Why Would the Government Fight a $900 Judgment? To Make it Easier to Take People’s Land

Sometimes the most important court cases are the most obscure and hard to understand. Caquelin v. United States comes out of the government vigorously opposing a judgment that it owes Norma Caquelin $900 for the 180 days that she couldn’t use a relatively small part of her Iowa farmland. But the case is part of a larger and ongoing fight over the status of abandoned railroad tracks that affects thousands of property owners.

Railroad lines once extended throughout the United States. At the peak in 1916, more than 270,000 miles of track crisscrossed the country. As railroads became less popular, however, thousands of miles of rail lines were left unused. Since the 1980s, the Rails-to-Trails Act has converted former rail lines into hiking and biking trails. But many of those rail lines were originally easements across private property. Under common-law doctrine, when an easement is abandoned and no longer used for the original purpose, the land “reverts” back to the property over which the easement was granted. Therefore, if the government wants to use part of an abandoned rail line for a trail, it needs to pay for the land under the Takings Clause of the Fifth Amendment.

Norma Caquelin’s great grandfather purchased a prime piece of Iowa farmland in 1892. Railroad tracks were placed on the land in 1870 and were part of the property when he purchased it. The farm was still in the family when the railroad company sought permission from the Surface Transportation Board (STB) to abandon the tracks. Under the Rails-to-Trails Act, after a railroad seeks permission to abandon tracks, potential trail developers can file a Notice of Interim Trail Use (NITU) to develop the tracks into a trail. After the railroad sought to abandon the tracks on Caquelin’s land, the city of Ackley and the Iowa National Heritage Foundation filed an NITU, which began a 180-day period of negotiations with the railroad to acquire the land. In the end, no deal was reached.

This case is about an abstract but important question: when does the government take land under the Rails-to-Trails Act? Is it when the NITU is filed or after the negotiation period ends? Since an agreement was never reached, the land was eventually abandoned and reverted back to Caquelin. But what about the 180-day period after an NITU is filed? Previously, the government has argued that the land is taken when an NITU is filed. In Ms. Caquelin’s case the judge in the lower courts awarded her $900 for that 180-day period. The government has now changed its mind, however, and rather than pay $900 they’re arguing that a taking only occurs after an agreement is reached. In rails-to-trails cases, landowners’ property is often tied up for years before a trail-use agreement is either executed or rejected. Therefore, if the government prevails in here, many owners’ land could be taken without compensation.

Cato has filed a brief in the Federal Circuit supporting Ms. Caquelin, and we’re joined by the National Association of Reversionary Property Owners, the Southeastern Legal Foundation, the Reason Foundation, and Professor James W. Ely. We argue that the original judgment awarding $900 to Ms. Caquelin was correct, and the government’s new theory is both a logical and practical disaster. Moreover, if the Court accepts the government’s theory, it will throw Trails Act jurisprudence into disarray—and there are a lot of these cases because there are a lot of unused railroad tracks. The court shouldn’t pay attention to the government’s change of mind, and it should maintain consistency and workability in Trails Act cases.

Senator Warren’s Protectionist and Misleading Trade Plan and Rhetoric

Senator Warren is said to have a “plan” for every policy area. But on trade policy, her plan and her general rhetoric on the issue are not very impressive. It would be better if she had no plan at all and just governed by tweet! (Ok, not really).

She recently announced her trade plan here. I gave it a quick rundown and concluded: “my sense is that this proposal means there would probably not be any trade deals in a Warren administration, while there would be various proposals to add new protectionism to U.S. domestic trade policy.” The Fletcher School’s Dan Drezner took some more time and offered this assessment: “Elizabeth Warren has put forward a terrible, horrible, no good, very bad trade program. Other Democratic candidates would be wise to avoid this garbage fire and come up with something more sensible.” And CFR’s Ted Alden said this: “When voters in places like Michigan, Ohio, and Pennsylvania look at the candidates’ trade policies this fall, the question will be what’s in it for them—for their economic futures and the opportunities for their children? Warren’s plan ticks a lot of Democratic Party boxes, but offers no compelling answer to that question.”

At last night’s Democratic primary debate, there was a chance to talk about this plan, and the candidates got into the details a little bit. Two things struck me about Warren’s remarks at the debate: They were misleading, and they completely ignored some obvious criticisms.

