth a plan to fully finance the additional spending. He has, however, made clear that it would require higher taxes on the middle class. 

But despite endorsing Sanders’ plan, Warren has repeatedly declined to say that middle-class taxes would have to go up. She dodged the question in earlier debates this year. And at the debate last night, she once again all but refused to answer the question directly. 

Instead, she offered a vague promise that “middle-class families are going to pay less” while insisting that “those at the very top—the richest individuals and the biggest corporations—are going to pay more.”

When a debate moderator pressed her specifically on the question of taxes, she still declined to offer a direct response. Families have to deal with “total cost,” she said, reiterating her support for Medicare for All. “Costs are going to go up for wealthier individuals, and costs are going to go up for giant corporations. But for hard-working families across this country, costs are going to go down, and that’s how it should work under Medicare for All in our health care system.” The specific question—Would taxes rise for middle-class families?—remained unanswered. 

In part, this is a sign that Warren, though running what is nominally a bold progressive campaign, has adopted the conventional Democratic playbook when it comes to tax hikes. As Russell Berman writes at The Atlantic, in recent years the party’s presidential candidates have tended to adhere to the rule that it’s OK to propose raising taxes on the rich—but not on the broadly defined middle class. 

But it’s also a result of the way that Warren has framed her campaign as a kind of populist uprising, one that pits the middle class against the upper crust. Warren’s entire presidential bid, and much of her career as a public figure, is predicated on the notion that her plans will come at no cost to ordinary families and that the costs of her plans will be born solely by the richest of the rich. 

This is the story that Warren tells every day. It is the foundation of her presidential bid, and she is apparently unable or unwilling to deviate from it, even when the facts indicate otherwise.  

There is little question that Medicare for All would require higher taxes on the middle class. But to admit that would muddle her easy populist narrative, so she goes out of her way to avoid making that admission. As is so often the case for Warren, the simple story is more important than the plain truth.

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2019-09-17 18:45:16

New York Gov. Mario Cuomo (D) this week announced that he plans to impose an “emergency” ban on e-cigarettes in flavors other than tobacco and menthol. Like the recent decision by Michigan Gov. Gretchen Whitmer (D) to impose a similar ban in her state, Cuomo’s move is based on an alarmingly broad understanding of a governor’s authority to prohibit products in the name of “public health” without new legislation.

Cuomo’s plan involves convening the New York State Public Health and Health Planning Council, which has the power to “amend and repeal sanitary regulations” with the approval of the health commissioner, who is appointed by the governor and confirmed by the state Senate. Those sanitary regulations may “deal with any matters affecting the security of life or health or the preservation and improvement of public health in the state of New York.”

That is a potentially sweeping mandate, encompassing not just traditional public health threats such as pollution and communicable diseases but anything people do that may affect their “life or health.” In this case, Cuomo is asserting the authority to ban the vast majority of vaping products. But he could just as easily (and more plausibly) decide that conventional cigarettes, which are far more dangerous than e-cigarettes, should be banned. And under his reasoning, that move would not require legislative approval. Likewise with alcoholic beverages, highly caloric food, big sodas, fast cars, fireworks, guns, or any other product that may cause disease or injury.

Cuomo’s choice of flavored e-cigarettes is especially dubious for several reasons. First, it is likely to drive many former smokers who are now vaping, who overwhelmingly prefer the products he plans to ban, back to a much more dangerous source of nicotine. Second, by making e-cigarettes less appealing, his ban will deter current smokers from making a switch that could save their lives. Third, it will encourage the use of the black-market vaping products that Cuomo himself describes as especially risky.

Far from promoting public health, a ban on flavored e-cigarettes is apt to undermine it, leading to more smoking-related disease and death while giving a boost to illicit e-liquids that, as Cuomo puts it, “have no controls on them whatsoever.” And since bills that would ban flavored e-cigarettes have so far gone nowhere, he is imposing a policy that the state legislature has considered but declined to enact.

In Michigan, Gov. Whitmer is relying on a general provision of the Public Health Code that says the state Department of Health and Human Services may “exercise authority and promulgate rules to safeguard properly the public health.” The code does not define “public health,” but it says, “This code shall be liberally construed for the protection of the health, safety, and welfare of the people of this state.” To avoid the process that ordinarily must be followed to issue new regulations, Whitmer is relying on a provision of the Administrative Procedures Act that says an agency may issue an emergency rule “without following the notice and participation procedures” that would otherwise apply when it “finds that preservation of the public health, safety, or welfare” requires it and the governor agrees.

Whitmer’s interpretation of those provisions effectively gives her the unilateral power not only to ban products but to create new crimes. The “emergency rules” written by Michigan’s health department make it a misdemeanor, punishable by up to six months in jail and a $200 fine, to sell e-cigarettes in flavors other than tobacco. Under those rules, it is also a misdemeanor to possess such e-cigarettes with the intent to sell them, and “a person who possesses four or more flavored vapor products” is “rebuttably presumed to possess said items with the intent to sell.” As Boston University public health professor Michael Siegel points out, that means anyone who possesses a four-pack of flavored Juul pods is presumptively guilty of a misdemeanor that can send him to jail.

