"Breaking the Taboo" Premieres Today

When you get time, please watch "Breaking the Taboo," a great new documentary on the murderous and costly Drug War. It's narrated by Morgan Freeman and features appearances by, inter alia, former U.S. presidents Bill Clinton and Jimmy Carter, entertainment mogul Richard Branson, and former leaders from Latin America and Europe.



It is a compelling film and I urge you to share it with friends and relatives who may not understand the failure and catastrophic costs borne by millions of people in our country and abroad.
 

bellum medicamenti delenda est

Why the Feds Are Unlikely to Respect Washington and Colorado

The recent ballot initiatives that allow recreational cannabis use in Colorado and Washington have been welcomed by many folks as a sweeping change in American drug policy. To the extent that the initiatives represent a shift in popular conception of cannabis use, I join the general enthusiasm expressed by libertarians and a several on the Left. However, the Obama Administration has shown no substantive will to rein in the federal Drug War and until it does, these measures can only be viewed as partial victories in those two states. Moreover, many supportive commentators seem overly optimistic of what is likely to happen, perhaps based on misplaced assumptions of how the Drug War is fought.

Quoting Mark Kleiman, co-author of Marijuana Legalization: What Everyone Needs to Know, MoJo's Kevin Drum writes:

[Kleiman:]The federal government could shut down both of those experiments, if it were determined to do so....But it would make it impossible to learn anything useful from the Colorado and Washington experiments.

So why shouldn’t the federal government cut Colorado and Washington some slack? As long as those states prevent marijuana grown under their laws from crossing state lines and thereby subverting marijuana prohibition in the rest of the states, the Justice Department could step back and let the consequences of the new policies play themselves out. They might succeed, or they might fail. In either case, the rest of us could learn from their experience.

I doubt that either state can effectively prevent locally-grown marijuana from crossing state lines, but hell, they can't prevent it now either. So I'm with Mark: there's no need to announce any public change of policy, but Obama should tell DEA to lie low for a while and see how Colorado and Washington do. A controlled experiment like this is the best way of finding out the effect of full legalization of marijuana. Does it lead to higher consumption? Is it a gateway drug? Will it reduce consumption of alcohol? (emphasis mine)

There are three main problems with this excerpt. 

 

First, Professor Kleiman's question rests on the assumption that the federal government has any desire to see how the “experiments” play out. As I've noted before, the DEA effectively prohibits experimental research on cannabis in a controlled environment by anyone but the National Institute on Drug Abuse, a government agency. Cannabis, as explained in Kleiman's book, is the only illicit drug that is off-limits to non-governmental researchers that are open to positive value in cannabis use. There is no reason to believe that while the DEA won't allow literal experiments by scientists in a lab, they would be amenable to whole states being substituted as figurative laboratories. As a drug researcher, he knows this, but this sort of 'why not?' obscures the hurdles the government  institutes to hamper the “science” the ONDCP is so fond of citing to support their policies.

Second, Drum assumes that cannabis would need to cross state lines to violate the Interstate Commerce Clause of the Constitution to enter the federal jurisdiction—a perfectly reasonable belief. Unfortunately, this is not how the Supreme Court has ruled...twice. In Wickard v. Filburn (1942), the New Deal Court ruled that a farmer who set aside wheat for his own family's use could be regulated—read, “prohibited”—by the federal government of the Interstate Commerce Clause. More recently, in Gonzales v. Raich (2004), the Court ruled—with Republican-appointed Justices O'Connor, Rehnquist and Thomas dissenting—that cannabis grown by a terminally ill individual in accordance with state law for one's own medical use violated that very same Interstate Commerce Clause because by not participating in a (prohibited) interstate market, you affect demand. Not coincidentally, this tortured reading of the clause was cited in just nearly (if not) every single brief supporting the government in the Health Care Cases (2012). In short, much of the Left's economic and legal agenda rides on the federal government asserting power, via the Commerce Clause, into any aspect of our economic and personal lives. That Obama's Administration would find a new respect for federalism for cannabis is laughable...literally.

Third, and perhaps most important, it's not only the DEA that needs to stand-down. The U.S. Attorneys in every federal jurisdiction in the country have very wide latitude on whom they prosecute and for what offense. As you may recall, early in the Obama Administration, Attorney General Holder said publicly, backed-up by what is known as the “Ogden Memo,” that the DOJ would no longer consider raiding medical cannabis facilities that complied with state law a priority. Since then, the DOJ has increased raids on those same facilities, sometimes with the help of municipal authorities who don't agree with state law. If a public directive is so willfully ignored, there's little to suggest private encouragement would meet a different fate, particularly in the Eastern District of Washington.

Matt Yglesias, in a post that has a much more realistic view of the new regime, still errs a bit:

“The DEA obviously can't police low-level retailing, so if states and localities say it's legal it'll be a lot simpler in practice to get some pot.”

On the facts of the matter, Matt is correct. There will be no DEA patrols going through neighborhoods looking for cannabis. That said, it has been and continues to be very easy to “get some pot” all across America. Most cannabis users (and dealers, for that matter) simply aren't caught. The Drug War isn't a failure because you can still get some drugs under some circumstances—the failure lies, in part, in the fact drugs are still virtually ubiquitous despite draconian enforcement efforts. Further, the feds are not above using relatively low-level stings to get convictions—they know most offenders are going to plea out. Indeed, they don't even need to charge anyone at all to intimidate a low-level user ignorant of federal law into cooperation. Then, all they need is an inside-lead to a small group of people who have a common connection to drugs—say a commune or even a co-op—and prosecutors may attach the word “conspiracy” to add the cannabis together to reach federally chargable amounts. If any of those people have otherwise legal and unrelated guns on the premises, the charges really start to mount up. A small dispensary or a self-sustaining bunch of hippies can become a target of an ambitious U.S. Attorney—and it's all over. Though hypothetical, it's not at all unreasonable to think this sort of thing will happen—the track record against medical cannabis facilities proves that. I'm sure the DOJ has its stable of confidential informants ready and willing to work under new rules.

