HIT & RUN BLOG

"Trump already looks like a thought experiment you'd make up to scare liberals straight about the concentration of executive power," says the Cato Institute's Gene Healy, who has a cover story in the current issue of Reason arguing that Obama's "most lasting legacy" will be to "leave to his successor a presidency even more powerful and dangerous than the one he inherited from Bush."

In our latest podcast, Healy chats with Editor in Chief Katherine Mangu-Ward about the most likely long-term impact of a president once touted as our first civil libertarian in the White House—and it won't be what "your neighbor who put a 'Hope' sticker on his Prius" had in mind.

Click below to listen to that conversation—or subscribe to our podcast at iTunes.

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Everett Collection/NewscomClimate science is politicized from top to bottom. One of the nastier spats occurred in 2012 when Competitive Enterprise Institute (CEI) policy analyst Rand Simberg intemperately denounced Pennsylvania State University climate researcher Michael Mann as "the Jerry Sandusky of climate science."* Sandusky, of course, was the Nittany Lion football coach convicted of child molestation. Simberg was critiquing the fact that the Penn State had just exonerated Mann of accusations of scientific misconduct. Columnist Mark Steyn piled on in the National Review declaring that the university's "'investigation' by a deeply corrupt administration was a joke."*

Mann sued CEI, Simberg, Steyn and National Review for defamation. The defendants all moved that Mann's case be dismissed on grounds that their observations and opinions were protected by the free speech guarantees of the First Amendment. Now the D.C. Court of Appeals has ruled that Mann's defamation lawsuit may proceed. In her opinion for the three-judge panel Judge Vanessa Ruiz wrote:

Tarnishing the personal integrity and reputation of a scientist important to one side may be a tactic to gain advantage in a no-holds-barred debate over global warming. That the challenged statements were made as part of such debate provides important context and requires careful parsing in light of constitutional standards. But if the statements assert or imply false facts that defame the individual, they do not find shelter under the First Amendment simply because they are embedded in a larger policy debate.

Over at The Washington Post's Volokh Conspiracy, Case Western Reserve University law professor Jonathan Adler warns that the court's decision "is tremendously unfortunate, as it threatens to make it too easy for public figures to file lawsuits against their critics and, as a consequence, threatens to chill robust political debate."

So what's the threat to free speech? Adler explains:

• Sdecoret / Dreamstime.comPresident-Elect Donald Trump tweeted that America should expand its nuke program until the rest of the world "comes to its senses" on nuclear weapons.
• Ivanka Trump was harassed by a passenger on a JetBlue flight. The passenger was booted off after apparently yelling at her that her father was "ruining the country."
• When a black church in Mississippi was burned in November, people believed/assumed it was a hate crime. Now authorities have arrested a parishoner they accuse of setting it.
• Florida's Supreme Court ruled today that more than 200 people on death row were given unconstitutional sentences. This is a result of a previous U.S. Supreme Court decision that declared the way the state implemented the death penalty was unconstitutional.
• German authorities are searching properties connected to Tunisian Anis Anri, their suspect in the deadly truck crash attack in Berlin. His fingerprints were found on the truck.
• Carl Icahn will be Trump's adviser for overhauling regulations. RNC spokesman Sean Spicer will be Trump's press secretary.
• The Syrian military claims the last of the rebels are gone from Aleppo and they've fully recaptured the city.

Follow us on Facebook and Twitter, and don't forget to sign up for Reason's daily updates for more content.

RICHARD B. LEVINE/NewscomPresident-elect Donald Trump has promised to tackle the federal regulatory state and on Thursday appointed billionaire investor Carl Icahn as a sort of anti-regulation czar who will lead the incoming administration's efforts.

On the campaign trail, Trump promised to repeal two federal regulations for every new one added to the books. Icahn, who was previously in the running to be Trump's Treasury Secretary but will instead serve as special adviser, has been a vocal critic of federal regulations—particularly those imposed by the Environmental Protection Agency.