The New York Times reports that California Gov. Gavin Newsom (D) would like to follow the example set by Cuomo and Whitmer, but “he said it did not appear he could instate an outright ban on e-cigarette products without legislative action.” California’s Health and Safety Code does not seem to include the sort of broad language on which Cuomo and Whitmer are relying, which may explain why Newsom reached that conclusion.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Well, hot dog! IJ is headed to the Maryland Court of Appeals, the state’s highest court, to challenge restrictive and confusing rules that forbid mobile food vendors in Baltimore from operating within 300 feet of a brick-and-mortar business that sells similar foods. Click here to read more.

  • If the feds determine that a private pipeline will serve a public use, they can authorize eminent domain to secure the necessary land. But is the transport of natural gas to foreign markets a public use? Maybe not, says the D.C. Circuit; the relevant statute says “interstate commerce,” not “foreign commerce,” justifies eminent domain. The feds need to explain how the public benefits from an Ohio-to-Michigan pipeline (that is already operational) that exports a big chunk of its capacity to Canada.
  • Allegation: President Trump has a financial stake in quite a few hotels, restaurants, and event spaces in D.C. and New York—and has implicitly encouraged foreign governments to seek his favor by patronizing them, which they have. (Says one diplomat: “Why wouldn’t I stay at his hotel blocks from the White House[?] … Isn’t it rude to come to his city and say, ‘I am staying at your competitor?'”) Second Circuit (over a dissent): The owners of competing hospitality venues have standing to sue the president for violating the Emoluments Clause.
  • Allegation: After a Democratic National Committee staffer is murdered in D.C., Fox News promulgates conspiracy theory that he was rubbed out for leaking DNC emails. Prior to running the story, reporters persuade the staffer’s parents to retain a private investigator (a recently hired Fox contributor) whose statements lent credibility to the sham story. Second Circuit: The parents can sue Fox and the reporters for intentional infliction of emotional distress.
  • Allegation: Pennsylvania prison staff take away inmate’s wheelchair, discipline him for seeking help with walking, laugh at him when he falls. The falls cause serious injuries and leave him unable to bathe himself or get medication and food. Third Circuit: His claims, filed without assistance from an attorney, should not have been dismissed.
  • North Carolina defense attorney invokes the Ten Commandments, particularly “Thou shalt not kill,” to jurors during sentencing phase of murder trial. During deliberations, a juror consults her pastor on whether she will indeed “burn in hell” if the jury imposes the death penalty and relays the pastor’s counsel to the rest of the jury. They impose the death penalty. Fourth Circuit (over a dissent): Habeas granted. The jury’s verdict was tainted.
  • After the housing crisis in 2007, Congress created the Federal Housing Finance Agency, an independent agency designed to supervise lenders Fannie Mae and Freddie Mac. To help ensure its independence, Congress structured the FHFA with just one director (rather than a bunch of directors) who can only be fired “for cause” (rather than at the will of the president). Is the director unconstitutionally insulated from presidential control? The Fifth Circuit, sitting en banc, says yes; and furthermore, the FHFA exceeded its authority when it ordered Fannie and Freddie to turn over all their profits to the U.S. Treasury, dispossessing investors.
  • Remember when Sen. Rand Paul was attacked by his neighbor over a dispute about debris on the property line? The neighbor was given 30 days in prison. Sixth Circuit: Remanded for resentencing. That’s not enough time for an attack that broke six ribs.
  • Owner of a vacant lot in Tennessee seeks permission to put up a billboard but is denied. A First Amendment violation? Sixth Circuit: Well, he would have been allowed to put up the sign if it had said “Vacant Lot for Sale” or anything else related to the property, which sure sounds content based. Strict scrutiny applies, and the gov’t loses.
  • Allegation: Georgetown, Ind. man comes home to find his wife and two children killed. He’s detained for 13 years before he’s finally acquitted in a third trial. And this happens because the state lied about an “utterly unqualified” assistant pretending to be a blood-spatter analyst. (The extent of his scientific training was a single chemistry class, which he flunked.) And there’s so, so much more. The state also lied about running a DNA test that could have exonerated the man. The second prosecutor was sanctioned for trying to cash in on a book deal. The first prosecutor ended up representing the real murderer. Click on the link, dear reader, for a shocking civil rights case that the Seventh Circuit is absolutely sending to trial.
  • In which (1) an Arkansas inmate sues about solitary confinement, (2) prison officials don’t brief qualified immunity before the district court, (3) prison officials don’t brief qualified immunity on appeal, (4) the Eighth Circuit orders briefing on qualified immunity, and (5) the Eighth Circuit dismisses on qualified immunity.
  • Does the federal Computer Fraud and Abuse Act forbid companies from scraping data from LinkedIn users whose profiles are public and using it for commercial gain? LinkedIn: Yes! Especially because we now want to use the data ourselves for the same reason. Ninth Circuit: Likely not; the data had been made public by the choice of both LinkedIn and the user, so viewing it does not constitute “unauthorized access” under the CFAA.
  • Back in 1991, Montana banned robocalls related to political campaigns. A First Amendment violation? The Ninth Circuit treats this like the easy question it is.
  • John Steinbeck died in 1968, but the fight over his literary legacy has lingered on. Most recently, the estate of the author’s third wife sued the estate of his son over various misuses of Steinbeck’s intellectual property. Ninth Circuit (in a literary opinion): We affirm the award of compensatory damages. As for you, punitive damages … well … look over there and we’ll tell you about the rabbits.
  • Under the Privacy Act, the feds are prohibited from maintaining records describing how an individual has exercised rights guaranteed by the First Amendment, unless pertinent to an authorized law enforcement activity. Citing the Act, the proprietor of sues the FBI, seeking the expungement of two threat assessment memos created about the group. Ninth Circuit: The law enforcement exception applies only while there’s an ongoing investigation. The first memo must be expunged, but the second is OK for now.
  • Tampa, Fla. salon owner fires massage therapist who vacationed in Ghana out of fear that the therapist would return infected with Ebola. (Though there was an outbreak in West Africa at the time, Ghana was not affected.) A violation of the Americans with Disabilities Act? The feds: Yep. The ADA protects persons from discrimination on the basis of perceived disability. Eleventh Circuit: Nope. That doesn’t apply to healthy people who may potentially become ill in the future.

