CADC Rules DOJ Discovery Blue Book Off-Limits…For Now

Earlier this month, the U.S. Court of Appeals for the D.C. Circuit (CADC) ruled that the U.S. Department of Justice Federal Criminal Discovery Blue Book for prosecutions were exempt from Freedom of Information Act (FOIA) requests. The National Association of Criminal Defense Lawyers (NACDL) filed the suit to make the book public, and for good reason.
 
For background, criminal discovery is the process by which a prosecutor’s office turns over evidence to the defense team that is relevant to the criminal case before trial. Particularly, evidence that might be helpful or exculpatory to a criminal defendant must be turned over under Brady v. Maryland (1963) and subsequent cases. For example, if investigators independently found an eyewitness that supports a defendant’s alibi, or discovers that a witness or police officer has a history of dishonesty, that information must be turned over to the defense counsel in the furtherance of justice. Such evidence is known as “Brady material.” 
 
The origin of NACDL’s case dates back to the bungled prosecution of the late Sen. Ted Stevens (R-AK). A federal judge threw out Stevens’ 2008 conviction for corruption because the DOJ hid evidence from the defense team, including contradictory statements by a star witness that were crucial to proving Stevens’ alleged criminal intent. Furthermore, the judge ordered an independent inquiry into the handling of the case that resulted in a damning 514-page report that faulted the DOJ for its mismanagement and “egregious misconduct” in the case.

You Ought to Have a Look: Platform Planks on Energy and the Environment

You Ought to Have a Look is a feature from the Center for the Study of Science posted by Patrick J. Michaels and Paul C. (“Chip”) Knappenberger.  While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic.  Here we post a few of the best in recent days, along with our color commentary.

With the end of Convention season mercifully upon us, we thought we ought to have a look at what the party platforms have to say about energy and the environment, with an eye on climate change policies in particular.

We’ll start out with the Democratic Party Platform.

The Democrats are of the mind that human-caused climate change is one of the major problems facing the country/world today, describing it as “an urgent threat and a defining challenge of our time.”

It’s unclear that the voters feel that way… although part of the Democrats strategy for this election seems to be to try to persuade them otherwise.

The Democratic platform is chock full of government actions that promise to initiate, broaden and extend the current set of rules, regulation, and orders seeking to reduce our emissions of carbon dioxide (and other greenhouse gases), largely by way of lessening (on the way to eliminating) our reliance on fossil fuels as our primary source of energy production. This collection of promised federal actions is large both in scope and number and includes everything from pursuing a carbon tax

Seattle’s Minimum Wage Increase: Sky Is Not Falling Yet, but “Ambiguous” Effects for Low-Wage Workers Due to Negative Unintended Consequences

The debate over the Seattle experiment has generated more heat than light to this point. A new report from Jacob Vigdor and his colleagues at the University of Washington attempts to shed some light on the effects of the first incremental stage of the increase. They use data from the state’s Employment Security Department from when the law was passed through the fourth quarter of 2015, at which point the minimum wage stood at $11 per hour. This does not include the second stage of increases that took place January 1, 2016, or the further increases that will eventually bring it to $15 per hour and much higher thereafter. The early results show the mixed effects of the first incremental increase, there does not appear to be much evidence of firms being driven out of business, and some low-wage workers have seen their hourly wage increase, it also reduced the employment rate and hours, with the end result for these low-wage workers being “ambiguous and likely fairly small.”

The report only analyzes the first initial stage of the scheduled minimum wage increases, as the authors note and as illustrated in Figure 1. In addition, due to the timing of the study, it can only capture the short-run effects of this first incremental increase. As such, this analysis cannot provide insight into the impact of future additional increases to the minimum wage or what the longer-run effects might be.

Is Johnson-Weld a Libertarian Ticket?

Plenty of libertarians were wary of seeing former Massachusetts governor Bill Weld as the Libertarian Party’s nominee for vice president. Even those of us who haven’t had anything to do with the LP would like to see the party represented by, you know, libertarians. Weld, who seems like a nice man and was apparently a decent governor, is the living expositor of the difference between a libertarian and someone who’s “socially liberal and fiscally conservative.”