For example, she said:

Anyone who thinks that these trade deals are mostly about tariffs just doesn’t understand what’s going on. Look at the new NAFTA 2.0. What’s the central feature? It’s to help pharmaceutical companies get longer periods of exclusivity so they can charge Canadians, Americans, and Mexicans more money and make more profits.

Whatever you think of a 12 year exclusivity period for biologic drugs (I’m skeptical of it), it’s definitely not the case that it is the “central feature” of the new U.S.-Mexico-Canada Agreement. There are so many features to trade agreements these days that it’s hard to say what the “central” one is, but lower tariffs is still a main one, rules on e-commerce are important, and there are a wide range of other provisions as well. It’s true that there is a controversial provision on biologic exclusivity, but it’s hardly the “central feature.”

Along the same lines, she says: “We’re going to negotiate our deals with unions at the table.” But trade agreements have already been expanded to cover labor rights. Given the extensive labor provisions in modern trade agreements, including the USMCA, it is clear that unions already have a big role “at the table” to help draft these agreements.

And she didn’t have a response to John Delaney’s point that her approach is “so extreme that it will isolate the American economy from the world.” It’s really not clear that any trade deals could be negotiated under her approach. And what about China, the biggest trade issue of all? What’s her plan there? She didn’t have much to say on this.

Of course, politicians have been known to change their positions, so it may be that as president she would conduct trade policy differently than she is currently suggesting. Right now she is talking to a particular domestic audience. As president, she would have to meet some foreign counterparts, and her view of the world might change a bit. For now, though, she and many of the other Democratic presidental candidates are, as my colleague Dan Ikenson put it yesterday, “failing us on trade.”

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Criminal Forfeiture Requires Actual Criminal Activity

Criminal forfeiture permits the government to confiscate the assets of those who have been convicted of a crime if those assets are the product of criminal activity or connected to criminal activity. Unlike civil forfeiture, which goes after assets that are merely suspected of being connected to criminal activity and requires no criminal conviction, criminal forfeiture is justified by preventing criminals from profiting from their crimes. Civil forfeiture is much more widely abused, but even criminal forfeiture can be abused, especially if law enforcement officials and departments can profit from taking assets.

Peithman v. United States is an important criminal forfeiture case currently on petition to the Supreme Court. Allen Peithman and his mother owned two “head shops” in Nebraska that sold “potpourri,” a mixture of substances that contained some illegal drugs. They were convicted of selling misbranded “potpourri,” distributing drug paraphernalia, and investing the profits from the illegal sales back into the head shops. After the convictions, the government sought to use criminal forfeiture to take various assets from the defendants. The court eventually determined that $1.1 million was traceable to criminal activity and therefore forfeitable. The court also ruled that Peithman, his mother, and two other defendants were all “jointly and severally liable” for the forfeiture amount, which means that the full amount could be recovered from any defendant.

Criminal forfeiture is fairly broad, but there are limits on what types of assets the government can seize. One such limitation comes from the 2017 case of Honeycutt v. United States, when the Supreme Court interpreted a congressional statute to mean that forfeiture is limited to “tainted” assets, meaning property that was directly or indirectly obtained as a result of the crime. The Court explained that, because of this limitation, there could not be joint and several forfeiture liability among co-conspirators. Joint and several liability would allow the government to collect the full liability amount from any co-conspirator, regardless of the role they played in the crime or the proceeds they collected. Such a rule would “by its nature” allow the government to seize “untainted” assets, equal in value to a co-conspirator’s “tainted” assets. But because Peithman and his mother were charged under a different law than the one at issue in Honeycutt, the Eighth Circuit permitted joint and several liability. 

Cato has filed a brief in support of Peithman’s appeal. We ask the Court to take the case and rule that joint and several liability cannot be used in criminal forfeiture. While joint and several liability might make sense in tort law, it does not fit within the framework of criminal law. Not only does the doctrine ignore the fundamental principle of proportionality in criminal sentencing—reflected in the Excessive Fines and Due Process Clauses—it undermines the punitive and remedial purposes of criminal forfeiture by allowing those who actually received the proceeds from a crime to potentially escape having to forfeit their assets while those who did not benefit are forced to give up their assets. Not only this, but the concept of joint and several liability does not comport with the purposes of criminal forfeiture. Criminal forfeiture ensures that the property used in the commission of a crime will not be used again for illegal purposes. Joint and several liability, on the other hand, would allow the government to take property that had nothing to do with the crime.

