I wasn’t a fan of Sotomayor’s appointment to the Supreme Court, and what I found particularly disappointing about her nomination, aside from her judicial philosophy, was the furor of identity politics which surrounded it. Nothing has really caused me to reassess that stance, though I have no problem giving credit where it is due. Sotomayor was right to dissent in Utah v. Strieff, and the mostly conservative majority was wrong. Unfortunately, the hyperventilating coverage of her dissent from the political left is again myopically focused on identity politics.

The facts of the case were not in dispute. The stop of Strieff was acknowledged by all to be illegal. The question was whether, upon happening to find an outstanding warrant, any evidence uncovered during the stop would then be admissible. The majority said it would. I find this troubling, and think it severely undermines Fourth Amendment protections by not punishing officers for undertaking illegal searches.

Sotomayor, along with Ginsburg and Kagan, were in the minority. One passage of Sotomayor’s dissent, not joined by the others, has gotten particular attention. It reads:

[T]his case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274–283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.

Aside from the vague social justice-y “until their voices matter” bit, which has no legal or policy meaning that I can deduce, I think she’s generally on the money.  The leftwing coverage of the matter, however, has been atrocious.

Ethan Epstein at the Weekly Standard (I don’t know what his/the magazine’s opinion of the decision is, though I suspect it’s not the same as my own) accurately captures the vacuousness of much of the leftist coverage in his mocking headline, “You Won’t Believe What Happened When Justice Sotomayor Dissented.”

It’s not just the clickbait-style breathlessness of their coverage which is so exasperating, but also the weird fixation on Sotomayor’s personal characteristics instead of the quality of her opinion. The Nation, before changing its headline (hopefully due to realizing how stupid it was), declared “Sonia Sotomayor’s Epic Dissent Shows Why We Need People of Color on the Supreme Court.” (For those keeping track, “People of Color” is the current approved nomenclature, though it will no doubt be rotated out soon enough). The New Republic assessed, “Sonia Sotomayor just showed the value of having a ‘wise Latina’ on the court.” This apparent obsession is worth noting because it can lead to false conclusions on how to reach better judicial decisions.

Insofar as Sotomayor’s got it right, it was due not to her race but her defense of the clear intent of a key Constitutional protection. She is not, after all, the only minority on the court, and her fellow “POC” voted with the other side. In my original critique of the boosters of Sotomayor’s appointment, I noted how the reverence to identity is inconsistent, employed by the left when it serves ideological interests and tossed aside when it does not. They certainly have never respected the “lived experience” of Clarence Thomas.

To the point, if we want a SCOTUS more consistent in its defense of individual rights, it will not come from appointments based on whatever personal characteristics happen to be the most important according to the identity politics of the day. It will come through recognizing the proper role of the Court as a patrolman on the border of governmental power, a last safeguard against the persistent encroachment of state authority on individual rights through enforcement of clear Constitutional limits.

New York Police Commissioner William Bratton is confused by the fact that more and more states and their voters are embracing liberty minded drug policies.

In a radio interview yesterday, New York Police Commissioner William Bratton said violence associated with marijuana trafficking in his city should give pause to advocates of legalization. “In New York City,” Bratton told AM 970 host John Catsimatidis, “most of the violence we see around drug trafficking is involving marijuana, and I have to scratch my head as we are seeing many states wanting to legalize marijuana.”

I suppose his confusion is understandable given his apparent ignorance of the consequences of prohibition. What these other states know and Commissioner Bratton does not is that prohibition does not eliminate the market for a good, but rather drives it underground in the black market where crime is more likely to occur.

The negative effects of prohibition are not a secret. It is well understood, for instance, that the production and sale of alcohol is not an inherently violent trade, despite its close relationship with organized crime during Prohibition. This occurred for a multitude of reasons. Prohibition significantly increases the costs of a good, which creates a strong profit motive. But because entering the market requires breaking the law, only those comfortable with doing so move to capture those profits. And if they don’t mind breaking the law to make and sell a product, they’re less likely to care about breaking it to fight, often with violence, their competitors.

Prohibition also increases health risks for users. Product quality declines on the black market, where information on who produces what and how are necessarily hidden from consumers, and torts are not available to hold producers liable for subpar product. The Iron Law of Prohibition also states that, for reasons of economic efficiency, product potency increases in concert with the level of enforcement. Put another way, “the harder the enforcement, the harder the drugs.”

All of this is to say that what Commissioner Bratton sees are the products of prohibition itself, not justifications for it. Sadly, he is also providing a demonstration of how bad government tends to beget more bad government.

It seems obvious. The tax code is a complicated mess that everyone agrees should be simplified. Yet it doesn’t happen. Why not?

As it turns out, quite a few people don’t want to be rid of the current code, as I explain in this recent column at EveryJoe.

