Topic: Government and Politics

A Reasonably Good Week for the Fourth Amendment

This week, two federal court decisions here in D.C. reiterated the importance of the Fourth Amendment in police encounters.

In the U.S. Supreme Court, Justice Ruth Bader Ginsburg wrote the Court’s opinion in Rodriguez v. United States, declaring that prolonging a traffic stop to initiate a K-9 sniff of a vehicle was unconstitutional. It’s not a revolutionary decision or a watershed moment in the Court’s Fourth Amendment jurisprudence, but it’s always good to see the Court recognize that there are limits on the police during traffic stops. (Such recognition is not usually the case.) That said, police will still try to find ways to get you to surrender your rights during stops.

Down the street at the U.S. Court of Appeals for the D.C. Circuit, Judge Janice Rogers Brown wrote a concurrence in a case that gets to the heart of the problem in Fourth Amendment law today. Because lower courts are not allowed to ignore Supreme Court holdings even when judges think SCOTUS is wrong, Judge Brown had to vote in favor of the government. But in United States v. Gross, concerning D.C.’s roving patrols for illegal firearms in high crime areas, Judge Brown was quite clear when she wrote:

Despite lacking any semblance of particularized suspicion when the initial contact is made, the police subject these individuals to intrusive searches unless they can prove their innocence. Our case law considers such a policy consistent with the Fourth Amendment. I continue to think this is error. Our jurisprudence perpetuates a fiction of voluntary consent where none exists and validates a policy that subverts the framework of Terry v. Ohio, 392 U.S. 1 (1968).

In the absence of any particularized reports, evidence, or suspicions, patrolling officers simply question every likely person they encounter. They “employ[] a simple technique: they ask[] any individual they encounter[] if he or she ha[s] a gun and then watch[] to see if that individual engage[s] in what the officers perceive[] to be suspicious behavior.” If consent to question or search is refused, officers frequently construe citizens’ varied reactions to their probes as rationalizing a Terry stop.

As a thought experiment, try to imagine this scene in Georgetown. Would residents of that neighborhood maintain there was no pressure to comply, if the District’s police officers patrolled Prospect Street in tactical gear, questioning each person they encountered about whether they were carrying an illegal firearm? Nothing about the Gun Recovery Unit’s modus operandi is designed to convey a message that compliance is not required. While viewing such an encounter as consensual is roughly equivalent to finding the latest Sasquatch sighting credible, I submit to the prevailing orthodoxy, but I continue to reject its counterintuitive premise.

With the guise of voluntary consent stripped away, the reality of the District’s regime is revealed. It is a rolling roadblock that sweeps citizens up at random and subjects them to undesired police interactions culminating in a search of their persons and effects. If the Fourth Amendment is intended to offer meaningful protection in the context of Terry stops, the voluntary consent exemption cannot be used to engage with members of the public en masse and at random to fabricate articulable suspicions for virtually every citizen officers encounter on patrol. (Internal citations omitted.)

The state of Fourth Amendment jurisprudence is not good, but cases like these provide a glimmer of hope that the Supremes will come around one of these days. You should read Judge Brown’s full concurrence here.

Saudi Arabia Rents U.S. Military to Help Kill Yemenis

The Obama administration is part of Saudi Arabia’s 10-member “coalition” fighting against Houthi rebels and in support of the now-deposed Yemeni government that is in exile in Riyadh. This was recently underscored by U.S. Secretary of State John Kerry, who said of the Saudis, “We’re not going to step away from our alliances and our friendships.”

Alas, the entire Yemen campaign is built on a lie. Contrary to Riyadh’s claims, the Houthis are not directed by, and seem only barely supported by, Iran, whose supposed involvement is the ostensible reason for U.S. involvement. Instead, the rebels have been fighting against the former Yemeni government for years.

America’s one-time ally, then-Yemeni president Ali Abdullah Saleh, battled the Houthis a decade ago. But after Saleh was ousted in 2012, he allied with the Houthis against his successor, President Abd Rabbo Mansour Hadi. The newly empowered rebels, supported by the official security forces who remained loyal to Saleh, ousted Hadi last fall.

Those familiar with Yemeni politics agree that none of this had anything to do with Iran or Saudi Arabia. The Saudi government claims that it wants to restore Hadi to power. But his followers largely abandoned him after he fled into exile and endorsed Saudi airstrikes on his fellow citizens.

As I point out in American Spectator online: “Yemen’s political turbulence is largely irrelevant to the U.S. America’s only serious security concern is the al-Qaeda affiliate, al-Qaeda in the Arabian Peninsula (AQAP). But AQAP has gained from Saudi Arabia’s attacks.”

By any normal measure Riyadh is far more inimical to American interests than Iran. Saudi Arabia is a totalitarian theocratic gerontocracy.

In contrast to Kuwait and even Iran, there are no elections, political opposition, or dissenting viewpoints in Saudi Arabia. Anyone who voices criticism is treated as if he was in the Soviet Union.

All Quiet on the Dardanelles: Gallipoli Reminds Us of Stupidity of War

A century ago this week, one of the most important battles in the Great War began. Allied forces landed in what is typically called the Gallipoli or Dardanelles Campaign. The campaign went badly almost from the start, with heavy casualties on both sides. Ultimately London admitted defeat and withdrew its forces eight and a half months later.

The fight offered another horrid highlight to the insane paroxysm of violence eventually known as World War I.Anzac Cove. Wikimedia Commons

More than 30 cemeteries fill the Gallipoli Peninsula. As many Turkish and allied troops died in this one extended battle–perhaps 120,000(though Turkish figures are incomplete and probably low)–as did Americans in the entire conflict.

