Former Minneapolis police officer Derek Chauvin has been convicted of murder for killing George Floyd—a verdict that most Americans will likely find just. But of course, that conviction will not bring Mr. Floyd back to life, nor should we suppose that the criminal justice system reliably punishes officers who violate people’s rights. To ensure proper accountability we must eliminate the judge-made doctrine of qualified immunity, which too often prevents civil-rights plaintiffs from holding police and other government officials liable for the harms they commit under color of law.

How many provisions of H.R. 1, if enacted, would be struck down by the courts as unconstitutional? It’s not clear anyone has tried to compile a full list, but the likely answer is, “quite a few.”

To recap, H.R. 1 is the sprawling omnibus bill passed by the House on party lines that would assert federal control over dozens of areas related to elections, political speech, official ethics, and topics further afield. S. 1 is its Senate version. Earlier posts in this space have discussed problems with it here (speech‐​hostile, bossy in areas long left to the sound discretion of the states, largely unrelated to “voting rights” rationale), here (places impossible burdens on local election administrators), here (experienced Democrats have doubts about its consequences and practicality), and here (replaces bipartisan structure of Federal Election Commission with one conducing to one-party control).

* Perhaps the bill’s best known menace to the First Amendment arises from its threat to chill the speech of nonprofit organizations and advocacy groups that speak out on legislation. It would greatly expand the definitions of “electioneering” and “public communication” so as to require disclosure of the names of many persons who donate to organizations that engage in policy‐​oriented speech. To quote an earlier post:

Per a critical account by two ACLU lawyers, that would menace the confidentiality of a nonprofit that bought an ad “criticizing House Speaker Nancy Pelosi (D‐​Calif.) for supporting immigration reform or criticizing Sen. Ted Cruz (R‐​Tex.) for opposing the Equality Act.” That “could directly interfere with the ability of many to engage in political speech about causes that they care about and that impact their lives by imposing new and onerous disclosure requirements on nonprofits committed to advancing those causes.”

But that’s only one among many problems.

* The bill’s passages claiming constitutional authority, and many of its advocates, point out that Article 1, Section 4 of the Constitution (the “Elections Clause”) gives Congress broad power to enact laws governing the “time, places, and manner” of elections for U.S. House and Senate. That does establish a broad zone of discretion to enact laws governing Congressional elections, even if it’s not clear whether the phrase “time, places, and manner” can stretch to include all the different changes and practices the law would mandate.

But the bill would also impose many of the same mandates on states’ handling of presidential elections. On that, Congress’s enumerated power to legislate arises under a different and much narrower clause, Article 2, Section 1 (the “Electors Clause”), which extends to date and time but not to manner. A state attorney generals’ letter taking issue with the bill argues:

That distinction is not an accident of drafting. After extensive debate, the Constitution’s Framers deliberately excluded Congress from deciding how presidential electors would be chosen in order to avoid presidential dependence on Congress for position and authority. [citing 2 Records of the Federal Convention of 1787 109 (M. Farrand ed. 1911)] Accordingly, the Supreme Court, in upholding a Michigan statute apportioning presidential electors by district, observed that the Electors Clause “convey[s] the broadest power of determination” and “leaves it to the [state] legislature exclusively to define the method” of appointment of electors. McPherson v. Blacker, 146 U.S. 1, 27 (1892) (emphasis added). The exclusivity of state power to “define the method” of choosing presidential electors means that Congress may not force states to permit presidential voting by mail or curbside voting, for example.

Before leaving the topic, it is worth noting that the Seventeenth Amendment as to the Senate, and Article 1, Section 2 as to the House, provide that “The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.” Some provisions of H.R. 1 however would require states to admit as voters in Congressional races persons who would not qualify to vote in elections for the more numerous branch of the state legislature.