So I join Yglesias and Drum with a cautious optimism that this will make life better for cannabis users in Colorado and Washington. But we should not fail to mention that this will not deter federal law enforcement from prosecuting state-legal activity. That enforcement, though less harassing to the general public than state and municipal policing, will continue to ruin lives through incarceration and depriving the sick of relief. Indeed, it is hard to imagine the Administration that continues to deprive cancer and AIDS patients regular access to their medicine suddenly changing its tune now that Dave-O can load up his stash before a Phish show. If anything, I would expect heightened federal action against participants in the new regimes not long after they are put in place.

bellum medicamenti delenda est

Passive Aggressive Activism

I may write more when I have more time, but this Slate-pitch worthy piece by Damon Root on yesterday's ACA outcome warrants a response:

Many of Roberts’ critics will no doubt be tempted to denounce this ruling as an example of judicial activism. But in fact the opposite is true. By employing a method of statutory interpretation designed to give Congress and the White House the benefit of the doubt, Roberts exhibited the hallmarks of judicial restraint. “It is not our job,” he declared, taking yet another page from Holmes’ playbook, “to protect the people from the consequences of their political choices.”

The decision is being hailed by absolutely no one, including ACA's supporters, for its jurisprudential acuity. The Chief Justice, while deferring to the legislature's policy on the whole, effectively rewrites the statute, using arguments rejected in all but one federal court on way to certiorari. Usurping legislative prerogative is definitionally activist as it is beyond the scope and function of the judiciary. This isn't "calling balls and strikes," this is calling a change-up a fastball.

With all due respect to Damon, he completely missed this activity/inactivity distinction.


bellum medicamenti delenda est

What part of "unprecedented" was unclear?

I tried to comment on a Salon.com piece by Andrew Koppelman on the supposed lies by the opposition to Obamacare. I signed up, linked the account with facebook, but it says only social media-linked accounts can post comments. [shrug] Since it won't publish it there, I'll put it up here.

This is what I wrote, starting with the author's quote in italics:

I have not been able to find even a hint of the constitutional objection before Obama’s election, even though mandates have been proposed, mainly by Republicans, since the early 1990s.

"Such a mandate was, of course, a significant infringement on individual choice and liberty. As the Congressional Budget Office noted, the mandate was "unprecedented," and represented the first time that a state has required that an individual, simply because they live in a state and for no other reason, must purchase a specific government- designated product." Mike Tanner, Cato Institute, January 2008.

Now, this doesn't specifically mention "constitution," but that a federal government body called the mandate "unprecedented" in Romneycare might be a key reason literature challenging its legitimacy isn't bountiful. Indeed, states generally have wider berth in this area thanks to their general police power (as well as the Tenth Amendment.) That some Republicans used to back an unconstitutional measure on the federal level should be no surprise and is hardly an argument that it must have been constitutional then. An abstract concept that becomes policy that is immediately challenged seems the natural order of things. The dearth of law review articles that address a non-existent federal law shouldn't be at all surprising.

Granted, I work at Cato, but it took all of two minutes for me to find that quote. If this is the quality of his research, his book should have all the depth and nuance of a DNC press release.


bellum medicamenti delenda est

Lies, Damned Lies, and Drug Czar Speeches

I have a lot of ideological issues with the Center for American Progress, but I didn't expect even they--an activist think tank founded by former Clinton chief of staff John Podesta--would give an open-armed welcome to Gil Kerlikowske, the sitting Drug Czar, to tout the "new" drug control policy of the Obama Administration. I know they want the Administration to win in November, but self-identified progressives carrying water for the most destructive government force this side of the Pentagon should be an ideological and institutional embarrassment.

But they did, and I sat through it.

As pointed out by respected drug law reform champion Ethan Nadelmann,the "new" White House strategy the talk was meant to promote is a change in rhetoric but not much else. I've decided to take quotes from his prepared remarks to explain why the ONDCP rhetoric is fundamentally dishonest and to bring out what was left unsaid or misrepresented.

The following (in bold) are all quotes from Chief Kerlikowske's presentation yesterday at CAP.


"Very vocal, organized, well-funded advocates"

From jump street, the one-time police reformer and now head of the Office of National Drug Control Policy was clear that any talk of legalization would not be entertained. He wasted no time straw-manning the arguments of drug reformers, saying that advocates believe legalization is a "silver bullet" that would make the nation's drug problems disappear--which no one serious says or believes. But he reiterated that removing the criminal penalty from behavior--behavior that the ONDCP, CAP, and other reformers would like to have qualified as a "public health problem" indicative of an individual's "disease"--is "extreme." Furthermore, the Czar added, legalization (lumped in with "enforcement-only" strategies) is 'not humane, compassionate,or realistic.'

At that point, I knew this was going to be a long morning.

So, given that the federal behemoth--that includes the federal prison system, FBI, State Department, DHS, DEA, ICE, the U.S. Military, and the DOJ's ambitious and relatively unfettered U.S. Attorneys--is engaged almost exclusively in "enforcement only" activities, the head of the ONDCP is complaining about "extreme" "organized and well-funded advocates" who host occasional policy forums and write blog posts, op-eds, and policy papers about rethinking the government's current strategy.The way he tells it, you'd think the government was fighting a large, cold-blooded and ruthless force as strong as the drug cartels--who, of course, have all the incentive to maintain drug prohibition--instead of a few dedicated people whose strongest weapons are truth and the compassion he claims we lack.

"Most importantly, [legalization arguments] are not grounded in science."

Kerlikowske bragged, "In fact, NIDA--the National Institute on Drug Abuse--is the source of 85% of the world's research on drug abuse and we could not be more proud of that."

Who is this "we?" Science is the pursuit of knowledge and truth. Science, as practiced in all other disciplines, includes testing data and falsifiable results so that it may be peer reviewed by other scientists to support or detract from the findings in an objective manner. Science, in short, is a group effort and one agency doing most of the work is nothing at all to brag about--indeed, it should be a call for greater scrutiny.

