Short Circuit: A Roundup of Recent Federal Court Decisions

Spy networks, cyberattacks, and the price we pay for civilization.

|The Volokh Conspiracy |

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Friends, the Sixth Amendment requires a unanimous jury verdict before a person can be convicted of a serious crime, but, in 1972, the Supreme Court held that the requirement does not apply in state court. This week, IJ filed an amicus brief urging the Court to reverse course and to find that the right to conviction by a unanimous jury is a privilege or immunity of citizens of the United States. Click here to read it.

  • After World War II, the United States recruited a former Nazi general to operate a European spy network, which was critical during the Cold War. In 1985, a journalist wishing to learn more about the relationship submitted public records requests; displeased with the responses, he sued. Prodded by Congress, the gov't has since released thousands of documents, and the CIA has publicly admitted to the relationship. The litigation continued, however, and the feds recently released yet another cache of documents—nearly 3,000 pages. D.C. Circuit: Which is sufficient.
  • Cyberattackers breach federal gov't database, obtain copious amount of sensitive info on 21 million current and former gov't employees and people who applied to work for the gov't. Did the feds willfully fail to establish appropriate data security safeguards? D.C. Circuit (over a dissent): Plaintiffs who made statutory claims can proceed. Plaintiffs who made constitutional claims cannot proceed, however. If there is a constitutional right to informational privacy, it would apply only to intentional disclosures, which aren't alleged here.
  • Yemeni citizen has been at Gitmo for 17 years on the basis of undisclosed classified evidence. A due process violation? The D.C. Circuit says maybe; the district court improperly dismissed the claim.
  • Massachusetts auto dealer hires cleaning company to clean (among other things) oil and transmission fluid on the floor. Cleaner slips on oil, falls, and severely damages his knee. First Circuit: An independent contractor can't get damages for an injury caused by a situation he was hired to fix.
  • In 2005, Bucks County, Pa. man is involuntarily hospitalized after threatening suicide, putting a gun in his mouth. He's had no mental health treatment since 2006, and, in 2013, a doctor said he could safely handle firearms. Does the federal ban on gun possession by anyone who has previously been committed to a mental institution violate the man's Second Amendment rights? The Third Circuit says no.
  • Fayetteville, N.C. officer chases suspect into wooded ravine; a struggle ensues. The suspect gets the officer's gun and pulls the trigger in the officer's face, but the gun doesn't fire. The officer regains the gun and shoots the suspect. And then the stories diverge. The officer shoots the suspect several more times—either while the suspect is standing over the officer (as the officer claims) or after the suspect is "lifted off his feet" and "thrown to the ground" by the first gunshot (as the suspect claims). Fourth Circuit (over a dissent): On summary judgment, we have to believe the suspect. No qualified immunity for an officer shooting an injured suspect already on the ground. [STEM for lawyers note: Contra Michael Bay, basic physics prevents a bullet from lifting anyone into the air.]
  • For years, two undercover Detroit cops routinely raid drug dealers' houses and stop their cars to seize drugs and money. Rather than arresting the dealers, they pocket the cash, sell the drugs on the street, and keep the profits. They're caught, convicted of extortion. Cops: This was just part of the job. If anything, we committed robbery, not extortion—they're totally different crimes, and we weren't charged with robbery. Set us free! Sixth Circuit: Nope.
  • The city of Chicago boots and then impounds cars that have accrued two or more unpaid parking tickets. (City officials call these car owners "scofflaws"; the vast majority hail from low-income and minority communities.) The city won't release a car until its owner pays all the fines and fees, even if the owner has filed for a Chapter 13 bankruptcy. Seventh Circuit: Filing a bankruptcy petition triggers an automatic stay that requires the city to return the cars. Give those cars back. (IJ is currently suing Chicago over a different aspect of the city's impound program.)
  • Ferguson, Mo. officer shoots, kills 18-year-old, touching off widespread unrest. At the time of the shooting, the teen was with a friend, who claims he was unlawfully seized during the encounter, and an Eighth Circuit panel allowed the friend's claim to proceed. But the full Eighth Circuit disagrees, 6–4. The officer may have (as alleged) told teen and the friend to "get the fuck on the sidewalk," blocked their path with his car, and begun the deadly confrontation with the teen. But the friend was free to—and did—run away. So he wasn't seized.
  • In 1970, Congress enacts Title X, which funds family planning services other than abortion. In 1988, the feds adopt rule forbidding Title X grantees from providing referrals to abortion providers as a method of family planning. In 1991, the Supreme Court allows that interpretation of the statute, but a subsequent administration then allows grantees to provide such referrals on request. In 2019, new rules that look a lot like the 1988 rules are re-imposed. Ninth Circuit: And they are likely fine given the 1991 ruling and so can go into effect while litigation proceeds.
  • Taxes may be the price we pay for civilization, but it is uncivilized to impose taxes on citizens for income they did not ultimately receive, says the Eleventh Circuit.
  • After a second sex offense, Colorado law requires juveniles to be placed on sex offender registry permanently. Cruel and unusual punishment? Could be, says two-thirds of a Colorado appeals court. Remand to the trial court to address the question first. (H/t: @Coloradoappeals.)

