hab·i·tat ˈhabəˌtat/​noun: The natural environment of an organism, the place that is natural for the life and growth of an organism; the natural home or environment of an animal, plant, or other organism.

Seems straightforward, right? Unless, of course, you’re the U.S. Fish and Wildlife Service (FWS), which in its role administering the Endangered Species Act (ESA) classified land where a species doesn’t live and can’t survive as “critical habitat” that is “essential” to the survival of that species. Yes, FWS redefined basic terms in the English language and designated a parcel of land in Louisiana as critical habitat for the “dusky gopher frog,” despite the parcel’s utter unsuitably for sustaining the frog’s life cycles.

When the Weyerhaeuser company challenged the FWS designation, first the district court and then the U.S. Court of Appeals for the Fifth Circuit applied Chevron—the doctrine whereby courts give hands-off treatment to agencies when they interpret statutes—and deferred to the agency’s rule. This, even though Chevron itself doesn’t allow “arbitrary and capricious” interpretations.

The Supreme Court agreed to hear the case. Cato has now filed a brief supporting the property owner, joined by the New England Legal Foundation. We argue that the FWS interpretation of the ESA is unreasonable and that this aggrandizement of federal power to regulate property goes beyond constitutional limits. The idea that land that is uninhabitable for a species is nevertheless “essential” to its survival is unmoored from even government logic.

Put simply, the FWS effectively rewrote the ESA in a way Congress never authorized—and could not constitutionally permit. Even if one accepts that the ESA fits into Congress’s power to regulate interstate commerce—in which case critical-habitat designation is undoubtedly a necessary part of the scheme—that power has limits. Mere existence of land does not constitute “economic activity” under the Commerce Clause; if it did, all land in the United States would be subject to federal jurisdiction (as is the case in federal enclaves). Likewise, the regulation here doesn’t fit into the Necessary and Proper Clause. It’s not necessary because the land at issue plays no role in the frog’s conservation; it’s not proper because it infringes on state sovereignty over land-use regulation.

As Judge Priscilla Owen nicely summarized in her dissent from the Fifth Circuit’s decision, the practical implications of the flawed ruling are immense: “If the Endangered Species Act permitted the actions taken by the Government in this case, then vast portions of the United States would be designated as ‘critical habitat’ because it is theoretically possible, even if not probable, that land could be modified to sustain the introduction or reintroduction of an endangered species.”

When it hears Weyerhaeuser v. U.S. Fish & Wildlife Service this fall, the Supreme Court should reverse the lower courts’ determination to allow the federal government to control everyone’s backyards for no particular reason.

One of the jobs of a think tanker is to synthesize information from other sources and put it in the context of his or her particular field. Hard data are particularly important to our work because data are measurable outcomes from policy and practice in the real world. No one cares what anyone at Cato “feels.” Feelings have their place, of course. Measuring the feelings of a particular group or groups of people can be useful in the aggregate because people will act in accordance with those feelings, but those feelings make up just another metric on which we collect data to explain the world. Reliable data and provable outcomes are fundamental to shaping and forming effective public policy.

As irritating as strict libertarians may find it, several bodies within the federal government are very good at collecting and analyzing data. One of these bodies is the U.S. Sentencing Commission. From the USSC website:

The U.S. Sentencing Commission, a bipartisan, independent agency located in the judicial branch of government, was created by Congress in 1984 to reduce sentencing disparities and promote transparency and proportionality in sentencing.

The Commission collects, analyzes, and distributes a broad array of information on federal sentencing practices. The Commission also continuously establishes and amends sentencing guidelines for the judicial branch and assists the other branches in developing effective and efficient crime policy.

The Commission publishes data on the impacts of sentencing, the levels of recidivism among different populations of the formerly incarcerated, and other inputs and outputs related to our federal carceral system. For criminal justice researchers of all levels, the Commission provides detailed and easily accessible information about how federal policy and law translate into practice and outcomes.

Another component of the Commission’s work is passing along recommendations about sentencing law to Congress. Reasonable people may disagree with these recommendations, but the Commission clearly bases its recommendations on the best available data they have collected and analyzed. Individuals of all ideological persuasions should want any nominee to the Commission to share this dedication to data collection and evidence-based practices. Instead, President Trump nominated William “Bill” Otis.

Otis is an adjunct professor at Georgetown University Law Center and spent many years in the Justice Department. He has continuously lambasted bipartisan efforts to reduce sentences and remains a stalwart proponent of the “tough on crime” rhetoric of the 1980s, warning of great crime waves that will follow widespread sentencing reduction.

Otis marshals no empirical evidence for his claims—because there isn’t any. And that’s the problem.