There are those who would like to study drug effects of, say, marijuana--but the government refuses to allow the study (New York Times):

Lyle E. Craker, a professor of plant sciences at the University of Massachusetts, has been trying to get permission from federal authorities for nearly nine years to grow a supply of the plant that he could study and provide to researchers for clinical trials.

But the Drug Enforcement Administration — more concerned about abuse than potential benefits — has refused, even after the agency’s own administrative law judge ruled in 2007 that Dr. Craker’s application should be approved, and even after Attorney General Eric H. Holder Jr. in March ended the Bush administration’s policy of raiding dispensers of medical marijuana that comply with state laws.

“All I want to be able to do is grow it so that it can be tested,” Dr. Craker said in comments echoed by other researchers.

Marijuana is the only major drug for which the federal government controls the only legal research supply and for which the government requires a special scientific review.

“The more it becomes clear to people that the federal government is blocking these studies, the more people are willing to defect by using politics instead of science to legalize medicinal uses at the state level,” said Rick Doblin, executive director of a nonprofit group dedicated to researching psychedelics for medical uses.

I don't write this to impugn NIDA or its motives, but--at least in regard to cannabis--that the government NIDA reports to for funding is the same government that uses its research to maintain its policies and the same government that denies the right of research to others cannot be construed as objective science by any reasonable standard.

"Just last year, the Department of Justice released data that health, workplace, and criminal justice cost of drug abuse to American society totaled over $193 billion...Contributing to the immense cost are the millions of drug offenders under supervision in the criminal justice system"

Yes, Chief Kerlikowske, keeping human beings in cages is expensive. Law enforcement is expensive. Lost wages from job termination resulting from drug charges is expensive. Supporting people who can't get jobs after non-violent drug convictions is expensive. All of these are direct results of drug prohibition. This is not to diminish the other costs borne by other parties, but 'look how much money we're spending on this' is not a cohesive argument when your detractors say you should be spending the time, effort, and money elsewhere.


"To break the cycle of drug use and crime, we have worked to divert non-violent drug offenders into treatment, instead of jail, through drug courts....Whenever someone tells me that government doesn't listen or that taxpayer dollars are being wasted in [drug abuse work], I just ask them to attend a drug court graduation. If you're not moved and you're not motivated by that graduation, you have a pretty cold heart."

Drug courts look good on paper, but in practice, their effectiveness ranges from "okay" to "terrible." Depending on the state and jurisdiction, drug courts may require plea agreements, whose violation triggers automatic and often severe jail time, and usually it is not appealable. Many violations are the result of failed drug tests--one of the outward symptoms of the "disease" Kerlikowske and co. say drug addiction is.* It is hard to imagine designing a program that would be more effective at setting addicts up for failure.

The National Association of Criminal Defense Lawyers did a two-year nationwide study interviewing people from all aspects of drug courts to measure their effectiveness and adverse consequences. They found that while many people have benefited from drug courts--and that is certainly a good thing--the programs have been susceptible to other problems, such as "cherry picking" defendants to boost success numbers. (Though ONDCP rarely, if ever, acknowledges it, most people who use illicit drugs are non-problematic users.) Putting people who don't really need treatment into treatment inflates success statistics while people with severe problems are left out because they may fail on their first try, harming success rates and increasing the risk of criminal penalty for failing. (For more on the many problems with drug courts, you can download the PDF of the report here and read their follow-up here.)

That the man who oversees the national operation to keep people in cages is appealing to pity in order to defend inadequate solutions to a broken system would be comical if not so damned tragic.

"Drug use is a public health issue"

Both in his statement and in the ONDCP strategy, the Drug Czar has mentioned his desire to eliminate the stigma of drug and alcohol abuse and addiction. But this is impossible, especially when it is still a crime to use illicit drugs in the first place. Criminality brings stigma, which, ironically, is the best argument for making drug use illegal.

But experience has taught us that the criminal penalties for drug use and distribution are grossly disproportionate to the offense itself, and thus we need to scrap it. That said, I think that society should discourage drug use--especially of harder drugs like heroin and methamphetamine. "This can happen to you" is effective, when not overblown to the point of fiction. But the way drugs are thought of in America--lumped all together like smoking a joint is roughly the same thing as shooting heroin--is irresponsible because there is no distinction between more responsible/safer drug use and reckless/more dangerous use. Such conflation and enduring lies like 'gateway' drugs--that smoking a joint will lead to being a heroin junkie--undermines the value that truthful drug education provides.



"Our [highlighted] policies include support for programs like screening, brief intervention, and referral to treatment. That works to medicalize [sic] our approach to the drug problem by helping health institutions recognize the signs and symptoms of drug addiction early."

"Drug screening" is a polite way to say "pee in a cup." I don't have a problem with employers drug testing their employees if they think it's important, but the government really has no business incentivizing the practice. As I said before, most drug users aren't actually problem users--and never become problem users--yet they could get caught up and risk losing their employment for something they do in their spare time. Even if the federal government were to give employment protection to "current use" drug abusers under Americans with Disabilities Act (ADA already protects from being fired for inactive addiction), this is invasive, expensive, and unnecessary for the vast majority of Americans, users and non-users alike.

The point of making drug addiction a public health issue is to get people into treatment more readily--that the door is open when they are ready to quit--without fear of criminal sanction for mistakes/relapses or possession. It is not, as apparently has been embraced by the White House and ONDCP, carte blanche to subsidize the addiction treatment industry. Furthermore, making employees' unrelated and off-site recreational behaviors a matter for HR won't help the goal of destigmatizing drug abuse--indeed, it will probably exacerbate it as recreational users will be unfairly labeled as addicts.

"We support the National Youth Anti-Drug Media Campaign and the Drug Free Community Support Program."

This is your tax dollars on drugs, any questions?

The Drug Czar finished his prepared remarks on "securing the Southern border," working with other countries to stem the flow of drugs into (and cash out of) the United States, and other aspects to the international scope of America's Drug War--with absolutely no mention of Portugal, or what's actually going on in Mexico, or how Los Zetas, a Mexican cartel, has become the primary criminal force in Guatemala. The worldwide failure of American drug policy is worth an entire post by itself, so I won't get into it further here.