IJ is excited to announce a new opportunity to join the team as a Law and Liberty Fellow at our headquarters in Arlington, Virginia. If you are a rising 3L or recent law graduate and you are interested in a career in litigation and public interest law, this Fellowship is your opportunity to join IJ's litigation team! IJ is accepting applications through July 15 and will notify all applicants of decisions by the end of August for two-year Fellowships beginning in August 2020. To learn more and apply, click here!

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  1. the right to conviction by a unanimous jury is a privilege or immunity of citizens of the United States.

    You mean it doesn’t apply to non-citizens?

    1. It doesn’t apply to citizens, either, depending on what state they’re standing in when they get charged with a crime.

      The thing is, the Constitution actually says that a right to trial by jury is guaranteed, and it doesn’t say that unanimous verdicts are required to convict. So, in Oregon, you can be convicted by a 10-2 vote.

      1. Note also that it takes only 2/3 to convict the President, per Constitutional text.

        1. But that’s not a criminal jury. Explicitly.

          1. Reread the italic passage bernard quoted and point to the word “criminal”.

            1. My point was that the IJ brief seems to concede that it’s OK to convict non-citizens without a unanimous jury. Aside from seeming unfair, it also looks like a clear violation of equal protection.

              1. I have made this point on numerous occasions in VC threads. A lot of people on the right seem to think that incorporation through the Privileges/Immunities route will restrict incorporated rights to citizens. It won’t, because if the state then goes ahead and denies the rights to noncitizens, it will violate the EPC (except perhaps if there is some specific reason why discrimination against noncitizens would meet strict scrutiny).

                And by the way, that’s actually the result you want. Do you really want a legal rule that says, for instance, that you can convict a noncitizen with a nonunanimous jury, or the government can conduct an illegal warrantless search of a noncitizen’s home to find evidence of crimes, or that the government can torture a noncitizen to obtain a confession?

                1. The equal protection clause extends privileges and immunities of citizens of the several states to non-citizens? That seems like a stretch. Why not simply take the correct approach, that unanimous juries are part of procedural due process?

                2. Your confusion on this score seems to be due to assuming that conservatives, in advocating a restoration of the P&I to its original significance, would none the less agree to keeping substantive due process.

                  But, unanimous (AND “fully informed”!) juries are, as TIP suggests, simply part of what “trial by jury” meant when the Bill of Rights was adopted, so even a due process clause reduced to it’s proper scope, (Having only to do with procedure, nothing at all substantive.) would guarantee everybody that sort of jury trial.

                  1. The equal protection clause extends privileges and immunities of citizens of the several states to non-citizens? That seems like a stretch.

                    Not necessarily all. Indeed, I began by being puzzled that the IJ was basing its case on privileges and immunities.

                    This is simple: a trial is a process, the requirement for a unanimous verdict is a protection. If “due process” requires unanimity, then “equal protection” requires it for all defendants. So why mess around with P&I at all?

                    1. The fourteenth amendment says that states have to afford due process to every “person”, so if a unanimous verdict is part of the process that’s due to criminal defendants, there’s no need to look to any other clause.

                      The problem, of course, is whether unanimity is in fact an integral part of that process.

                    2. The fact that process is due does not necessarily mean that it comes out the way the person it’s due to wants it to come out.

                      If the Jack of Hearts decides that all subjects of the Queen are due the process of having her say “off with his (or her) head” before any beheading can take place, then that’s all the process that is due.