The Supreme Court should also take this case to ensure that the expansion and abuse of criminal forfeiture statutes does not continue to worsen. Because seized assets are often distributed to law enforcement, there are widespread and egregious abuses of asset forfeiture. Countless people nationwide, and especially those living in poverty, face great financial difficulty after losing their assets to this practice. Because of the harmful effects and the perverse incentives of criminal forfeiture, it is up to the courts to police the scope of this practice.

You Can Quote Me

Back in 1993, in the pre-internet days, I reviewed the 16th edition of Bartlett’s Familiar Quotations for Liberty magazine. I’ve just gotten around to tracking down that article and getting it posted. One of my complaints then was that

The dozen years since the fifteenth edition have been marked by a worldwide turn toward markets, from Reagan and Thatcher to the New Zealand Labor Party’s free-market reforms to the fall of Soviet communism.  This historical trend seems to have escaped editor [Justin] Kaplan, of Cambridge, Mass., who has given us more quotations from Karl Marx, Vladimir Lenin, and Robert Heilbroner, while virtually eliminating F. A. Hayek and Milton Friedman, the intellectual gurus of the free-market revolution.  A bust of Hayek now sits in the Kremlin, but Cambridge is holding out against the tide… . 

One might assume that these curiosities don’t represent any conscious bias on Kaplan’s part, just a blindness to the political and economic changes going on in the world.  Dictionaries of quotations are perforce behind the times; they represent the distilled wisdom, or at least memorabilia, of centuries.  As market liberalism sweeps the world in the 21st century, its architects will get their due.  Still, it’s disappointing to see a 1992 edition offering fewer selections from thinkers such as Friedman and Hayek.

As I went over the old article, I decided to check my prediction. Results were mixed. Reagan now gets 10 citations instead of 3, including at least two of the three quotations I suggested. And instead of my “ant heap of totalitarianism” from his 1964 speech, they used “leave Marxism-Leninism on the ash heap of history” from 1982. Thatcher is up from 3 to 4. Barry Goldwater has now been included, with three of his best-known lines:

“A government that is big enough to give you all you want is big enough to take it all away.” [as I recommended]

“Extremism in the defense of liberty is no vice. And …  moderation in the pursuit of justice is no virtue.”

“You don’t need to be ‘straight’ to fight and die for your country. You just need to shoot straight.”

But John F. Kennedy leads recent presidents with 26 citations, down from 28. Bill and Hillary Clinton have appeared, with 12 quotations between them, few of them the sorts of lines they dreamed of being remembered for. Sadly, they omitted both “basket of deplorables” and “open borders.” Barack Obama has 12 all by himself, most of them long paragraphs unlike the great majority of pithy lines in the book. One wonders if the editors felt they needed to include him, even though he didn’t actually say anything memorable, and his most memorable line was probably the unfortunate “cling to guns and religion.” No Trump yet–maybe in the next edition.

Hayek is still at 2, Friedman still at 3. Ludwig von Mises is up from 2 to 4, Ayn Rand from 3 to 5. William F. Buckley, Jr., omitted in the 16th edition, is now represented with possibly his two most famous quotations. And yet, as Marxism is left behind in, well, “the ash heap of history,” Karl Marx (with Friedrich Engels) is up from 18 to 20. 

Among the youngest contributors in the book are J. K. Rowling, Sarah Palin, Todd Beamer of “Let’s roll,” and the very last chronological entry, Justin Timberlake. 

It does seem, though, that Cambridge/Boston, the home of the publisher, and Manhattan, the home of the new editor, are still holding out against those ideas that changed the world in the 1980s and beyond.

