Today, New Mexico Governor Michelle Lujan Grisham signed into law House Bill 4, otherwise known as the New Mexico Civil Rights Act. This landmark piece of legislation creates a state‐​law cause of action against any public official who violates someone’s rights under the New Mexico State Constitution, and it specifically provides that qualified immunity is not available as a defense. The statute is therefore quite similar to both Colorado’s Law Enforcement Integrity and Accountability Act, enacted in June 2020, and the civil‐​rights legislation approved by the New York City Council last month, both of which also created causes of action that do not allow qualified immunity. But whereas the Colorado and NYC bills were both limited to police officers, the New Mexico Civil Rights Act applies more broadly to all public officials.

Although many have summarized the effect of HB 4 as “ending” or “eliminating” qualified immunity in New Mexico, that is not exactly correct. In a formal sense, “qualified immunity” is a federal doctrine available in federal lawsuits brought under Section 1983, and states obviously can’t change federal law. But what they can do is create “state analogues” to Section 1983, which is exactly what HB 4 does. Whereas Section 1983 allows individuals whose rights are violated under the federal Constitution to bring a lawsuit for damages in federal court, HB 4 allows individuals whose rights are violated under the state constitution to bring a lawsuit for damages in state court. And because this new cause of action is a matter of state law, the legislature is free to clarify that qualified immunity won’t apply to these state‐​law claims.

The operative language of the New Mexico Civil Rights Act is simple and straightforward. Section 3 of the law provides that:

A person who claims to have suffered a deprivation of any rights, privileges or immunities pursuant to the constitution of New Mexico due to acts or omissions of a public body or person acting on behalf of, under color of or within the course and scope of the authority of a public body may maintain an action to establish liability and recover actual damages and equitable or injunctive relief in any New Mexico district court.

“Public body” in turn is defined broadly as “a state or local government, an advisory board, a commission, an agency or an entity created by the constitution of New Mexico or any branch of government that receives public funding, including political subdivisions, special tax districts, school districts and institutions of higher education.” In other words, any government entity, or person acting on behalf of such an entity, is liable if they violate someone’s rights under the state constitution, and “no public body or person acting on behalf of … shall enjoy the defense of qualified immunity.” (Note, however, that Section 10 of the statute clarifies that HB 4 does not eliminate legislative or judicial immunity, which are separate doctrines from qualified immunity).

The New Mexico Constitution, like most state constitutions, has a bill of rights that largely mirrors the federal Constitution, which means that HB 4 will allow citizens to get redress for the same sort of injuries they could pursue in a federal lawsuit. Section 5 of the statute also allows courts to award “reasonable attorney fees and costs” to prevailing plaintiffs. Section 6 does set a damages cap of $2,000,000, but that cap is actually much higher than any of the damages caps otherwise set by the New Mexico Tort Claims Act. On the whole, this means the new cause of action under HB 4 should provide a robust and meaningful remedy for citizens whose constitutional rights are violated by government agents.

Besides the difference in scope (i.e., police officers vs. all public officials), the one other notable difference between the New Mexico, Colorado, and NYC laws concerns the question of individual liability and indemnification. The Colorado statute presumptively provides that police officers sued under the new law will be indemnified, but if the officer’s employer determines that “the officer did not act upon a good faith and reasonable belief that the action was lawful,” then the officer could be required to personally contribute a small portion of the judgment. The NYC bill creates liability for both the individual who caused the violation and their employer. Section 8 of New Mexico’s HB 4, however, for complete and automatic indemnification, which means the individual defendant can never be personally liable for the injury they cause.

In this particular respect, I think Colorado and NYC actually struck the better balance of competing concerns. Even though indemnification is and will continue to be the norm in civil rights suits, it’s better to ensure that individual government agents — especially police officers — have some skin in the game when it comes to the risk of personal liability. After all, civil rights laws are intended to have both a remedial and a deterrent effect. But removing any possibility at all for personal liability — even modest contributions, like Colorado allowed for — may somewhat undermine the individualized accountability that laws like HB 4 are intended to provide.