As someone who is invested in fighting against the Drug War, it was a really difficult 20 minutes to sit through. I highly recommend Mike Riggs' summary of the event  over at reason. I really couldn't have done better than he did on the Q&A, so instead of cribbing what he said here, just read it there.

What's perhaps most disturbing, is that this speech was short and doesn't get into the details and depths of what the federal government's strategy has done and is doing. And, of course, the federal outline barely touches on what state and local authorities are doing--where the majority of drug arrests actually occur.

The Drug War, despite Kerlikowske's and Tanden's protestations, is still going full force. That the government is spending more money on treatment does little good, on the whole, so long as cops are still breaking down doors, shooting dogs, and throwing kids in a hole for 5 days. And, Chief Kerlikowske, we're gonna keep calling it a war until you stop treating it like one.

It's the humane thing to do.

bellum mediamenti delenda est


*I'm not qualified to say what is and is not a disease. My position on legalization does not change if I grant or deny that claim. The point, of course, is that if it is a disease, these triggers punish the disease, which is contrary to the aims the ONDCP claims.

Quote of the Day

Glenn Greenwald, discussing Obama hedging on his promise about federal medical cannabis raids:

The same person who directed the DOJ to shield torturers and illegal government eavesdroppers from criminal investigation, and who voted to retroactively immunize the nation’s largest telecom giants when they got caught enabling criminal spying on Americans, and whose DOJ has failed to indict a single Wall Street executive in connection with the 2008 financial crisis or mortgage fraud scandal, suddenly discovers the imperatives of The Rule of Law when it comes to those, in accordance with state law, providing medical marijuana to sick people with a prescription.

HT: Huffington Post

bellum medicamenti delenda est

Guilt, Innocence, and Not Having All the Facts

So, as the Trayvon Martin case continues, more and more evidence is coming out involving the confrontation between Trayvon and George Zimmerman. People have been jabbing back and forth about how they'd vote on juries and other nonsense with others condemning Zimmerman as a murderer. I take neither of these positions because we clearly don't know what happened that night and talking about what you'd do on a jury in a case that hasn't been assigned lawyers, let alone been presented yet, is more than a little premature.

What we do know is that George Zimmerman started following Trayvon because he looked suspicious. He was instructed not to continue following Trayvon,* but did anyway. There was an altercation, and Trayvon was killed from a close-range gunshot wound that Zimmerman fired.

This is about all we know. (MoJo's Adam Weinstein has been keeping a good timeline of case developments here. I recommend it highly, though I find the tangential issues he gets into distracting and unhelpful.)

Zimmerman's past or whether he said 'coon' or 'goon' on 911 tapes and whatever else may be relevant at trial as aggravating circumstances, but these are ancillary to the provable facts about what exactly transpired that night. A history of overreaction and racism could be relevant to the reliability of his story, but it doesn't prove anything and isn't useful until we know how it went down.

Any number of circumstances could be in play, but without question, we have an overzealous armed man who took it upon himself to follow a 17 year old boy who was breaking no laws. Even if everything in this account is true, Zimmerman discarded police instruction and eventually engaged Trayvon Martin. To what extent Trayvon reacted/overreacted to Zimmerman is highly questionable, and how excusable that reaction was, given that he was being followed by strange person who was clearly not a police officer, is also questionable. We really don't know who engaged whom first and how that happened. These are the facts most pertinent to any investigation or charges that may be filed.

We also know that the police didn't do their due diligence when collecting evidence from the scene. Zimmerman wasn't tested for being under the influence of drugs or alcohol and though he was treated for wounds at the scene, he was never was examined by a doctor, and what other protocols that were not followed have yet to be known. When someone is dead, the highest standard of investigation is in order, even if all the circumstances described by the shooter appear to be true. Clearly, this standard was not met and people are going to be upset about that--and rightfully so.

Everything I said in this post is still valid. That doesn't mean George Zimmerman is guilty of murder, but he is clearly guilty of poor judgment. Whether or not he committed a crime is not my call and people on both sides of this issue should stop blaming the Kochs and ALEC and the New Black Panthers and MSNBC and Barack Obama and Eric Holder and Al Sharpton etc. for doing this or that. None of them have anything to do with this and reacting to what they do just makes you look like an asshole.

Let's hope the scrutiny that has been brought upon this case will make a thorough investigation more possible, despite the undeniable failures at the beginning. As for guilt or innocence, you can't possibly have enough information about the case to declare it one way or the other, so I would suggest you stop.

bellum medicamenti delenda est

*Zimmerman was not under direct order to cease following him, and so he wasn't disobeying a lawful order. That said, Zimmerman having reported that he 'lost sight' of Trayvon is indicative that he was attempting to maintain visual contact with him.

Geraldo and the Hoodie

So most of the Internet knows that Geraldo Rivera tweeted this garbage about Trayvon Martin:

Trayvon killed by a jerk w a gun but black & Latino parents have to drill into kids heads: a hoodie is like a sign: shoot or stop & frisk me
— Geraldo Rivera (@GeraldoRivera) March 22, 2012

His hoodie killed Trayvon Martin as surely as George Zimmerman.
— Geraldo Rivera (@GeraldoRivera) March 23, 2012

Rivera has since tried to walk it back, basically saying his point was about the awful truth it is to be a minority and dealing with people in (supposed) authority. The problem here is that the "jerk with a gun" is solely responsible for shooting and killing Trayvon Martin. If Trayvon's hoodie had anything to do with what happened, it was Zimmerman's fear and prejudice about hoodies, not Trayvon's fashion sense. Shifting the responsibility to Trayvon or his inanimate attire is absolutely unacceptable. The entirety of responsibility for changing any act or behavior rests on Zimmerman and anyone else who fears brothers in hoodies.

