Civil Liberties

But Gorsuch!

Trump's first Supreme Court pick is better on civil liberties than his critics want to admit.

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When Donald Trump nominated Neil Gorsuch to the Supreme Court in January 2017, Demand Progress warned that the judge was "an extremist" who would "rubber stamp Trump's assaults on Americans' freedoms." People for the American Way likewise described Gorsuch as "an ideological warrior who puts his own right-wing politics above the Constitution, the law and the rights of everyday people." During Gorsuch's confirmation hearings that March, Sen. Mazie Hirono (D–Hawaii) worried that "you rarely seem to find in favor of the little guy."

Even before Gorsuch heard his first case as a Supreme Court justice in April 2017, it was clear from his decade on the U.S. Court of Appeals for the 10th Circuit that such attacks were unwarranted. Far from screwing over "the little guy" at every opportunity, he had shown unusual sensitivity to the predicament of vulnerable people confronted by implacable and frequently inscrutable agents of the state. "Among the folks that Trump had on his short list," observes the Ohio State University law professor Douglas Berman, "Gorsuch seemed more defendant-friendly than most of the others," and "that's carried over to the Supreme Court."

During Gorsuch's first two terms on the Court, he took positions that should be applauded by people who care about criminal justice and civil liberties, including the critics who were so quick to condemn him as a heartless authoritarian. Except for capital cases, where "he doesn't seem to have much of an affinity for the defense position," Berman says, Gorsuch is "distinctly concerned about safeguarding defendants' procedural rights." While judges across the spectrum have long been willing to compromise civil liberties in cases involving unpopular defendants such as drug dealers and sex offenders, Berman notes, "Gorsuch has, to his credit, said, 'No, no. The rules are the rules.'" His work shows that an honest attempt to apply the "original public understanding" of constitutional provisions frequently yields libertarian results, limiting government power and protecting individual rights.

That's not to say Gorsuch himself is a libertarian. In his 2006 book on assisted suicide, he explicitly rejected the "libertarian principle" that would require legalization of that practice. The same principle, he argued, would also require the government to allow "any act of consensual homicide," including "sadomasochist killings, mass suicide pacts…duels, and the sale of one's life (not to mention the use of now illicit drugs, prostitution, or the sale of one's organs)." If the government lets people kill themselves, in other words, it might also have to let them smoke pot.

Nor do Gorsuch's originalist methods always lead him to conclusions that libertarians like. Last June, for instance, the Supreme Court overturned a Tennessee law that required people to live in the state for at least two years before applying for a license to sell liquor. Seven members of the Court deemed that protectionist policy inconsistent with the Commerce Clause, which was supposed to prevent interstate trade barriers. Gorsuch—joined by Justice Clarence Thomas, another originalist—dissented, arguing that such residence requirements have a long history in the United States and exemplify the sort of state policies that were protected by federal statute before Prohibition and by the 21st Amendment afterward.

On the whole, however, "Gorsuch appears to be on his way to being the most libertarian justice we've had on the Court in some time," says Case Western Reserve University law professor and Volokh Conspiracy blogger Jonathan Adler. And on several issues that progressives in particular care about, such as privacy, due process, and police abuse, Gorsuch has been notably less deferential than the other conservative justices, with whom he has repeatedly parted company. "He's someone who takes express constitutional guarantees very seriously," Adler says, "even where they might conflict with what we would expect a conservative to want."

For the president's opponents, "But Gorsuch!" is a gibe aimed at conservatives who cite the nomination as vindication of their support for Trump. But for libertarians, there is an element of truth to that line of defense: While Gorsuch may not be the saving grace of the Trump administration, he is far more inclined to question authority and defend "the rights of everyday people" than the man who picked him.

'What's Left of the Fourth Amendment?'

Gorsuch's commitment to enforcing the Fourth Amendment's ban on "unreasonable searches and seizures" is one of the clearest ways in which his record belies progressives' claims that he tends to approve "assaults on Americans' freedoms."

On the 10th Circuit, Gorsuch wrote the majority opinion in the 2016 case United States v. Ackerman, which held that the National Center for Missing and Exploited Children conducted a search within the meaning of the Fourth Amendment, which generally requires a warrant, when it opened an email forwarded by AOL that contained child pornography. He concluded that the organization, which has special duties and privileges under federal law, qualified as a "governmental actor," or at least the government's agent. Just as important, he thought it clear that email should be treated as "papers" or "effects" protected by the Fourth Amendment.

"Of course, the framers were concerned with the protection of physical rather than virtual correspondence," Gorsuch wrote. "But a more obvious analogy from principle to new technology is hard to imagine and, indeed, many courts have already applied the common law's ancient trespass to chattels doctrine to electronic, not just written, communications."

Also in 2016, Gorsuch dissented from the 10th Circuit's decision in United States v. Carloss, which held that police did not violate the Fourth Amendment when they ignored several "No Trespassing" signs on the way to a "knock and talk" at a home where they ultimately discovered methamphetamine labs. The government, he wrote, seemed worried that "if clearly posted No Trespassing signs can revoke the right of officers to enter a home's curtilage, their job of ferreting out crime will become marginally more difficult." He noted that "obedience to the Fourth Amendment always bears that cost and surely brings with it other benefits." In any case, he said, "our job" is not "to weigh those costs and benefits but to apply the Amendment according to its terms and in light of its historical meaning."

That is what Gorsuch thought the Supreme Court should have done in Carpenter v. United States, the 2018 decision that said police generally need a warrant to obtain cellphone location data. Gorsuch dissented, not because he disagreed with the result but because he objected to the majority's reasoning.

The Court made an exception to the "third-party doctrine," which says the Fourth Amendment does not apply to information that people voluntarily share with others, even when they do so with the understanding that it will be kept confidential. The majority held that, notwithstanding the third-party doctrine, people have a "reasonable expectation of privacy" in the information about their movements that cellphone companies collect while completing their calls. Gorsuch argued that both standards are misbegotten.

Amplifying the concerns raised by Justice Sonia Sotomayor in a 2012 case, Gorsuch said "the Court has never offered a persuasive justification" for the third-party doctrine, which it formulated in the 1970s. Like Sotomayor, he was dismayed by the doctrine's implications in an age when people routinely store sensitive information on computers outside their homes.

"What's left of the Fourth Amendment?" Gorsuch asked. "Today we use the Internet to do most everything. Smartphones make it easy to keep a calendar, correspond with friends, make calls, conduct banking, and even watch the game. Countless Internet companies maintain records about us and, increasingly, for us. Even our most private documents—those that, in other eras, we would have locked safely in a desk drawer or destroyed—now reside on third party servers."

Nor did Gorsuch think that the "reasonable expectation test," which derives from the 1967 case Katz v. United States, makes much sense, since it calls upon judges to determine which expectations are reasonable. "Katz has yielded an often unpredictable—and sometimes unbelievable—jurisprudence," he wrote, citing cases in which the Court had upheld warrantless aerial surveillance of private property and warrantless rummaging through people's trash.

Instead, Gorsuch advocated "a more traditional Fourth Amendment approach" that asks whether the thing to be searched qualifies as someone's property. He noted that federal law treats cellphone location data as "customer proprietary network information," which suggests the records belong to the customer and cannot be perused at will by the police.

Prove It

The Fourth Amendment is not the only area where Gorsuch has often sided with criminal defendants. Like Antonin Scalia, the justice he replaced, he is a stickler for requiring prosecutors to prove all the elements of a criminal offense.

In the 2015 case United States v. Makkar, Gorsuch wrote a 10th Circuit decision overturning the convictions of two convenience store owners who were accused of selling "incense" containing a synthetic cannabinoid. He noted that the law under which the defendants were charged, the Federal Analogue Act, required either proof that they knew they were selling a banned substance or proof that they knew the substance was "substantially similar" in its effects and in its chemical structure to a Schedule I or II drug. Prosecutors chose the latter route but did not even attempt to prove the second element, Gorsuch observed, and the jury instructions improperly relieved them of that burden.

In 2012, Gorsuch dissented when the full 10th Circuit declined to rehear a case, United States v. Games-Perez, in which a three-judge panel had rejected a defendant's argument that he should not have been convicted of illegally possessing a firearm because he did not realize he had a felony record. Gorsuch thought that claim was plausible given what a judge had repeatedly told the defendant, Miguel Games-Perez, about the consequences of his deferred state sentence for attempted robbery. "People sit in prison because our circuit's case law allows the government to put them there without proving a statutorily specified element of the charged crime," Gorsuch wrote. "So Mr. Games-Perez will remain behind bars, without the opportunity to present to a jury his argument that he committed no crime at all under the law of the land."