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The Democratic Presidential Hopefuls Are Failing Us on Trade

One of the few hopeful, “glass-half-full” thoughts I had after Donald Trump won the election in 2016 was that the new president would prove to be the best salesman of free trade since Adam Smith. No, I wasn’t so deluded to think he’d articulate the case for free trade and commit himself to removing all protectionist barriers. On the contrary, I assumed Trump’s reckless deployment of tariffs and other trade restrictions would backfire so spectacularly and expose the folly of protectionism so convincingly that the economically discredited philosophy would become politically radioactive, once and for all.

Well, the absence of any coherent, fresh ideas from the Democratic presidential aspirants that would differentiate their trade policies from President Trump’s suggests that maybe things haven’t played out as I had expected they would. Not yet, anyway.

The cost of Trump’s trade wars (the effects of tariffs on nearly $300 billion of imports and retaliation against nearly $200 billion of exports) has started to register on the Geiger counter, but we’re nowhere near Chernobyl levels yet. The economic pain has been concentrated in a few sectors and regions, and dulled by subsidies, fiscal stimulus, and (as of tomorrow, presumably) monetary stimulus. Of course, as this sugar high wears off and the economy slows, conditions are likely to worsen.

Will the Democrats be prepared to capitalize when this happens? Will any of the party’s presidential aspirants call out Trump’s tariffs? Will any repudiate protectionism? Can any lead the party back to the center on trade? According to all of the major polls, that’s exactly where most Democratic voters reside. It’s where most Republican voters reside, too.

The problem for Democrats is that distancing themselves from Trump’s protectionism means distancing themselves from the prevailing Democratic Party orthodoxy. For the past quarter century, Democrats have been skeptical of—when not outright hostile to—trade and globalization.

In many regards, Trump’s right-wing, protectionist, nationalist trade policies are barely distinguishable from the ideas espoused by the Democratic Party’s anticorporate, protectionist left-wing, who still hold sway over trade policy. Both favor interventions to achieve particular (often identical) outcomes, such as compelling Americans to “Buy American,” limiting imports, penalizing developing countries that don’t adopt rich country labor and environmental standards, taxing outsourcing, impeding labor market adjustment, and halting the alleged encroachment of the dark forces of globalization. To the right, those dark forces are the faceless foreign bureaucrats committed to usurping U.S. sovereignty. The left’s bugaboo are the multinational corporations, hellbent on weakening the rule of law and undermining democracy.

To those seeking the Democratic nomination for president, challenging the party’s protectionist plank may sound risky. After all, the party’s trade policy positions long have been bankrolled by organized labor, which—despite its absurd claims to the contrary—opposes trade liberalization, full stop, regardless of the fact that protectionism hurts U.S. workers (placing my bet here that the AFL-CIO does not endorse the USMCA, even after all of its conditions are met).

Voters on the far left, who will play an outsized role in selecting the nominee, tend to support the party’s protectionist platform because they’ve been misled to believe that trade only benefits big corporations and the rich. Senators Warren and Sanders have been instrumental in perpetuating that divisive fallacy. The facts are that the costs from the diminution of trade opportunities are borne primarily by smaller companies and households with lower incomes.

Protectionism is regressive. Free trade is progressive.

Although the subject was barely broached in the first two Democratic debates, the party’s positions on trade are going to matter in the 2020 election. Those positions will be shaped by debate among the candidates, the direction of the economy, and commentary in the media and on social media from now until the convention next summer. But Democrats should realize that voters from the center-left to the center-right want an alternative to Trump’s trade policies. They want to see the damage repaired.

Trump’s decision to withdraw the United States from the Trans-Pacific Partnership—which lives on as the Comprehensive Progressive Trans-Pacific Partnership for the benefit of producers and consumers in 11 countries not called the United States—will make it that much more difficult to reverse the damage and rebuild commercial relationships when enlightened U.S. leadership recommits to that course. What they will find is that while the Trump administration (and, it now seems reasonable to conclude, the Republican Party more broadly) was indulging its protectionist nationalist grievances and playing hard to get (something Elizabeth Warren’s trade plan would double-down on by making prospective partners jump through all sorts of hoops), the EU, Canada, Mexico, China, Japan, Korea, and many countries in Latin America and Africa were pursuing and completing trade agreements, which have put and will continue to keep U.S. exporters at a huge disadvantage in many important markets across the globe.