Nevertheless, HB 4 gets the most fundamental policy judgment exactly right: a citizen whose rights are violated will get a complete remedy, and qualified immunity will not stand in the way. New Mexico has therefore made history as the first state to enact legislative qualified immunity reform for all public officials. As both Congress and other states around the country continue to debate policing reform in general and qualified immunity in particular, the enactment of the New Mexico Civil Rights Law is a welcome beacon of hope.

A new federal court ruling has invalidated some of President Trump’s “national security” tariffs, and in the process addressed one problematic procedural aspect of one of the worst U.S. trade laws on the books. Congressional action is still needed, however, to fix the statute’s many other problems.

This week, the U.S. Court of International Trade ruled against the Trump administration’s January 2020 action (Proclamation 9980) to expand tariffs of 25% on steel and 10% on aluminum, implemented pursuant to Section 232 of the of the Trade Expansion Act of 1962, to “derivative” (downstream) products like nails and car fenders. As we discussed in a recent policy analysis, Section 232 allows the president to “adjust” imports that “threaten to impair the national security,” but the statute suffers from numerous procedural and substantive flaws – errors that allow the executive branch to declare imports of almost anything a threat and cut procedural corners in restricting those imports.

The new USCIT case, brought by PrimeSource Building Products, Inc., addresses one of those corners, which we discussed in our paper:

After the tariffs went into effect, an importer of Turkish steel sued the Trump administration in the USCIT, arguing (among other claims) that the president cut corners in the procedures required by law. In November 2019, a unanimous three‐ judge panel agreed that “the President’s expansive view of his power under Section 232 is mistaken, and at odds with the language of the statute, its legislative history, and its purpose.”

Despite the court’s order that the Trump administration’s “expansive view” of presidential power is “mistaken,” however, President Trump soon advanced an even more expansive view of his power. On January 24, 2020, Trump announced that he was broadening the original “national security” tariffs to include “derivative” steel and aluminum products such as nails, pins, and staples. Again, he pointed to the original proclamations as his source of legal authority—the same justification that the USCIT had denied weeks earlier. Furthermore, the tariffs were scheduled to go into effect on February 8, 2020, just 16 days after the announcement, leaving little room for public consultation and thorough consideration of the impact of such actions. Several companies filed lawsuits against these tariffs at the USCIT, challenging the actions being taken outside Section 232’s prescribed 90‐ day window, the lack of public consultations, and disrespect to their due process. Since February 13, 2020, the USCIT has granted injunctions to these companies, preventing U.S. Customs and Border Protection from collecting tariffs on their “derivative” steel and aluminum imports, until it hears their cases.

Trump’s derivatives tariffs clearly violated the law’s time limits for implementing an “action” against imports (the president has 90 days to decide whether to act, and 15 more days to take any such action), and they were a prime example of cascading protectionism. On the latter point, the Trump administration admitted as such in the proclamation expanding the Section 232 tariffs to steel and aluminum “derivates” where it asserted that the original tariffs (25% on steel and 10% on aluminum) had not achieved the administration’s initial capacity utilization goals, in part because the tariffs lead to price increases in steel and aluminum imports (as one would expect when you tax something), and this prompted industrial consumers to purchase “derivative” products from abroad, which ended up hurting domestic derivative products producers and depressing domestic demand for the tariffed metals.

The USCIT ruled narrowly on the former point (the deadlines for action). The court’s decision will likely be extended to other companies that filed lawsuits similar to Primesource’s and should be welcomed by free traders and importers – particularly U.S. construction companies that are now reeling from sky high materials prices.

It does not, however, solve the problem of Section 232.

As we explain in our paper, Trump did far more than simply ignore this procedural requirement in implementing the steel and aluminum tariffs and investigating other products under Section 232. His administration’s actions revealed several major substantive and procedural flaws in Section 232 – flaws that are in desperate need of reform but that the USCIT, by its own admission, won’t touch. Absent legislative action, the abuse of Section 232 will thus remain a serious risk – checked only by the president’s self‐​restraint.