Last year, the Kansas Supreme Court ruled that police officers can’t pull over vehicles simply because the owner (who obviously may not be the driver) has a suspended license. Huzzah! There are a gazillion non-driving reasons people get their licenses suspended: unpaid parking fines, delinquent child support, court debt (including collection fees, interest, nonpayment fees, payment plan set-up fees, probation fees, and warrant fees). The list goes on. Allowing police to pull people over simply because they’re suspected debtors turns police into roving debt collectors and yields little public safety benefit. So argues an amicus brief that IJ signed onto this week, urging the U.S. Supreme Court to let the ruling stand.

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2019-09-17 17:35:46

A Charlottesville Circuit Court judge has ruled that the town’s Confederate monuments must remain in place, citing an early 20th century law that allows local governments to erect war memorials but forbids them from taking those same statues down without state permission.

In February 2017, the Charlottesville City Council voted to remove a statue of Confederate General Robert E. Lee, which stands downtown in a park that used to bear his name. In August of that same year, the Unite the Right rally—which saw white supremacists march on the town with tiki torches as they chanted “Jews will not replace us”—was organized in opposition to the statue’s removal, leading to the death of counterprotester Heather Heyer when a white nationalist drove into a crowd of people. The city council then voted to topple a statue of Confederate General Stonewall Jackson, as well.

A group of local residents pushed back at the local legislators’ first vote, filing a lawsuit in March 2017 to keep the town’s shrine to Lee intact. And after the Unite the Right rally—and the council’s second vote—they amended their complaint to include Jackson.

In May, Circuit Judge Richard E. Moore ruled that the much-contested statues are war memorials under state code. He then issued a permanent injunction last week that will prohibit the city from removing either monument. His ruling hinges on that 1904 statute: Although Moore admits that the war memorial law was enacted with racist undertones, he says it has been amended several times and, in its current form, solely centers around historical preservation.

“I don’t think I can infer that a historical preservation statute was intended to be racist,” he said. “Certainly, [racism] was on their minds, but we should not judge the current law by that intent.”

Moore is certainly correct that the statute and the proceeding monuments are rife with racism, something that Reason‘s Ron Bailey calls “plain historical fact.” The majority of such monuments were built between 1890 and 1925 during the era of Jim Crow segregation when politicians sought to enshrine reminders that, although the North had prevailed in the literal war, they had not won the ideological one. Charlottesville’s monuments of Lee and Jackson went up in 1924 and 1921, respectively, many decades after the Civil War ended.

But the larger problem here isn’t necessarily the intent of the law but the law itself, which gives local bodies autonomous control over building any such monument. Yet they lose those decision-making powers when it comes to removing the very same statues they had permission to erect—a bizarre example of state overreach.

Plaintiff Jock Yellot, who is head of the Monument Fund, gave tearful testimony. “I’m tearing up because it would just infuriate me that City Council would slander Lee and hide the beauty of those statues under tarps,” he said, referring to protesters who, in the wake of the Unite the Right demonstration, put black shrouds over the Confederate statues. But Yellot might be surprised to find that he has an unexpected opponent in his fight to preserve the controversial monuments.

It would be “wiser…not to keep open the sores of war but to follow the examples of those nations who endeavored to obliterate the marks of civil strife,” wrote Robert E. Lee in 1869, rejecting the idea of putting up memorials for fallen soldiers. It would be better “to commit to oblivion the feelings engendered.”

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Two suffragettes watch as Pennsylvania Republican Gov. William Cameron Sproul signs the 19th Amendment, which guaranteed women in America the right to vote. The measure was approved by both houses of Congress in 1919. Pennsylvania was the seventh state to ratify it. In August 1920, Tennessee became the 36th state to ratify, thereby causing the change to the constitution to kick in just in time for that year’s presidential election.

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