                      Consider… the 4th defines some process that is due… the warrant requirement prior to search and seizure. But if the cops make a good faith application and warrant is issued in good faith, they can search or seize… even if it later turns out the warrant is invalid by reason of mistake. Resisting the search or seizure can be prosecuted as an independent crime, even if the warrant turns out to be invalid by reason of mistake.

                  2. OK, how about searches then Brett?

                    You want the police to go ahead and search a green card holder’s house without a warrant and then use what they find to bring criminal charges?

                    That’s not SDP. That’s 4th Amendment. And enacting that rule would be nuts.

                    1. Not everything that’s nuts is prohibited by the Constitution.

                    2. The EPC prohibits invidious discrimination against non-citizens. So even without SDP incorporation, this IS prohibited.

                    3. Oh, I’m sorry, must have missed that footnote in the 14th amendment.

                      The EPC prohibits making people “outlaw”; Depriving them of, literally, the protection of the law. You can’t pick a group out, and say, “We will not enforce the law where they are the victim of a crime, though we would for some other group.”

                      Nothing about that says you can’t discriminate against non-citizens. You absolutely can.

                    4. ” You can’t pick a group out, and say, ‘We will not enforce the law where they are the victim of a crime, though we would for some other group.'”

                      Doing this is exactly what got Sheriff Joe in trouble, before his good buddy pardoned him for doing exactly this thing you say can’t be done.

              2. “My point was that the IJ brief seems to concede that it’s OK to convict non-citizens without a unanimous jury.”

                Whereas, the President is required by Constitutional text to be a natural-born citizen, and explicitly does not require a unanimous verdict.

                1. Yes, but, AGAIN, impeachment is neither a criminal nor civil matter, it’s not even a judicial proceeding.

                  1. So it’s a proceeding that results from an accusation of a crime, but isn’t a criminal proceeding? What kind of yahoo do they get to preside over this thing? The Chief Justice of the United States, you say?

    2. “Privileges and immunities of citizens of the United States” defines a set of rights protected by the Fourteenth Amendment, rights which no state can abridge for any human being. It does not define a set of people protected by the Fourteenth Amendment. So, if you embrace this interpretation, neither the United States nor any state can provide for criminal convictions in civilian courts by other than a unanimous jury. (Note that there are other categories of courts–not categories of defendants–which may render verdicts based on other than a unanimous jury verdict, e.g., the Senate in an impeachment, courts martial, civil juries, etc.)

      1. The problem with that interpretation is that it has no support in the actual text of the constitution.

      2. “No state shall make or enforce any law which shall abridge the privileges or immunities of <b<citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

        So, no, the 14th amendment absolutely does define a set of people protected by the 14th amendment.

        CITIZENS get Privileges and Immunities.

        ANY PERSON gets due process.

        PEOPLE WITHIN OUR JURISDICTION get equal protection.

        1. An alternative reading suggests that they’re listing out things that the federal government has power to give, rather than trying to hold back.

          I think they’re trying to distinguish three classes… Americans who are citizens, Americans who are not citizens, and foreigners. That class in the middle would be Native Americans whose loyalty is to their tribal government rather than to the United States. (I also think this distinction is meaningless, given the scope of birthright citizenship also granted in the 14th).

          I also think most of the fuss about the subject would dry up if Congress passed a law granting legal residency but not citizenship to people currently living here illegally. (Not necessarily the dreaded “amnesty”… conversion to legal status doesn’t have to be “free”.) Pretending that we fully intend to deport them all while simultaneously hamstringing the ability to deport them all isn’t fooling anybody any more.

          1. Most of the fuss could would also dry up if we deported them. Without the downside of a massive human wave of aspiring new legal residents hitting our Southern border in hopes of being included in, yes, the next amnesty.

            The problem is that part of the government, the executive branch, DOES want to deport them, as the law dictates. While a majority of the legislature doesn’t want them deported, but most of that majority would be committing political suicide if they admitted it. So they leave the law as it is, while, yes, simultaneously hamstringing efforts to enforce it.

            And, yeah, they’re not fooling potential illegal immigrants, which is why our border is under assault right now. I question whether they’re even fooling the voters anymore.