Sadly, tax code opacity and complexity is seen as a feature by the ruling class. The problem has been understood for decades yet only ever gets worse. Nothing gets done about it because politicians and the parasite class benefit tremendously from the complexity of the tax code, and as far as they are concerned, the less that you know is being taken from your wallet, the better.

First and foremost, a complex tax system makes it easier for politicians to reward their friends and allies by auctioning off loopholes in exchange for campaign dollars. K Street is filled with lobbyists that make a mint off of securing favorable tax treatment for special interests. These deals only work because no one on the outside can possibly track what any particular change to an obscure section of the byzantine tax code means in the real world.

Another significant political benefit of the withholding system is that it reduces the taxpayer anger toward Washington that would otherwise be felt during tax season. Paradoxically, some taxpayers even look forward to tax day because they will get a refund! What’s not great about getting money, right? Nevermind that it was money they worked for in the first place, and that by overpaying the IRS throughout the year they’ve effectively reduced the value of their earnings (there’s no interest from forced loans to the IRS). Yet taxpayers still perceive the influx as a positive event, and that’s good for politicians who like to tax and spend.

Find the rest of the piece here.

Would you like that with cream, sugar, or a lecture on race relations? The Starbucks CEO seems to think his customers are clamoring for the latter, as that’s what he’s offering with a campaign called ‘Race Together:’

In a video message, Schultz urges “partners” to write the phrase on their paper cups “to facilitate a conversation between you and our customers.” A USA Today supplement, set to be published March 20, includes a number of “conversation starters,” including the fill-in-the-blank question: “In the past year, I have been to the home of someone of a different race ___ times.”

Here’s a thought, how about you just shut up and give me my coffee.

That’s probably giving too much credit to the impact this PR-aimed initiative will have on most customers, but do we really need yet another conversation on race that goes nowhere? How many of these unproductive conversations must we have before it begins to sink in that obsessing over race at all times is part (though just a part) of the problem?

And must every economic transaction come attached with social and moral grandstanding, as is the current trend (with Starbucks being a prolific offender)?

One of the great values of the free market is that the incentives are toward tolerance. At times in the past that incentive has been overwhelmed by stronger social prejudices, but trade still promotes tolerance. And that’s because it allows people to interact that otherwise don’t like one another (for whatever reason). Trade strips transactions down to their core of value for value and thereby reduces social conflict.

Americans disagree with their peers on a lot of issues, and yet in most contexts it doesn’t matter. But if every economic transaction must be accompanied with exchanges of social and political values, some of those exchanges will inevitably result in unnecessary conflict. Society would become more fractured, not less.

On the other hand, here we all are talking about Starbucks. Even if it’s just to slam their CEO’s ham-fisted attempt at playing white savior, I suppose that’s an advertising win.

The government gets away with a lot that clearly violates the rights of the people. My most recent column at EveryJoe considers whether it might be getting away with a little bit less in the near future.

First, the good news. The Supreme Court agreed to hear a case that could have significant impact on property rights. It’s brought by California raisin farmers who were fined massive amounts by the government simply for selling their crop. You see, in America – the land of the free and the home of the brave – it’s rarely ever true that you can juts make a product and sell it. You must jump through hopes to produce your goods, then jump through more to sell them.

…Raisin farmers were promised a return on their forced contributions, but over time saw ever dwindling returns. In 2003 the government confiscated 47% of their crops and provided zero compensation. Let me say that again. The government stole nearly half of all raisins produced without compensating farmers at all.

…When it hears the case later this year, the Supreme Court has the opportunity to breathe life back into the Takings Clause and make clear that the law does not allow for such blatant government theft.

The other bit of positive news comes from an unexpected source. As one of his last acts as Attorney General, Eric Holder recently announced new restrictions on civil asset forfeiture, which allows police and prosecutors to take money and property from citizens never convicted of a crime if they can plausibly argue a tangential relation of the property to a suspected crime. It is then put on the citizen to prove their innocence, or more specifically, the innocence of their property. And I kid you not, the government actually “charges” the property in question, which results in bizarre case names like United States v. $124,700 in U.S. Currency or Nebraska v. One 1970 2-Door Sedan Rambler (Gremlin).

…In apparent response to this growing awareness, Holder’s order declared that “Federal adoption of property seized by state or local law enforcement under state law is prohibited.

But there are some important caveats to both pieces of news, which you can find out by reading the whole thing here.

Of all the things that ought to receive widespread bipartisan support, the basic expectation that it is the job of Congress to pass law and the job of the President to enforce it should be near the top of the list. But Trey Gowdy’s ENFORCE the Law Act (H.R. 4138), which grants either House of Congress, or both, standing to bring civil suit against the President or agency heads within the Executive Branch for failure to enforce binding law, passed the House recently 233-181, with all 181 no votes coming from Democrats.

