Tag: Law

Stevens Advocating for the Liberal Constitution

John Paul Stevens, the former Supreme Court justice whom Lee once called a dick for his decision in Raich v. Gonzalez, has a book out about how to rewrite the Constitution so that liberal agendas will be easier to advance. I wish I were joking about that.

There’s been a lot of noise about rewriting the Constitution from the Left lately. You can read screeds about it here and here (that’s from Brooks, but he’s practically a lefty these days). The basic complaint is that our system has created gridlock and stops the President from doing things that need to be done so we should drastically overhaul it. Needless to say, these essays vanish very quickly once Republicans are in power and stopping the President from doing whatever the fuck he wants is suddenly a good thing again.

You can read a really good response to this nonsense here, but months ago, I marked down this tweet as the absolute perfect response:

Stevens, to his credit, was one of the few justices — left or right — who cared about civil liberties. But like many lefties, he thinks the only problem with our Constitution is that it doesn’t give government enough power. So, in his new book, he proposes six constitutional amendments. I’ll get to the first one in a minute but here are the other five. You can go to Hot Air for the in-depth descriptions.

  • An “Anti-Commandeering Amendment” This would essentially ramp up the supremacy clause and break the power of the states to oppose federal law. If I read this correctly, it would mean that no state could sue against Obamacare. It would mean that pot would be illegal in every state again — no surprise from John Paul “Raich” Stevens. It would also mean — and liberals never do seem to see the flip side of this — that President Santorum could outlaw abortion nationwide with a stroke of his pen. You can probably guess what I think of this idea. Our federalist system does stop the federal government from imposing “good” laws on the entire nation; it also stops them from imposing bad ones.
  • An Anti-Gerrymandering Amendment — I wouldn’t really have a problem with this, as gerry-mandering has created huge problems for both parties. But I’m curious whether it would be applied to districts gerrymandered to create majority-black districts.
  • An amendment to legalize campaign finance law. A question: do people never learn from history? The last time we let our political twitches produce a government-empowering amendment, we got Prohibition.
  • A Sovereign Immunity Amendment. This would enable the prosecution of states and state officers that violate Congressional laws and amendments. If I read this correctly, it means that every state official in Colorado and Washington could be arrested for violating Federal anti-drug laws.
  • Amending the 8th Amendment to outlaw the death penalty.
  • Really, this is unworthy of a Supreme Court justice. There’s no subtlety; no concession to any conservative interests. It’s just another liberal wish list. I don’t find it any more insightful that the ramblings of some bonged-up college freshman.

    But the real beauty is in his proposals is the one I left out. In an appalling op-ed, Stevens argues that we should change the second amendment:

    For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”

    None of this is correct. The history of the Second Amendment doesn’t start with Miller, it starts with founders who stated openly and repeatedly that the Amendment was meant to protect an individual right. And yes, that applies to modern weapons just like the First Amendment applies to the internet (or should; you never know how SCOTUS will move).

    As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arm.

    Just like they have the ultimate power to decide what constitutes cruel and unusual punishment; the power to decide when something restricts free speech; the power to decide when someone’s fourth amendment rights have been violated; the power to decide when someone is being discriminated against. In short, just like the kind of powers Stevens liked to use when it came to civil liberties he supported.

    That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:

    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

    No word on if Stevens wants the First Amendment abridged to read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof as long as it is Christianity; or abridging the freedom of speech, or of the press of the government; or the right of the people peaceably to assemble with permission, and to petition the Government for a redress of grievances as long as they ask nicely.”

    A Second Amendment written like that is no second amendment at all. It would completely abrogate any right to bear arms and allow the President to simply outlaw all firearms completely. Our right to bear arms would be completely dependent on the whims of our government.

    And, frankly, Stevens can drop that horseshit about how the purpose of the amendment is to “protect the states from federal interference with their power”. His other two proposed amendments would completely destroy that protection. If you’re going to change the Second Amendment like that, just repeal it. Don’t put on a fig leaf about state militias when you’ve completely gutted federalism.

    See, this is why amending the Constitution is hard and is supposed to be hard. This is why people like me get so uppity about it. Since the day it was written, powerful men have fought like hell to try to remove its restrictions on government power and erode our civil liberties. Stevens knows this. He was very big on recognizing when our civil liberties were being eroded in attacks on the fourth, fifth, sixth, seventh and eight amendments. But when it comes to amendments and civil liberties he doesn’t like … well, we just need to amend the Constitution, don’t we?

    But … I’ll give him some credit here. At least he’s advocating the we change the Constitution. Most Democrats are advocating that we completely ignore it and that Barack Obama do whatever the hell he wants. So while I may think Stevens’ ideas are bad, at least he has the integrity to advocate the right way to go about them.

    Unleash the AG’s

    So this happened last week:

    Attorney General Eric Holder said Monday that state attorneys general are not required to defend state laws they believe to be discriminatory. Specifically, he said those who think state bans on gay marriage are unconstitutional are not obligated to defend them. Comparing today’s gay rights fight to the civil rights movement in the 1950s and 60s, Holder said he would have challenged discriminatory laws on the books during the time of racial segregation. “If I were attorney general in Kansas in 1953, I would not have defended a Kansas statute that put in place separate-but-equal facilities,” Holder said.