            1. “Most of the fuss could would also dry up if we deported them.:”

              Sure. At the present rate of deportation (down under Trump, apparently, relative to Obama’s historical rate) AND if the big beautiful wall magically keeps any more illegals from entering, that’ll be done in 40 or 50 years.

              1. “While hamstringing efforts to enforce it”.

                1. Does the Big, Beautiful Wall also somehow allow hearings officers to hold 100 hearings a day (without making any due process errors)?

  2. “But the friend was free to—and did—run away. So he wasn’t seized.”

    Huh? Getting away from a distracted cop means not ever seized?

    1. If a failed (attempted) kidnapping is still a serious crime, then a failed attempt to seize should still be a constitutional violation. They have a perfect equivalency.

      1. I don’t want to say that there can never be civil liability for an attempted tort, but it would be highly unusual, to say the least. Attempting a tort is not generally a tort; attempting a crime, in contrast, is usually a crime in itself.

        1. ” Attempting a tort is not generally a tort”

          Attempting battery is a tort. It’s assault. Agree that you aren’t going to get far with attempted negligence, but this case revolves around a tort that DOES impose liability for an attempt.

          1. Depends on jurisdiction, I gather. In some jurisdictions, “assault” is indeed just “attempted battery”. In others it’s more of a psychological form of battery, where you induced fear of actual battery.

            In those latter jurisdictions, if you attempt battery in a way that fails to induce fear, it isn’t assault, while you can assault somebody in a manner that, objectively, could never actually constitute battery.

            1. Brett, seriously, WTF are you going off on, here?

              1. It looks to me like he’s accurately correctly your misstatement of tort law. “An attempt to inflict a harmful or offensive contact or to cause an apprehension of such contact does not make the actor liable for an assault if the other does not become aware of the attempt before it is terminated.” Restatement (Second) of Torts § 22.

                1. WTF are YOU going off on, here?

                  1. You claimed in your 12:49 post above that attempting battery is assault. People are trying to explain to you that your understanding of what assault constitutes is incorrect.

                    Although attempting to batter someone will often also be assault, the two are not coterminous.

                    1. “You claimed in your 12:49 post above that attempting battery is assault.”

                      Because it usually is.

              2. See, for instance: What is the difference between assault and battery?

                I visited multiple sites, and I HAVE looked at this question before.

                1. “I visited multiple sites, and I HAVE looked at this question before.”

                  If you looked at this question before, and determined that attempts at battery can’t be assaults, you need to look again.

    2. If Michael, his friend had also ran away, he would not have been shot.

      1. Assumes facts very much not in evidence.

  3. Beers cannot distinguish his circumstances by arguing
    that he is no longer a danger to himself or to others.
    Acceptance of his argument would sidestep the ruling we made
    in Binderup that neither passage of time nor evidence of
    rehabilitation “can restore Second Amendment rights that were
    forfeited.”51 Instead, the only way Beers can distinguish his
    circumstances is by demonstrating that he was never
    determined to be a danger to himself or to others. This Beers
    cannot do.

    The original ruling of ‘once a danger, always a danger’ is certainly of arguable logic, but to double down by finding that putting a gun in your mouth and not pulling the trigger is prima facie evidence that you are now and forever more to be considered a danger to yourself is just mean spirited.

    1. I would say a large part of the problem is that the original reasoning dates back to a period when the courts were pretending gun ownership wasn’t a civil liberty, but instead just a privilege.

      A lot of the decisions having to do with the circumstances under which that RIGHT can be taken away are based on it not being a right, and really ought to be revisited in light of that since Heller.

      But that would require a Court that was actually fond of the 2nd amendment, not merely grudgingly willing to uphold it where given no other alternative.

      1. In an alternate universe where Justice Thomas actually asked questions during oral arguments, he might even bring up this point, asking if there were any other rights in the Bill of Rights that a person could lose for life due to being, say, convicted of a misdemeanor offense.

        1. “asking if there were any other rights in the Bill of Rights that a person could lose for life due to being, say, convicted of a misdemeanor offense.”

          AFAIK, you can waive any and all of your rights. So, if committing a crime is construed as a voluntary waiver…

        2. A large part of why he doesn’t ask questions like that, is that he’s all too aware that the justices on the other side simply don’t care, and aren’t subject to being embarrassed. He doesn’t feel like engaging in pointless theatrics.