After joining the Supreme Court, Gorsuch further demonstrated his determination to uphold the rights of criminal defendants in cases involving the Sixth Amendment, which guarantees the right to trial by jury. This is another way in which Gorsuch has emulated Scalia, who played an important role in two landmark decisions establishing the principle that juries must determine facts that increase a defendant's punishment beyond what would otherwise be authorized by statute. Those decisions made federal sentencing guidelines, which had previously required judges to increase penalties based on facts they determined, advisory rather than mandatory.

This year Gorsuch wrote the plurality opinion in United States v. Haymond, which involved a man who had been convicted of possessing child pornography and who, after serving more than three years in prison, was again caught with child pornography while on supervised release. That second offense, which was never considered by a jury, triggered a five-year mandatory minimum sentence. "In this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt," Gorsuch wrote. "As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments."

Gorsuch's opinion was joined by three members of the Court's liberal wing: Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Justice Stephen Breyer agreed with the judgment but wrote a separate concurring opinion to express concern about the decision's potential impact on run-of-the-mill cases in which judges send people back to prison because they have violated the terms of their supervised release. Gorsuch's fellow conservatives vociferously dissented.

Try, Try Again

In two Sixth Amendment cases that the Court declined to hear, Gorsuch, joined by Sotomayor both times, argued that the issues presented made them worthy of review. One case, Hester v. United States, posed the question of whether facts supporting court-ordered restitution in criminal cases also need to be determined by a jury. The other, Stuart v. Alabama, involved a woman who was convicted of drunk driving based on blood testing by an analyst who never appeared in court.

Given the "decisive role" that forensic evidence often plays in criminal cases, Gorsuch said when the Court declined to hear Stuart, it is vital that defendants have a full opportunity to challenge it. "The Constitution promises every person accused of a crime the right to confront his accusers," he wrote. "That promise was broken here." Scalia, who in 2009 wrote a majority opinion that said a defendant had a Sixth Amendment right to question the state laboratory analysts who tested a substance they determined to be "cocaine of a certain quantity," probably would have agreed.

One of Gorsuch's most striking pro-defendant stands was his dissent in Gamble v. United States, a 2019 case in which the Court declined to reconsider the "dual sovereignty" exception to the Fifth Amendment's ban on double jeopardy. According to that longstanding doctrine, serial state and federal prosecutions for the same conduct do not constitute double jeopardy because they deal with distinct offenses defined by "separate sovereigns," even when the definitions are the same. Gamble involved a man with a felony record who was convicted and punished under both state and federal law for illegally possessing a firearm, which seven justices—all but Gorsuch and Ginsburg—deemed constitutional. The defendant was not prosecuted twice for "the same offence," they said, because two levels of government had separately defined his behavior as a crime.

"The government identifies no evidence suggesting that the framers understood the term 'same offence' to bear such a lawyerly sovereign-specific meaning," Gorsuch wrote in his dissent. To the contrary, he said, British common law, the Fifth Amendment's history, contemporaneous legal commentary, and early court cases all indicate otherwise. "A free society does not allow its government to try the same individual for the same crime until it's happy with the result," he said. "Unfortunately, the Court today endorses a colossal exception to this ancient rule."

The threat of dual prosecution grows as federal and state criminal codes expand, increasing the areas where they overlap. Gorsuch also worries about that trend, as illustrated by his dissent in Nieves v. Bartlett, a 2019 case in which the Supreme Court rejected a man's claim that police had violated his First Amendment rights by arresting him for disorderly conduct because his opinions irked them. Most of the justices thought that claim was barred because the cops, regardless of their motivation, had probable cause to arrest the guy.

Gorsuch disagreed. "History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively," he wrote in a characteristically eloquent dissent. "In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age." That dissent, says Ohio State's Berman, shows Gorsuch "is not only able but eager to notice that, basically, cops get to do whatever they want."

'A Vague Law Is No Law at All'

Another conspicuous theme in Gorsuch's work is his concern about vague statutes, which violate due process because they do not give people fair notice of what the law requires. That concern was apparent in Makkar, the 10th Circuit case involving analog drugs, where Gorsuch noted that the federal law banning them raises "vagueness concerns," since "it's an open question…what exactly it means for chemicals to have a 'substantially similar' chemical structure—or effect." The importance of fair notice also figured in United States v. Rentz, a 2015 10th Circuit case in which Gorsuch wrote the majority opinion holding that a man who fires a gun once, injuring one person and killing another, could not be charged with two counts of "using" a firearm in the course of a violent crime.

Vagueness was central to Sessions v. Dimaya, a 2018 Supreme Court case involving a legal permanent resident with two burglary convictions whom the government sought to deport as an "aggravated felon." Under the Immigration and Nationality Act, that category included anyone who commits a "crime of violence," defined as a felony "that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." In 2015 the Court had concluded that similar language in the Armed Career Criminal Act was unconstitutionally vague. Five justices—the liberal wing plus Gorsuch—concluded that the same logic doomed the immigration provision.

"Vague laws invite arbitrary power," Gorsuch wrote in his concurring opinion. "Before holding a lawful permanent resident alien like James Dimaya subject to removal for having committed a crime, the Immigration and Nationality Act requires a judge to determine that the ordinary case of the alien's crime of conviction involves a substantial risk that physical force may be used. But what does that mean?…The truth is, no one knows. The law's silence leaves judges to their intuitions and the people to their fate."

This year, the same justices teamed up in United States v. Davis to overturn a provision imposing mandatory minimum sentences on people who use firearms while committing a "crime of violence," based on the same definition that the Court found unconstitutionally vague in Dimaya. "In our constitutional order, a vague law is no law at all," Gorsuch wrote in the majority opinion. "Only the people's elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements."

Unbridled Bureaucrats

Even when laws are not unconstitutionally vague, they may be ambiguous enough that people disagree about their meaning. When that happens, the Supreme Court has said, judges should defer to the interpretation favored by the agency charged with implementing the law. Gorsuch is a critic of that rule, known as "Chevron deference," because he thinks it violates the separation of powers by inviting executive branch officials to interpret and rewrite the laws they're supposed to enforce. More generally, he argues that administrative agencies have too much power, which threatens individual liberty. Those positions help explain Gorsuch's reputation among progressives, who perceive him as a threat to crucial economic, environmental, anti-discrimination, and public safety regulations.

But Gorsuch's critique of the administrative state is consistent with a constitutionally informed wariness of government power, an attitude that also underlies his positions in cases where he is allied with progressives. In Gutierrez-Brizuela v. Lynch, the 10th Circuit case that is most commonly cited as an example of his opposition to Chevron deference, Gorsuch sided with an immigrant fighting deportation, as he later did in Dimaya. Two years ago in Mathis v. Shulkin, another case where he criticized unfettered bureaucratic discretion, he said the Supreme Court should have heard a veteran's challenge to an arbitrary denial of disability benefits. In Gundy v. United States, a 2019 case in which the Court upheld a federal sex offender law that gives the attorney general broad discretion to decide whether and how its registration requirements should apply to people convicted before the law was passed, Gorsuch's dissent sided with, as he put it, "some of the least popular among us."

As progressives recognize in some situations, it's "the little guy" who is most vulnerable to an executive branch that exceeds its constitutional authority. The same goes for policies that impinge on rights progressives rarely recognize as important. In 2017, Gorsuch joined Thomas in objecting when the Supreme Court declined to hear a challenge to California's discretionary handgun carry permit law, which favors the rich and famous over people of modest means who live in dangerous neighborhoods. He has also praised Thomas' dissent in Kelo v. City of New London, the 2005 case in which the Court approved the taking of property through eminent domain for economic redevelopment. That decision dismayed people across the ideological spectrum because it so clearly empowered wealthy, politically influential interests to bulldoze over the plans and expectations of ordinary people with less pull.

While I don't expect most progressives to agree with Gorsuch about gun control and property rights, they should at least be willing to recognize when his anti-authoritarian instincts work in their favor. "Folks on the left are scared by a certain type of jurisprudential boldness," Berman says, because they see Gorsuch as a threat to important precedents in areas such as the administrative state and abortion rights. In this context, even seemingly progressive positions can look scary.

Although Case Western Reserve's Adler is not sure Gorsuch's take on double jeopardy is historically correct, he says the justice's willingness to revisit the dual sovereignty doctrine shows "he doesn't want to hear that it's OK to keep violating someone's rights or to keep letting people get screwed over just because we've been doing it for a long time." In fact, Adler says, "he is, with the possible exception of Justice Thomas, the least enamored of precedent on the Court, and much of the progressive left is really worried about one precedent in particular"—i.e., Roe v. Wade, the 1973 case in which the Court ruled that the Constitution protects a right to obtain an abortion. Adler notes that "Justice Gorsuch's originalism, combined with his view of precedent, means that he is almost certainly a vote to overturn Roe."