The ruling will also provide a test for the Biden administration because it can appeal the USCIT’s decision, thus keeping Trump’s derivatives tariffs alive, and defending Trump’s expansive (abusive) interpretation of executive power. Doing so, however, would not only hurt many U.S. companies (and the economy more broadly) but also provide a clear and unfortunate indication that the Biden administration – for all its talk of countering Trump’s trade abuses and restoring U.S. alliances – condones Trump’s approach to Section 232 and “national security” and might even seek to open pandora’s box even further.

Last week, I reported that Senate Judiciary Chairman Dick Durbin (D-IL) had introduced the S. 963, the Domestic Terrorism and Hate Crimes Prevention Act of 2021–the companion bill to Rep. Brad Schneider’s (D-IL) H.R. 350. Both bills would create new “Domestic Terrorism” bureaucracies inside the Departments of Justice and Homeland Security, and direct both departments to put special emphasis on a requirement for “anti‐​terrorism” training for federal, state, tribal, and local law enforcement agencies for the purpose of “understanding, detecting, deterring, and investigating acts of domestic terrorism and White supremacist and neo‐​Nazi infiltration of law enforcement and corrections agencies.”

As I’ve previously noted, both bills suffer from the same underlying flaw: the assumption that membership in a particular group–be it racial, religious, or political–has predictive value vis a vis an intent to commit a violent act. As we saw last week with the tragic, deadly incident involving Noah Green (an unemployed African American man) and U.S. Capitol Police Officer William Evans, that assumption is baseless and itself dangerous.

During more than 10 years working for then‐​Rep. Rush Holt (D-NJ), our office regularly received threats from individuals; every single House and Senate office does. Most never amount to more than violent (and often obscene) rants by persons upset about a government policy they dislike or an action the government has not taken that they believe it should. Quite simply, it comes with the territory when you serve in the House or Senate–and unless a particular individual has a known, documented history of violence, predicting who will be the potential lethal threat is impossible.

Despite that reality, the Durbin bill is now officially scheduled for Senate floor consideration, as this screenshot from Con​gress​.gov shows:

What this means is that the bill is skipping the usual Senate Judiciary Committee hearing and mark‐​up process and is being brought directly to the Senate floor for consideration. At this moment, the exact date for consideration is unknown, but action well before the Memorial Day break seems highly likely unless one or more Senators indicate an intention to filibuster the legislation.

The same fear‐​driven impulse that gave us the PATRIOT Act is at work with the push to pass the Durbin bill.

Congress enacted the PATRIOT Act just six weeks after the 9/11 attacks on the basis of claims by Executive branch officials that only sweeping new surveillance powers could stop a similar calamity from happening again. As we subsequently learned from the Congressional Joint Inquiry report in 2002, those claims were false. It was a lack of coordination, not lack of information, that allowed Al Qaeda to succeed on 9/11. The 9/11 Commission reached the same conclusion in 2004. And as we’ve already seen from just the limited investigations conducted to date regarding the January 6, 2021 attempted insurrection on Capitol Hill, that same issue–a lack of coordination, not a lack of information–was the prime reason why the House chamber and the Capitol building were overrun by a pro‐​Trump mob.

There is a pressing problem with Capitol Hill security that does need fixing: a streamlined chain of command that allows Washington, D.C.‘s Mayor Muriel Bowser and her successors to deploy the D.C. National Guard to assist with protecting the Capitol grounds in the event of an emergency.

Delegate Eleanor Holmes‐​Norton (D-DC) and Senator Chris Van Hollen (D-MD) have introduced the District of Columbia National Guard Home Rule Act (H.R. 657 and S. 130, respectively). That House and Senate Democratic leaders have not fast‐​tracked the Holmes‐​Norton/​Van Hollen legislation is mind boggling. Had Mayor Bowser enjoyed direct control over the D.C. National Guard, those units likely could have been deployed well before the Capitol building was breached.