  4. “The officer regains the gun and shoots the suspect. And then the stories diverge. The officer shoots the suspect several more times—either while the suspect is standing over the officer (as the officer claims) or after the suspect is “lifted off his feet” and “thrown to the ground” by the first gunshot (as the suspect claims).”

    I am far more skeptical of police testimony than I used to be, the the suspect’s testimony here is almost certainly malarkey. A round, no matter how “high powered,” will not left you off your feet. It passes through flesh.

    1. A head shot can cause a rogue signal to traverse the nervous system can cause the body to throw itself off it’s feet. It can also take you off your feet by causing you to trip.

      1. You’re not likely to testify to anything after such a head-shot.

        1. No, you wouldn’t. Well, for the first one. The second half of my comment is about being shot in the leg.

    2. On the other hand, the suspect was reporting on the feeling of the shot. It seems a reasonable description if the shot caused him to lose balance. However, this should be easy to determine from forensic evidence depending on where the bullets were found. If they were far off, then the shots were fired at someone above. If they were right below the location of the struggle, then the shots were fired down.

      Secondly, this was an appeal of a summary judgement on qualified immunity. A summary judgement is granted only if every part of accusation is taken as true, and it still doesn’t qualify as violation of the law, so the judgement is granted before the trial begins.

      That’s clearly not the case here. We have to take the case in the best light for the prosecution. It needs to go to the actual trial where they present facts and decide on the evidence.

    3. Yeah, the focus in the blurb about impossible physics is a red herring. It doesn’t matter whether the bullet knocked him off his feet, or if he just fell over after being shot. The key point is that he claims that he was on the ground (however he got there) at the time he was shot the second and third times and therefore not a threat and the shooting therefore excessive. Have to accept that allegation at this stage in the proceedings.

  5. “In 2005, Bucks County, Pa. man is involuntarily hospitalized after threatening suicide, putting a gun in his mouth. He’s had no mental health treatment since 2006, and, in 2013, a doctor said he could safely handle firearms. Does the federal ban on gun possession by anyone who has previously been committed to a mental institution violate the man’s Second Amendment rights? The Third Circuit says no.”

    Seems to me that this is the classic example of the difference between the First Amendment, which has an overbreadth doctrine to prevent the chilling of speech, and other rights that do not have that doctrine.

    Here you have a regulation that certainly could be unconstitutional as applied to some people. But in this case, you have someone who actually threatened suicide and stuck a gun down his mouth. It’s not unconstitutional to bar a person who does THAT from future gun ownership.

    1. “But in this case, you have someone who actually threatened suicide and stuck a gun down his mouth. It’s not unconstitutional to bar a person who does THAT from future gun ownership.”

      Why not? There’s no indication that he’s a danger to anybody else, and his doctor says it’s OK. This sounds like the kind of private issue that should be decided by patients and their doctors.

      1. You aren’t going to win your argument that the government has no interest in preventing suicide. See Washington v. Glucksberg

        1. No, but you might win an argument that the government’s interest in preventing suicide must give way to enumerated rights, unless the connection between the denial of that right and the prevention is immediate and well founded.

          Arguably, the reasoning in Doe v Bolton, if the Court had actually meant it, would mean that a doctor’s determination that their patient is no longer a suicide risk ends any interest the state has in suicide prevention in their case.

          1. Except whether a person maintains their right-or not-should be done through due process; not the mere opinion of one doctor.

            1. “Except whether a person maintains their right-or not-should be done through due process; not the mere opinion of one doctor.”

              Yes, so there should be a proceedure, like say a lawsuit decided by first a district court and lets say reviewed by the 3rd Circuit [and other circuits] that lets an impartial judge decide it.

              1. “Yes, so there should be a proceedure, like say a lawsuit decided by first a district court and lets say reviewed by the 3rd Circuit [and other circuits] that lets an impartial judge decide it.”

                Sounds expensive. Maybe we can find something cheaper, so we don’t have to tie up the 3rd circuit with deciding all these cases, and people who should have the right don’t have to wait so long for their reasonable request to go through two complete litigation cycles.

          2. The fact that a right is enumerated is orthogonal to whether particular state interests justify its restriction.

            1. How many permanent lifetime bans on speech are ever upheld?

              The courts just don’t take the 2nd seriously.

              1. “How many permanent lifetime bans on speech are ever upheld?”