"Cut a lot of this regulation, just cut it out. Its run amuck," Icahn told Bloomberg in an interview last month, as he was advising Trump on cabinet picks. "Let a businessman know that when he builds a factory, builds machinery, when he's going to invest the money, that he's got the government behind him."

In announcing the appointment on Thursday, Trump said Icahn's assistance would be invaluable. Perhaps so, since Icahn will not be paid for the special advisory role within the Trump administration. However, that also means the investor will not have to give up his position as chairman of Icahn Enterprises, which owns stakes in industries including railroads, casinos, hotels, rental car companies, and health care providers. The insider role in the administration was quickly criticized by Democrats who worry that Icahn could use it to benefit his businesses, Politico reported.

If Trump and Icahn want to make meaningful reforms to federal regulatory policy, though, they will need targets that are more specific than repeal-two-for-every-one-added and will have to get Congress to reassert its authority over the federal bureaucracies, policy experts tell Reason.

Chris Koopman, a senior research fellow at the Mercatus Center, applauded Trump's instinct to target regulatory overreach, but said focusing on the number of regulations could miss another dangerous piece of federal regulations: informal regulation that agencies rely on before they go to regulations in the traditional sense.

These informal regulations include things like guidance documents published by federal agencies that offer suggestions—with a wink attached—for how companies should act, and how the Federal Communications Commission mandates certain behavior through so-called "transaction reviews" before approving license transfers. The FCC has used that process to mandate parts of the Obama administration's net neutrality regulations.

Those informal regulations could become even more common if the Trump administration starts hacking away at written rules without focusing on the underlying processes.

"There is a huge problem with the amount of federal regulations that are put out. The intuition here—get rid of the thicket—should be applauded, but that's just the surface of the quagmire here," Koopman said.

To get below the surface, Trump's team could look to the Competitive Enterprise Institute—including regulatory policy guru Clyde Wayne Crews, who coined the apt descriptor "regulatory dark matter" for all those off-the-books regulations—which last week published a new report with five steps the next administration and Congress can take to reform the federal regulatory state.

The first thing the new administration should do is implement a better review process within the White House Office of Management and Budget. In theory, the OMB is supposed to make sure that proposed regulations' benefits outweigh the potential costs, but in reality this process is fraught with problems. Of the approximately 3,500 rules issued by dozens of federal agencies each year, only a few handfuls are subject to cost-benefit analysis.

Beyond that, Congress probably has to get involved.

The CEI report calls for Congress to assert itself by threatening to defund agencies that overstep their statutory authority and to use the Congressional Review Act to bring more accountability to executive branch agencies and commissions. The CRA was passed in 1996 and gives Congress the option of pausing any new regulation for up to 60 days of public scrutiny.

The law has been used sparingly and has only once, in 2001, resulted in the repeal of a federal regulation.

Congress also should reverse a decades-long trend of abdicating responsibilities to the executive branch agencies and over-delegating decision-making processes.

"Congress is poised to make great strides in returning a balance of power to the federal government through reining in the regulatory state," said Kent Lassman, president of CEI, in a statement.

Icahn and Trump have talked a good game about trimming back the federal government's control over individuals and businesses. It's clear that many Americans are in favor of reform—"draining the swamp," as some Trump supporters might put it—and limiting the power of the federal government's alphabet soup of various agencies and commissions.

The first thing Trump should do, Icahn told Bloomberg on Thursday, is "get rid of a number of these, what I consider to be, crazy regulations."

The "crazy" regulations are one thing. Fixing the roots of the problem will take more work.

Ingram Publishing/NewscomWhen is it constitutional for a police officer to shoot a dog during a raid? Any time it moves or barks, according to a federal appeals court.

In a ruling released Monday, the Sixth Circuit Court of Appeals found Battle Creek, Mich. police officers were justified in shooting two pit bulls while executing a search warrant for drugs on the home of Mark and Cheryl Brown in 2013. The Brown's sued the police department in 2015, arguing the killing of their dogs violated their constitutional rights.