To be clear, I’m not worried about Otis’s nomination because he’s conservative. Plenty of conservatives work on criminal justice issues, and some have led the way on reforms. Republican governors and GOP-controlled legislatures in Georgia, Texas, and other “red” states have passed significant criminal justice reforms that reduced prison and jail populations while also reducing crime rates. When presented with evidence-based opportunities to help individuals and save public money, many realized criminal justice reform could be a conservative cause.

The problem is, as Julie Stewart, the founder of Families Against Mandatory Minimums wrote in 2015, “Otis is impervious to facts and evidence.” Put another way, Bill Otis is interested in the politics, not the policy, of criminal justice.

The mountains of data that support less carceral policies and alternatives to incarceration have not swayed Otis’s rhetoric at all. When a man who had benefitted from reducing the sentence for a crack cocaine conviction brutally murdered a woman and two children, Otis was quick to blame the shortened sentence:

Three people, including two children, are dead today because of early release from a duly imposed, lawful and fully deserved federal drug trafficking sentence.

How many times were we lectured that those released under lowered sentencing rules would be only “low level, non-violent offenders?” I don’t know, exactly. Hundreds if not thousands.

Question: How many more lives are the congressmen and senators who support the [Sentencing Reform and Corrections Act] willing to see sacrificed for their “we’ve-been-too-tough” agenda?

An exact number, please, gentlemen. We want to remember who you are on election day. And we will.

It’s Willie Horton all over again.

Yes, a few people who are incarcerated for drugs may do horrible things when they get out. Most of them, even those who commit new offenses, will not. According to several Commission reports, the most common reason for re-arrest among federal drug offenders is a violation of supervision policies—that is, getting drunk or committing some other minor infraction—and certainly not murder.

The latest data from the Sentencing Commission shows no statistical difference in recidivism among those released early under new drug sentencing guidelines and those who served the longer sentences:

The recidivism rates were virtually identical for offenders who were released early through retroactive application of the [Fair Sentencing Act] Guideline Amendment and offenders who had served their full sentences before the FSA guideline reduction retroactively took effect. Over a three-year period following their release, the “FSA Retroactivity Group” and the “Comparison Group” each had a recidivism rate of 37.9 percent.

These data coincide with previous data from the Commission that measured the effects of crack cocaine sentencing retroactivity that found no significant statistical difference between recidivism among those who got out early and those who served the full sentence.

All this is not to say that policymakers should not find ways to reduce recidivism, no matter how serious the offenses are. But Otis’s belief that serving long drug sentences will make convicted individuals more lawful citizens is at odds with what liberals, conservatives, progressives, and libertarians in criminal justice have found in years of research and by measuring the effects of new policies put into practice. The push for reducing incarceration is not a conspiracy of groups taken in by George Soros and Al Sharpton, as Otis suggested in 2016, but a broad coalition of individuals, organizations, and lawmakers who look at the evidence and formulate policy accordingly.

The Sentencing Commission provides, among many other things, a trove of information that can teach us more about how our policies do and do not work. Otis’s nomination signals a return to reactionary politics based on what some people think and feel, rather than what they can show and prove.

I was in the courtroom for this morning’s argument in Trump v. Hawaii, otherwise known as the “travel ban” case. Recall that this is Travel Ban 3.0, which is the most detailed executive action regarding entry restrictions yet. Indeed, Solicitor General Noel Francisco called it the most detailed immigration proclamation ever (in contrast to earlier ones by President Carter regarding Iranians and President Reagan regarding Cubans).

It’s an odd case: as Neal Katyal, lawyer for Hawaii and the other state and private challengers, put it, if Donald Trump hadn’t made all his various campaign statements and tweets about Muslim bans, “we wouldn’t be here.” In other words, “no president has ever said anything like this.”

In a normal case involving an executive action over national security, no court would ever second-guess the president. But this isn’t a normal case or a typical president, so the Supreme Court struggled mightily over a travel ban that, all sides seem to agree, wouldn’t be a legal controversy if any other president had implemented it. Indeed, the whole course of the litigation would’ve been different if Travel Ban 1.0—the one President Trump signed his first week in office without interagency process or guidance to the line agents who were supposed to implement it, causing chaos at airports—had been skipped and we’d gone straight to the more fully lawyered 2.0. I doubt there would’ve been quite as much judicial resistance and treatment of this president differently from the president.

But that’s a historical counterfactual, so you go to court with the facts you have.

Of course, it’s not that unusual for a court to apply a law to factual circumstances that were never contemplated. Here, the relevant immigration provision gives the executive wide discretion to deny entry to any type of foreigner when citing great national interest—and it’s not hard to square that with other provisions regarding nondiscrimination in granting visas. Courts don’t get to review that kind of determination.

That really should be the end of it, even if one thinks, as I do, that the travel ban doesn’t do much for national security and has a greater symbolic than practical effect. And it should be the end of it regardless whether one think that in his heart of hearts Donald Trump has anti-Muslim animus.