The same could not be said of Merrick Garland, the Obama-nominated Scalia replacement who was blocked by Senate Republicans in 2016. But at the same time, Adler says, Gorsuch has been "far more favorable to criminal defendants than a Justice Garland would have been." For progressives, Gorsuch brings benefits as well as risks, but the latter get a lot more attention. Viewed in a more balanced manner, Gorsuch's nomination should be seen as a redeeming feature of the Trump administration on the left as well as on the right.

NEXT: Roger Stone Found Guilty on All Counts

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  1. For the president’s opponents, “But Gorsuch!” is a gibe aimed at conservatives who cite the nomination as vindication of their support for Trump. But for libertarians, there is an element of truth to that line of defense…

    People have lost their minds over Trump, or his election has exposed the absurdity of believing that any of our pundits, journalists and leaders are great thinkers. But Gorsuch is a real net positive even anti-Trump libertarians have to admit that we were unlikely to get from another administration. (If only the president’s judgment was consistently this good.)

    1. Yeah, Trump’s follow-up nomination was a lame swamp creature.

      1. Yeah, after Gorsuch Kavanaugh was such a disappointment. But hey, after Trump’s in his second term there’s a pretty good chance RBG will finally croak (personally, I’d keep her over Kagan or Breyer any day, but alas they’re still kicking). When that happens, we might very well get another civil libertarian on the court. You can check out the Federalist Society’s short list to see some of the folks who’d likely get talked about again. There’s a few real gems on there.

      2. Everything that rises from D.C. is a swamp creature. Need more western, non california, judges elected.

        This is why the attempts to move various agencies like BLS out of D.C. is so important.

      3. We’ll see what he does for the next one.
        I think Kavanaugh was largely forced on him by Kennedy and establishment Rs

        1. Kavanaugh wasn’t forced on him, Trump had espoused a fondness for Anthony Kennedy as a justice and both Gorsuch and Kavanaugh are Kennedy proteges, as was Raymond Kethledge (one of the finalists for the position that went to Kavanaugh). Kavanaugh isn’t a swamp creature, he’s an independent-minded jurist who votes with no particular partisan bloc (same as Gorsuch). He’s not as strong an originalist as Gorsuch, and I certainly prefer Gorsuch to Kavanaugh, but he’s capable and not ideological in his rulings, which is how Supreme Court justices are supposed to be.

          Something libertarians too often fail to grasp is that reasonable people can differ on interpretations of laws without one of them having a hidden agenda or being a pawn of the state. Understanding and accepting that is the difference between being an adult and being a spoiled petulant child like the leftists.

    2. I am not a Trump supporter, and I agree.

    3. Ditto — the best thing Trump has done, aside from clobbering Hillary and distressing the Democrat to the point that all Democrats are now unalloyed socialists.

      Everything else is just a wash. His deregulation is better than nothing, but that’s a low bar and just temporary. His interventionism is even weaker temporary tea. His tax cuts have been outweighed by his tax increases. He could have done a lot more for gun rights, easily, but that is also down to timid Congressional Republicans, like the two trying to make the other take the initiative.

      His longest lasting good might be bringing the Presidency into disrepute, except any interest the Dems or even GOP have in reclaiming Congressional initiative and power are only temporary until the next President comes along.

      1. So you’re still going with tariffs are taxes despite a signal in reverse to the suggestion in inflationary data? Sometimes you have to work past the simple slogan and actually go look at what occurred.

        1. There’s no way that the tariffs even approach the size of effect of the tax cuts.
          Just wish they’d taken that SALT deduction down to 0

          1. If they’d taken the SALT deduction down to zero, you’d have been hearing howls from everyone. The SALT deduction cap was brilliant politically (thanks to Susan Collins) because it specifically nailed the high-tax states of California and New York, who’d been subsidizing their destructive agendas for years with those federal deductions. Now they’re seeing their tax bases and populations flee as their strongholds lose political power.

            Those states were so far out of whack with the rest of the country, tax-wise, because of their population and home values that it needed to be addressed.

            1. “Now they’re seeing their tax bases and populations flee as their strongholds lose political power. Those states were so far out of whack with the rest of the country, tax-wise, because of their population and home values that it needed to be addressed.”

              Not so sure. I worry that a lot of these Kalifornia refugees are bringing their progtard politics with them and threaten to turn purple states blue (FL) and red states purple (TX). And the entrenched Coasties will make Kalifornia even more deep blue until bankruptcy and demand a Federal Bailout.

        2. Tariffs are taxes. Disputing that is about as economically illiterate as it gets.

          1. You keep repeating it without supplying data just shows an economic ignorance on your part. For an example…

            Suppliers a and b both supply a good. Each one can supply enough for all demand. A tariff on B would cause all demand to go to A but it would be a tax as demand is covered by B. The externality here would be a monopoly formation not a tax.

            Heres the thing about simple slogan economics…. they are always wrong because the market is complex. Demand shifts, markets change, suppliers come and go. Putting a tariff on a supplier can cause a change to a market without a change to the cost of a good or a tax. This is where your ignorance is shining through. This is why we look at data.

            Any decent economist will tell you two things, there are no absolute rules and they will have to wait for tomorrow to tell you why they were wrong today.

            You completely ignore many key elements of economics with your ignorant worship of all tariffs are taxes. Game theory is a valid consideration of economics. You refuse to admit this.

            1. Would not be a tax*

              Consumers would switch to A with no tax on them on the example.

              Likewise a tariff of a good easily replaced or supplemented with another causes a market switch, not a tax.

              Your economic simplicity is telling.

              1. You’re skipping a step.

                A tariff only causes a monopolistic shift to a single provider if the size of the tariff covers the marginal difference in cost of production between A and B at all volume points.

                If B has a lower monetary cost to produce because of either specialization, lower cost of materials, or externalities (ex: pollution) than A, and the tariff doesn’t cover the full difference in production costs then you don’t get monopolistic switching to A, instead you get B paying the tariff because they can still undercut As prices.

                But if their cost of production isn’t static – and it’s never static – then there may be mixed production values. The simplest version of this is with either an integrated mine that has limited production capacity, so that if you want to produce more than your mine allows you have to buy on the market and lose vertical integration, or a factory using water power that would have to start buying electricity to increase production – as long as their volume is within the water power capability then power is free, once they produce enough they have to buy a new power source.

                1. So is this why USS seems to be having more trouble than Nucor.?

                  My understanding is that there is overall decrease in demand, also something about a mining disaster in Brazil raising the price of ore. USS operates blast furnaces. Nucor uses scrap steel and smaller arc furnaces and is thus able to more rapidly react to these kinds of market changes. Thus tariffs have had no positive effect on the steel industry and the imagined increase in industrial capacity remains imaginary.

                  Is that what happened?

                  1. The US will never be economically competitive in raw steel anymore because we have the highest iron ore mining costs. Any tariff that keeps those furnaces open is simply protectionist cuz there’s a huge excess of capacity in the world. Those iron ore mines here aren’t big enough or high cost enough to actually be forced to close but they are high cost enough so that the furnaces nearby (meaning US and Canada which also has relatively high iron ore costs) should shrink to the capacity of that iron supply. EU has the same problem.

                    We have plenty of cheap scrap steel so arc furnaces are competitive with other arc furnaces. But their pricing is constrained by the global excess capacity in raw steel. IOW – the world has created a system where it is always more profitable to suck up resources than to recycle them.

                    The solution for this re steel would have been to monetize steel. Not to put tariffs on it. The US dollar is the reserve currency and steel is one of those industries with very high capital/financing cost everywhere. So capacity expansions tend to occur not because of the short-term price of steel but because of the cost of financing. IOW – one of the side effects whenever our Fed does its housing-bubble subsidies of interest rates here is to induce capacity expansions of those sorts of commodities everywhere else.

                    This is also one of the ways long-term to ‘close the loop’ re recycling commodities. For all commodities, those tend to be less capital/financing-intensive than raw production. But that means when we subsidize capital, production/capacity moves away from recycling towards raw and that pricing problem then persists when interest rates move away from subsidy towards normal/tight.

          2. No response? Sounds about right.

            1. What response is possible? Denying that tariffs are taxes is like denying that 2+2=4.

              What possible proof could I offer for either of those that would convince you?

              Look up “tariff” in any dictionary or encyclopedia. Try Wikipedia. Tariffs are taxes, by definition.

              1. You’re both talking past each other on this. Tariffs are most certainly a form of tax. That is a fact. But so what? The relevant question isn’t whether they’re a tax but whether that tax serves a valid purpose and/or provides a worthwhile good. Tariffs are certainly not desirable, but they’re an often useful tool of politics and allowing one trade partner to engage in them uncontested for decades (as we’ve allowed China to do) is slow suicide for the other partner’s economy.