Touré published a list of advice to give black youths about how to grow up in the face of racism. It's generally decent advice, but it's just that: advice. A black kid could follow every rule he listed and still die at the hands of someone like Zimmerman.  There is no "safe" way to be black in America and any post hoc analysis of the victim's non-aggravating and perfectly innocent behavior is so off-base it's insulting.

There is no comprehensive list of things to do to avoid being harassed while black. Individual black people from any walk of life who drive any type of car and wear any type of clothes are suspicious to somebody in authority:

Nice car? Drug dealer. 
Hoopty? Ex- or future convict looking for trouble. 
Walking/driving too fast? Getting away from someplace he shouldn't have been. 
Walking/driving too slow? Casing robbery/intoxicated.  
Minding own business/driving the exact speed limit? Looks scared. Probably carrying drugs.
ad infinitum

You might as well tell a black person to become invisible if you're trying to tell them to avoid suspicion for all the good it will do them.

One of the main problems here is that it is still acceptable in our society to treat people like criminals with no reasonable evidence to suggest guilt of anything. The Drug War exacerbates this, given the violence associated with the illicit trade and the relative ease with which users and dealers may conceal drugs and weapons on their person. Further, that enforcement is concentrated in poor, minority neighborhoods--leading, inter alia, to increased violence because of the increased transaction costs of dealing--disproportionate arrests of poor minorities appear to be justified because of this self-sustaining cycle. This cycle also perpetuates and reinforces stereotypes of violent young black men because of the type of people the prohibitionist system produces on the margins. It's absolutely maddening.

And it has absolutely nothing to do with a goddam hoodie.

bellum medicamenti delenda est

The Legal Left and PPACA: Politics über alles

There is a lot to the PPACA (aka ObamaCare), but the individual mandate is the sexy problem getting all the attention, and there is good reason for that. Forcing individuals into a private market to offset the cost associated with a given program is not within the purview of the federal government and it takes an almost limitless view of the Commerce Clause to make it fit. (see legal luminary Erwin Chemerinsky in this reason video at 8:10-9:50). No one disputes that providing for one's own medical care is "an issue of personal responsibility," but so is child care, maintenance of one's own day to day affairs, paying one's utility bills and any number of other countless duties society expects of each of its citizens. This does not mean that Congress has the granted or inherent authority to make mothers buy Enfamil (or whether they should breast feed) to feed their children. Just because something may be a good idea--even if it's nearly universally agreed to be a good idea--that does not mean that the Congress ipso facto has power to do it.

Ironically, a "socialist" scheme--say, in the mold of government run Social Security or Medicare, for example--would actually pass constitutional muster given the current interpretations of the law. This is a new power, however, is instead a forced transfer payment.

What's worse, this transfer payment doesn't rein in costs--a predictable consequence from jump street--the underlying rationale of PPACA. So, what you have is an increased power grab by Congress, in order to get the insurance companies to sign on to their scheme that can't actually do what it was billed to do--by guaranteeing income for those insurance companies. This is much more akin to quid pro quo than it is 'Necessary and Proper.'

(There are also problems with the way Medicare funds are being withheld for state non-compliance and the mutilation of the taxing power--which are also key to the legislation passing muster, but I just can't get into all of it here.)

Unsurprisingly, as argument day approaches, the Legal Left has mobilized against the challenge. Their arguments in favor of the constitutionality of PPACA's individual mandate, having been molded by arguments in the courts of law and public opinion, have culminated into three main points in the latter:

1) 'So many Americans don't have health insurance!' This has become a running theme of former Acting Solicitor General and now Georgetown Law professor Neal Katyal. He argues that the act is a necessity, but it is a trumped up 'appeal to pity.' Just because it may be a good idea (lack of cost controlling measures supra notwithstanding) doesn't make it constitutional. [ Nor, might I add, did the fact that Republicans used to support the mandate, a la Neera Tanden, make it constitutional either.] The very best of these arguments are still policy arguments, not constitutional ones.

2) 'Judicial activism! Hypocrisy!' This would stick if the judges would actually take a policy position as opposed to a constitutional one. 'Judicial Activism,' a phrase initially made popular by Republicans, is now just a BS moniker assigned by any given speaker about cases he doesn't like. Properly understood, 'judicial activism' is the judiciary usurping legislative function--such as fundamentally altering and rewriting law.

The most recent example of activism that comes to mind is the Honest Services statute in the Skilling and related cases. In those cases, SCOTUS ruled that the law in its current form was 'void for vagueness'--taking unspecified legal activity and making it criminal without a clear explanation of how or why it was judged illegal. This part wasn't activism--it's very much their job to dispose of unconstitutional law. What was activist was allowing the statute to stand, though gutted of much of its scope and intent, and then redirecting it to other purposes that would pass muster. Given the lack of a severability clause, the statute should have been stricken in its entirety and sent back to Congress to do-over. Instead, the ruling re-formed the law with no legislative power granted to do so. For all the Left's harping about Chief Justice Roberts' contempt for Congress, he sure goes out of his way to leave terrible legislation standing--evidenced by challengers' fear of how Roberts may respond to PPACA. But if SCOTUS strikes down the mandate but leaves the rest of the law intact, that would be the appropriate time for everyone to jump up and down about 'activism.' (related: Excellent, and very fair piece on the severability argument by PPACA supporter Brian Buetler here.)

3) 'It's an easy constitutional call not worthy of much discussion.' This talking point irks me to no end. Most of these arguments rely on strawmen and cherry picking arguments. Both the Linda Greenhouse piece linked just above and the in-person presentation by the highly regarded Akhil Amar of Yale Law School drip with sarcasm and scorn. (Greenhouse specifically, when discussing the argument of the opposition, says it's "just words." Perhaps she was expecting interpretive dance?) The 26 states' brief by Paul Clement has become the whipping boy of an expanding group of Lefty writers and academics, and maybe it is a weak brief. But it's hardly the only brief in opposition, and it's not the only opposing party brief either. You're unlikely to see such a dismissive treatment of the NFIB's Individual Mandate brief (or Cato's*, for that matter), and I can tell you why: "judicially administerable limits." More accurately, the PPACA's complete lack thereof.