Rationalizing the chain of command, as well as improving pre‐​event coordination and response planning between the Capitol Police and the D.C. National Guard, is a far more urgent–and solvable–problem than passing “feel good” domestic terrorism legislation that will do nothing to prevent another attack on the Capitol. Whether the Senate will hit the “Pause” button on S. 963 and consider a more logical, effective response to the January 6 insurrection remains to be seen,

In a long (300+ pages!) and divided opinion, the Fifth Circuit Court of Appeals late Tuesday upheld a federal district court ruling that found the Indian Child Welfare Act (ICWA) unconstitutional on a variety of legal grounds. Although the court also overturned important parts of the trial court’s decision, the ruling signals a major victory for Native American children who are denied crucial legal protections thanks to ICWA. We filed several briefs in support of the plaintiffs in the case.

Passed in 1978, ICWA was intended to redress wrongful actions by state and federal agencies that often took Native children away from their families without good reason. But despite these good intentions, ICWA today often stands in the way of Native parents and of state child welfare agencies that are trying to protect Native kids from abuse and neglect. And because ICWA applies to “Indian children”—which it defines based on biology—it violates constitutional rules that prohibit the government from discriminating based on race.

ICWA also intrudes on the authority of states in unconstitutional ways. Unlike other federal Indian laws, ICWA applies to children based on their biological ancestry, regardless of where they live, and even if those kids are not tribal members. And it forces state officials to obey a separate, less protective set of rules even when applying statechild-safety laws. This means “Indian children” must be more abused and for longer before state child protection agencies can come to their aid. And ICWA effectively prohibits the adoption of Indian children by adults of other races, even where birth parents agree to the adoption. ICWA even bars Native parents from taking the steps necessary to protect their own children.

In Tuesday’s decision, in a case called Brackeen, the Fifth Circuit was equally divided on a number of important constitutional issues, resulting in a complex set of decisions that in important respects upheld a 2018 trial court decision that declared ICWA unconstitutional. When such equal divisions happen, the result is a “non-precedential” ruling that upholds the trial court’s decision but doesn’t establish a rule for future cases. Here, the court was equally divided on some issues, but found common ground on others.

First, the bad news. The majority of the court held that Congress had power to adopt ICWA under the Constitution’s “commerce clause,” and that the fact that ICWA is triggered by a child’s biological ancestry does not violate constitutional rules against racial discrimination. In the process of making this ruling, the court expanded the reach of federal Indian laws in some truly astonishing ways, which I’ll discuss more below. It also held that the fact that ICWA allows tribes to write rules that override state law does not violate the “nondelegation doctrine” (a legal theory that bars Congress from giving lawmaking authority to private entities). And it addressed several other important legal issues too complex to get into here.

But the judges were unable to agree on whether two other provisions of ICWA are constitutional. These are rules that require that Indian children be adopted by “other Indian families” instead of adults of other races, and that require Indian children in foster care to be placed in “Indian” foster homes, regardless of tribal differences. Since the judges couldn’t agree on those points, the trial court ruling declaring these parts of ICWA unconstitutional remains in place.

Earlier this week Wall Street Journal columnist Mary O’Grady penned an excellent piece detailing the myriad ways in which U.S. maritime protectionism interferes and distorts trade. Some of the examples presented may be familiar, such as the imperilment of Alaska’s summer cruise season. But the column also delves into effects of the law that are often overlooked, such as its impact on ports:

The Jones Act is particularly costly to Puerto Rico because it keeps the island from capitalizing on its comparative advantage as a transit point for cargo. Colin Grabow, who heads the Cato Institute’s Project on Jones Act Reform, puts it this way: “Absent the Jones Act we would see large ships drop their cargo in San Juan or Ponce for placement on smaller ships to various ports in the region, including the U.S.—basically a hub‐​and‐​spoke model. But no one will ever use Puerto Rico as such a transshipment hub so long as shipping between PR and the world’s largest economy is subject to the Jones Act.”

This merits further explanation. For those unfamiliar, transshipment is the transfer of cargo from one vessel to another before it is brought to its final destination. The massive containership Ever Given that recently blocked the Suez Canal, for example, was bound for the port of Rotterdam where much of the ship’s containers would be unloaded for placement onto smaller vessels for destinations around Europe.