    He encouraged state attorneys general to intensely scrutinize state laws like those that address equal protection, but not to oppose them based upon political or policy leanings. Holder’s comments are not customary for a federal attorney general, as they do not frequently instruct their state counterparts on how to do their jobs.

    Holder is taking a lot of fire for this this and it’s understandable. An AG’s job, after all, is to represent the state and to defend its laws in the courts. But … after thinking about it for a while, I actually agree with Holder for probably the first time in his entire tenure.

    The second part of Holder’s statement is probably the more important: an attorney general should not refuse to defend a state law simply because he disagrees with it. All lawyers are required to argue cases where they don’t like the side they are arguing. Do you think criminal defense attorneys like defending rapists or murderers? They do it because everyone deserves a defense. They do it because it’s their job. An attorney general should defend his states laws even when he doesn’t like them because that’s his job: to represent the state.

    However …

    There is one exception, and that is when the attorney believes that the law involved is unconstitutional. In that case, I would posit that not only should an AG not defend a law he believes is unconstitutional. In some cases, he should argue against it.

    I know that sounds like a recipe for chaos and I think this power should rarely be invoked. DOMA, for example, was of questionable constitutionality and I think, in that case, the Obama Administration should have stood by it. But when an Administration believes that a law is a blatant violation, should they not defend our liberty in court?

    I’ll admit that this is an outgrowth of my view of how our government is supposed to work. Far too often, the judgement of whether a law is constitutional is left the Courts. But it is the sworn obligation of all branches to defend our liberty. The Courts should bounce bad laws, yes. But they don’t always, as the Kelo abomination demonstrated. In those cases, we need the other branches to defend our liberty. We need them to stick up for us when the Courts won’t.

    Congress and State Legislatures should not pass laws that they believe are unconstitutional. The President and the Governors should veto unconstitutional laws and refuse to use powers they believe are unconstitutional, even if the courts approve them (warrantless wiretapping, for example). And even if the AG does enforce bad laws, for the sake of order, I have no problem with him arguing that the law is unconstitutional (there will never be a dearth of attorneys willing to argue in favor of the government).

    I hate to play the game of If I Were President, but I think it’s relevant here. Just last week, I wrote about the vile unconscionable thing that is asset forfeiture. Should not a President order his Justice Department to end asset forfeiture? It is a choice, not a requirement, after all. And should he not have an AG go into Court and argue that this violates the people’s rights? Why must the engine of government justice always be turned against the citizen and against his liberty?

    It’s a little shakier when you get down to the state level, where you could argue that the state AG’s should defend a law even as the federal lawyers argue against it. Or you could argue they could resign on principle. There is a danger of opening a can of worms and politicizing the court process even further. I see that.

    But I don’t think this issue is as clear-cut as a lot of people want to make it. I’m not sure gay marriage laws pass the threshold, but I don’t think it’s ridiculous to argue that a state can realize it is in the wrong and refuse to defend an unconstitutional law.

    Ending the Mandatory Madness

    This is a positive step:

    Today, by a vote of 13 to 5, the Senate Judiciary Committee approved what the Drug Policy Alliance (DPA) calls “the biggest overhaul in federal drug sentencing in decades.” The Smarter Sentencing Act, introduced by Sens. Richard Durbin (D-Ill.) and Mike Lee (R-Utah) last July, would cut mandatory minimum sentences in half for some drug offenses, make the reduced crack penalties enacted in 2010 retroactive, and expand the category of defendants eligible for sentencing below the mandatory minimums. “The Smarter Sentencing Act is the most significant piece of criminal justice reform to make it to the Senate floor in several years,” says Laura W. Murphy, director of the American Civil Liberties Union’s Washington Legislative Office.

    The Durbin-Lee bill does not go as far as the Justice Safety Valve Act, introduced last March by Sens. Rand Paul (R-Ky.) and Pat Leahy (who chairs the Senate Judiciary Committee). That bill would have made mandatory minimums effectively optional by alllowing judges to depart from them in the interest of justice. The Smarter Sentencing Act is neverthless a big improvement. The crack provision alone could free thousands of prisoners serving sentences that almost everyone now concedes are excessively long. It would dramatically reduce the penalties for certain nonviolent drug offenses, changing 20-year, 10-year, and five-year mandatory minimums to 10 years, five years, and two years, respectively. It would allow more nonviolent offenders to escape mandatory minimums entirely by loosening the criteria for the “safety valve,” allowing two criminal background points instead of just one.

    The massive sentences given to non-violent drug offenders are a big reason we now have two million people in prison. I have no problem with courts handing down big sentences to violent criminals; indeed there are some I think get off far too lightly. But when it comes to cases of possession and small-scale dealing, I see no purpose in forcing judges to lock up non-violent criminals for ridiculous amounts of time so they can learn to be real criminals.