* Because redistricting reform is an interest of mine, one of the first things that struck me about the bill was its scheme requiring all state governments to establish independent citizen commissions to handle House districting, and micromanaging to an extreme degree how they are to go about that task. Merits aside — and I share the view that legislative insiders have abused redistricting power often enough that it’s worth looking for alternatives — the particular mechanism chosen here almost seems devised on purpose to invite scrutiny under the line of Supreme Court cases forbidding Congress from “commandeering” or “coercing” states into doing things like passing new laws and creating new agencies. (Beyond that, some Justices on the Court may remain suspicious of whether vesting legal authority in independent citizen redistricting commissions can be reconciled with prescribed constitutional structure in the first place; in 2015, a more liberal high court than we have now upheld Arizona’s pioneering commission against constitutional attack by only a 5–4 margin, in an opinion written by the late Justice Ruth Ginsburg and joined by Justice Anthony Kennedy.)

* A provision purporting to require the federal judiciary to develop a code of conduct governing Supreme Court justices would run smack into the constitutional status of the Article III judiciary as an independent and coequal branch of government.

* In a critique of the bill that also gets into its First Amendment, federalism, and enumerated-power infirmities, Northwestern law professor John McGinnis foresees that a provision requiring presidential candidates to release their tax returns would not survive as enforceable given the Court’s previous disapproval (as in the term limits case) of laws that have the effect of adding further qualifications to those specified in the constitutional text.

* I’ve saved the most emblematic instance for last (although I have no reason to believe that the list of constitutional violations stops there, nor any idea where it does stop). As a grab bag of progressive proposals most of which have circulated for years, the bill includes provisions requiring online platforms to keep public logs of ads on political topics. If this sort of enactment sounds vaguely familiar, I’ve written about it before in this space. In 2018, following disquiet over Russian ads in the 2016 election, my own state of Maryland enacted something called the Online Electioneering Transparency and Accountability Act, ignoring multiple warnings from Gov. Larry Hogan and others that it was likely unconstitutional. Major newspapers sued — their online operations were to be regulated as platforms because they attract numerous public users — and in 2019 a Fourth Circuit panel, confirming a district court ruling, struck down the law. Judge J. Harvie Wilkinson’s opinion called it “a content-based law that targets political speech and compels newspapers, among other platforms, to carry certain messages on their websites. In other words, Maryland’s law is a compendium of traditional First Amendment infirmities.”

And yet the current bill includes provisions that former FEC chair Brad Smith calls “nearly identical” to those struck down in 2019. 

To put it bluntly, the sponsors of H.R. 1 won’t even drop the parts of their bill that courts have already declared unconstitutional. I wonder whether they’re even trying to convince the rest of us. 

The California high-speed rail project was originally projected to cost $25 billion and is now projected to cost $100 billion. It was originally expected to be complete by 2020; now they are saying some time in the 2030s. Since they don’t have the money to complete it, it may never get done, and the part that will be finished serves the least-populated part of the route.

Hawaii has its own rail debacle that sounds like California’s system on a smaller scale. Honolulu decided to build a rail transit line that was originally projected to cost less than $3 billion. The latest estimates are that it will cost $12 billion including finance charges. The line was supposed to open in 2020; now they are saying 2031. But that date may be irrelevant because the transit agency building the project is $3 billion short of what is needed to finish it, and the part that will be finished serves the least-populated part of the route.

These two examples are a little extreme, but rail transit projects on average cost about 50 percent more than their original projections and very few end up costing less than 20 percent more than projected. While it is too soon to tell for California or Honolulu rail, ridership projections also average 70 percent more than actual ridership. A planning process that systematically overestimates benefits and underestimates costs is effectively biased towards capital intensive, high-cost projects.

This makes it particularly frightening that the Biden infrastructure plan calls for spending $85 billion more on transit. Transit carries only 1 percent of passenger travel in the United States and zero percent of freight, yet under Biden’s plan it would get nearly as much money as highways, which carry more than 85 percent of passenger travel and nearly 40 percent of the nation’s freight.