Case in point: this week’s ReasonTV interview, where Weld praises Justice Stephen Breyer and Judge Merrick Garland, who are the jurists most deferential to the government on everything, whether environmental regulation or civil liberties. Later in the same interview, he similarly compliments Republican senators like Mark Kirk and Susan Collins, who are among the least libertarian of the GOP caucus in terms of the size and scope of government and its imposition on the private sector and civil society.

My point isn’t to criticize the Weld selection as a matter of political strategy. Indeed, he seems to have brought a certain respectability to a party that is rarely taken seriously. And if that moves the national political debate in a more libertarian direction, bully.

But then look at the most recent news made by the man at the top of the LP ticket. Former New Mexico governor Gary Johnson, in an interview with (my friend) Tim Carney of the Washington Examiner, calls religious freedom “a black hole” and endorses a federal role in preventing “discrimination” in all its guises. More specifically, he’s okay with fining a wedding photographer for not working a gay wedding – a case from New Mexico where Cato and every libertarian I know supported the photgrapher – and forcing the Little Sisters of the Poor to pay for contraceptives (where again Cato and libertarians supported religious liberty). He also bizarrely compare Mormonism to religiously motivated shootings.

In other words, Johnson doesn’t just come off as anti-religion, but completely misses the distinction between public (meaning government) and private action that is at the heart of (classical) liberal or libertarian legal theory. That’s a shame: it makes him no different than progressives in that regard – or social conservatives, who miss the distinction in the other direction, restricting individual rights in addition to government powers.

And so, what we’re left with is a Libertarian Party ticket that’s positioning itself as “moderate” more than anything else. Again, that may well be a clever political ploy – though it makes the dubious bet that there are more #NeverHillary Democrats than #NeverTrump Republicans – but it’s not very encouraging for libertarians who want to “vote [their] conscience.”

Refugee Program Admits More Christians Than Muslims

When Secretary of State John Kerry promised to respond more vigorously to the worldwide refugee crisis last year, more than 85 members of Congress signed onto a bill to shut down the entire refugee program. Texas Congressman Brian Babin, the bill’s sponsor, explained their view: “The most persecuted religious minority in the world have been Christians, and of these 70,000, soon to be 100,000 per year coming in from the Middle East, less than four percent are Christian.”

Rep. Babin is right to be concerned for Christian refugees, but his facts about the refugee program are quite wrong. A majority of the 70,000 refugees that the United States accepted last year were from areas other than the Middle East. The U.S. refugee program has not only accepted a higher percentage of Christians than he stated, it has actually accepted more Christians than Muslims, even after President Obama’s changes at the beginning of this year.

A shutdown of the refugee program would injure refugees of all faiths.

Because most Syrian refugees are Muslim, and Syria has received the bulk of the attention recently, many people have come to associate the refugee program exclusively with the Middle East and Muslims. But the reality is that the majority of refugees come from outside the Middle East. More than 60 percent of refugees come from areas that are not the “Near East” or “South Asia,” according to data from the State Department. As can be seen below, this share is down from 2014.

Figure 1: Refugees in U.S. Refugee Program by Region (FY 2014-2016)

A Defense of Third-Party Voting

Judging from my Facebook page, the internet is blowing up with arguments that, in November’s election, voters must cast their ballots for a major-party candidate even if they dislike that candidate, and they must not vote for a third-party candidate.

These arguments go like this:

Third-party voters say neither major-party presidential candidate is worthy of their vote. But in fact, [major-party candidate the writer supports] is not nearly as objectionable as [other major-party candidate]. If [other major-party candidate] wins, terrible things will happen, but if [major-party candidate the writer supports] wins, terrible things won’t happen. So stop selfishly thinking about a third-party candidate, and cast your ballot for [major-party candidate the writer supports]!

No doubt this argument is appealing to the writer and other major-party backers. But even if we grant the writers’ assertion about the virtues of their preferred candidate AND their belief that a third-party candidate can’t win the presidency, this argument literally is irrational and–worse–it deprives voting of perhaps its greatest virtue.

The Real Clear Politics “Battle for White House” electoral map currently shows only 13 states, plus one Maine congressional district, to be toss-ups in the presidential race. Six more are rated as “leaning” toward Democrat Hillary Clinton and six (plus a Nebraska congressional district) are leaning toward Republican Donald Trump. RCP categorizes the other 25 states and the District of Columbia as being “solidly” (or stronger) in either the Clinton or Trump columns.