But such transshipment of containers for destinations elsewhere in this country does not happen because any goods moved between U.S. ports—including those originating from abroad—must use expensive and uncompetitive Jones Act shipping. As the Congressional Research Service notes, “Transshipment of international containerized cargo by feeder ships is prevalent abroad, but the practice does not exist in the United States.” Instead, containers are not moved by water to their final U.S. destination but rather by rail and trucks (with their attendant environmental costs).

This lack of transshipment extends to Puerto Rico. While neighboring Jamaica and the Dominican Republic have emerged as major transshipment hubs where large ships arriving from Europe and Asia (via the expanded Panama Canal) can have their cargo loaded onto to smaller vessels for transport to destinations throughout the Caribbean, Puerto Rico isn’t even a part of the transshipment conversation.

The Jones Act figures prominently here. Why use the island as a shipping hub when other ports in the region not beholden to the law offer far less expensive options for transport to the world’s largest consumer market? The end result is a missed economic opportunity for Puerto Rico.

That the law greatly reduces Puerto Rico’s attractiveness for transshipment isn’t controversial. To wit:

• A 2012 report from the Federal Reserve Bank of New York states that most experts agree the Jones Act “diminishes the viability of the Island as a major regional trans‐​shipment port.”
• The Inter‐​American Development Bank flatly states that the port of San Juan is not part of a transshipment cluster “since it is a Jones Act port.”
• A 2000 report authored for Puerto Rico’s government about the island’s feasibility as a transshipment point conceded that “transshipment between foreign and U.S. destinations via a Puerto Rican transshipment port would usually not be attractive as cabotage [i.e. Jones Act] shipping rates are on average higher.”

A 2014 article in American Shipper also cited the Jones Act, along with high labor costs, as key reasons why the Puerto de Las Américas in Ponce is not terribly attractive for transshipment purposes. As a visit by the Cato Institute’s multimedia team shows, to call the port underutilized is putting it mildly:

A common perception of the Jones Act and other forms of maritime protectionism is that their costs manifest themselves in higher transportation costs that are then passed along to consumers. But that’s just a starting point. These laws also mean the forced diversion of tourist dollars to Canada. Higher taxpayer expenditures for dredging. The inability to transport liquefied natural gas by ship to Puerto Rico and New England. Reduced opportunities for Puerto Rico’s port. In ways large and small the Jones Act and similar laws exact their tolls. Often overlooked, but always there and chipping away at the country’s economic vitality.

Here is a bit of a paradox concerning H.R. 1, the sprawling House‐​passed omnibus bill that would assert federal control over dozens of areas related to elections, political speech, and topics yet further afield.

As reformers have charged (and I agree), many state legislatures have misused their power to draw district lines for seats in the U.S. House of Representatives, resulting in evils that in numerous states include extreme partisan gerrymandering. In hope of rectifying this, H.R.1 would require states to establish independent citizen volunteer redistricting commissions. It goes on to specify that the new bodies must observe a set format in which fifteen commission members are appointed divided into three categories: five persons each to be affiliated with the two biggest parties, and five persons not affiliated with either party. Moreover, for a commission majority to adopt a proposed map or indeed take action of any kind, “at least one member of the commission appointed from each of the categories” must vote affirmatively.

It’s easy to see the point of these provisions, which track those in a number of existing state‐​level reform plans. They are intended to make it difficult for members of one political party to control the work of a commission without persuading at least one member of the “other” party. I have myself worked on commissions that have followed rules like this, and I agree that they can make a difference for the good.

But then by contrast consider what a different section of H.R. 1 would do to the structure and format of the existing and highly powerful Federal Election Commission. H.R. 1 would replace the existing structure of the FEC — six evenly divided members, four votes needed for action — with a new five‐​member structure including one independent, and in which action could be taken by simple majority rule. The effect of the current structure is that in for the FEC to take many major actions requires convincing at least one member of the “out” party. The effect of the new structure is that so long as a president nominates a co‐​operative independent, decisions can be rammed through by 3–2 votes over minority party objections.