Chief Justice John Roberts will try mightily to cobble together a coalition to make this case go away on jurisdictional or other narrow grounds. Justice Neil Gorsuch seems ready to join him (presumably Justice Clarence Thomas too), while Justice Samuel Alito was clearly with the government on the merits. Justice Elena Kagan was the only one on the left who raised pointed questions of Katyal; given her views on administrative law and the breadth of the immigration statute here, she’s “gettable” for some sort of technical compromise. To do so, the Court would likely have to finesse Sale v. Haitian Centers Council (1993), in which it found claims against immigration-related executive actions to be justiciable (before recognizing the executive’s broad discretion in this area).

Given that weird cases make for bad law, we can only hope that, however the Court rules, no strong precedent is set.

In an April 21 editorial, the New York Times succumbs to the false narrative reverberating in the media echo chamber that blames the opioid overdose crisis on doctors overprescribing opioids to their patients in pain. Even worse, the Times perpetuates a significant component of that narrative: the myth that such overprescribing can essentially be traced to nothing more than a single letter to the editor by researchers at Boston University in the New England Journal of Medicine in 1980 touting the low addictive potential of opioids when prescribed in the medical setting. 

In fact, numerous studies before and after that now “infamous” letter continue to demonstrate the low addictive potential of medically prescribed opioids. For example, 2010 and 2012 Cochrane systematic analyses show chronic non-cancer pain patients on opioids have a roughly 1 percent addiction rate, and a January 2018 study by researchers at Harvard and Johns Hopkins of more than 568,000 “opioid naïve” patients over 8 years who were given opioids for acute postoperative pain showed a total “misuse” rate of 0.6 percent. In a 2016 New England Journal of Medicine article, Dr. Nora Volkow, the Director of the National Institute on Drug Abuse, stated, “Addiction occurs in only a small percentage of patients exposed to opioids—even those with preexisting vulnerabilities.” Furthermore, researchers at the University of North Carolina followed 2.2 million North Carolina residents prescribed opioids in 2015 and found an overdose rate of just 0.022 percent—and 61 percent of those overdoses involved multiple other drugs.

The Times then offers the same restrictive strategy—only more so— that is doomed to fail because it is based upon a false premise. The editors even suggest that opioids should be restricted to terminal cancer patients. Look at where this approach has gotten us thus far.

The prescription of opioids to patients peaked in 2010, with high-dose prescriptions down 41 percent since that time. A report last week from IQVIA showed opioid prescriptions dropped 10 percent in the last year, and high-dose prescriptions dropped 16 percent. The Drug Enforcement Administration ordered a 25 percent reduction in opioid production in 2017 and another 20 percent reduction this year. And since 2010, OxyContin has only been available in an abuse-deterrent form and many other opioids are likewise being reformulated. 

Yet the overdose rate continues to climb, and the majority of overdoses are due to fentanyl and heroin while the overdose rate from prescription opioids has stabilized or even slightly receded. The great majority of overdoses involve multiple drugs. In New York City in 2016, 75 percent of overdoses were from heroin or fentanyl and 97 percent of overdoses involved multiple drugs—46 percent of the time it was cocaine.

The opioid overdose crisis has always been primarily a manifestation of nonmedical users accessing drugs in a dangerous black market caused by drug prohibition. 

Policymakers must disabuse themselves of the false narrative they continue to embrace. It is the driving force behind a policy that has returned us to the “opioiphobia” of the Nixon era. It is making patients needlessly suffer and increasing the death rate by driving nonmedical users to more dangerous and deadly alternatives.

Investment adviser Ray Lucia conducted some seminars that ran afoul of the Securities and Exchange Commission. The SEC fined him $300,000 and, more importantly, barred him from working in the field after an SEC administrator determined that he had misled prospective clients in a quasi-judicial proceeding that the SEC investigated, prosecuted, and adjudicated without any appreciable oversight. He made a federal case out of the rather apparent separation-of-powers violation, which culminated in today’s Supreme Court argument in Lucia v. SEC. (For more background, see here.)

The central issue in the case is whether the SEC’s administrative law judges (ALJs) are “officers of the United States” such that they have to be appointed by and ultimately accountable to the president. That question in turn turns on how much discretion they have and whether their rulings change parties’ legal rights—or, given certain precedent, how you would write a rule that distinguishes officers from mere employees. 

After argument, Lucia remains hard to predict. A couple of justices (Stephen Breyer, Sonia Sotomayor) seemed dubious that the operations of a significant part of the government could be jeopardized based on what seemed to them to be legalistic technicalities. A couple of others (John Roberts, Neil Gorsuch) seemed to recognize the constitutional problem with the way administrative law judges are appointed but wonder how to write the opinion and apply the proper remedy. The rest seemed genuinely puzzled as to what to do with this case, and weren’t fully satisfied with any of the arguments presented.