Biden’s proposal specifically calls for bringing “rail service to communities and neighborhoods across the country.” But rail transit was rendered obsolete by buses nearly a century ago, which is why between 1920 and 1975 around a thousand cities replaced rail lines with buses. Only when the federal government agreed to pay part of the cost of building new rail lines did many transit agencies get interested in new rail transit construction. Since then, the number of cities with rail transit has quintupled.

This is just one way in which the Biden infrastructure plan will waste money. Another is a “fix-it first” provision associated with Biden’s proposed highway spending. Although highways nominally get a little more money than transit ($115 billion vs. $85 billion), the “fix it first” rule means that states will not be able to build new roads until all existing roads are considered to be in good condition. No such rule will be applied to transit.

In fact, America’s state highways and bridges are already in pretty good condition. The number of bridges rated to be in “poor” condition has declined from 124,000 in 1992 to 45,000 in 2020. The average roughness of pavement has also declined, meaning fewer potholes. These improvements were made without a giant infrastructure bill.

Transit infrastructure, meanwhile, is in terrible shape and deteriorating faster than agencies are maintaining it. The latest estimate is that transit needs $174 billion to get into a state of good repair. (It would cost a lot less to convert most rail transit to buses, which could be done in most cities whose initials are not NYC without harming transit systems.) If a fix-it first rule should be applied to anything, it would be transit.

An even more fundamental flaw with the Biden plan is that it completely ignores recent events, namely the pandemic. Even after everyone is vaccinated, it is expected that more people will work at home, fewer jobs will be located in downtowns, and more households will move to lower density areas. All of these changes hurt transit ridership, which is not likely to recover to more than about 75 percent of its pre-pandemic levels. This is a bad time to increasing spending on transit infrastructure.

The federal government should stop giving cities incentives to build expensive rail transit lines they don’t need. If Congress really wants to help infrastructure, it should just give money to the states based on a formula that takes population, land area, and miles of passenger travel and freight shipping (or user fees) into account and let the states decide how to spend the money.

U.S. Citizenship and Immigration Services (USCIS) announced today that it would use its authority granted to it by Congress in December to increase the H‑2B visa cap by 22,000 for the second half of fiscal year 2021. The H‑2B visa program—which is for nonagricultural seasonal jobs—has an annual cap of 66,000 that is equally divided between the two halves of the fiscal year. All H‑2B jobs must be offered to U.S. workers before employers can hire guest workers.

The increase is far lower than the demand for visas, and it will cause many businesses to have unfilled positions. The Department of Labor (DOL) announced in January that it had already received more than 96,000 requests to certify H‑2B positions as unable to be filled by U.S. workers (which DOL almost always certifies). USCIS included no explanation for why it decided 22,000 visas, specifically, were appropriate. What follows is a proposal for USCIS to fix the process for releasing supplemental H‑2B visas that will be submitted as a part of a regulatory comment in response to USCIS’s request for ways to improve the immigration system.

USCIS should amend its H‑2B regulations to create a permanent process governing supplemental H‑2B cap increases.

For each of the last five fiscal years, Congress has enacted a provision in DHS annual appropriations that permits the agency to raise the H‑2B visa cap “upon the determination that the needs of American businesses cannot be satisfied … with United States workers who are willing, qualified, and able to perform temporary nonagricultural labor.”[1] The provision allows for an increase of up to 64,716,[2] but USCIS has never increased the cap to the extend permitted under the law.