                Trump has said repeatedly he wants trade agreements with no tariffs at all. China isn’t willing to agree to that because they realize that gives the U.S. too much leverage in negotiations as the largest consumer economy (and because China is primarily interested in trade with the U.S. as a means to destroy us economically and militarily and open their path to world supremacy). So the tariffs by the U.S. address the competitive advantages China gains by imposing tariffs on us and protects our production economy.

                This isn’t a new strategy in using tariffs either…we did the same thing in the early 20th century to protect our economy from Europe doing the same thing (the McKinley-Harding-Coolidge “Full Dinner Pail” platform), and that was one of the most prosperous periods in American history until Herbert Hoover and the Republican Congress made the stupid mistake of assuming that because some taxes were a beneficial thing, much heavier taxes would be a great thing (and passed Smoot-Hawley and hiked the income tax).

      2. Well, tarnishing the image of the presidency in the public’s mind could be useful for motivating some of the less engaged folks to consider that the libertarians might have a point, provided we use the opportunity to drive it home. I think anyone who’s claiming that Trump is some kind of unique existential threat needs to get a prescription to handle their TDS, though. He’s done a few good things for us, mostly bad, and that’s pretty similar to nearly all presidents in recent history. There are always some freedom-obsessed kooks like us around, so we can keep pushing back until we get the message across.

        1. I keep asking for the mostly bad part, and rarely do I get an answer outside of tariffs. So what is the mostly part?

          Trump has been hampered more than any President in history through both the judiciary, investigation, and the media. His record isn’t that deep, but what has been done has been relatively good. This is true of the judges he has appointed (kavanaugh being a disappointment), the tax decreases, the decreased regulations and new rules in place to keep them decreasing, getting NATO to contribute more as they are required to by agreement, etc.

          I’m not sure where the “mostly bad” actually is. Even if you are an open border zealot, most of what he has done has been blocked by the courts, so not even that really counts.

          1. He presents himself as low class constantly?

            “They let you grab them by the (genitalia).” Ring any bells? Not the caricature that those with TDS claim he said (that he actually does so), merely the uncouthness of the actual statement itself.

            Anything he says on Twitter?

            The problem seems (to me) that many expect a genteel President, and we elected Andrew Jackson again.

            For those who don’t subscribe to the Imperial Presidency, and instead look at the role as an investor might look at a fast food restaurant manager in his portfolio, that’s not really an issue. We care more about what he does than how he presents it – of course we’d like a nicer presentation, but not to trade off results.

      3. A mostly fair assessment – but insufficiently factoring the slow-moving Republicans in congress and the past year of single-minded obstructionism by the DemonCRAPS.

        Trump has easily accomplished more for America in three years than the past four presidents did in 28 and is very close to cracking the “top 5 presidents of all time” list. Who would ever have thought that a loud-mouthed, uncouth, combative reality TV show “star” would compete with the likes of Washington and Jefferson.

    4. I think we are all in agreement that Gorusch is a blessing and that Trump should be praised for nominating him.

      1. I think anyone who thinks Trump deserves praise for Gorsuch is seriously giving him too much credit.

        We know how Trump chooses his nominees, right? When he first got in, he let party hacks like Priebus and McConnell more-or-less dictate things for him. Someone gave him a list of SCOTUS picks and said, “choose one.” And he either didn’t care very much about the choice, or he was essentially told that he would lose support in the Senate if he didn’t at least do this one task for them, choosing their own vetted nominees.

        I suspect that we’re now in a phase of his presidency – and this will be all the more true if he is re-elected – where his only criterion for SCOTUS will be, “Will this person vote to protect me, no matter what?” He’s not going to be thinking about the long-term conservative majority or even specific Republican priorities like abortion or gun rights. You can see this in many of his picks for people lower down – “Will this person do what I want them to do?” That’ll be all that matters.

        We’ve seen this in the way he’s managed cabinet-level posts, as well. He didn’t want Barr to head an honorable DOJ, or Pompeo a competent State Department. He wanted a defense attorney and yes-man. And we’ve seen it in the two SCOTUS picks so far, in the trend they lay out. Gorsuch’s judicial philosophy has nothing to do with Trump’s ambitions. But Kavanaugh all but threatened Democrats for attempting to block his confirmation – even though I expect that he’ll mellow out a bit into a Roberts-Alito mix. So I fully expect that his first job requirement for his next pick is going to be, “Do you agree that I can do whatever I want?”

        1. “I think anyone who thinks Trump deserves praise for Gorsuch is seriously giving him too much credit”

          No one cares what you think though.

              1. Gosh, I feel so bullied, I’m going to go cry now.

                1. Put some effort into it.

                  1. I’ll put as much effort into it as the resident insult clowns do.

                2. “I’m going to go cry now”

                  I wish I could believe that. Prog tears are a sign that everything is all right.

        2. Other than the fact that trump first released a list of 11 nominees in like may of 16′ and then revised it to add 10 more names to the list once he won the primaries…

          And reason and volokh both did articles on the lists…

        3. Telling stories about how SCOTUS picks are made.

    5. Unlikely to get from a democrat administration. Any other Republican administration probably would have appointed him. He was already on the top shelf list and squeaky clean. The only credit Trump gets is signing the paper they put in front of him as far as I am concerned.

      People get into this cult like president worship or hatred as far as I am concerned. The president should not have so much power or get this much attention.

      I hear phrases like “the Trump (or Obama whoever) economy”. The president is not the economy. It is as if our whole lives revolve around the supreme leader of the moment. Is this what America was supposed to be?

      I have read that the US president has more power than the Chinese premier Xi and I believe it. Xi is more like the CEO. The secretive committees he must please can boot him out anytime. He does not have much legal power.

      I do follow Israel politics. The US president has more power than Netanyahu for sure. His cabinet is composed of parties who ran against him. Any one of them can pull out and call for re-elections no impeachment needed, which just happened.

      1. Again…trump released his lists of preferred nominees during the campaign.

        Reason AND volokh both did articles on it.

        And to that point trump was the only candidate to do so…

    6. Anti Trump libertarians need to see the reality. Trump not a Libertarian by a long shot but the best that Libertarians can get at this time. At lease mostly favorable judicial appointments, lower taxes and regulation. No Libertarian will win the presidency and the alternative will be Warren, Sanders or others that believe fully in collective rights over individual rights. This Libertarian purity just leaves Libertarians as the peanut gallery. Take small wins and get more elected to the house and senate.

    7. Under the Immigration and Nationality Act, that category included anyone who commits a “crime of violence,” defined as a felony “that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

      “Vague laws invite arbitrary power,” Gorsuch wrote in his concurring opinion. “Before holding a lawful permanent resident alien like James Dimaya subject to removal for having committed a crime, the Immigration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used.

      Wouldn’t burglary qualify as “physical force against the… property of another”?
      Try, convict, sentence him. Let him serve his sentence. Then deport him.

  2. As progressives recognize in some situations, it’s “the little guy” who is most vulnerable to an executive branch that exceeds its constitutional authority.

    Which is why progressives are determined to control the executive by any means necessary, to ensure that the least powerful among us are the most powerful. The more victim-class boxes you can check, the more immune from criticism and questioning you become.

    And, fundamentally, “fairness” to progressives is equality of outcomes which requires Justice remove her blindfold and weigh each decision on a case-by-case basis. To a normal person, this is the height of injustice, to never know ahead of time what the law may require or what the courts may decide the law requires. General rules and principles are anathema to progressives, it prevents them from putting their thumb on the scales, it takes away their power to control.

    You’re never going to get a fair game out of one side who believes a fair game is one where the rules are the same for each side and the other side who believes a fair game is one where the rules are necessarily different for each side such that the weaker side is guaranteed a victory, thereby making the weaker side the stronger.

  3. From a Koch / Reason libertarian perspective, the most important civil liberty is the right of anyone on the planet to immigrate to the United States at any time and for any reason. Until Gorsuch writes an opinion declaring all border enforcement unconstitutional, I will never accept the assertion that he’s good on civil liberties.

    #OpenBorders
    #ImmigrationAboveAll

    1. Open borders is insanity. In a perfect world, where persons wanting to immigrate would try to assimilate and be law abiding it MIGHT work. We do not live in a perfect world. To the contrary, we live across a roughly two thousand mile border from a failed State.

      1. Open borders is sanity. I crossed two open borders this year and it was a joy each time not to be hassled by annoying custom officials.

        1. And you totally settled there too.

          God, somtimes you’re so deeply fucking dumb that I wonder how you feed yourself.