    I’m dubious that the House will act on this. But I wanted to post this to note who is behind it. The big sponsors are Rand Paul, whom the Left assures us in an evil racist Tea Party Republican, and Mike Lee, whom we are also assured is an evil racist Tea Party Republican. In fact, Mike Lee is such an evil racist Tea Party Republican that he delivered the evil racist Tea Party response to the State of the Union which, um, railed against corporate welfare, income inequality, NSA spying and the Republican establishment.

    And yet these two evil racist Tea Party Republicans are advancing an issue that is (or used to be) of great importance to many so-called liberals. Thousands of people’s lives will be improved by this and most of them are of a different color than Mike Lee or Rand Paul. Most of the communities that would benefit are of a different social class.

    Guess maybe we should pay more attention to some of those evil racist Tea Partiers, huh? Seems like they might have an idea or two.

    The Other Prohibition

    All of us are familiar with Prohibition, the attempt to ban the sale and manufacture of alcohol in this country. Very few would disagree that it was an unmitigated disaster. It created a spike in crime, empowered criminals and smugglers and did little to stop drinking (and I hope you celebrated Repeal Day last week).

    This post is not about alcohol prohibition, but I raise it to point out some of the traits it shares with two other kinds of prohibition. It was pushed by religious figures, yes, but more so by a Progressive Movement that saw banning alcohol as being for Americans’ own good. They believed that they could create something like a perfect society, where everyone behaved … at least according to how they thought everyone should behave. They unabashedly claimed the moral high ground, casting their opponents as either drunks or profiteers on human misery. And the effect varied depending on class. The Volstead Act was an inconvenience, at worst, to the rich and powerful, who could acquire illicit booze when they wanted it. Meanwhile, entire swathes of the population were condemned to violence, extortion and murder. But it was OK because they were just bootleggers, drunks, smugglers and Italians. Al Capone pointed out, quite correctly, the classist nature of Prohibition — that what was called bootlegging when he did was called hospitality when rich people did.

    There’s a second prohibition that we’ve discussed many times — the War on Drugs. I won’t rehash the many many horrors and inefficacies of this war — see the Alberto Willmore video below. But notice the traits it shares with alcohol Prohibition. It was supported by the Religious Right, yes, but also upheld by many “Progressives”. Our Vice President has long been one of the most vocal drug warriors out there and several Presidential campaigns in the 80’s and 90’s turned on who could be toughest on drugs. The Drug Warriors believe they can create a perfect drug-free society. They unabashedly claim the moral high ground, describing their opponents as either addicts or profiteers on human misery. And again, notice how the effect is varies depending on class. It’s not difficult for the elites to get drugs if they want them. If a Congressman’s son is busted with drugs, he goes into treatment. Meanwhile, the lower classes are condemned to the hell of gang wars, no-knock police raids and minimum sentencing guidelines. But it’s OK because they’re just drug dealers or drug addicts (or, it must be said, black).

    There’s a third prohibition, however. In fact, it’s actually the first prohibition, the one whose “success” inspired the ones that followed. It is so insidious that many of us don’t even realize it is a prohibition. And since my friend Maggie McNeill has asked those of us who oppose this prohibition to write about it on Friday the 13th, I’m going to talk about the prohibition on sex work. Or, to be trite: the War on Whores.

    Prostitution was not illegal for most of our history or most of human history. Because even those who regarded it as an evil saw it as a necessary one. As Maggie explains in the Cato Unbound debate between her, Ronald Weitzer and two well-meaning (or not so well-meaning) fools:

    Indeed, up until the nineteenth century almost nobody imagined that prohibition could be done, let alone that it should. It was almost universally understood that many working-class women and a not-inconsiderable number of those in higher classes would accept money for sex, at least on occasion, and it was impossible to draw a bright, clear line between behaviors that constituted “prostitution” and those (such as concubinage, mistresshood, and political marriage) which did not despite their often-mercenary basis. The manifold laws regulating sex work were not intended to preclude pragmatic motivations for sexual behavior, but rather to keep up appearances, guard the purity of bloodlines, and maintain public order. But as the Victorian Era dawned, a new idea began to take hold of European minds: if science could perfect Man’s tools and techniques, why couldn’t the same process be applied to Mankind itself? The immediate result of turning (pseudo-)scientific inquiry upon sex was that taking money for it was no longer considered merely something that “unladylike” or “sinful” women did for a living or extra income; instead, the “prostitute” was defined into existence as a specific type of woman, separate and distinct from other women. For most of the century the prevailing view was that women who took money for sex were congenitally defective, but in the 1880s the idea arose that most or even all were forced into the profession by evil men. It was about this time that “avails” laws started to appear, under the rationale of “protecting” women from exploitation by such men.

    By the beginning of the twentieth century, the “white slavery” hysteria was in full swing. Progressives were determined to “rescue” women from the clutches of the “pimps” who were abducting them by the thousands from homes, railway stations, and dance halls, and for the first time in history the act of taking money for sex was itself criminalized on a large scale. In the United States, it was illegal almost nowhere in 1909, but almost everywhere by the end of 1914.