USCIS has never adopted permanent regulations governing how it will implement this provision. While it is a temporary provision, Congress has repeatedly reenacted it, so USCIS should prepare now for how it would handle this situation in the future, adopting permanent regulations governing supplemental H‑2B caps. USCIS’s current permanent regulations also conflict with its temporary regulations insofar as the permanent regulations require a purely random selection when the petitioned for positions exceed the cap at, while the temporary regulations have imposed additional steps and requirements.[3]

Moreover, USCIS’s temporary rules have imposed unnecessary uncertainty on businesses seeking to hire workers legally and forced them to keep jobs unfilled. These temporary rules suffer from numerous deficiencies:

1. USICS has not issued the temporary rules on any consistent schedule. The table below lists when the provision became law, when the cap was reached, and when the temporary rule was finalized (or, in the case of 2020, announced that no cap increase would be forthcoming).[4] USCIS has never finalized a temporary rule in less than two months, and it has often taken even longer after the cap was reached to decide. In Fiscal Year 2021, the agency took nearly 4 months after Congress authorized it to increase the cap to decide whether it will do so and by how much. Each passing year since 2017, USCIS has taken longer to decide the supplemental cap after the provision is enacted by Congress, even though Congress has started to pass the provision before the cap is filled. These delays can have devastating consequences for businesses and evidence the need for a permanent rulemaking to determine the schedule and methodology for H‑2B supplemental cap increases. The USCIS Ombudsman has said that “delays at any point in [the H‑2B] process can have severe economic consequences for U.S. employers.”[5]

2. USICS has never allowed public comments on the temporary rules’ methodology and timing of cap increases. In part because of the long delays in issuing them, USCIS has always cited “good cause” to waive this requirement of the Administrative Procedure Act since so much economic harm would result from any delay in the determination. This only further bolsters the case for issuing a permanent rule governing supplemental cap increases, which would allow USCIS to receive and incorporate public feedback into the next year’s supplemental cap.

3. USICS’s temporary rules have not adopted a consistent or transparent methodology for deciding the amount of cap increases. The best reading of the congressional provision is that Congress wanted USCIS to increase the cap whenever the Department of Labor (DOL) determined that a “willing, qualified, and able” U.S. worker was not available, which is what the DOL labor certification process does. Nonetheless, in 2017 and 2018, USCIS increased the H‑2B visa cap by 15,000 and 15,000—citing the number of returning workers exempted from the cap in 2016. In 2019, USCIS cited increased demand to justify increasing the cap by 30,000 without explaining where the number came from. In both cases, it claimed that this would be sufficient to meet the demand for workers, yet the Government Accountability Office has found that many employers did fail to fill positions.[6]

Moreover, as the table below shows, the ratio of H‑2B certified positions to H‑2B statuses granted has exceeded the level in 2016 every year, despite the cap increases.[7] If USCIS had wanted to model the cap increase on the 2016 level, it should have controlled for the change in demand. If DOL had maintained the same ratio of labor certifications to statuses granted, the cap increase should have been about 30,000 in 2017 (not 15,000), 40,000 in 2018 (not 15,000), 42,000 in 2019 (not 30,000), and 49,000 in 2020 (not 0).

To resolve these issues, USCIS should propose a permanent rule governing supplemental cap increases. The permanent rule should simply authorize H‑2B status grants up to the maximum allowable under the congressional authorization as long as DOL certifies the positions as unfilled. Short of this, it should clarify that the supplemental cap will be based on that year’s labor certifications, using the 2016 ratio of statuses to certification. The permanent rule should also make the supplemental visas available on April 1, the start of the second half of the fiscal year and the date when nearly all second half jobs start. It should not require additional filing to access the supplemental cap. But whatever the particulars, USCIS should adopt a permanent rule for H‑2B supplemental cap increases so that employers have certainty and can plan ahead.

The Wall Street Journal reports this afternoon that the Biden administration is considering ordering cigarette makers to lower nicotine to non-addictive levels in tobacco cigarettes. It is also considering banning menthol cigarettes, which are popular among young people and are particularly popular with African American smokers. What could possibly go wrong?

First, there is reason to fear that cigarette smokers will increase the number of cigarettes they consume to compensate for the decrease in the desired effects of nicotine. Cutting the nicotine yield might have the unintended consequence of smokers taking more puffs, inhaling more deeply, and holding the smoke in longer. While nicotine is addictive, the tars in tobacco smoke are what do all of the damage to health. Reducing nicotine content might paradoxically make smoking more dangerous.

