In an important baby step toward stopping racial discrimination, the Census Bureau has issued a notice in the Federal Register of its intent to add to Title 15 of the Code of Federal Regulations a new section 70 that would exclude questions about residents’ race or ethnicity as part of the decennial census short-form questionnaire. This is a first step in fulfilling President Trump’s Executive Order to end “demeaning and immoral race- and sex-based preferences,” but the rule under consideration is much too weak and narrow. (The same notice also proposes changes to how the decennial Census identifies “usual residence,” but that is an entirely different topic not discussed here.)

Of course, advocates for growing government power to manipulate and control are hysterical about even this modest reduction in racial discrimination in official statistics. They claim that distinction by race has been an important part of the decennial census as mandated by the Constitution since the first census in 1790. But this objection reveals the inherent flaw in continuing to count people by race. 

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In this case, a family in Parksley, Virginia, ran into an onslaught of opposition to their food truck from their local government. This resulted in an October 2023 ordinance specifically banning food trucks. But in enacting this ordinance, the town committed to the plaintiffs that they could continue to operate their food truck until May 2024, when their business license expired.

Plaintiffs then dared to complain about the food-truck ban to the press. The mayor saw this as a “betrayal” and became “angry … for the media attention that depicted Parksley’s government in a negative light.” In direct response to plaintiffs’ protected speech, the mayor instructed the town attorney to renege on the town’s commitment and send plaintiffs a cease-and-desist letter requiring them to immediately shut down their business. As the town attorney was drafting the letter, he stumbled across a previously unknown catch-all zoning ordinance that prohibited anything not expressly permitted (including food trucks).

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The bipartisan Problem Solvers Caucus in Congress has embarked on a project well suited to its mission: devising a set of principles meant to bring peace to the gerrymandering wars that have been raging for so long. I’m among many people the caucus staff consulted in advancing this effort and went down to Capitol Hill in that capacity this summer to speak with participating caucus members at a productive meeting.

Since then, on July 1, the caucus released a framework for gerrymander reform that would be practicable, national in scope, and not tilted toward either party. It’s built around four core reform themes:

1. Redistrict once a decade. Congress can and should confine redistricting to once every ten years following the decennial Census, with narrowly defined exceptions for things like court-ordered remapping. It’s a good candidate for an early fix because the norm collapsed only recently, having been widely, though not perfectly, observed for decades before that. 
2. Enact nationwide uniform standards: Require congressional districts to be drawn using clear, objective criteria while rejecting partisan advantage and incumbent protection as legitimate goals. As I never tire of pointing out, the Constitution’s Elections Clause, by its terms, authorizes Congress to set uniform standards for districting, and the legislature has in the past prescribed standards covering key elements of good districting, such as compactness. 
3. Support approaches that reduce partisan influence. That might include independent commissions, algorithmic mapping, and other mechanisms that promote public confidence. There is an appropriately humble tone to this plank, one involving support but not command, because it is not clear that the Elections Clause power necessarily empowers Congress to make these demands of states and because we are far from any settled state of the art on many of these approaches. 
4. Prescribe methods to resolve disputes promptly at the federal level. Disputes over congressional redistricting already tend to get resolved in federal court, where there are already special rules for selecting panels and avoiding delay. Further attention could help further advance goals of speed and predictability and resolve uncertainties about issues such as the role state law plays.

In a separate release, the caucus quotes me: 

“Gerrymandering is one of the problems best suited to bringing lawmakers together to put the national good over party interest. Problem Solvers Caucus has come up with one of the best and most promising reform frameworks yet. It respects the Constitution, concentrates on areas where law can make a difference, and—importantly—doesn’t get caught up in the bad or unworkable ideas that often circulate on this subject,” says Walter Olson, Cato Institute

All of this assumes, of course, that future voters will return a Congress sincerely interested in reform that is both comprehensive and nonpartisan. I think it’s worth being prepared in case they do. 

At the end of August 1976, in the lingering patriotism of America’s bicentennial celebrations, Congress passed the National Emergencies Act, a bill meant to rein in past delegations of emergency power and ensure that the legislature maintains control over the use of such authorities going forward. President Gerald Ford, who had turned back Ronald Reagan’s challenge at the Republican National Convention in Kansas City earlier that month, signed the NEA into law on September 14.

The law was the culmination of a years-long process initiated to study the implications of terminating a 1950 national emergency proclamation, issued by President Truman during the Korean War, that was still in force and in use throughout the Vietnam War. The special committee soon realized that there were, in fact, four extant national emergencies, the oldest dating back to 1933. Dismayed that a majority of Americans had “lived their entire lives under emergency rule,” the committee was clear-eyed about where blame belonged: “This dangerous state of affairs is a direct result of Congress’ failure to establish effective means for the handling of emergencies and its willingness to defer to Executive branch leadership.” 

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The worst terrorist attack in world history occurred on September 11, 2001. Many security failures contributed to permitting the attacks to occur, including the inability of the legal immigration system to stop the 19 hijackers from receiving temporary nonimmigrant visas to travel to the United States. Fortunately, the system has improved, and vetting failures have become far less frequent after the attacks. 

In 2018, the Cato Institute published my original research documenting terrorism visa-vetting failures from 1987 to 2016. The report demonstrated for the first time that visa vetting failures became much less common in the years following 9/11—despite the US government’s even more aggressive foreign policy and far more legal immigration and travel than before 9/11. 

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Twenty-five years ago today, terrorists hijacked four commercial airliners and flew three of them into the World Trade Center and the Pentagon, killing thousands of people in the deadliest terrorist attack in American history. The fourth plane crashed after its passengers fought back, preventing the plane from reaching the hijackers’ intended target. On September 15, 2001, Congress gave President George W. Bush an authorization to use military force against those responsible for the September 11 attacks. He signed it on September 18. One week later, the Department of Justice’s Office of Legal Counsel—a small but authoritative division that provides legal advice to the president and the agencies—explained that he had not needed it. The president already held broad constitutional power to use force, OLC concluded, and “Congress’s power to declare war does not constrain the President’s independent and plenary constitutional authority over the use of military force.”

That opinion has never been withdrawn.

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For the past 14 years, 83-year-old Ken Jouppi has been trying to prevent the State of Alaska from seizing his airplane. Mr. Jouppi is an Air Force veteran and has been flying charter planes in Alaska since the 1970s. Alaska has a number of villages and municipalities that are “dry,” where the sale, importation, and even possession of alcohol are illegal. Mr. Jouppi agreed to fly a customer to one of these locales. But the plane was stopped by police before takeoff—the passenger had packed alcohol in her luggage and carried three cases of Budweiser and Bud Light onboard to share with her husband on his birthday. Mr. Jouppi was convicted of a misdemeanor, sentenced to the minimum three days in jail, and ordered to pay a $1,500 fine. But Alaska also mandates forfeiture of any airplane used in connection with transporting alcohol to dry villages. Hence Mr. Jouppi has been fighting for the past decade and a half to save his $95,000 plane. The Supreme Court has agreed to hear his case.

Cato, joined by the Fines and Fees Justice Center, filed an amicus brief arguing that this forfeiture is an unconstitutional excessive fine. The Eighth Amendment was designed to prevent this kind of abuse. Long before the United States was founded, the common law protected people from extreme monetary penalties. The Framers understood the dangers of such abuse. But the Alaska Supreme Court’s view is that challenges to excessive fines “should rarely succeed.” This dismissive view led the court to conclude that there is nothing excessive about the forfeiture of an airplane worth “only 9.5 times the maximum fine”—and over 60 times the fine actually imposed.