To what, we must wonder, could they have found objectionable? It is indeed the proper role of the Executive Branch to execute laws – it’s even in the name! It is, likewise, perfectly fitting to ask the Judicial Branch to adjudicate dispute between the other two. And it’s well within the power of Congress to establish the proper juridiction and procedures for such.

As Rep. Growdy highlights in the beginning of his speech above regarding the act, President Obama was once deeply concerned about the balance of federal power and the need for the Executive Branch to both enforce the law as well as not operate outside its bounds. He even endorsed the idea of turning to the courts to resolve interbranch disputes. That was important to Senator Obama, but now President Obama is threatening to veto it on the erroneous grounds that it “violates the separation of powers.” In typical Newspeak fashion, the claim is exactly the opposite of the truth. But he can put his pen down, as Harry Reid is likely to exercise his iron grip on the Senate to ensure once again that nothing useful gets done under his watch.

As Rep. Growdy also covered in his speech, process matters. The Founders spent a lot of time and effort on establishing a specific process for government because they understood it to be vitally important to the success of the American experiment. Since that time the Executive Branch has expanded immensely and systematically worked, through Presidencies of both parties – to undermine that process. Their is no rational argument beyond a naked desire for power and to be without accountability for the President to oppose additional oversight of the Executive Branch’s most basic and fundamental responsibility – enforcement of the law – or for other members of his party to stand in way of its passage.

Nick Gillespie, “Are Social Cons Saving Liberalism? Roger L. Simon Thinks So, Sees Libertarian Shift as Future of Conservatives, GOP:”

Any energy coming from Republicans these days is because of the large failure of Barack Obama and liberal Democrats’ political agenda and because of the libertarian wing of the GOP and its focus on civil liberties, foreign policy, and fiscal rectitude. It’s not because cultural warriors are getting the vapors over the gays or drugs or the need to triple defense spending.

Ilya Shapiro, “IRS Illegally Expands Obamacare:”

Cato and the Pacific Research Institute have now filed an amicus brief supporting the plaintiffs on their appeal to the U.S. Court of Appeals for the D.C. Circuit. While it is manifestly the province of the judiciary to say “what the law is,” where the law’s text leaves no question as to its meaning—as is the case here with the phrase “established by the State”—it is neither right nor proper for a court to replace the laws passed by Congress with those of its own invention or the invention of civil servants. If Congress wants to extend the tax credit beyond the terms of the Affordable Care Act, it can do so by passing new legislation. The only reason for executive-branch officials not to go back to Congress for clarification, and instead legislate by fiat, is to bypass the democratic process, thereby undermining constitutional separation of powers.

Todd Zywicki, “Dionne v. Hayek:”

So why is central planning not only unwise, but dangerous to liberty? This is Hayek’s key insight that escapes Dionne… Hayek’s great insight was that moving economic decision-making from individual decision-making through the market to collective decision-making through the state does not eliminate the economic problem. The reality of economics is still present: scarce resources and unlimited wants. The only question is “Who decides?” Do you decide for yourself (through markets) or does someone else decide for you (through politics)?

Doug Bandow, “Free the Inside Traders:”

Objectively, the insider trading ban makes no sense.  It creates an arcane distinction between “non-public” and “public” information.  It presumes that investors should possess equal information and never know more than anyone else.

It punishes traders for seeking to gain information known to some people but not to everyone.  It inhibits people from acting on and markets from reacting to the latest information.

Does anyone remember when President Obama  met with Republicans in 2013 to press for bipartisan reform and simplification of the tax code? What about when the minimum wage was raised to $9 an hour? Or how about when he cut red tape on new oil and gas development? I hope no one does, because none of these things happened despite each being featured in President Obama’s 2013 State of the Union Address.

When George Washington delivered the first State of the Union in 1790, it took just 833 words. Last year’s SOTU took President Obama a whopping 6,800 words, just short of one hour’s worth of oration. Among modern Presidents, he’s the most verbose besides Bill Clinton. Thomas Jefferson didn’t even bother showing up (there’s no requirement in the Constitution that a President “give to Congress information of the State of the Union” in person) in 1801, and the nation survived just fine for more than a century before Woodrow Wilson finally revived the practice.

When President Obama delivers his speech for 2014, it will no doubt be filled with grand calls for reform and sweeping changes to the nation that he has administered for the last 5 years. Yet little if any of what he prescribes is likely to happen in the coming year.

The dirty secret of the presidency is that presidents have far less say over what happens then they or the media let on, and truly ought to have even less. Other than serving as Commander-in-Chief of the armed forces, the president is really just an administrator, or glorified bureaucrat. Congress makes the law and holds the ultimate power over the direction of the nation; the president in turn carries it out. At least, that’s how it’s supposed to work.