As public health professor Michael Siegel once pointed out:

By focusing on increases in nicotine yields as if they are necessarily harmful to public health, anti-smoking groups are implying that decreases in nicotine yields would be a good thing. But the truth is that reduced nicotine yields could be harmful to public health because they would likely increase cigarette consumption (due to compensation), leading to increased tar delivery and higher rates of lung and other cancers as well as chronic lung disease.

Then, of course, there’s the matter of prohibition, and its associated violence. It seems the policymakers never learn from mistakes.

When Bhutan completely banned tobacco sales it spurred a surge in tobacco smuggling. By 2017 Bhutan led Southeast Asia in per capita tobacco smokers. Exorbitant cigarette taxes in New York City aimed at reducing smoking make the city the “cigarette smuggling capital of America.” Black market sales of individual cigarettes, or “loosies,” are now a flourishing profit center.

It doesn’t take a vivid imagination for anyone who has the slightest familiarity with this country’s disastrous experience with alcohol prohibition, or the catastrophic effect of the war on drugs, to conjure where mandated nicotine cuts and bans on menthol cigarettes will lead.

Transit ridership at the Santa Clara Valley Transportation Authority (VTA) has declined in every year since Nuria Fernandez was made CEO of San Jose’s principal transit agency at the end of 2013. By 2019, transit fares collected by VTA covered just 9 percent of operating costs, far lower than the national average of 32 percent. VTA light-rail cars carried an average of just 14 passengers, compared with a national average of 24. Most San Jose light-rail “trains” are just one car long, meaning they could easily be replaced by buses at a huge savings to taxpayers.

VTA light rail: a model of government waste. Notice the HOV lanes that could have supported buses carrying more people to more destinations than the light-rail line.

Before Fernandez arrived, VTA had spent billions of dollars building a light-rail system that did nothing but jeopardize the agency’s finances, which in turn contributed to the dramatic decline in ridership: Between 2002 and 2019, the region’s population grew by 15 percent yet transit ridership fell by 29 percent. While she didn’t make the decision to build those light-rail lines, she is proud that she was able to get federal funding to help build a subway line into downtown San Jose.

Downtown San Jose has less than 3 percent of Silicon Valley’s jobs, making the region profoundly unsuited to rail transit, which is primarily designed to bring large numbers of people into downtown job centers. Meanwhile, VTA and other regional bus service is so bad that Apple, Facebook, Google, and other companies have hired their own fleets of buses to bring employees to their work centers.

If VTA had focused on buses instead of rail construction, it could have provided some of that transportation. Apparently, Fernandez and VTA’s board agree that the agency’s main mission is to create construction jobs and contractor profits, not to safely move people around the region.

Under Fernandez’ management, VTA’s response to the pandemic has been lackluster at best. When the state of California issued mandatory directives to transit agencies to protect employees and customers from COVID-19, Fernandez told the VTA board of directors that the directives were “just a guidance” and didn’t have to be followed in detail by VTA. After two VTA employees died of the virus, the state of California to fined the agency for health and safety violations because VTA failed to ensure that passengers and employees wore masks. VTA has also failed to install the best-available filters into its bus and railcar air circulation systems.

Given Fernandez’ track record and President Biden’s love for obsolete passenger rail transportation, it is no surprise that Biden nominated her to lead the Federal Transit Administration. As FTA administrator, Fernandez will become the chief cheerleader for Biden’s proposal to spend an additional $85 billion on transit. This will give many other transit agencies the opportunity to become more beholden to rail contractors than to transit riders. Transit ridership is likely to never recover after the pandemic, but under Biden and Fernandez, expensive transit expansions will continue whether anyone rides transit or not.