The ruling creates a similar legal standard in the Sixth Circuit—which includes Michigan, Ohio, Kentucky, and Tennessee—that several other federal appeals courts have established, but it also appears to expand when it is acceptable for an officer to shoot a dog.

After breaking through the Brown's door, one Battle Creek officer testified that the first dog "had only moved a few inches" toward him before he shot it. The second dog ran into the basement.

"The second dog was not moving towards the officers when they discovered her in the basement, but rather she was 'just standing there,' barking and was turned sideways to the officers," the court narrative continues. "Klein then fired the first two rounds at the second dog."

Bryancalabro / WikipediaAt first glance, Karen Alexia Palma makes a sympathetic protagonist. The Guatemalan immigrant and health care educator, a U.S. citizen, was allegedly fired from her job at a Texas clinic as a result of her religious beliefs. She's pictured cradling her dog Chiclets in a write-up over at The Washington Post, headlined "'I will always put my faith first': Catholic health educator fired for refusing to teach birth control."

From the piece:

As part of her job as a health educator, Palma taught a family planning class three times a month. For a year and a half, she said, Legacy Community Health had been willing to accommodate her religious beliefs by allowing her to play a 20-minute video about birth control instead of personally talking about it with patients. A registered nurse also was on-site to answer questions patients might have about contraceptives, she said. ...

But in June, after a change in management, she said she was told she had to begin teaching patients about contraceptives and was also ordered to attend mandatory training at a Planned Parenthood location.

It's easy to cry "religious liberty" in cases like this one. But if you're tempted to do so, recall that the First Amendment starts "Congress shall make no law," not "employers shall make no policy."

I've argued over and over that Christian schools should have the right to decline to hire openly gay people and small-business owners should have the right to decline to provide services for same-sex marriage celebrations, if that's what they think is right.

But those things are only normatively true if the individual freedom of private actors matters. And if the individual freedom of private actors matters, it follows that government should be expected to meet a very high bar before it can step in and force a privately owned and operated clinic to do business with someone simply because she belongs to a protected class.

It's fine to argue that the clinic is making a poor business decision by severing ties with a qualified educator who has been on its payroll for nearly four years. It's also reasonable to argue the move was a bad call from a public-relations perspective, since arguably it would have taken minimal effort on the part of the employer to accommodate her beliefs and avoid being named in the national papers.

But Palma isn't appealing to the employer to right this wrong. She's appealing to the Equal Employment Opportunity Commission, a federal agency with the power to compel behavior and punish dissent.

She may well be on the right side of the law—but the idea that she's on the right side of justice suffers from the fallacy of conflating two things we ought carefully to keep distinct: public vs. private actions. Of course the government should not be allowed to deny equal protection to people because of who they are or what they believe. We all have the right to be treated fairly by agents of the state who are paid with our tax dollars and empowered with a near-monopoly over the use of violence. Our rights are strong because the law is an enormously powerful weapon that must be wielded judiciously.

What we don't have a "right" to is any given private-sector job of our liking, and particularly not if we're unwilling to carry out a duty the person signing the paycheck deems a job requirement.

We shouldn't normalize using the threat of men with guns to force others into undesired business relationships. You may hate that some people will use their freedom as private actors to make hiring and firing decisions, or to turn away potential clients, because of who they love or how they worship. But it's a mistake to liken government discrimination, which must always and everywhere be combatted, to unpopular choices made by individuals operating in a private capacity. The two are not the same.

ReasonReason Editor in Chief Katherine Mangu-Ward profiles libertarian magician Penn Jillette in the January 2017 issue of the magazine on the stands right now:

Even before he was famous, Jillette had no interest in fitting in. He claims to have spent his childhood mouthing off at school and incessantly honing his juggling skills. A product of the Ringling Bros. and Barnum & Bailey Clown College, he later did time as a street performer in Philadelphia hurling knives for pocket change. At 6-foot-6 and "obnoxiously loud," he would have been hard to miss: A 1989 New Yorker profile characterized his hairdo as "a sort of frizzy ponytail and another fistful of hair tumbling over his forehead," adding that "he wore clear polish on all but one fingernail, and that one was painted red."