        2. But without border security, who will fondle my testicles and look through my phone? It makes me feel like people care!

          1. Funny. I got picked for a pat down in an airport in Hawaii once. Seemed like the guy was getting kinda frisky so I said “you know, you have to pay extra for this back at the hotel” He was not amused.

            1. I got picked for extra scrutiny once; I asked the agent “Is it Friday night already?” (Usual Suspects) and he told me “it isn’t, but we can go for the strip search if you want to keep it up.” I decided that I’d prefer to go to my plane rather than be a principled comedian.

    2. I thought super-precendent was the most important?

    3. Can’t have open borders if you’re a welfare state, unless you want to go broke. If there’s no dole I’ll accept open borders

      1. Racist! Why do you eat Trumps balls?!

        -Tony

  4. Is reason.com going to acknowledge the Daleiden/CMP verdict? Does reason.com have any thoughts on it’s implications for freedom of speech/1A?

    1. ps – yes it is O/T

      1. It is also the single largest assault on the First Amendment I can recall since McCain/Feingold.

        1. Is this what you mean?
          I see why you believe that, but I also see positives that I doubt any anti-abortion activist will admit. The judge told the jury that the First Amendment is not a defense because the case is entirely about trespass, property rights, and the sanctity of contracts. If any cop had trespassed and broken contracts the way the defendants did, people would be up in arms about the Fourth Amendment, unlawful takings, and who knows what else.

          The most obvious appeal might be the judge’s “connection” to Planned Parenthood, but that is never explained, so I suspect it’s pretty weak, otherwise they’d be playing it up.

          1. The judge also ordered the jury to declare a guilty verdict. The judge was also appointed to the board of an agency with heavy donations from planned parenthood. Social media also shows him and his wife as strong proponents of PP. He disallowed the videos to be played to the jury themselves. He still allowed damages even though PP refuted nothing that wss on the video, so the damages were over their own statements.

            It is one of the biggest judicial scandals in recent memory.

            1. Quit whining, clinger.

              Or not.

              You will continue to lose to, and comply with the preferences of, your betters either way.

              1. My betters can use punctuation properly.

              2. You’re just boring. At least Pod and baby Jeffrey try new ignorant arguments every now and then. You’re just a bore.

              3. Why do you call others “clingers” when you cling to the words of those you antagonize like a senior keyboard warrior?

    2. reason.com generally prayerfully receives the Sacrament of Abortion at the Altar of Planned Parenthood. So the Daleiden/CMP assault on free speech and journalism is unlikely to upset Reason.

      However, once this precedent is used to gore some Progressive sacred bulls, then all will change.

  5. Thou shalt not go against the church of abortion, even while performing journalism:

    “The jury has spoken loud and clear,” said Planned Parenthood attorney Rhonda Trotter after the verdict. “Those who violate the law in an effort to limit access to reproductive rights and health care will be held accountable .”

    1. Planned Parenthood needs to take the Gosnell case to heart, and to start finding and closing any operation run by similar ghouls. Maybe there aren’t any more, now that we have found the idiot who had a jarred fetus collection…but I’m Pro-Choice, and I don’t believe it. The Pro-Choice establishment is too goddamned smug, and sooner or later it will cost us. Gosnell already did, big time.

    2. Planned Parenthood attorney Rhonda Trotter

      In the future people, like her will be regarded like Josef Mengele, Gerhard Wagner and Hermann Boehm are today.

  6. “Among the folks that Trump had on his short list,” observes the Ohio State University law professor Douglas Berman, “Gorsuch seemed more defendant-friendly than most of the others,” and “that’s carried over to the Supreme Court.”

    How difficult was it to find a regular Federalist Society speaker to say nice things about a Federalist Society justice, Mr. Sullum?

      1. Open wider, clinger.

        Or not.

        Your failure to stop American progress, and obsequious compliance with the preferences of the liberal-libertarian mainstream, will continue either way.

        1. Um. You can’t even front an electable candidate lololol

        2. You have never been anyone’s better. It must sadden you to realize that a bunch of malcontents on a libertarian website are smarter, better read, and better informed than you and the people whose assholes you clean with your tongue.

  7. Twitter has a certain bias in its ban on ‘political’ ads:

    “Twitter Says Ban on Political Ads Excludes Those Related to Social Causes, Such as Gun Control and Abortion”
    https://ktla.com/2019/11/15/twitter-says-ban-on-political-ads-excludes-those-related-to-social-causes-such-as-gun-control-and-abortion/

    Not political issues at all, right?

    1. Heh, funny stuff. Everyone laughed at their political ad ban, asked how they would draw the line, and now they have their answer — anyway they want, with the widest marker pen ever seen. They should redraw election district lines with that; no one would know what district they are in.

      1. Or hurricane storm tracking. Works there too.

    2. Quit whining, loser.

    3. Advocacy we favor is not “political”. I am shocked that Twitter’s standard is biased.

  8. AI is getting better, women and minorities hardest hit:

    “AI is learning everything from us. Our biases, too.”
    […]
    “…BERT and its peers are more likely to associate men with computer programming, for example, and generally don’t give women enough credit. One program decided almost everything written about President Trump was negative, even if the actual content was flattering…”
    https://www.sfgate.com/business/article/AI-is-learning-everything-from-us-Our-biases-too-14838693.php

    We certainly do NOT want to admit most programmers are male, nor that most media coverage of Trump is negative!

  9. His work shows that an honest attempt to apply the “original public understanding” of constitutional provisions frequently yields libertarian results, limiting government power and protecting individual rights.

    As an American I say, “Thank God!” I can only hope we get more justices like him onto SCOTUS. I grew up with the belief the primary function of government, as the Founders understood it, was to protect my individual civil liberties. That was the sine qua non of why we even had a government.

    Over time, that changed somehow, and it has not been for the better. Justice Gorsuch is filling a much needed role: a bulwark against the government doing away with my individual civil liberties. I hope he continues with this.

    As a sidenote to Mr. Sullum: Nice job on the article. Informative and told me things I did not know before. So thank you for that.

  10. “Paul Krugman one year ago: Trump’s election has the markets plunging and they will probably never recover”
    https://canadafreepress.com/article/paul-krugman-one-year-ago-trumps-election-has-the-markets-plunging-and-they

    Three years ago now, but it never gets tired.
    You can look it up:
    Yesterday, the Dow broke 28,000 and CA’s jobless rate is the lowest it has ever been measured.

    1. Krugman is a jackass. He’s been a jackass for years. Why anyone reads him bumfoozles me.

      1. Krugman is the modern progressive archetype: abandon any semblance of objectivity and reason, and use legacy authority to promote partisan propaganda. Like the NY times itself.

        1. Your post needs to be preserved for posterity.

    2. You’ll like this article about how krugman is always wrong. And when he explains how he was wrong it is because he is always right.

      https://www.nationalreview.com/2019/11/paul-krugman-always-wrong-never-in-doubt/

    3. Anyone who thinks the Drumpf economy is “good” hasn’t read enough Eric Boehm articles. Or Palin’s Buttplug comments. Or AOC’s explanation why a low unemployment rate is actually a bad thing.

      1. Palin had an awakening a few weeks back.

        1. No, somebody just stole his user name.

          As much as I love Reason.com, I find it disappointing that the commenting system permits such troll-ish behavior.

          #GiveButtplugBackToButtplug

          1. Nope, he had an awakening. Prove otherwise.

    4. Do you figure that, if everything improbably goes his way, Trump actually has a shot at beating Obama’s performance with respect to the stock market?

      1. LOL

        Anybody who has even basic familiarity with Sarah Palin’s Buttplug’s work would know that’s literally impossible.

        #IMissObama
        #DrumpfRecession

    5. Pointing to the Dow like it means anything, particularly in the age of Trump, is pointless. It’s up today? Great! Record-breaking even? That’s pretty neat. And then Trump comes out tomorrow and confirms that no trade deal with China is forthcoming, and then the headlines will be all “greatest plunge since great recession” or whatnot. The point being that, unless you’re in Trump’s inner circle buying options based on what he’s planning to do next, these fluctuations and metrics have ceased to be very meaningful. They express, at best, a barometer of how the markets feel about Trump that day.

      Consumer confidence and employment continue to be high. That’s good. Wage growth is still not accelerating, which is surprising given employment levels. We’re seeing weakness in the manufacturing sector, while retail and services seem to be doing well.

      So the takeaway I have here is that Trump has spent a lot of money (in the form of tax cuts and ordinary federal spending) and pressured the Fed to use up its ammunition in order to counterbalance an inconsistent and unpredictable trade policy in order to more-or-less sustain a trajectory that extends all the way back to the Great Recession. Way to not fuck up, I guess? But just imagine how things might be going if it weren’t for Trump’s numerous self-pwns on trade. We might have been able to retain some of that tax revenue, even, from the TCJA.