    The more you dig into the issue the more you see the parallels to the War on Drugs and alcohol Prohibition. Again, we see the hand of religion, but also the Progressives (and I would argue that they are worse on this issue than the religious, having now donned the cloak of pseudo-feminism). They believe they can create a perfect whore-free society. They unabashedly claim the moral high ground, describing their opponents as whores or pimps. And the effect once again depends on class. It’s not difficult for someone like Eliot Spitzer — who prosecuted sex workers and their clients — to get a high-priced call girl. But some poor shmoe who just wants to get laid goes on John TV. Prostitutes can be raped with impunity, extorted by law enforcement and ultimately jailed. But it’s OK, because they’re just perverts and whores.

    And look where this hysteria has led us. Just as the War on Drugs will get a high school girl busted for giving Midol to a friend, so will the sex prohibitionists engage in absurd excesses in the War on Whores. In Madison, a man has started a business where people can pay to snuggle and cuddle with other people. I think it sounds stupid (about a decade ago, this sort of thing showed up on a Penn and Teller episode as a laugh). However, if paying $60 to hug some people is your thing, knock yourself out.

    But ultra-liberal Madison is banning it.

    Snugglers contend touching helps relieve stress. But Madison officials suspect the business is a front for prostitution and, if it’s not, fear snuggling could lead to sexual assault. Not buying the message that the business is all warm and fuzzy, police have talked openly about conducting a sting operation at the business, and city attorneys are drafting a new ordinance to regulate snuggling.

    “There’s no way that (sexual assault) will not happen,” assistant city attorney Jennifer Zilavy said. “No offense to men, but I don’t know any man who wants to just snuggle.”

    This is your brain on the War on Whores: a government official invoking sexual assault and the dreaded prostitution in a response to a hug house. God knows what they would have done if they’d found out about the back rubs on my freshman year college dorm.

    This is where this ahistorical hysteria on sex work has led us. This is who we are now. People think that bans on prostitution and hysteria over sex work only affects dirty whores and their filthy clients. But when you open the door to government getting involved in consensual sex between adults, the entire damned law enforcement industry will stampede through it. And next thing you know, they’re calling you a rapist for wanting to hug someone.

    No society has ever rid itself of alcohol — not even Islamic countries, where alcohol is illegal. No country has ever rid itself of drugs — not even China which once imposed the death penalty for opium use. They can reduce it, a bit. They can drive it underground. But they can not stop human beings from human beings.

    And no society has ever rid itself of sex work. In fact, many of the greatest empires embraced it. Our experiment in banning sex work has now gone on for a century. As with alcohol and rugs, its adherents continually claim we are right on the verge of victory; we only need to ruin a few more lives. It’s time that the prostitution ban, like Prohibition and the War on Drugs, find its way into the list of history’s abandoned mistakes.

    Don’t think that this is entirely about booze, drugs and hookers, either. All three of our nation’s great prohibitions have arisen from the Great Progressive Conceit: the idea that government can make people better (assuming you accept the Progressives’ definition of ‘better’). This is a conceit that plays out in a thousand ways in our politics, from the government telling you your insurance policy isn’t good enough to forbidding you from smoking in your own home to telling you not to drink so much soda.

    The Great Progressive Conceit is tempting because government can create the circumstances for people to become better. Freedom of religion and speech, capitalism, rule of law, etc. all create opportunities for human beings to improve themselves and the society around them. And we absolutely need government to stop people from harming each other. But the minute the government turns its eye toward telling you that you must do this or you must not do that for your own good …

    Just Say No.

    Zero Tolerance? Nope, Zero Thinking

    Earlier this week, there came to light the story of Erin Cox:

    Two weeks ago, Erin received a call from a friend at a party who was too drunk to drive. Erin drove to Boxford after work to pick up her friend. Moments after she arrived, the cops arrived too and busted several kids for underage possession of alcohol.

    A North Andover High School honor student, Erin was cleared by police, who agreed she had not been drinking and was not in possession of alcohol. But Andover High told Erin she was in violation of the district’s zero tolerance policy against alcohol and drug use. In the middle of her senior year, Erin was demoted from captain of the volleyball team and told she would be suspended from playing for five games

    Now when I read this my first thought was that this was more Zero Tolerance nonsense. But, as Jesse Walker notes, it’s actually worse than that:

    “We do not have a ‘zero tolerance policy.’ Each incident is fully investigated and decided upon based on the individual facts and circumstances. Our administrators are tasked with applying the Massachusetts Interscholastic Athletic Association (MIAA) rules pertaining to student-athletes and alcohol in a consistent and fair manner,” Hutchinson wrote. “To be clear, the MIAA’s, and by extension North Andover High School’s, ‘chemical health rule’ prohibits student-athletes from possessing alcohol, in addition to prohibiting its use, consumption, or distribution.”

    Walker:

    In other words: According to Superintendent Hutchinson, Cox’s school does not have an inflexible rule that produced a perverse incentive to let a drunk friend drive a car. Cox’s school carefully considered the evidence, investigated its options, and then deliberately decided to take an action that produces a perverse incentive to let a drunk friend drive a car.