Presidents have political power, to be sure, and can influence the actions of Congress through various means. But most presidents have enough political capital to push just one or two major initiatives per term. The rest of the time is spent in a largely reactionary capacity, responding to unexpected events as they happen.

Pundits and politicos love the State of the Union, as it’s a chance to ply their craft with greater public attention than usual. If you’re into that sort of thing, I’d highly recommend following the live blog from the Cato Institute with analysis from their numerous experts. But if you are just curious as to what to expect for the coming year, I wouldn’t bother. The 2014 State of the Union address will be largely the same as that of 2013, 2012, 2011..etc. – full of sound and fury, but signifying nothing of import about what will really happen in the year that follows.

Nick Gillespie, “Shut Up and Shop This Turkey Day:”

As Calvin Coolidge put it famously to a bunch of newspaper editors back in 1925, “The chief business of the American people is business.” Just as you can’t have Thanksgiving without a meal that fully no one actually enjoys (and a guest list that always seems only slightly less arbitrary, resentful, and ill-mannered than the manimals in The Island of Dr. Moreau), you can’t have a functioning free-market economy without massive amounts of shopping. Every day is “Buy Nothing Day” in North Korea and look where that’s got them.

John Stossel, “Thankful for Property:”

This idea that happiness and equality lie in banding together and doing things as a commune is appealing. It’s the principle behind the Soviet Union, Medicare, the Vietnam War, Obamacare and so on. Some communal central planning is helpful, but too much is dangerous. The Pilgrims weren’t the first settlers on the East Coast of the New World to make this mistake.

John Fund, “Reid’s Law:”

Democrats say the crippling of the filibuster will make government more efficient and allow legislation to pass more easily. But there is a downside to majoritarianism and the “efficiency” it brings. As Phil Kerpen, author of the 2011 book Denying Democracy, told me: “The filibuster change will make it far more likely that major legislative accomplishments can be swept away in the next swing of the political pendulum. Public policy will be less stable and long-term business planning will be confounded.”

Jason Kuznicki, “This One Weird NPR Story about Manure Explains Our Government:”

You mean large farmers love these regulations? Of course they do! In fact, larger firms love regulations in general. And if you happen to love regulation, well, I gotta tell you – your love may or may not be well-founded. But one thing’s for sure: It’s killing the smaller, more local firms. Regulation is one of the main explanations for why corporations must be so large, so impersonal, and so powerful in our society.

Roger Pilon, “Harry Drops the Bomb:”

The Democratic hypocrisy on the subject boils down to this. After sitting on George W. Bush’s appellate court nominees during his first two years when they controlled the Senate—never even holding hearings—Democrats for the next two years, after losing the Senate in the 2002 midterm elections, conducted unprecedented filibusters of Bush’s appellate court picks—all of which ended only with the “Gang of 14” compromise in 2005. But now that the Republican minority has used that same practice—directed this session only at the latest D.C. Circuit nominees—Democrats have moved to strip it from them—and not by a two-thirds vote of the Senate, as Senate rules require, but by a simple majority. It’s heads I win, tails you lose.

Jonah Goldberg, “Obamacare Schadenfreudarama:”

During the government shutdown, Barack Obama held fast, heroically refusing to give an inch to the hostage-taking, barbaric orcs of the Tea Party who insisted on delaying Obamacare. It was a triumph for the master strategist in the White House, who finally maneuvered the Republicans into revealing their extremism. But we didn’t know something back then: Obama desperately needed a delay of Healthcare.gov. In his arrogance, though, he couldn’t bring himself to admit it. The other possibility is that he is such an incompetent manager, who has cultivated such a culture of yes-men, that he was completely in the dark about the problems. That’s the reigning storyline right now from the White House. Obama was betrayed. “If I had known,” he told his staff, “we could have delayed the website.”

This is how you know we’re in the political sweet spot: when the only plausible excuses for the administration are equally disastrous indictments.

Doug Bandow, “Americans Are Living Better Then They Have At Any Point In Human History:”

Look around your home or workplace and you see the fruit of continual innovation.  These products permeate our world.  Human creativity and ingenuity—punctuated with a mix of luck and hard work—constantly transform our lives, leaving us far better off as a result.

Few things better illustrate Adam Smith’s axiom that people can simultaneously benefit the rest of us while pursuing their own interest. Of course people should do good.  But they often do best while trying to advance themselves.

Alex Berezow, “20 Tips for Analyzing Claims of a Scientific Study:”

One of the big problems in science journalism is the tendency to hype scientific research. You’re familiar with the routine: A new study comes out on, say, how coffee might lead to a slight increase in a particular disease. Then, plastered all over the front pages of websites and newspapers are headlines like, “Too Much Coffee Will Kill You!” Of course, the following week, a different study will report that coffee might protect you from another disease, and the media hysteria plays out all over again, just in the opposite direction.