      1. Always making up stories. This time about some future market event.

        Reality not emotionally satisfying enough for Dems, so it doesn’t matter to them.

        1. What story am I making up? I’m acknowledging the metrics as they are. There’s no concrete evidence that anything Trump has done is meaningfully contributing to continuing growth. It’s just his ass in the seat for the past three years.

          The metrics tell a confusing story about where we are and where we’re headed. Meanwhile, we’ve got a ton of debt we could have been paying down and a trade policy that is discouraging investment in the manufacturing sector. That’s all factual. Are you saying we’d be worse off if Trump hadn’t pulled out of TPP? If he hadn’t leveled tariffs at several trade partners and threatened many more? That more coal and steel plants would be closing than there are?

          1. Yes, decreasing overbearing regulations never has an effect on economic growth… you really are ignorant.

            1. You have a very inflated sense of how much Trump has done in the “deregulating” category.

              Anyway, three years of a “deregulatory agenda” and… the economy continues to grow as fast as it did during the Obama years, maybe slightly slower. So.

          2. The stock market crash this December is a made up story. Because the future has not occurred. No facts about that time are available.

            Market at all time highs is reality.

            I’m not interested in your parade of made up “what if” stories about TPP or WTF-ever. If any of those things had happened, you can put me down for then space aliens would have conquered the Earth because it’s more entertaining than whatever fantasy story you might invent.

            1. The stock market crash this December is a made up story. Because the future has not occurred. No facts about that time are available.

              What are you talking about? I’m not asserting a stock crash in December or at any other time. I’m just pointing out that we’ve been hearing about crashes and spikes for months now, much of it prompted by intimations made by Trump and his on-again, off-again trade deal with China. Even the most recent “deal” had this effect – first up, when it seemed like one was imminent, then down, when Trump said that he never agreed to lifting tariffs, now up again.

              I’m not interested in your parade of made up “what if” stories about TPP or WTF-ever.

              Right, you’re not interested in assessing Trump’s actual performance. You’re already convinced that he’s been awesome and are just looking for reasons why you’re right.

              1. Actual performance:

                Unemployment at 50 year lows. Markets at all time highs. Economic growth continues on pace. ISIS more-or-less defeated. No new wars. Old wars winding down. Taxes cut.

                1. Unemployment at 50 year lows. Markets at all time highs. Economic growth continues on pace.

                  Like I said, these are great. Could have been better with smarter trade policy or some fiscal discipline, so we’re ready for the next recession, whenever it comes. But I guess we’ll just have to wait for a Democratic president to get elected before your type will start worrying about fiscal responsibility again.

                  ISIS more-or-less defeated. No new wars. Old wars winding down.

                  And my concern is that Trump is laying the groundwork for the Taliban, ISIS, etc., just coming back and once again posing a threat to us and our regional interests in their respective theaters.

                  Israel was not thrilled when Trump turned tail from Syria. Can you understand why that was? And what do you think will happen, after he’s fully given up on achieving peace in Afghanistan? Do you think that the Taliban and Afghanistan governments will just negotiate a reasonable political resolution to their issues?

                  I know you’ll complain that these areas are not our “responsibility,” and I’m not saying that they are. But letting Syria spin back into the Iran/Russia orbit means a nuclear Iran and an Israeli preemptive strike. Chaos in Afghanistan means increased tensions between Pakistan and India and a global terrorist threat there. Trump’s decisions now, while serving narrow, short-sighted interests and pleasing his base, will have long-term effects that we will have to resolve somehow, ten years down the line. And when they emerge, we’ll hear from plenty of experts telling us that, well – this is what every informed person expected to happen. Of course, you’ll be too busy complaining about immigrants to hear them, I’m sure.

                  Taxes cut.

                  And tax cuts are great, when you can afford them. We cut taxes, didn’t bother to cut spending, and are now running up the debt with no responsible politician in sight to do something about it before we’re slammed by another recession, at which point it seems likely that the Fed will be out of dry powder and the budget will be running on fumes. We’ll be spiraling into a debt crisis, but of course you’ll probably be pleased that some fiscal discipline will finally be forced upon us.

                  True patriots, the lot of you.

                  1. “Could have been better…” is a story you’re telling yourself. You don’t know.

                    “Laying the groundwork for…” is a story you’re telling yourself. You don’t know the future. Probably something will happen some time. It always does.

                    Deficit is real, but Dems and the news media have spent the last decade plus telling voters it doesn’t matter. Voters agree it doesn’t matter, and there are no candidates in either party that are serious about the deficit. So Trump is no worse that anyone else on it. Since the deficit would be high in any electable administration, I’ll take lower taxes and better economic growth and more Americans with jobs.

                  2. Revenue increased, albeit minimally, so the tax cuts cost us nothing. Increased retarded spending on the other hand….

      2. My general take is whichever party is in power I never give them credit for good economic news. We do that. We get up and work our butts off, innovate, buy and sell. The government just gets in the way. The government can only screw things up worse than they are already so they get the blame when they do.

        Stock market same thing. It does fluctuate with the news and events of the day, political instability, war both shooting and trade, disasters, all impact in up or down cycles. Investors want stability and trade. When the government causes instability and disrupts trade the market reacts. The stock market rising on news of a potential trade deal just demonstrates that it is reacting to that news. It has been steadily going up because of you and I, despite Trump and all the other asshats.

      3. I don’t disagree with the gist of the stock market isn’t a great indicator, but you (royal you) don’t get to change the metrics on a whim depending on who holds the White House. That would be like holding up U3 under Obama and then complaining that U6 hasn’t changed much under Trump. It’s fundamentally disingenuous.

        *I have no idea if those numbers have changed, just using them as an example.

        1. Just FYI: U6 has improved a lot

  11. Progs are anti-liberty and their hyperbole always deserves to be ignored because they almost always are lying.

    1. Quit whining about losing the culture war, you half-educated bigot.

      1. That’s the 5th time you’ve whined about other people.

        You seem really upset.

        1. “The same principle, he argued, would also require the government to allow ‘any act of consensual homicide,’ including ‘sadomasochist killings, mass suicide pacts…duels, and the sale of one’s life (not to mention the use of now illicit drugs, prostitution, or the sale of one’s organs).’ If the government lets people kill themselves, in other words, it might also have to let them smoke pot.”

          You laugh, but that principle, applied consistently, would also allow people to sell themselves into slavery. (Or maybe that’s what Gorsuch meant to “the sale of one’s life.”)

          1. I’m not quite sure why this comment showed up here. I meant it to be at the top level, not a reply to the Rev.

            But speaking of the Rev., is that really him, or has somebody has stolen his name and started parodying him?

            1. This whole sock puppet and using different names thing is very confusing to me. I have not seen it anywhere else. Honestly I just don’t get it unless it is just because of some kind of pathology.

  12. I like Gorsuch because he’s smart and honest.

    1. He’s your opposite is what you’re saying.

  13. “If the government lets people kill themselves, in other words, it might also have to let them smoke pot.”

    Grotesque. Petty. I believe the kids say ‘A dick move.’

  14. More OT:
    “The great American tax haven: why the super-rich love South Dakota”
    https://www.theguardian.com/world/2019/nov/14/the-great-american-tax-haven-why-the-super-rich-love-south-dakota-trust-laws#Echobox=1573730613?utm_source=pocket-newtab

    Mostly because there’s a R majority in the state government and they’ve pretty much de-regulated themselves into wealth.
    And the Guardian is PISSED that people can keep money there without having to tithe ever goddam politician who walks by!

  15. It seems that, if facts don’t match your narrative, you’ll invent them as needed.

    I am very concerned by the number of authoritarian-leaning judges Trump has appointed to staff the lower courts, but when it comes to the SCOTUS itself I have been pleased by Gorsuch’s apparent independent-mindedness. As a matter of fact, I had been willing to give Kavanaugh the benefit of the doubt – he was on the shortlist of Republican picks for SCOTUS – at least until he clearly lied to the Senate and threw a goddamn tantrum over the possibility that he might not get his dream job, like his appointment was the most important thing that ever happened in this country.

    Personally, I am capable of observing Trump’s actions not through the rage-tinted glasses of the imagined critic, but incrementally as against a hypothetically more “mainstream” Republican president. Neither Gorsuch nor Kavanaugh are particularly surprising or troubling choices, from that perspective.

    Undermining American national security in order to smear a political opponent, though – that’s another matter.

    1. You’re like the complete opposite of me. I was very tepid on Kavanaugh up until the very-conveniently-timed political smear. Him getting pissed about someone essentially inventing charges against him because people hate Trump THAT MUCH is understandable.