                Every time an execution is permitted.

              2. “The courts just don’t take the 2nd seriously.”

                OK, taking your complaint seriously, the difference is that a person having access to firearms presents a danger to other people. (No, not every gun-owner is a homicidal maniac. I didn’t say that. But some are reckless, and all are human, thus capable of mistake.)
                If my neighbor maintains a printing press in his garage, it poses very few actual threats to my and my family. Heck, the fact that my neighbor is allowed to own and operate a two-ton death machine that he keeps in his driveway poses more of a threat to me… but the death machine is registered, and all the operators are licensed. The insistence that the right to possess firearms remain unencumbered by such restrictions is part of why it gets limited in other ways.

                1. Taking a right seriously means, among other things, that you accept that there are costs to doing so, that are worth paying.

                  You persist in treating the right to keep and bear arms as though it were a privilege.

                  1. “You persist in treating the right to keep and bear arms as though it were a privilege.”

                    When you’re done with that strawman over there, you wanna engage anything I actually wrote?

                    1. Apparently not.

  6. “Does the federal ban on gun possession by anyone who has previously been committed to a mental institution violate the man’s Second Amendment rights? The Third Circuit says no.”

    Does this ruling discourage a man from seeking mental health care when he fears losing a fundamental right? Yes.

    1. Just like veterans who may buy pot on the street to ease their PTSD rather than buy it legally and lose their 2nd Amendment rights.

  7. “Friends, the Sixth Amendment requires a unanimous jury verdict before a person can be convicted of a serious crime,…”

    Um, the text of the amendment says nothing of the sort. Perhaps Mr. Ross could be more clear by stating that the supreme court has decided to that effect, and that president , which is mutable, is the current law of the day.

    1. If you start out by assuming that your conclusion is true, it’s way easier to prove.

      1. It’s a guarantee, not of whatever the government on a whim decides to call a “jury trial”, but rather what a “jury trial” was understood to mean at the time the amendment was ratified.

        Rights can not properly be abolished by redefining what the words mean.

        1. Your complaint is somewhat untimely. Oregon didn’t just institute conviction by non-unanimous jury yesterday. It’s been law for decades. It IS law now.

          It’s a shame the author of the amendment didn’t have any way to say that by “jury trial” he meant “jury trial with unanimous verdict”.

          The Constitution addresses the topic only once, and in that one case explicitly permits conviction by a 2/3 vote. So, you can keep up the wankery of pretending that “of course they meant unanimous verdict, there was no other kind of trial back then” if you really want to, but, as noted, it’s nothing but wankery.

  8. “Taxes are what we pay for a civilized society.”
    I call bull shit. There’s no logical connection between the two. Even the very founding of this country was because taxes led to a great deal of incivility.

    1. 1. It wasn’t taxes in general but which taxes are to be assessed and whether representation is needed.
      2. Your comment depends on what we deem the “founding.” To the extent that the Constitution is the founding (as we generally talk about since the drafter were the founding fathers) it was done IN ORDER TO TAX. The Articles of the Confederation was untenable because there was no provision for taxing.

      So, no, we weren’t founded because taxes lead to a great deal of incivility. Anyone who is no tax at all must be an anarchist. Even the barest of governments for the common defense needs to tax to have money to spend.

  9. “I call bull shit. There’s no logical connection between the two”

    I call bullshit on your bull shit call. Civilized society includes things like nonpartial arbiters to settle disputes. Taxes pay for that.

    ” Even the very founding of this country was because taxes led to a great deal of incivility.”

    The objection there was to taxes that were redirected to provide civility back in England rather than in the American colonies where they were being paid.
    Another way of phrasing it was that the lack of payment of taxes in England led to great deal of incivility.

    1. Taxes could pay for nonpartial arbiters but so could fees directly imposed on the parties. Setting aside the contention that there is no logical connection between the two, often when people say “Taxes are what we pay for a civilized society”, they often mean taxes are a necessary condition for civilization, when they are not.

      1. ” taxes are a necessary condition for civilization, when they are not.”

        Point to the civilization that has no taxes. (No, pointing to a state that generates revenue by selling natural resources isn’t sufficient. Those people pay their taxes in natural resources rather than cash, is all.)

  10. ” so could fees directly imposed on the parties.”

    We aren’t talking about what “could be”, but about what “is”.

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