For reasons that seem sadly frivolous today, all of Europe’s major powers, including the Ottoman Empire—the tottering “Sick Man of Europe”—went to war in 1914. No conflict is pretty, but World War I was particularly dreadful.

The Entente forces decided to attempt to force the Dardanelles, seize Istanbul, and open the Bosphorus Straits into the Black Sea. The battle commenced in February 1915. The British fleet first tried to push through the Straits but was halted by shore batteries and mines.

The allies then commenced an amphibious operation. Although soldiers from Britain, France, and India (a British colony at the time) were involved, men from Australia and New Zealand, grouped in the Australian and New Zealand Army Corps, played a leading role.

Loretta Lynch Confirmed as Attorney General

After one of the longest confirmation processes in the history of the Attorney General’s office, Loretta Lynch was confirmed by the Senate today as Eric Holder’s successor.

From a criminal justice perspective, whether Lynch will embrace or abandon Holder’s position on state-level drug legalization and his announced commitment to reforming civil asset forfeiture are two questions that spring immediately to mind.

Loretta Lynch zealously defended civil asset forfeiture during her confirmation hearings, and was a devoted practitioner of it as a U.S. Attorney in New York.  One of her seizure cases, that of the Hirsch brothers [$], garnered widespread attention and condemnation, and helped spur the nationwide calls for reform to which Eric Holder responded.

End the Personal Bribes Members of Congress Are Getting Not to Reopen ObamaCare

The U.S. Constitution vests the legislative, executive, and judicial powers in separate branches of the government that are supposed to police each other. But what if one of those branches violates the law in a manner that personally benefits the members of another branch? That’s what has been happening since the day ObamaCare became law in 2010. For more than five years, the executive branch has been issuing illegal subsidies that personally benefit the most powerful interest group in the nation’s capital: members of Congress and their staffs. A decision today by the Senate Small Business & Entrepreneurship Committee not to investigate those illegal subsidies shows just how difficult it can be to prevent one branch of the government from corrupting members of another branch.  

It is no secret that executive-branch agencies have broken the law, over and over, to protect ObamaCare. King v. Burwell challenges the IRS’s decision to offer illegal premium subsidies in states with federally established health-insurance Exchanges. University of Iowa law professor Andy Grewal recently revealed the IRS is illegally offering Exchange subsidies to at least two other ineligible groups: certain undocumented immigrants and people who incorrectly project their income to be above the poverty line. Treasury, Health and Human Services, and other executive-branch agencies have unilaterally modified or suspended so many parts of the ACA, it’s hard to keep count – and even harder to know what the law will look like tomorrow. Even some of the administration’s supporters acknowledge its actions have gone too far

The longest-running and perhaps most significant way the administration has broken the law to protect ObamaCare is by issuing illegal subsidies to members of Congress.

Americans Should Not Wait for Politicians to Help Syrian War Victims

KUWAIT CITY, KUWAIT—Seventy-eight nations plus 40 non-governmental organizations recently gathered to raise money for the relief of Syrian refugees. Kuwait’s Emir opened the Third International Humanitarian Pledging Conference for Syria with a plea for funds.

The small Gulf nation has carved out an international humanitarian role. “This is our baby,” one Kuwaiti official told me.

Kuwait opened the proceedings with a promise of $500 million, matching last year’s donation. The U.S. won the number one position with an offer $507 million, but many participants offered little more than good will. Overall the conference generated $3.8 billion of the $8.4 billion which aid agencies were seeking.

Antonio Guterres, UN High Commissioner for Refugees, warned that “We are at a dangerous tipping point.” The vulnerability of those caught in the conflict’s crossfire was highlighted by the Islamic State’s advance to the Yarmouk camp for Palestinian refugees on the outskirts of Damascus.

Alas, virtually no one in Syria has escaped the impact of four years of civil war. More than 200,000 Syrians are thought to have died; another million have been injured. The economy has imploded. UN Secretary General Ban Ki-moon added: “Four out of five Syrians live in poverty, misery and deprivation.”

Some 12.2 million people, more than half of the population, are estimated to need humanitarian assistance. A similar number have been displaced—between 6.5 million and 7.8 million within Syria and three to four million on to neighboring states.

Why Are Environmental Policy Conflicts So Intractable?

On Earth Day the op-ed pages remind me of “Groundhog Day.”  Environmentalists argue we need stricter environmental regulation.  Business interests argue such regulations reduce economic growth and cost the economy jobs.  Each also invokes “sound science” as an adjudicator of the conflict.  Environmentalists invoke “science” in the case of CO2 emissions and effects while business interests invoke “science” in the case of traditional pollution emissions.  Each year we wake up and the same movie plays out.

The scientific validity of people’s preferences plays no role in the market’s delivery of private goods.  Markets can and do supply organic lettuce regardless of whether it is really “better” for your health.  The scientific validity of people’s preferences is irrelevant.

Air- and water-quality environmental disputes are more challenging to analyze than the supply of organic lettuce for two reasons.  First, while property rights exist for lettuce, they often do not exist for air and water.   Thus, environmental politics involves continuous struggle over implicit property rights and the wealth effects that flow from such rights.  Second, both conventional air and water quality are “local” public goods (club goods) rather than private goods, thus individual differences in consumption, the primary method of reducing conflict associated with private goods, are not possible.  Instead, everyone’s varied preferences for environmental goods can only result in one jointly consumed outcome.

One possible impediment to the implementation of market-like solutions to air and water quality is that the initial ownership of property rights to air or water emissions not only has wealth but also efficiency effects.  That is those particular property rights (the right to a pristine environment) are so valuable relative to other assets that their initial allocation alters the willingness of people to pay for them and thus affects how much pollution exists.  In such cases the initial distribution is the whole ballgame because it determines the resulting air- and water- quality levels.