Moreover, the World Trade Organization, which—along with its predecessor, the General Agreement on Tariffs and Trade—has provided some semblance of institutional continuity and the rule of law in international trade for over 70 years, is under severe duress and could collapse, in large measure because of U.S. actions and inactions. The Trump administration’s defiance of the trade rules and preference for vigilantism is pushing the global economy toward breaking up into competing spheres of influence. That outcome would reduce the scope for economies of scale, impede the process of specialization, and tempt more and more governments into imposing discriminatory tariffs on products from countries in the “other” sphere or spheres.

The administration’s aggressive and unpredictable behavior has worked to undermine U.S. credibility abroad, which means not only that American commercial interests will suffer, but that U.S. geopolitical objectives going forward will become more difficult and more expensive to achieve. Team Trump has created some real problems that the next administration must fix. What solutions do the Democratic candidates offer?

The Republican Party and its congressional leadership have fallen in line behind Trump’s America-First protectionist nationalism, abandoning the center and center right, leaving the business community, moderate Republicans, and “Never Trumpers” desperate for alternatives. These developments gives Democrats an opening to distance themselves from protectionism and set their sights on reclaiming the vast middle ground on trade—from the center-left to the center right—that it ceded to the GOP in the mid-1990s. It can do that by offering a pro-trade alternative that voters see as reasonable and realistic, and focuses on repairing bilateral relationships, securing agreements that put U.S. entities back on equal footing, contributing constructively to repairing the WTO, and insisting on enforcement through the rules-based system of trade.

If any candidate is looking to history for inspiration, it was in 1934 that a Democratic Congress and a Democratic president rescued the ship of U.S. trade policy, after it had been stranded on rocky shores by Republican tariffs, by passing the Reciprocal Trade Agreements Act.

The RTAA offered a way to begin digging the country (and the world) out of the protectionist hole that was dug by the Tariff Act of 1930 (aka, Smoot-Hawley) and its repercussions. The RTAA made it easier to negotiate, conclude, and enact bilateral trade agreements. The successes set the table for 23 countries to sign the original GATT in 1947, which was broadened and deepened incrementally over eight rounds of multilateral negotiations, culminating in the establishment of the WTO in 1995. This was the work of a bipartisan consensus in Washington that was initiated and nourished by Democrats, who understood the value of trade to economic growth and its centrality to fostering good relations among nations. Renewing that commitment in 2019 would be good for the party, the country, and the world.

Democrats—especially Sens. Warren and Sanders and others who call themselves “progressive”—should know that in the very same breath that they express opposition to trade agreements and preferences for tariffs, they endorse regressive taxation of life’s basic necessities: food, clothing, and shelter. Tariffs are not only taxes, but regressive taxes. There is an inverse relationship between income and percentage of income spent on goods. People with lower incomes spend higher percentages of their incomes on goods and lower percentages on services than do people with higher incomes. Imports account for the majority of the goods Americans consume. Furthermore, relatively high U.S. tariffs on products like clothing and footwear punish producers in poor countries disproportionately.

Maybe some sensible ideas will come to the fore during the debates over the next two nights, but as of now it seems that the Democratic candidates will remain hopelessly beholden to organized labor, environmental extremists, and anti-business, anti-capitalism, anti-globalization groups—even though the preponderance of Democratic voters favor trade, trade agreements, globalization, and U.S. global economic leadership. Likewise, there are millions of “Never Trumpers,” and centrist Republicans who became politically homeless when Trump commandeered the GOP and drove it to the nationalist, protectionist right.

The Democratic Party is long overdue for a serious, substantive debate over the objectives and tools of trade policy. Making a play for the center on trade would be the outcome that best serves the party and the country. Perhaps we’ll see evidence that debate has begun tonight.

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Universal Childcare Could Have Terrible Social Consequences

Some Democratic presidential candidates want to introduce government-funded, universal childcare programs.

The stated rationale is usually the need for targeted financial help for families with children. But this reasoning is usually buttressed by a faith that government-funded care or preschool would improve the life chances of the children using it.

Such assertions are based on extrapolating research findings from more limited programs targeted at those on low incomes, such as Head Start, the Perry Preschool Project and the Carolina Abecedarian Project. But assuming these results apply to more universal programs is fraught with danger. Wise heads, such as Nobel Prize winning economist James Heckman, have previously warned that:

A much more careful analysis of the effects of scaling up the model programs to the target population, and its effects on costs, has to be undertaken before these estimates [of their impact] can be considered definitive.