None of the justices seemed particularly interested in the “removal power” aspect of the case, which the United States raised in its brief and Cato also covered in our brief. But all were troubled by the potential ramifications of ruling one way or another, because so many federal decisions could potentially be affected.

However this ends up, the case shows two things: (1) the importance of appointing judges and justices who take constitutional structure seriously, because that’s the ultimate guarantor of liberty, and (2) the incredible and unaccountable sprawl of the administrative state. 

A decision is expected by the end of June.

Over the weekend, USA Today reported that state and local law enforcement have acquired far less military equipment this year than they had at this point last year. This decline came in spite of President Trump’s executive order last August that removed some administrative hurdles to getting some of that equipment that had been implemented by the Obama Administration. The story contains a number of plausible explanations for the decline, including decreased demand from local departments and certain items not being available. There may be several factors at play in what appears to be a dramatic decrease in acquisition, but whatever the underlying reasons, the reduction is the latest evidence that much of the pro-police rhetoric and actions of the Trump Administration are less about improving police efficacy than they are about promoting the administration’s hollow posturing.

Recall that local police aren’t always jazzed about aggressive enforcement of federal immigration policy. Police who depend on the trust of the community to solve crimes and intervene in personal crises have been vocal about Trump’s impact on local crime enforcement. There are troubling signs that domestic violence and sexual assault are being underreported in Latino communities because of the distrust the administration is sowing between those communities and law enforcement. Over-the-top actions, such as raiding courthouses and seizing victims seeking protection and justice, erode public safety by enabling abusers and rapists to prey on their victims without fear of arrest or criminal charge. The cruel irony is that so much of this damage is done under the guise of restoring “law and order.”

Time will tell whether this decrease in military gear acquisition represents a genuine shift in local police priorities or is simply a lull that may end at the first sign of potential unrest in American cities. But some critics may take comfort that making it easier for police departments to attain new weapons of war didn’t automatically lead them to do it. Hopefully, the growing evidence that police militarization is detrimental to public safety and harmful to community relations is starting to sink in with local police, even if Washington isn’t listening. 

Marc Thiessen, a columnist at the Washington Post, is highly upset that the Senate Foreign Relations Committee may not approve President Trump’s nomination of Mike Pompeo to be Secretary of State:

For the first time in the history of the republic [since the committee started recording votes in 1925], it appears increasingly likely that a majority of the Senate Foreign Relations Committee will vote against the president’s nominee for secretary of state. If this happens, it would be a black mark not on Mike Pompeo’s record, but on the reputation of this once-storied committee.

Thiessen seems to think that the role of the Senate Foreign Relations Committee, and by extension the United States Senate, is to approve a president’s nominees. But of course, the Constitution provides that “The President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” The Heritage Foundation’s Guide to the Constitution affirms that “the Senate has complete and final discretion in whether to accept or approve a nomination.” The Foreign Relations Committee is today considering whether to consent to this nomination. The Senate as a whole may choose to reject the negative recommendation and consent to the nomination. (See also the novel and movie Advise and Consent, on TCM this Friday.)

It’s not that members of the committee don’t have legitimate grounds on which to withhold consent. Sen. Rand Paul, a key player as he is likely to be the only Republican on the committee to oppose the nomination, says:

Director Pompeo has not learned the lessons of regime change and wants regime change in Iran.…

President Trump sought to break with the foreign policy mistakes of the last two administrations. Yet now he picks for Secretary of State and CIA Director people who embody them, defend them, and, I’m afraid, will repeat them. I will not support their nominations.

One need not agree with that criticism to acknowledge that it’s a reasonable concern on which to reject a nominee.

Thiessen is a former speechwriter to Secretary of Defense Donald Rumsfeld and President George W. Bush, which might give him an executive-branch view of Congress’s role. Before that, however, he served for six years as spokesman and senior policy advisor to Senate Foreign Relations Committee Chairman Jesse Helms, whose willingness to use his position to block presidential nominees was well known. He mentions Helms’s support of President Clinton’s nomination of Madeleine Albright for Secretary of State, but omits the nominees Helms blocked or tried to block, such as Massachusetts governor William Weld and former senator Carol Moseley-Braun.

Thiessen concludes his excoriation of the Senate Foreign Relations Committee with a flourish: Assuming he is confirmed by the Senate, Pompeo “would be more than justified in determining that the State Department is best served by working closely with the appropriators and Senate leadership, and bypassing a committee that can’t make policy, can’t legislate and can’t lead.”

His real complaint, however, is not that the committee can’t lead. It is that the Senate Foreign Relations Committee won’t blindly follow.