Nine former members of the FEC, representing a combined six decades of experience at the commission, wrote a letter to Congressional leadership expressing grave alarm at these provisions, which “would transform the FEC from a bipartisan, six‐​member body to a five‐​member body subject to, and indeed designed for, partisan control.” Other parts of the bill point in the same direction, as with provisions drastically expandng the powers of the commission chair, a presidentially appointed partisan, to take steps such as firing the agency’s staff director and its general counsel without so much as majority support. The Institute for Free Speech has more.

It is not hard to speculate about the dimensions of self‐​interest that might motivate Democratic leaders to gut nonpartisanship at an agency they hope to control outright, while installing elaborate safeguards for nonpartisanship for panels set up by (often Republican‐​run) states. Whether any more principled grounds can be cited for the discrepancy, I don’t know.

More on the problems with H.R. 1 here (speech‐​hostile, bossy in areas long left to the sound discretion of the states, and in several instances likely unconstitutional), here (places impossible burdens on local election administrators), and here (experienced Democrats have doubts about consequences and practicality).

A proposed maglev line between Washington and Baltimore will disrupt 1,000 acres of “parks, recreational facilities and wetlands,” according to a recently released draft environmental impact statement (DEIS) for the project. That’s a lot of land considering that all but nine miles of the project would be underground. While 180 acres are for a maintenance facility, the remaining acres represent a right‐​of‐​way that is an average of 750 feet wide.

This potential disruption has raised the ire of the local chapter of the Audubon Society, which is opposing the plan. As I recently noted, such land disruptions will be an issue for all high‐​speed rail lines, and in that analysis I was clearly being conservative in assuming a mere 80‐​foot right‐​of‐​way. By contrast, airlines don’t need any right‐​of‐​way once they leave the airports.

Bird watchers are not the only opponents of the maglev plan. NASA has facilities that “require minimal disturbances from vibration, artificial lighting and electromagnetic interference,” it says, and it opposes the location of the maglev because it will disturb those facilities. City of Washington planners warn that a proposed station near Mount Vernon Square would destroy the character of that neighborhood.

The Washington Post article about the DEIS makes the usual claim that it would “help cut greenhouse gas emissions, taking about 16 million car trips off the road annually by 2045.” But the air quality analysis in the DEIS considers only toxic pollutants, such as carbon monoxide, not carbon dioxide. However, the energy analysis finds that the project would end up using 4 trillion BTUs of energy per year while all of the cars it would take off the road would save less than 0.9 trillion BTUs.

Electricity generated in Maryland produces about 733 pounds of carbon dioxide per megawatt‐​hour. Since 4 trillion BTUs is equal to 1.17 million megawatt‐​hours, that represents nearly 860 million pounds per year. By comparison, the annual energy savings from reduced auto driving represents only 137 million pounds of carbon dioxide. Of course, Maryland power plants may become more climate friendly, but so will automobiles. As I say, the DEIS didn’t include this kind of an analysis, so the Post’s claim has no foundation.

The project is economically dubious as well. It is currently projected to cost $13.8 billion to $16.8 billion, or $345 million to $420 million per mile. Of course, the actual cost will probably be somewhere between $20 and $30 billion. What do we get for that?

Currently, Amtrak’s Acela covers the route in 29 minutes at fares ranging from $19 to $44. Amtrak’s conventional trains take 37 minutes at fares ranging from $8 to $25. Buses take as little as 40 minutes at fares ranging from $2.50 to $20.

Maglev backers promise their line will take just 15 minutes and that fares will range from $27 to $80, with an average of $60. In other words, it will cost $8 to $36 to save 14 minutes, $19 to $55 to save 22 minutes, or $25 to $60 to save 25 minutes.

Clearly, the main users of the maglev line will be bureaucrats and lobbyists who will have someone else (mainly taxpayers) pay their way. What is less clear is why ordinary taxpayers should pay to build a line that they won’t ever use or why the Republican governor of Maryland, Larry Hogan, thinks this is a good idea simply because the Japanese gave him a free ride on their prototype model.