      Since then, I’ve been reminded why I wasn’t so hot on Kavanaugh to begin with. Getting mad the witch-hunt political theater that was the CBF hearings is a complete non-issue.

      1. I didn’t like the CBF affair, either. I think it would appropriate, if you’re Kavanaugh, to be angered by that.

        But I expect Supreme Court justices to not break down in tears when they’re exposed to unfair criticism, and not to lie to Congress if they happened to party so long ago that it doesn’t matter now. If he had simply gone along with the ridiculous line of questioning, he would have still been confirmed, just the same. But instead he basically threatened the Democrats that they would regret their actions.

        Not SCOTUS material, as it turned out.

        1. “not to lie to Congress”… lol.

          Wow. You fucking believe everything Vox tells you.

          1. I believe that Kavanaugh partied in college and then lied about that background before the Senate. As do most of his supporters, I might add – “I like beer” being a common chant from around that time. They knew he was lying about that, too. They just didn’t care, because they felt the whole inquiry was illegitimate.

            1. I’ll bet you believe the Russkis stole the election, too.

              1. I don’t believe the Russians “stole” the election, no. I do believe that they hacked the DNC servers and strategically leaked information they uncovered in a way designed to hurt Hillary’s chances and improve Trump’s chances. And I also believe that they attempted to do so in close coordination with the Trump campaign, which the Trump campaign to a certain degree accepted.

                But that’s not just me. That’s the consensus of the Senate, the Mueller investigation, and anyone who was paying attention at the time it was going down.

                1. Darn Russians, letting Americans in on DNC schemes. Those schemes were supposed to be kept secret from Americans. Elections where the DNC’s scheming comes to light are so unfair.

    2. Can you name any authoritarian judges, SimonP?
      What judicial decisions lead you to think which judges are authoritarian?

      1. He can’t even stop making it obvious that he’s the Rev.

        1. Yes, clearly, there’s only one person in the world who would both oppose Trump and spend any time here on you losers.

          1. SimonP
            November.16.2019 at 3:22 pm
            “Yes, clearly, there’s only one person in the world who would both oppose Trump and spend any time here on you losers.”

            Nope.
            Plenty of fucking lefty ignoramuses show up here, you among them.
            Make the world a better and more intelligent place: Fuck off and die where you won’t stink up the place.

            1. I’m not the one accusing everyone of being a sockpuppet for a particularly prolific troll.

            2. You should pay closer attention. Rev has nothing to offer except name-calling. Rev’s posts are dumb and boring and everyone should skip reading them.

              SimonP style is completely different. It’s the usual Democrat thing where a dozen different made-up narratives are stuck together into a conspiratorial worldview. Everything would be great and the world would be a paradise for all in these stories if only Dems had more power. Facts can sometimes be used in the storytelling, but it’s the stories that matter, never the facts. The stories aren’t falsifiable because you can always make up a new story when an old one goes wrong. The present doesn’t matter either, because it’s so easy to make up a story about the future. Or about “what if” the past were different, then [story here].

              You can’t argue against every imaginable alternative past, present and future. And you usually can’t tell a person a story that’s more emotionally satisfying than the ones he tells himself.

      2. The most recent and clearest example I can think of is Neomi Rao, now confirmed to the D.C. Circuit.

        She was part of the panel that heard the case winding its way through the courts, where the House is seeking to get financial information about Trump from his accounting firm. While the panel held in favor of the House, Rao wrote a dissent that could have been from the WH Counsel’s office, asserting that the House had no authority to seek the documents except as part of an impeachment proceeding, because Congress’s general authority to conduct investigations relates only to its legislative power; it could not duplicate the “law enforcement” function of the executive branch by engaging in “criminal investigations.” The same argument has been floated by the WH in order to block the release of the president’s tax returns to Congress, despite the clear meaning of the applicable statutes.

        This is an authoritarian-serving position because it limits the scope of congressional authority and arrogates the president (and the judiciary) the power to unilaterally declare areas of inquiry off-limits. “No legitimate legislative purpose,” according to whom? Well, the president, if Rao et al. get their way.

        1. “This is an authoritarian-serving position because it limits the scope of congressional authority”

          Do you know what else limits the scope of the congressional authority? THE FUCKING CONSTITUTION YOU RETARDED FUCK.

          Please, just keep showing you don’t understand a thing about the government at all. Please keep showing you don’t understand the laws Congress itself put around the release of private information such as tax forms.

          You’re dumber than even Pod.

          1. Nothing in the Constitution constrains congressional authority to subpoena information to just “legislative functions,” and nothing in the relevant statutes permits the president to ignore a clear mandate because he deems a congressional request for his tax returns as not serving a “legislative purpose.”

            But use more capslock, it might make your assertions more convincing.

            1. And nothing in the Constitution grants Congress subpoena power either….

              Instead, it’s implicit in the power to draft legislation to gain information necessary to the effects of legislation, and implicit in the power to impeach to gain information necessary to determine if an impeachment is appropriate.

              The House seems to think so as well, since every House in at least the last few decades started the term by voting in rules about how to issue subpoenas under their legislative power, including this one.

              The Presidents argument is that, like every prior impeachment, for the House to have compulsive power to gain information for impeachment they need to grant themselves that power, and they haven’t done so. It could be as simple as “Any member of this House may issue compulsory subpoenas to any entity for the purpose of impeachment determinations. These order will be enforced by the Master at Arms.”

              1. Instead, it’s implicit in the power to draft legislation to gain information necessary to the effects of legislation, and implicit in the power to impeach to gain information necessary to determine if an impeachment is appropriate.

                And the scope of “information necessary to [determine] the effects of legislation” is to be determined by whom, exactly? The ones potentially subject to constraint by legislation?

                The House seems to think so as well, since every House in at least the last few decades started the term by voting in rules about how to issue subpoenas under their legislative power, including this one.

                The rules in question do not seem to draw the distinction you’re making here. Yes, the House has rules that authorize committees to issue subpoenas. Yes, it has historically determined that the issuance of subpoenas requires this kind of authorization. But nothing in the history or the structure of the Constitution prevents the House from issuing subpoenas relating to individual wrongdoing as part of its legislative function.

                The Presidents argument is that, like every prior impeachment, for the House to have compulsive power to gain information for impeachment they need to grant themselves that power, and they haven’t done so.

                Actually, the president’s argument is also that the only way to gather information relating to his wrongdoing is through the impeachment power. Here is how he (and Rao) seems to think it works:

                Gathering information generally for purposes of legislating: Can be subpoenaed pursuant to a general rule authorizing committees to issue subpoenas.

                Gathering information about a specific individual’s wrongdoing, where the individual is not impeachable, whether or not done with the specific purpose of investigating that individual: Can be subpoenaed pursuant to a general rule authorizing committees to issue subpoenas.

                Gathering information about a specific individual’s wrongdoing, where the individual is impeachable, whether or not done with the specific purposes of investigating that individual: Can only be subpoenaed pursuant to a specific authorization by the House for an impeachment inquiry.

                But that leaves a strange gap; it means that the House can’t investigate the wrongdoing of an impeachable official unless they are willing to actually threaten impeachment. But how is the House supposed to determine whether such a step is required? Indeed, Rao’s own litany of historical examples includes at least a couple of instances where impeachment inquiries became clearly necessary only because of a slightly more “generalized” inquiry that happened upon criminal conduct. It creates this strange, inexplicable blind spot.

                It could be as simple as “Any member of this House may issue compulsory subpoenas to any entity for the purpose of impeachment determinations. These order will be enforced by the Master at Arms.”

                Actually, I am not so sure that Rao would agree, since part of the point of dividing the powers and limiting the House’s “legislative subpoena” power is to ensure that impeachable officials get the benefits of a more solemn, rigorous impeachment process. Again, not one that is expressly provided for in the Constitution itself. But it would seem that I think Rao would take a side-eye view of the perfunctory resolution you’ve proposed.

        2. While the panel held in favor of the House, Rao wrote a dissent that could have been from the WH Counsel’s office, asserting that the House had no authority to seek the documents except as part of an impeachment proceeding, because Congress’s general authority to conduct investigations relates only to its legislative power; it could not duplicate the “law enforcement” function of the executive branch by engaging in “criminal investigations.”

          Really, that is what she wrote? I don’t think so. But let’s assume you’re 100% correct. Where then, is this authoritarian bent that concerns you? Not being facetious, but wondering what you’re seeing.

          1. I’ve looked at the opinion again. I was correct to say that she would hold that Congress could not subpoena information relating to Trump’s wrongdoing as part of its “legislative power.” I was misstating things, however, to say that she felt that Congress couldn’t “investigate” individual wrongdoing; she just felt it must be done pursuant to a specific exercising of Congress’s “impeachment power.” While that serves the president’s interests here, and is consistent with the WH counsel’s positions, it is not quite what I initially attributed to her.