Jillette retains his distinctive manicure but is now lacking some of his trademark mass. Down significantly from his top weight of 330 pounds, the performer has baited headline writers everywhere into variants of the "magician makes himself vanish" joke. Indeed, he beats them to the punch in the title of his recent book on the subject, Presto! How I Made Over 100 Pounds Disappear and Other Magical Tales (Simon & Schuster). The secret to his weight-loss success? Realizing that, with food as with everything else, moderation is no virtue.

In October, Jillette chatted with Editor in Chief Katherine Mangu-Ward about his gastronomical, philosophical, and political views. Whipsawing between the profane and the profound, he described a variant of libertarianism driven by first principles, made the case for why porn actors and The New York Times are ultimately in the same business, and explained that sometimes it's harder to drop 30 pounds than three times that much.

Chris Seward/TNS/NewscomOh, no! I've written fake news! Based on what both sides in North Carolina were saying, I blogged with a high level of confidence that North Carolina's HB2 was going to be rescinded.

At the start of the week it really did seem like the legislature would rescind the controversial law that blocked cities from adding new categories to nondiscrimination laws and required trans people to use school and government-building facilities that matched the sex listed on their birth certificates. Outgoing Republican Gov. Pat McCrory called a special session, and it really seemed like it was going to happen. The compromise was that Charlotte would repeal its additions adding gender identity and sexual orientation to its discrimination laws, and the state would repeal HB2.

But then apparently everything went to hell. Charlotte's City Council did indeed rescind its law, but apparently not cleanly, and Republican legislators were left with the impression that they were going to look for a way to sneak it back into play. Charlotte officials say this wasn't the case. The city's site insists the law has been completely rescinded.

By yesterday afternoon Republican lawmakers had developed a new proposal. In order to rescind HB2, they wanted to implement a "cooling off" period for six months prohibited cities from doing the same things that HB2 forbid (amending antidiscrimination and public accommodation laws). Essentially, even after rescinding HB2, they wanted to keep the law in place for another six months.

In the end, nothing was passed or rescinded. HB2 will remain on the books. Charlotte rescinded its law for nothing (particularly since HB2 overruled it anyway).

How to interpret this from a libertarian perspective? As somebody with a dim view of what both Charlotte and the state legislature did, I'd say the ones who have lost out the most from this fight are transgender public school students. With HB2 still in place, schools are forbidden from fully accommodating transgender students (unless they've gotten their birth certificates changed, which frankly is an unnecessary imposition of government regulation of gender expression). While the law also forbids accommodation in other non-school government buildings, I'm going to guess there's probably not going to be a lot of "policing" there and not a whole lot of concern (studies suggest that men are more concerned about the safety of women in bathrooms than the women themselves are).

Pete Souza/ZUMA Press/NewscomHe didn't close Guantanamo Bay, end American drone strikes on foreign countries, or roll back the surveillance operations created after 9/11, but less than a month before leaving office, President Barack Obama killed at least one civil-liberties-violating program from the George W. Bush era.

The Obama administration on Thursday officially shuttered the National Security Entry-Exit Registration System, or NSEERS. From 2002 until 2011, NSEERS required visitors from 25 "high risk" countries (24 of them were in the Middle East; North Korea was the other) to register with the U.S. Department of Homeland Security, undergo interrogations and fingerprinting when they entered the United States, and periodically check-in at government offices while they were here.

While it was operational, some 93,000 immigrants were put through the NSEERS program without a single one being convicted on any terrorism charges.

That poor track record caused the Obama administration to put the NSEERS program into hibernation in 2011. Thursday's action, though somewhat symbolic because the program hasn't really existed for more than five years, was important because it makes it more difficult for the incoming Trump administration to resurrect NSEERS.