In the infamous case of Kelo v. City of New London, the Supreme Court allowed the city of New London, Connecticut to take Susette Kelo’s little pink house (also the name of a very good movie about the case) via eminent domain for the “public use” of furthering economic development in the town’s Fort Trumbull neighborhood. The fight in that case was over the meaning of the words “public use” in the Fifth Amendment’s Takings Clause, and whether the words provide essentially any limit on what a municipality or legislature says is “public use.” In Kelo, one of the major beneficiaries of the Fort Trumbull redevelopment plan was Pfizer, which received tax breaks from the city to build in the neighborhood. Pfizer never actually built anything, and in 2009 it closed its New London facilities. The land is still vacant, with some residents using it for gardening. A community center is now planned for the land.

Kelo created an understandable backlash, as 45 states passed some sort of reforms (some toothless) to their eminent-domain practices in the wake of the decision. But the first backlash came from the four dissenting justices, led by Sandra Day O’Connor, who wrote that the consequences of the Court’s decision would be dire:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more.

Fred Eychaner is not exactly someone with few resources, but he still found his land in the crosshairs of Chicago officials who wanted to give it to a politically connected business. His land in the River West neighborhood was two blocks north of the Blommer Chocolate Company. According to the Eychaner’s petition to the Supreme Court, “to secure Blommer’s support for a zoning change, the City of Chicago condemned Eychaner’s property to give it to Blommer.” Stretching the broad holding of Kelo even further, the city “based the taking on a finding that the area was at risk of future blight.” 

Eychaner filed suit in federal court arguing, among other things, that the city’s taking of his property is not for a “public use” as the term was understood in 1791, when the states ratified the Fifth Amendment, or during the subsequent century of judicial interpretation. From the 1790s until the early 20th century, state courts took the lead on takings law and for the most part held the narrow view that “public use” meant ownership by, or access to, the public. Still, a minority of state courts during this period took the broad view that it means anything a legislature determines to be useful to the public.

In the early to mid‐​20th century, however, the Court’s takings jurisprudence transformed. In 1954, in Berman v. Parker, Justice William O. Douglas upheld the District of Columbia’s confiscation of non‐​blighted property as part of a broader anti‐​blight program, declaring that “when the legislature has spoken, the public interest has been declared in terms well nigh conclusive.” Translation: whether something is for a “public use” is to be determined by the legislature, and there are very few legal avenues to challenge the claim that a taking is for the “public use.”

Of course, if a legislature is free to define “public use” without a court’s exacting appraisal of its constitutionality, then, as Justice Clarence Thomas put it in his Kelo dissent, those words become essentially meaningless. This would be contrary to the Court’s longstanding view that all of the Constitution has actionable meaning, and that no words are “hortatory fluff,” as Justice O’Connor put it in her separate Kelo dissent. Berman should have been an outlier, but in 1984, in Hawaii Housing Authority v. Midkiff, the Court doubled down on the basic holding. Then, in Kelo, Justice John Paul Stevens, who later called it the “most unpopular opinion that any member of the Court wrote during” his 34‐​year tenure, misread precedent to uphold Berman and Midkiff, adding that A-​to‑B transfers are even permissible for the incredible “public use” of “economic development.”

Cato has filed an amicus brief urging the Supreme Court to take Eychaner’s case and reconsider Kelo. If a legislature’s definition of “public use” is “well nigh conclusive,” then the justification for a taking need not stop at reversing existing blight or promoting economic development, but may, as Chicago argues here, extend to the apparent danger of “future blight.” This is perilous terrain, and the slippery slope is steep. There are a lot of reasons legislatures might want your property, and if they can claim mere potential blight, then no one’s property is safe. Under Kelo, as long as the taking is not pretextual or completely arbitrary, then an eminent‐​domain action that is claimed to be for public use is acceptable, even though it’s just an unconstitutional A‑to-​B transfer. This is anathema to both the spirit and words of the Takings Clause, and counsels overturning Kelo before the misguided Berman and Midkiff precedents become even more dangerous.