Professors Amar and Katyal, as well as DC Super Litigator Walter Dellinger have tried to explain that the democratic process is the limit upon the Congress's authority and that the "broccoli test" Sen. Coburn asked then-SCOTUS nominee Elena Kagan is ad absurdum and thus not relevant. This ducks the question entirely: a) Elections aren't "judicially administerable" (save jurisdictions still covered by oversight of the Voting Rights Act, anyway)  b) The democratic process is essentially majority rule, from which there is plenty to fear. No one, for example, argues that First Amendment infringement is ultimately a matter of voting representatives in or out of office, and thus it is not a sufficient check against infringement.

Indeed, at a recent Federalist Society event , Dellinger argued that the Bill of Rights was the limit on Congress's authority, but this begs the question: surely if you stretch the text of one part of the Constitution, you can minimize any other part of the Constitution to fit your needs just as well. (The Ninth and Tenth Amendments come screaming to mind.) The Bill of Rights can't anthropomorphize and smite an overreaching Act of Congress: that's what we have SCOTUS for.

The reality is that such a broad, uncabined reading of the Commerce power grants Congress the power to do whatever to regulate the economy it sees fit, as pretty much everything you buy--and don't buy--affects interstate commerce when applied to 350 million people. There is simply no judicially administerable limit on Congress's power in the law, effectively removing the judiciary oversight over anything affecting interstate commerce as a matter of precedent. One of the few prominent left of center lawyers to take this argument seriously is UCLA law professor Adam Winkler:

United States v. Lopez is instructive. That case involved a Commerce Clause challenge to a federal law banning gun possession near schools. During oral argument, the Justices repeatedly asked Drew Days, the solicitor general at the time, what he saw as the limits of Congress’s power. If Congress could regulate the mere possession of a gun under the guise of regulating interstate commerce, what couldn’t it regulate? Days struggled for an answer. He insisted that, yes, Congress’s powers were limited, but, no, he couldn’t point to exactly what those limits were. The Supreme Court struck down the law, explaining that it had to do so to maintain the Founders’ vision of a federal government with only limited, enumerated powers.

Winkler (unfortunately) notwithstanding, the thrust of the Legal Left's three key arguments are political arguments to 1) elicit support for the bill  2) elicit contempt for the opposition and 3) set the political stage in November in case of a loss. There are better legal arguments in favor of this law, but that's not what most of the luminaries of the Legal Left are using in public. Simply put, they prefer politics über alles.

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PS: Just as I was about to hit "post," I noticed Peter Suderman also has a post (probably) inspired by Linda Greenhouse's NYT piece. You can read that here.

*Full disclosure: I had ancillary roles in the filing of Cato's briefs opposing all four questions before the Supreme Court next week. 

A Quick Comment on Perspective

My friend wrote to me this morning about his thoughts on the Trayvon Martin case. It was moving and awful, as he too experienced harassment and abuse of force at the hands of people who thought a young black man was in the wrong place to be up to anything but trouble.

Shortly thereafter I see a retweet of "Chef Geoff" Tracy on Twitter:

Virginia ABC law prohibits us from using the words "Happy Hour" in any advertising. Are we still in America?

Yes, it's a stupid law. Yes, bar and restaurant owners should work to get rid of the law and I would fully support that effort. But given that a 17 year old black kid was hunted down and shot by a man with dubious authority, at best, who was explicitly told by police dispatch not to pursue and engage him, with no legal repercussions to this point, I think it's a tad overwrought to start questioning the sanctity of America over ad restrictions.

This isn't to say that Trayvon's killing is necessarily Chef Geoff's fight, but I think this underscores a lot of the disconnect between what liberty means to the business-centric folk and what liberty means to those of us who see and/or experience the abuse of power in ways more threatening to personal safety, security, and dignity. Chef Geoff isn't at all wrong to claim injustice--the Virginia alcohol laws are harmful to business and that directly affects his livelihood, and he has every right to be upset--but in the grand scheme of things, a catchy phrase for an ad just doesn't compare to some guy with a gun and a power trip getting away with hunting down and killing a black kid because 'he looked suspicious.'

I have nothing at all against Chef Geoff and have heard only great things about him and his notable establishments. He's not guilty of anything other than slight overstatement and I do not wish to impugn him in any way. I just thought his comment reflects a language gap between people who rightly fear threats to economic liberty, but may not give as much thought to threats to personal liberty that so many others face on a daily basis. It's not that he's wrong, it's just that he--and so many others who care about liberty--could use a dose of perspective.

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On the Koch/Cato fight

Most readers know that I am a Cato employee and have been since August 2007. Just prior to that, I was a Charles G. Koch Summer Fellow at reason magazine. As you have probably heard, the Koch brothers are attempting to gain control of the Cato Institute in order to turn the world's leading libertarian think tank into a right wing hack factory. This schism is sort of like a falling out between your dad and a rich uncle that paid for your senior trip.

Thanks for the great summer, Uncle Charlie, but you're way out of line here.

What always bothered me by the 'Koch-as-master-of-puppets' tripe was not just that it impugned my motivations and those of my colleagues, but that it couldn't be further from the truth. If Charles Koch had been calling the shots, none of this would be happening. Ed Crane would be gone, and maybe a few employees go with him, but Cato would look mostly the same. Yet, I don't think anyone believes today's Cato will have anything in common with a Koch-run Cato other than the renovated building that bears the same name.

I was deeply shaken when the story broke about the Kochs' actions. They are not only attempting to destroy the Cato brand by making it partisan and inherently less honest, but they are already sullying the reputations of all of the other policy shops and publications they support that don't carry the Koch name. While the Left and its allies kept harping that the Kochs were somehow calling the shots--boogeymen make great fundraising gimmicks--most DC people knew better, whether or not they would admit it publicly. Now that the Kochs have proven that they don't have the influence the Left assigned to them, they are trying their hardest to get it. Any organization that has a Koch closely associated with it has been tainted going forward, and that is unfortunate.