A new paper on the effects of the universal childcare program in Quebec (by economists Michael Baker, Jonathan Gruber, and Kevin Milligan) shows why Heckman was right to be cautious. The results are devastating for the case for universal care.

On a sweep of evidence of universal programs around the world, the paper concludes that “there is a little clear evidence that these programs provide significant benefits more broadly,” than for some disadvantaged children.

The results in Quebec were even worse. The government there introduced heavy subsidies for care for all children from ages zero through four in the 1990s, alongside regulations designed to improve “quality.” Maternal labor supply unsurprisingly rose, and child care services were used more heavily than in the rest of Canada.

Disturbingly, though, “there was a large, significant, negative shock to the preschool, noncognitive development and health of children exposed to the new program, with little measured impact on cognitive skills.” This included “increases in early childhood anxiety and aggression.”

Proponents of universal care usually say, to paraphrase, that “a good start in life is crucial to future wellbeing.” It stands to reason then that interventions that harm children can likewise have enduring scarring effects. When it comes to Quebec, this is exactly what the economists found.

Though their results find “no consistent evidence of a lasting impact of the Quebec program on cognitive test scores,” the rest of their findings are extremely worrying:

We do, however, find a significant decline in self-reported health and in life satisfaction among teens. Most strikingly, we find a sharp and contemporaneous increase in criminal behavior among the cohorts exposed to the Quebec program, relative to their peers in other provinces. We illustrate graphically a monotonic increase in crime rates among cohorts with their exposure to the child care program, and we show in regression analysis that exposure led to a significant rise in overall crime rates. We also report that these effects are primarily for boys, who also see the largest deterioration in noncognitive skills [the later includes aggression and hyperactivity].

The economists charitably conclude that their results confirm that early life interventions can have sustained impacts on life chances (implying the importance of doing childcare policy “right”).

A more pessimistic reader would foresee potentially disastrous social consequences from adopting the sorts of universal programs that Democratic candidates are pushing.

More on childcare, and a better way of helping families, here and here.

Franco Is Still Dead and the CFPB Is Still Unconstitutional

In Federalist 47, James Madison wrote that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Our constitutional structure is thus built on a foundation of the separation of powers. Indeed, as any Schoolhouse Rock aficionado could tell you, the legislative branch is supposed to legislate, the executive branch is supposed to enforce that legislation, and the judicial branch should interpret that legislation. But what happens when Congress places all of those powers in one agency, and then removes all of that agency’s accountability to elected officials? Worse, what happens when the power of such an agency is in the hands of one unelected individual?

This is what Congress did when it created the Consumer Financial Protection Bureau in 2010. First, Congress created a single director as the head of the organization, but insulated that director from presidential removal except “for cause.” This unique structure removes the president’s ability to exert control over the CFPB even though the agency is charged with enforcing laws. Furthermore, since a director serves a five-year term, a president could conceivably never appoint a new director.

Second, Congress eliminated its own power over the CFPB by granting the bureau independent access to Federal Reserve funds. Because the CFPB doesn’t need congressional approval to access these funds, there is no “power of the purse” for Congress to use to control an agency empowered to regulate the financial services industry.

Third, Congress then gave the CFPB almost unlimited power through vague statutory language. The Dodd-Frank Act grants the agency power to punish “unfair”, “deceptive,” and “abusive” practices, but also grants the CFPB’s director full discretion to define those terms. What’s even worse, no director has yet to define them terms, preferring to act on a case-by-case basis. With this vast arbitrary power, the CFPB has investigated, prosecuted, and punished people, a glaring violation of due process.

This is why Cato has filed an amicus brief urging the Supreme Court to rule on the constitutionality of the CFPB, as we have before (we also previously filed twice in the lower courts arguing that it’s not). The high court has an obligation to defend our separation of powers. If the Court allows the CFPB to continue as currently constituted, it will allow major violations of constitutionally protected liberty by a powerful and unaccountable federal agency.

The case is Seila Law LLC v. CFPB. The Court will decide whether to take it up when it returns in September from summer recess.