For those latter 25 states plus D.C., a would-be third-party voter’s grudging ballot for a major-party candidate is literally meaningless in deciding the presidency. The state’s Electoral College electors will go to Clinton or Trump regardless of how that voter casts his or her ballot–and the voter certainly must know that. So if that person chose to forgo voting for a third-party candidate and instead voted for a major-party candidate anyway, that voter made an irrational decision.

What about the other 25 states? Yes, there is a possibility that a voter’s ballot could matter—but only if that voter’s state (or congressional district, in the states where electors are awarded by distict) popular vote is perfectly evenly divided +/– one vote , and the national electoral college is decided by that state’s (or district’s) Electoral College electors. (Notice the qualifier “only if,” which means there are still more conditions that need to be met in order for the one ballot to prove pivotal.) In this case, the probability that the voter’s ballot would be meaningful isn’t zero, but it practically is. So, if a person in these states chose to forgo voting for a third-party candidate and instead voted for a major-party candidate anyway, that voter made an irrational decision.

Does this mean that people shouldn’t vote for president? It does if their sole motivation is to cast the deciding ballot. Voting has costs in time and money (e.g., gas money, bus fare), and it is pointless to absorb those costs for no benefit.

But there is a sound reason to vote (for some people, at least): for the pleasure of expressing one’s political preference. If voting for one of the major-party candidates provides that pleasure, then the voter should do it. For some voters, third-party candidates provide that pleasure because third parties are strongly associated with specific political causes (e.g., liberty, the environment, federalism) that many people care about deeply. Expending time and money to enjoy that pleasure is as sensible as spending time and money for the pleasure of reading a good book, or watching a baseball game, or eating chocolate.

Nevada Supreme Court Hears Education Savings Accounts Lawsuits

Today, on Milton Friedman Legacy Day, the Nevada Supreme Court will hear oral arguments in two lawsuits against the state’s education savings account (ESA) law. Under the law, students who leave their assigned district school can receive a portion of the funds that would have been allocated to them in their district school (about $5,100 to $5,700 depending on family income). The parents can use those funds to customize their child’s education by purchasing a wide variety of educational good and services, including private school tuition, text books, online courses, homeschool curricula, and more. They can even save funds for future expenditures. A similar program in Arizona has proved highly popular among parents.

However, a group dedicated to protecting the district school monopoly is asking the state supreme court to strike down the program before it goes into effect:

“I fear that, because this is the most aggressive model for this program, the privatization of education … will spread like wildfire,” said Electra McGrath-Skrzydlewski, whose 12-year-old daughter is a student in the Clark County School District.

McGrath-Skrzydlewski joined several parents last October to sue the state in a Carson City court, challenging SB302 on the grounds that it diverts money meant “exclusively” for public schools to private schools and other private expenses. Their complaint also claims the bill violates a constitutional requirement that lawmakers create a “uniform” system of public schools.

As Neal McCluskey noted on Twitter, even the opponents of the ESA assume that parents want it. And they’re right: more than 8,000 eager families have already applied.

David Boaz on educational choice

In separate case, the ACLU claims that the ESA law violates the state constitition’s “uniformity” clause as well as a separate constitutional provision prohibiting the state funding of religious instititions. However, as I’ve discussed previously, these arguments do not hold water. The ACLU wants the court to interpret the constitutional mandate that the state create a system of “uniform” and nonsectarian schools to mean that it must exclusively fund those schools. Fortunately, the lower court rejected this strained interpretation, holding instead that “the Nevada constitution requires the state to establish a non-sectarian system of public schools, but it is also empowered to encourage education by other means that are not limited to non-sectarian schooling.”

Likewise, the lower court rejected the ACLU’s Blaine Amendment claim, holding that it “was not intended to preclude any expenditure that has an incidental benefit to religion, where such is made for a primary secular purpose,” and that the ESA “was enacted for the valid secular purpose of providing financial assistance to parents to take advantage of educational options available to Nevada children.”

For more information on the two cases and to watch live feed of the oral arguments beginning at 1:00pm EDT, go to Choice Media’s website.

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