Despite their business acumen and strongly held beliefs, the Kochs don't know how to run a think tank. A think tank is jealous of its reputation, yet the Kochs' actions here have demonstrated they have no interest in maintaining it. Cato as a name will be irreparably damaged, the board of directors will disintegrate, and they'll have to start poaching Right-wing shops to fill the vacancies left by the resignations of people who refuse to associate themselves with this naked power grab.

Just because we support legalized prostitution doesn't mean we want to live it.

The Kochs would do themselves and everyone else a big favor if they just let this die. Cato was never theirs to control, and if they want to shift their support to Republican activist organizations, that is their prerogative. But attempting to take over Cato only harms the many organizations, causes, and individuals they have long supported, including many quite separate from Cato. But, I fear, they plan to see this through and will fight on even if they lose in court.

There are few places in DC I could work at in good conscience, and none hold the appeal of working for Ed Crane, David Boaz, and the rest of my colleagues at Cato. If the Kochs win, I'll have to figure out a new path for myself. If that should happen, though, I suggest a name change for the pretenders:

I suspect New Koch's appeal will be quite similar.


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States' Rights vs. Individual Rights

I have an essay up over at Libertarianism.org in which I argue that the "States' Rights" argument for the Confederate secession is an argument that sides with the prerogatives of the state over the inalienable rights of the individual. This has ruffled some feathers within the libertarian community, despite its veracity. If a state has a right of exit that individuals in that state do not (through no crime of their own) then clearly the state's "rights" are preferred over those of the individual.

This doesn't sit well with people who claim that the South was somehow fighting for liberty. Southern "liberty" was a false one because, within a rights framework, a man does not have the liberty to enslave another man.

You'd think people who define their politics as one of liberty would understand that.

Read it here.

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The Rhetorical Power of "Drugs"

Unless you follow sports or sports news pretty closely, you probably have never heard of Sam Hurd. Until a couple months ago, he was just a wide receiver and special teams player for the NFL's Chicago Bears. He recently signed a contract for $5.1 million, not anywhere near a star's salary, but enough cheddar that people are predictably surprised that a "rich" man would get caught trafficking a large amount of cocaine.

I don't know enough about the case or Hurd to explain what he was doing. I could get into the one-sided nature of NFL contracts (if you get cut from the team, you don't get paid, no matter what the paper says), the short professional tenure of most NFL players ( ~4 years), or what it says to be a typical special teams player not named Devin Hester (you're a back-up when a star goes down), but I don't think "why?" is really important either. Furthermore, I generally don't trust media reports this early into the public phase of the process. It's a one-sided PR battle waged by the prosecution until the lawyers hash it out at trial, so talking about this or that "fact" is just speculation. What I do want to focus on is the predictable shock and outrage that a 'successful' man is doing something so risky and potentially life ruining as cocaine trafficking.

Here is an image of what a lot of people think when they hear "drug dealer":

Black. Cornrows. Neck Tattoo. "Bling." Vaguely menacing to those people who get scared of people who look something like this. Pictures like this pay for the Drug War.

The problem is, while this is what our prison population looks like, it's not fully indicative of who is selling, buying, and using drugs. The guy in the picture could be Father of the Year for all I know, but if you Google image search "drug dealer," he comes up.

The United States illicit drug market is the largest in the world--surpassing the drug market for the entire European continent--worth multiple billions of dollars. Tens of millions of Americans are illicit drug users. Think about that for a moment: tens of millions. The drugs have to get to all of them somehow, and it's not always delivered by someone who looks like our friend here.

"Drug dealers" are just people who exchange drugs for property, money, or services. That's it.

Not every person who sells drugs is a "drug dealer," per se--a lot of times it's a user who gets extra for his friends. Like chipping in on a beer run, it doesn't make sense for multiple users to all go separately to a seller, so one guy can pick up a bunch--as drugs, like most goods, are cheaper when you buy in bulk--and distribute it to his friends. Other times, someone "knows a guy"--you could say, a drug dealer--who brings in extra cash by selling drugs to regular or semi-regular users. The guy is not on the street hustling or gang banging--he works at a job and makes extra money on the side by selling to friends, co-workers and other people he knows aren't police. If you have a secure supplier and a small customer base, this can last quite sometime with low risk because most people who use drugs don't actually get caught. The risk comes when someone does get caught and rats out his dealer to avoid or decrease jail time. Such is the life of the low-level dealer.

The other risk, which it appears Mr. Hurd discovered, comes when you're trying to expand your customer base. Your quantities are larger so transportation becomes more difficult, and you're much more likely to draw the attention of law enforcement.

The police are rather fond of big fish, you see.  It seems to be their only distraction from the Sisyphean drudgery of the drug war day after day. For a brief moment, they try to convey that they've done something useful, despite having no lasting effect on the supply or demand for drugs. Even in the rare event law enforcement is successful in dramatically reducing one type of drug from making it from supplier to consumer, the latter's desire to get high remains and new drugs come to the fore or less popular drugs reemerge through alternate channels.

But back to my point: the scary "drug dealers" are just people engaged in a market. In massive distribution networks, like the Mexican cartels, there are kingpins and mercenaries and mules and American distributors and-so-on down the line as the drugs are diffused into the American black market economy. In more local operations, there are a farmers who grow marijuana in fields, woods, homes, or warehouses and smaller supply networks. Eventually, the drugs get to "that guy" and then to the consumer. People at various levels essentially are engaged in the same enterprise, but face vastly different pressures and constraints related primarily to the level of prohibition enforcement, but also the cost of overhead ( the level of bribes and kickbacks required to do business on top of growth and distribution) and local competition. Access to major drug channels in northern Mexico that stretch into the southern U.S., for example, can be expected to produce a high volume of drug-related violence due to the profits tied to those routes. Yet, in San Francisco, there are state-sanctioned distribution shops and users all over the place--yet there aren't constant shootouts at Haight and Ashbury or decapitated bodies in Berkeley despite the ubiquitous drug trade. The tolerance of law enforcement, whether by law or priority, lowers operating costs of drug sales. If you and your neighbor can both make a little money selling drugs, but neither of you is likely get super rich from doing it, motivation for violence is virtually zero. One doesn't become a violent monster just because he makes some dough selling his old college buddies some weed once a week.