As I wrote last month, members of Trump's transition team were reportedly considering using the registration program as a way to meet The Donald's campaign promise to implement "extreme vetting" for Muslim immigrants. Kris Kobach, Kansas Secretary of State and an immigration hardliner who is serving on Trump's transition team, helped develop NSEERS as a member of Bush's Department of Justice.

According to the New York Times, the White House's decision to end the registry "is among the actions being taken in the final weeks of the administration that could prevent, or at least slow, what Democrats fear may be a swift rollback of President Obama's efforts on immigration and climate change."

It's a shame that it took the threat of Donald Trump's inauguration for Obama to do away with NSEERS. The program was an abusive failure. According to the ACLU, NSEERS "singled out immigrant men and boys from designated countries for extraordinary registration requirements with DHS, ranging from an extra half-hour of screening on arrival, through tracking of whereabouts while in the United States, to limitations on points of departure." The scale of profiling was something not seen in the United States since the Japanese-American internment camps during World War II and "Operation Wetback" deportations to Mexico in the 1950s.

It's not hard to figure out why the program failed to identify any potential terrorists. It was, by nature, targeting only law-abiding immigrants. As Reason's Shikha Dalmia wrote last year: "Expecting terrorists to voluntarily stroll to an immigration office to be fingerprinted and IDed is absurd, of course. So the entirely predictable upshot of the program was that although it managed to obtain not a single terrorism-related conviction, it did ruin plenty of lives of peaceful Muslims caught in its dragnet."

KellyAnne Conway, Trump's campaign manager and newly appointed White House aide, told CNN on Thursday the incoming administration would not pursue an immigration policy based on religion. But Trump, following attacks in Germany carried out by ISIS sympathizers, seemed to indicate that restrictions on Muslim immigrants were still part of his plans.

Either way, getting rid of the NSEERS program is worthy of applause, even if I'd prefer to have a president who cares about protecting civil liberties without needing the motivation of protecting his own political legacy.

For more on Obama's legacy and his administration's failure to rein-in Bush era excesses of the War on Terror, pick up a copy of the latest dead-tree edition of Reason (or, if you're a subscriber, you can read Gene Healy's look back at the past eight years here).

In the January 2017 issue of Reason, Veronique de Rugy writes that economic growth — even by barely perceptible increments — matters to the average American.

Noting the Congressional Budget Office's projections of just 1.9 percent annual growth for the next ten years, de Rugy argues, "Slower growth means not only that the economy takes longer to double but that the payoff for the average American is less."

Creative Commons/Marcy HendricksFake news might be a fake problem, but fake science is putting people in prison, and sadly, the federal government refuses to do anything about it.

In Reason's January 2017 issue, criminal justice reporter C.J. Ciaramella writes:

Last year, the FBI admitted that nearly every one of the experts at its microscopic hair analysis lab had given scientifically invalid testimony. The breaches affected almost 270 cases. Of those, 32 defendants were sentenced to death, and 14 were executed or died in prison.

Ciaramella adds, "the Department of Justice is refusing to implement recommendations that would increase safeguards against scientifically invalid testimony and require greater disclosure of misconduct and shoddy work."

Zoya Fedorova / Dreamstime.comIn the presidential campaign, no issue separated Donald Trump and Hillary Clinton more starkly than abortion. He promised to ban it after the 20-week mark of a pregnancy and appoint Supreme Court justices who would overturn Roe v. Wade. She vowed to protect "the right to safe and legal abortions" against all challenges.

With Republicans in control of Congress and most state governments, expect numerous battles on this front. Ohio Gov. John Kasich, a relative moderate in the GOP presidential primaries, just signed a bill largely banning the procedure after the 20th week of a pregnancy, with no exception for cases of rape or incest. Seventeen other states have similar laws, two of which have been struck down by federal courts.

But pro-life people shouldn't get their hopes too high. Trump would need at least one more Supreme Court vacancy (besides the one left by Antonin Scalia's death) to have any hope of reversing Roe—and his arrival in the White House will provide reason enough for every liberal justice to stay. Nor would the demise of Roe mean a nationwide ban on abortion. It would only allow states to make their own decisions. Steve Chapman considers how to get out of this intractable conflict.