            I view this as authoritarian-serving because authoritarianism and corruption go hand in hand – one promotes and requires the other – and limiting Congressional power to uncover corruption makes it harder for us to put the brakes on a presidency out of control. Imagine if Biden had manipulated U.S. foreign policy on Ukraine in order to protect his son. On Rao’s theory, Congress couldn’t subpoena Hunter Biden or U.S. individuals with any familiarity about how he got his job at Burisma, or gather records that would shed light on what happened, unless and until they specifically opened an impeachment inquiry into Biden. Politically, that would likely have meant that nothing would be uncovered, and nothing done about it.

        3. “This is an authoritarian-serving position because it limits the scope of congressional authority and arrogates the president (and the judiciary) the power to unilaterally declare areas of inquiry off-limits”

          Limiting government authority is “authoritarian”? Not allowing government authorities to snoop into someone’s tax returns is “authoritarian”?

          The word “authoritarian” has a meaning. You might want to learn it and then choose a different word that fits what you’re saying. “Authoritarian” is unrelated.

    3. “until he clearly lied to the Senate and threw a goddamn tantrum over the possibility that he might not get his dream job”

      Just cut-and-pasting your rhetoric right out of your Media Matters “Gaslighting for Fifty-Centers” manual, huh.

      1. It’s so frustrating sharing a democracy with so many people who, when told, “Don’t look behind that curtain!”, obligingly avert their eyes.

        Anyone witnessing Kavanaugh’s breakdown in front of the Senate could see what an entitled asshole he is. His record is what it is. I couldn’t give a shit about CBF (and still don’t). But his demeanor was just not judicial.

        1. If you thought he was an entitled asshole…what did you think the democrats and their lieing witnesses came off looking like?

        2. “could see what an entitled asshole he is”

          The only entitled assholes were the DNC and their acolytes, like you.
          Instead I saw a man who thought he was showing up for a job interview, but instead was treated to a kangaroo court, complete with false witness and a lynching.
          If I was subject to that level of sinister malevolence from those lying clowns, I would have showed far less restraint and probably punched a few.

  16. Most effectively libertarian administration in 20+ years, if not 80 or 90 years.

    Too bad Reason and other libertarian pundits only know how to be negative.

    1. Concur Ben….although the profligate spending does not please me. We have got to get spending under control and get the debt down to less than 5% of GDP. Our national debt is a drag on growth. Money for debt service is money not being used in the private economy.

      1. Won’t happen. That bomb has to explode before voters will admit it exists at all.

        Even deficit hawks won’t agree to lower spending on things they like. And there aren’t many deficit hawks.

    2. +1000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000

  17. Trump’s first Supreme Court pick is better on civil liberties than his critics want to admit.

    He’s taking a hard line on the 3rd Amendment.

  18. This just shows that when it comes to the PC police truth does not compute if the object of their attention does not meet their PC guideline.

  19. Viewed in a more balanced manner, Gorsuch’s nomination should be seen as a redeeming feature of the Trump administration on the left as well as on the right.

    Reason can’t get over their rose-colored Mid-20th Century view of “the left”.

    1. Some of the left’s writings on gorsuch:

      https://slate.com/news-and-politics/2018/01/neil-gorsuch-is-a-terrible-writer.html

      And due to Reason’s one link rule:

      Neil Gorsuch Just Demolished Labor Rights
      His decision, a frontal attack on the New Deal, effectively legalizes wage theft.

      Which Supreme Court Justice Hates Neil Gorsuch The Most?

      How Badly Is Neil Gorsuch Annoying the Other Supreme Court Justices?

      Justice Gorsuch is wrong — ‘originalist’ judges make stuff up too

      Neil Gorsuch Is The Anti-LGBTQ Nightmare His Gay Friends Hoped He Wasn’t

      Left won’t care one wit about Gorsuch or see him as a redeeming feature.

      1. Well he has good hair and that strong jawline. Reminds me of a cleanly shaven Brett Favre. I think they could agree with that.

      2. “Neil Gorsuch Is The Anti-LGBTQ Nightmare His Gay Friends Hoped He Wasn’t”

        That one’s my favorite

  20. I had to like Gorsuch when in the hearings Cruz asked him “ What is the answer to the question of life, the universe and everything?” And he gave the correct answer.

    Seems like he gets all the attention now. What about the other judges? They are going to need to rename the court “Neil Gorsuch & The Supremes”.

    I love how we libertarians cling to anything or anyone who even remotely resembles things libertarian. More libertarian than something else but it isn’t. It is like saying “lasagne is more like pizza than tacos” or that tomato casserole they eat in Chicago which isn’t pizza either.

    We had that taco truck article little while back and I looked up their menu. They had a “chicken and waffles taco” honestly they did. I like chicken & waffles, and tacos but cmon even a libertarian has to have his standards.

    1. “More libertarian than something else but it isn’t.”

      Libertarian isn’t a single state of existence it is a preference or tendency towards an ideal. The real world is largely contingent, better than is indeed a proper consideration.

      There is nothing libertarian that makes the perfect the enemy of the good.

      1. The perfect is the enemy of the good.

        This is an aphorism I live by in a very real way.

        Sutton’s law. https://en.m.wikipedia.org/wiki/Sutton%27s_law

        It is a good start. To each his own choice in life and politics.

        1. “The perfect is the enemy of the good.”

          The perfect can be the enemy of the good.

          Because when you say is you are actually making a perfect statement of truth. Which, in this case, is also a contradiction. So therefore cannot be true.

  21. http://twitter.com/ChanelRion/status/1195405570469244930

    So Ambassador Yavanovich, non partisan civil servant, sent out invitations to a victory celebration planned for her election in 2016

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  23. “The same principle, he argued, would also require the government to allow “any act of consensual homicide,” including “sadomasochist killings, mass suicide pacts…duels, and the sale of one’s life (not to mention the use of now illicit drugs, prostitution, or the sale of one’s organs).””

    EXACTLY. It’s YOUR body.

    1. One’s right to life is inalienable. You cannot justly sign it over to another person.

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  25. That is what Gorsuch thought the Supreme Court should have done in Carpenter v. United States, the 2018 decision that said police generally need a warrant to obtain cellphone location data. Gorsuch dissented, not because he disagreed with the result but because he objected to the majority’s reasoning.

    I like Gorsuch but this is pretty transparent crap. If he had agree with the result but not the reasoning, then he would filed a separate concurrence not a dissent. They are not the same thing Sullum

  26. “Gorsuch appears to be on his way to being the most libertarian justice we’ve had on the Court in some time,” says Case Western Reserve University law professor and Volokh Conspiracy blogger Jonathan Adler.
    #####

    This Libertarian Moment brought to you by the God Emperor and those who supported him over the pants shitting objections of Reason.

    You’re welcome.

  27. usually they’re better judged after they’re gone but I’m happy so far.

  28. Gorsuch has turned out to be much better than expected, as well as consistent and principled. His approach to the right of privacy is outstanding. I often disagree with what he says, but it is a pleasant surprise to see such a high quality justice appointed by such a low quality president.

    Having said that, I have filed many petitions for criminal defendants at the US Supreme Court. All of the justices have voted in favor of my clients the same number of times: zero. Imagine, all those cases, and not even one injustice. They have only taken my cases twice, when the government was appealing to overturn a hard-won opportunity to get a new trial. Possible injustice to the government, and avoiding the inconvenience of a new trial, always gets the highest priority.

    There were some cases where the injustices to the defendant were so obvious that I could not believe appeals were denied. In a case involving life in prison where Gorsuch was on the Supreme Court, 2 judges of the federal court of appeals ruled that yes, there was prosecutorial misconduct, yes, there was perjury by a police officer, yes, the lawyer should have done something about it, and yes, it was prejudicial to the defendant. One judge (the second opinion) found this horribly unjust and a denial of due process and would have granted relief. Another would not (the first opinion), because although the state court was WRONG, the state court was not UNREASONABLY wrong. The third court of appeals judge, who never grants anything for criminal defendants, ruled that the bloody torn jacket in the police evidence room at the time of the killing, but falsely testified to have been seized from the defendant’s residence right after the killing, could not possibly have affected the outcome. Gorsuch and the rest of the gang refused to review it. Therefore, I may hold off my full applause for a while, just as I do with Justice Ginsberg and the rest of them.

    Want to see it? Go to https://scholar.google.com/scholar_case?case=15809189600389338799&q=Phillips+v+Hoffner&hl=en&as_sdt=80000003

    I could write a book. Maybe I will.

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