    Never let it be said that zero tolerance is the single dumbest idea in American schools.

    This is mind-boggling. The punishment visited on Cox is not that bad in the scheme of things (although it could harm her chances at scholarships). But why would any punishment be visited here? Because she was in the vicinity party where there was alcohol? Does alcohol emit evil alcohol rays that corrupt children so that they can not even be allowed in the building?

    I know what their problem is: it’s that she responded to this in a sensible manner instead of calling the police. It’s because she accepted her friend’s drinking as a reality and dealt with the situation in hand instead of burning everything in the service of combating underage drinking. I think the base problem here is the hysteria over underage drinking and the lawhead belief that government and its agents can prevent people from touching a drop of alcohol until they are 21.

    I’m reminded very forcefully of social host laws. Every year, high school students have graduation or prom parties in distant locations, get drunk and drive home. And every year, kids are killed this way. Some parents have tried hosting parties at their own homes: they turn a blind eye to the drinking as long as the kids turn over their keys. These parents, to thunderous applause by MADD and other lawheads, have been prosecuted under “social host laws“. The logic is the same: we need to stop kids from touching the evil firewater. All else is collateral damage. We can stop teenagers from drinking if we just try hard enough.

    The message being sent could not be clearer: let your friends drive drunk. If they are killed or crippled as a result … well, that’ll learn ‘em not to drink.

    Theft By Any Other Name

    This story is simply unbelievable. It’s got it all: incompetent city government, crony capitalism and stealing a marine’s home for an overdue $134 tax bill:

    On the day Bennie Coleman lost his house, the day armed U.S. marshals came to his door and ordered him off the property, he slumped in a folding chair across the street and watched the vestiges of his 76 years hauled to the curb.

    Movers carted out his easy chair, his clothes, his television. Next came the things that were closest to his heart: his Marine Corps medals and photographs of his dead wife, Martha. The duplex in Northeast Washington that Coleman bought with cash two decades earlier was emptied and shuttered. By sundown, he had nowhere to go.

    All because he didn’t pay a $134 property tax bill.

    The retired Marine sergeant lost his house on that summer day two years ago through a tax lien sale — an obscure program run by D.C. government that enlists private investors to help the city recover unpaid taxes.

    For decades, the District placed liens on properties when homeowners failed to pay their bills, then sold those liens at public auctions to mom-and-pop investors who drew a profit by charging owners interest on top of the tax debt until the money was repaid.

    But under the watch of local leaders, the program has morphed into a predatory system of debt collection for well-financed, out-of-town companies that turned $500 delinquencies into $5,000 debts — then foreclosed on homes when families couldn’t pay, a Washington Post investigation found.

    As the housing market soared, the investors scooped up liens in every corner of the city, then started charging homeowners thousands in legal fees and other costs that far exceeded their original tax bills, with rates for attorneys reaching $450 an hour.

    Here’s the short version: Coleman is a 76-year-old retired Marine who owned his $197,000 home free and clear. He also has been showing signs of dementia and, at one point, forgot to pay a $134 tax bill. His son eventually paid the bill — plus $183 in interest in penalties. But it was too late. The lien had been sold to a private company that demanded $5000 in legal fees. The son couldn’t come up with the money and court foreclosed. The Maryland firm that bought the house sold it for $71,000.

    This is not an isolated incident. You really must read the whole thing if you have the time. Private companies now hold liens on thousands of properties and have foreclosed on hundreds, frequently over very small amounts of money (after inflating them to unpayable sums with often undocumented legal fees). Poor neighborhoods, already hurt by the recession, are being devastated by these seizures. And these are not people who bought homes to flip them or bought homes they couldn’t afford. These are people trying to be responsible who have, for various reasons, missed a tax payment. Or in many cases, haven’t but had liens put on their homes by mistake.

    One 65-year-old flower shop owner lost his Northwest Washington home of 40 years after a company from Florida paid his back taxes — $1,025 — and then took the house through foreclosure while he was in hospice, dying of cancer. A 95-year-old church choir leader lost her family home to a Maryland investor over a tax debt of $44.79 while she was struggling with Alzheimer’s in a nursing home.

    Other cities and states took steps to curb abuses, such as capping the fees, safeguarding houses owned by the elderly or scrapping tax sales altogether and instead collecting the money themselves.

    Moreover, there is no supervision. Many of these private companies have already been prosecuted in other states for breaking laws and rigging bids. And the DC tax office has sold nearly 2000 liens by mistake.

    A 48-year-old math teacher paid his taxes in 2007, but the tax office took his $1,400 payment and applied it to the wrong house, crediting an entirely different taxpayer.

    A 58-year-old bank employee almost lost her house in 2010 because the tax office mistakenly sent bills and notices to a wooded lot across from a strip shopping center in Virginia — 12 times.

    A 69-year-old hat designer was given the wrong payoff amount and ended up in court to save her property, owned by her family since 1943.