This overreaction isn't at all limited to "drug dealers." The Daily Show put out a great bit this week about a newish but (thankfully) enjoined law in Florida that requires all welfare recipients to take a drug test. This video shows how poor people--simply by someone asserting that they do drugs at a higher rate than more affluent folks--are subject to invasive 4th Amendment violations just because they are poor (and probably perceived to be racial minority, but that's another post) are thus assumed to be "drug users."

                       

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Regardless, because it's "drugs," all sense and decency go out the window despite the fact that the poor actually spend less on drugs than non-poor folks and alcohol--a perfectly legal addictive intoxicant that one or two people have been known to use as escape mechanism--isn't regularly tested for. Surely, we don't wanna be subsidizing bar tabs any more than we want to pay for weed -- but this raises uncomfortable questions about what taxpayers can really demand of the people to whom their money is given and where that line stops. I would like few things more on this planet than a more constructive alternative to government-provided welfare--but until that becomes a reality, I don't believe setting arbitrary and abusive bars on that assistance helps anyone. Indeed, by kicking a drug user off of welfare, they further marginalize a poor person who may very well have a drug problem. He or she still needs to survive, and without a legitimate source of income, a life of crime--be it as a dealer or actual crimes against people and property to support their problematic habit--is likely to make the community more dangerous than it would have been supporting this person's habit. And, of course, you can't very well support this policy from a fiscal stance if the result is more people in prison being supported for food, shelter, and medical care. You don't have to believe in drug legalization to recognize the probable downside to this policy.

If you say "drugs," then all the normal limits of what we expect of people and what is proper for government to do change--whether we're talking about dealers, users, or even suspected users. The general consensus is that drugs are bad, and thus anything to stem their influence--whether the solutions are shown to be the least bit efficacious or not--are accepted with almost no hesitation. Similarly, anyone engaged in the trade is assumed to be a horrible person--a violently cruel drug dealer or a drug-using bloodsucking leech on society. This is both foolhardy from a budgetary perspective and unspeakably cruel from a humanitarian perspective. The result is the Drug War that diverts resources from violent crimes to pursue vice crimes whose greatest tie to violence is the prohibition itself. Everyone is presumed to be guilty and without excuse for their alleged behavior, which must be condemned in no uncertain terms and with the harshest of punishments. All this makes  United States the undisputed leader in incarceration on the planet, imprisoning one percent of our entire adult population with more than three percent on probation or parole. "Drugs" as rhetorical boogeyman allows the American public to support an ever-expanding incarceration state and tolerate the Drug War that feeds it.  Given the outcomes of the policy, it's hard not to think "drugs" has become a euphemism for a more inflammatory word that has traditionally scared the status quo.

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An Anger-Fueled Ruse

So, apparently Attorney General Eric Holder is back up on the Hill doing his usual CYA Dog and Pony show about Operation: Fast and Furious, the gun-walking (remember when it was gun running?) operation that led to U.S. DOJ officials losing track of the guns it sold to drug lords without apprehending anyone. I know I've discussed this before, but I get irritated every time I see Holder try to B.S. his way out of this by bringing up gun control.

The guns are a distraction: a massive, calculated, politically motivated distraction away from the actual problem--the Drug War. The Republicans are using F & F to embarrass Holder and, predictably, Holder is getting defensive and trying to turn the blame on the Republicans for creating the environment where guns may flow freely across the border. I've seen this show before.

Never mind that people don't tend to kill each other willy-nilly with a body count in the tens of thousands just because they have guns. Never mind that a lack of prohibition on guns is being scapegoated to cover up a failed prohibition that has gone on for a half century. Never mind that the drug prohibition has made drug trafficking so lucrative that kingpins can buy whatever they want: they have submarines now.

WE NEED BETTER SUBMARINE REGULATION!

So, as I write this, you have grown men and women engaging in heated, angry, blame-filled hearings, arguing over something completely tangential and plainly irrelevant to the actual cause of the violence and murder. This is your government on drugs.

Any questions?


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Shoot the Messenger

Jim Moran is my congressman. I am not a big fan, and--if I were in a better frame of mind--I'd probably think he goes over the line of acceptable things old white guys can say here, but that's not why I'm writing. I'm writing not as his constituent, a black man, or a libertarian. I'm writing this as a copy editor. Indeed, my beef isn't with Moran--it's with whomever wrote this travesty of a transcription:

"He just seems clueless not that he has climbed abroad ship. He's climbed this latter of opportunity that was constructed by so many of his ancestors' sweat, sacrifice, blood, you know they did everything they could for his generation to be successful. But now that he's climbed abroad ship, instead of reaching down and steadying the latter, he wants to push it off. 'I'm up here. If you're not with me, too bad.' And President Obama, fortunately, is the kind of guy that says 'I was very fortunate to get where I am and I'm going to spend my life trying to steady that latter of opportunity by reducing college tuition and training our workers, trying to get a decent job for everybody. Making sure that while I'm African-American, it really doesn't matter. What matters is my commitment to public service, my love for this country and I'm going to leave a constructive legacy,'" he said. (italics mine)

TWO "abroad" ships? THREE "latters" of opportunity? This copy is so bad I can't even get mad at Moran. I need some aspirin. (click to embiggen)

HOUSEKEEPING: For those of you looking for something more substantive from me, I'm in the editing process of an essay I wrote about libertarians and the Confederacy. I hope to get it up at Libertarianism.org late this week or early next week. -jpb


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Me at Libertarianism.org

Aaron Powell was kind enough to invite me to write for Libertarianism.org, and I've happily accepted. The main topic will be race and liberty--it's less policy focused, so most writing of that nature will probably remain here--when I actually get around to hitting the "publish" button when I write something.

Anyway, my first piece is up now. Please go read it there!



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