    Those homeowners found out about the mistakes in time to fight. Ninety-five-year-old Daisy Dolsey, living in a nursing home and struggling with Alzheimer’s, wasn’t so lucky: She lost her $300,000 house over a $44.79 tax debt even after she paid her taxes.

    This is an appalling scandal. This should be national news and the DC Council should be getting pilloried for refusing to address the issue. And it’s only a microcosm of government farming out duties to private companies — which might be defensible enough in a vacuum — but not holding those companies to any standard of behavior or any limitations on their authority. And for the companies it’s a gold mine — the Post reports that $5 million in suspiciously organized and unsupervised bids bought liens on 2/3 of a million in properties. They then charged the owners thousands in administrative and legal fees and foreclosed on the homes if the homeowners couldn’t cough it up

    This is theft, plain and simple. This is government, industry and lawyers conspiring to rob people and not giving a fig what it does to the city.

    And while I’m on my horse about property rights and corrupt government, the problem of asset forfeiture is only getting worse:

    Leino is one of thousands of Philadelphia residents who each year find themselves facing the seizure of their possessions — cars, cash and real estate — via “civil asset forfeiture,” a legal construct that lets law-enforcement agencies seize property linked to crime and keep the proceeds. In Pennsylvania, civil forfeiture is carried out primarily under state drug laws. The Philadelphia DA brings 300 to 600 real-estate forfeiture cases per year, and thousands of cases against small amounts of cash seized in police stops that sometimes, but not always, result in arrests — together bringing nearly $6 million into its coffers annually.

    In a series of reports for City Paper [“The Cash Machine,” Nov. 29, 2012] and ProPublica, this reporter has documented how the Philadelphia DA has made civil forfeiture into a vast, unaudited revenue stream, profiting from an upside-down legal process through which the DA has the power to bleed property owners dry of financial resources and imperil homeowners with minimal or no evidence of criminal wrongdoing.

    Long before the forfeiture action against her house would be completed, and without a judge or jury ever seeing her face, Leino would be forced from her house and made homeless along with her three children. She would lose her most precious possessions, and ultimately be deprived of her family’s most valuable asset — all without Leino ever being accused of any crime.

    Her husband, Sam, was accused. On Feb. 22, 2010, police officers arrived at the family’s house, at 2729 Orthodox St. in Bridesburg, to arrest Sam on charges of selling prescription pills. The officers would later testify that they observed Sam handing over small objects in exchange for money outside the house. After executing a search warrant, police recovered various painkillers. (Sandra Leino says her husband was partially disabled from a truck accident and took the painkillers himself, legally, for his pain.)

    Sandra Leino and her three children were not accused of any crime; nowhere in police reports is there even a hint that any of them had done anything wrong.

    That didn’t stop the DA from filing a motion to seize the Leino’s house that May — and then, for reasons that remain unclear, kicking them out of it the same month. (The DA’s Office responded to inquiries with a short statement describing the forfeiture action, but would not explain why Leino and her family were made to leave). Leino, her husband (out on bail awaiting his trial), and their children were forced from their home with nowhere to go. They stayed in a motel for one week.

    While the family navigated a homelessness imposed on them by the District Attorney’s Office, the DA asked the city’s Department of Licenses & Inspections to conduct a “clean and seal” operation on the Leinos’ house. City officials arrived at the house shortly after the forfeiture motion had been filed (not granted) and began throwing out the Leinos’ possessions — among them pictures of the Leinos’ children growing up, antiques they had collected together as a hobby and a 5-gallon jar of pennies the family had filled as a way to save money.

    The house was foreclosed on by the bank. Leino was convicted of a single felony charge. Oh, and the officers who brought the charges against Mr. Leino? Four of them were found to be part of drug-dealing ring within the Philadelphia police. Nearly 300 of the cases they brought have been dropped.

    I highlight these two stories specifically because they involve people who are working class, not the rich folks that defenders of asset forfeiture and foreclosure corruption always insist are the real targets of the laws. Whenever you give government this kind of gangster power, it will be turned on everyone, but especially on those who do not have the resources for lawyers and publicity. These are poor and working class people, mostly minorities. The only crimes they have committed are missing a tax bill or low-level drug dealing (or living with someone who has done those things). And they are being robbed blind to stuff the coffers of police departments in one case and rich speculators in the other.

    This is what happens when you don’t respect property rights and when you give the government authority to just take people’s possessions. You won’t see Donald Trump having his home sold to speculators. You won’t see a rich politician kicked out onto the street if her husband is dealing pain pills (according to four corrupt cops). Michael Bloomberg’s stop-and-frisk wasn’t used on Wall Street execs. Our War on Drugs imprisons lots of poor people but sees rich drug users as “having a problem”. Our War on Prostitution thinks Eliot Spitzer should run for comptroller while survival-level sex workers should be imprisoned and raped.

    Arbitrary government power is always turned against the powerless. There are some things we need government to do, but that power should always be supervised, constrained, reviewed and never allowed to play to the personal benefit of the rich and powerful. The nation has forgotten this lesson. But thank God for the Wapo, for the IJ and for independent journalists who are determined to make sure that this abuse and criminality does not go unnoticed.

    You Can’t Peddle Prosperity

    Ilya Somin makes a great point on the Detroit bankruptcy:

    Detroit’s sixty year decline, culminating in its recent bankruptcy, has many causes. But one that should not be ignored is the city’s extensive use of eminent domain to transfer property to politically influential private interests. For many years, Detroit aggressively used eminent domain to promote “economic development” and “urban renewal.” The most notorious example was the 1981 Poletown case, in which some 4000 people lost their homes, and numerous businesses were forced to move in order to make way for a General Motors factory. As I explained in this article, the Poletown takings – like many other similar condemnations – ended up destroying far more development than they ever created. In his prescient dissent in Poletown, Michigan Supreme Court Justice James Ryan warned that there was no real reason to expect that the project would produce the growth promised by GM and noted that Detroit and the court had “subordinated a constitutional right to private corporate interests.”

    Eminent domain abuse certainly wasn’t the only cause of Detroit’s troubles. But the city’s record is a strong argument against oft-heard claims that the use of eminent domain to transfer property to private economic interests is the key to revitalizing economically troubled cities. In addition to the immediate destruction and dislocation caused by such takings, they also tend to deter investment by undermining confidence in the security of property rights. One of the main findings of recent scholarship in development economics is that secure property rights are an important factor in promoting long-term economic growth. As economists Daron Acemoglu and James Robinson put it in their much-praised recent book Why Nations Fail, “secure private property rights are central [to development], since only those with such rights will be willing to invest and increase productivity” (pg. 75). Detroit is an abject example of what happens when policymakers ignore this reality.

    Always remember: the lot that the Supreme Court let New London boot Suzette Kelo out of ended up vacant. And the specialized tax breaks New London gave Pfizer left Pfizer packing the second they expired. These “big deals” to bring in businesses never work because if locating a business there was such a hot idea, the businesses wouldn’t need eminent domain, special tax breaks and subsidies.

    But pay close attention to Somin’s second paragraph about how eminent domain and other attempts to “promote” businesses undermine the very basis of the economic system. In that respect, this is just another form of crony capitalism. Connor Friersorf today discussed this in a different context. He references an NYT article about how Goldman moves around giant piles of aluminum to take advantage of government regulations on the price. It nets Goldman billions while harming the economy by making aluminum artificially more expensive. There are innumerable ways in which this is happening — private industries using government loopholes and regulations to become rich without actually doing anything.

    Preventing this sort of thing ought to be a high priority for anyone who wants to see free-market capitalism succeed in America. So long as our economic system resembles what Adam Smith described — the profit motive benefiting everyone, as if by an invisible hand — much of the American public can be counted on to support politicians who campaign as unapologetic capitalists, even if people are rewarded unequally, based on the value their labor is producing.

    But if “capitalism” starts to be associated in the public mind with Wall Street profiting by deliberately slowing down industrial productivity (or with Mitt Romney making millions by buying companies and gaming the tax implications of shuttering them), Americans are not going to support capitalism. They’re going to regard it as a rigged system that only profits wealthy insiders.

    In the short term, Republicans and Democrats alike benefit by allying themselves with the wealthy insiders. Like the GOP, President Obama has benefited from Wall Street money. But in the longer term, enough stories like this New York Times scoop will destroy Republicans, because rhetorically, they’re the ones insisting that the market is beneficial and more or less fair, even as a transparently corrupt financial sector consumes a larger percentage of the overall economy.

    Crony capitalism is the antithesis of free-market capitalism. It is similar to what Adam Smith was writing against.

    But, as Detroit shows, it doesn’t even have an economic benefit. Detroit, like New London, ended up with nothing for all their seizures, subsidies and graft. Is that the model we want for America? Because it’s certainly the model we’re pushing.

    Post Scriptum: Now if you want to see someone get it totally wrong on Detroit, enjoy.

    Snowden, Obama and the Cult of the Presidency

    I have thought from early on that the revelation of the government’s massive surveillance operation is a good thing and little that has happened in the past few days has altered that opinion. Already, we are seeing some good coming out of Edward Snowden’s revelations: Google is asking to publish more information; a bipartisan group of Senators want this dragged out into the open; the ACLU is suing. The result of all this will be the very transparency and debate that Obama claims to want (but really doesn’t).

    And it should go this way because the reassurance of “trust us” simply isn’t going to cut it. Let’s assume, for the moment, that the safeguards for our data are in place that information can only be obtained on a court order. Fine. But let’s consider the history of the IRS: political persecutions, “seizure fever”, overzealous prosecutions, agents abusing their privelege to snoop into the financial records of celebrities and neighbors. Let’s consider the history of COINTELPRO. The fact is that the government’s investigatory powers have a history of being abused. This is not a hypothetical. This is not some paranoid Glenn Beck fever dream. Abuses have happened; abuses are happening. You don’t have to be a crazy libertarian to be worried that a secret program with the power to look at our electronic data has a massive potential for abuse.

    Given the overwhelming case for great transparency, the defenders of Obama are focusing their attention on the leaker himself. Snowden, of course, is being hailed as a hero in many quarters. Despite my gratitude for the leak, I’m not prepared to proclaim Snowden a hero quite yet. I am reserving judgement until we know what was revealed, to whom and for what reason.

    However, the effort to demonize him is also running full force. It can be as mild as David Brooks’ bizarre psychoanalysis to as heavy as Jeffrey Toobin’s accusation of “sabotage” (although Snowden didn’t actually sabotage anything or break anything) all the way to several prominent senators accusing him of treason.

    The treason charge is, by far, the most troubling. As Dylan Matthews point out, treason is actually defined in the Constitution:

    Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

    Snowden obviously didn’t levy war on the United States. And “aid and comfort” is awfully difficult to prove. For example, the Rosenbergs were not charged with treason for giving our atomic secrets to the Soviet Union because we technically weren’t at war with them. Neither Hanssen nor Ames were charged with treason. So while it’s likely that Snowden broke the law, calling him a “traitor” is a bit hyperbolic given what we know.

    (Of course, one thing to keep in mind every time the Administration or their apologists talk about how crazy Snowden is: this crazy person had access to top secret information. In fact about 500,000 people have top secret clearance right now.)

    Why am I splitting this hair? Because I think it’s important to shine a light on what people like Diane Feinstein and John Bolton and and Bill Nelson and others consider treason. They seem to be defining it as crossing the will of the President. This isn’t about leaks. As Alex noted last week, the Administration was more than happy to leak classified information to the makers of Zero Dark Thirty when it suited their purposes. Just this week, they leaked info about disrupting al-Qaeda’s online magazine. And you really absolutely must read this piece by Jack Schaefer:

    Yet even as the insults pile up and the amateur psychoanalysis intensifies, keep in mind that Snowden’s leak has more in common with the standard Washington leak than should make the likes of Brooks, Simon and Cohen comfortable. Without defending Snowden for breaking his vow to safeguard secrets, he’s only done in the macro what the national security establishment does in the micro every day of the week to manage, manipulate and influence ongoing policy debates. Keeping the policy leak separate from the heretic leak is crucial to understanding how these stories play out in the press.

    Secrets are sacrosanct in Washington until officials find political expediency in either declassifying them or leaking them selectively. It doesn’t really matter which modern presidential administration you decide to scrutinize for this behavior, as all of them are guilty. For instance, President George W. Bush’s administration declassified or leaked whole barrels of intelligence, raw and otherwise, to convince the public and Congress making war on Iraq was a good idea. Bush himself ordered the release of classified prewar intelligence about Iraq through Vice President Dick Cheney and Chief of Staff I. Lewis “Scooter” Libby to New York Times reporter Judith Miller in July 2003.

    After recalling a number of incidents where Obama and his minions have leaked classified info for their own purposes, he concludes:

    The willingness of the government to punish leakers is inversely proportional to the leakers’ rank and status, which is bad news for someone so lacking in those attributes as Edward Snowden. But as the Snowden prosecution commences, we should question his selective prosecution. Let’s ask, as Isikoff did of the Obama administration officials who leaked to Woodward, why Snowden is singled out for punishment when he’s essential done what the insider dissenters did when they spoke with Risen and Lichtblau in 2005 about an invasive NSA program. He deserves the same justice and the same punishment they received.

    We owe Snowden a debt of gratitude for restarting—or should I say starting?—the public debate over the government’s secret but “legal” intrusions into our privacy. His leaks, filtered through the Guardian and the Washington Post, give us a once-in-a-generation opportunity to place limits on our power-mad government.

    This isn’t about the leaks. This isn’t about security. If we had really caught a bunch of terrorist with PRISM, you can bet your bottom dollar that Obama would be leaking details about PRISM to the media: probably more details than Snowden has leaked. So spare us the lectures about how leaking secure information is treason.

    No, this about loyalty. This is about only leaking information that the Administration thinks should be leaked and nothing else. Controlling the flow of classified information is, of course, part of the President’s job. But when that information is leaked to the American people for their supposed benefit, it may be a crime but it is not treason. Treason is a crime against the nation, not against the President. And the people who are screaming treason and want Snowden tied up and shot are conflating the two, subscribing to the belief that the President is the country.

    Even if we posit that Snoweden is cuckoo, his actions are enabling people who aren’t to make some changes that just might protect our privacy. These actions would not be taking place without the leak. Is that so bad? Is that betrayal? Is that treason?

    Only if you worship the Cult of the Presidency.

    Update: The latest information is that Snowden is talking to the Chinese press and has told them that the US is hacking Chinese sites. If he is revealing secret information to them, then Snowden is committing espionage for a foreign power, similar to the Rosenbergs or Hannsen. That’s why I was reluctant to call him a hero.

    That’s still not technically treason. And it’s worth noting that the accusations of treason were leveled at Snowden for revealing this information to the American public long before any meeting with China. So good on him for revealing this information to us; shame on him if he is revealing technical details to China as well.