Bill Clark / CQ / Roll Call / NewscomIn his 1986 memoirs, The Triumph of Politics, David Stockman wrote: "The politicians were wrecking American capitalism. They were turning democratic government into a lavish giveaway auction. They were saddling workers and entrepreneurs with punitive taxation and demoralizing and wasteful regulation." For the four years he served as President Ronald Reagan's budget director, Stockman fought for his vision of sustained economic growth and social progress through sound money, lower tax rates and curtailment of federal spending, welfare and subsidies to private interests.

Unfortunately, he lost his dream of a true Reagan revolution because many congressional politicians refused to implement the big spending cuts that had to be matched with the big tax cuts. And as he soon figured out, "the Democrats were getting so much Republican help in their efforts to keep the pork barrel flowing and the welfare state intact." All the Republican Party was willing to fight for, it seems, was more defense spending and lower taxes, even if the numbers didn't add up in the end.

Little has changed today. Yet there is some reason for optimism, as President-elect Donald Trump has just nominated a lawmaker who seems to want to pick up the work just where Stockman left it 30 years ago at the Office of Management and Budget. That guy is Rep. Mick Mulvaney, a South Carolina Republican and a founding member of the House Freedom Caucus, writes Veronique de Rugy.

Howard County Library SystemEveryone can agree that it's nice to be nice and rude to be rude. So why not demand civility under the threat of legal punishment? That idea was hatched by Miami attorney Mikki Canton, a senior adviser to Mayor Tomás Regalado, and it got a respectful hearing at a recent meeting of the Miami Herald's editorial board, followed by respectful coverage in that paper on Sunday.

You might think that a lawyer and the editors of Miami's leading newspaper would know something about the First Amendment, which protects rudeness along with crassness, indecency, racism, anti-Semitism, flag burning, tobacco billboards, violent video games, parodies involving incestuous sex, movies that make politicians look bad, and films in which women stomp on little furry animals. But neither Canton's presentation nor the Herald's account of it betrayed any knowledge that freedom of speech is guaranteed by the Constitution.

"I think we're at the point of urgency," Canton told the paper's editorial board. "It's not just because you've got this political situation the way it is. But you've got behaviors, people doing things and other people thinking that's OK and there's no alternative to that way." Her answer: "civility guidelines," to be enforced by "civility courts."

Canton—who in addition to advising the mayor runs Miami's EB-5 Regional Center, part of a federal program that guides foreign investors thinking of moving to the U.S.—explained that rudeness must be banned because it is often perfectly legal. "Sometimes what you do doesn't rise to the level of breaking the law," she said, "but it sure does break civility rules."

Mind you, Canton does not want to throw people in jail merely for being rude. But she figures that "making them do some community outreach work, where they actually get a chance to interact with people and be civil," might do the trick. "If I were the judge," she said, "I'd say, 'What was it?' and 'Where did he commit this offense that didn't rise to the level of breaking the law?'...I would put him out there and make him be the spokesperson and make him work some community hours."

Setting aside the wisdom of putting people distinguished by their extraordinary rudeness on the front lines of "community outreach," Canton's scheme is blatantly unconstitutional, as Miami New Times writer Jessica Lipscomb pointed out a couple of days after the Herald published its story about Canton's Civility USA campaign. Unlike Herald reporter Alfonso Chardy, who did not include a single skeptical comment in his story, Lipscomb interviewed "two First Amendment lawyers," who "were stunned when New Times told them of the proposal." One of them noted that "people have a right to be very vocal and uncivil...to use swear words and very strong language," because "in the United States, the rule has been that government cannot punish that type of speech."

Confronted by the First Amendment implications of her proposal, Canton told Lipscomb that rude statements with political content would be exempt from her civility code, which is funny for a couple of reasons. First, speech protected by the Constitution is not limited to political messages; it includes opinions on all sorts of subjects, no matter how hurtful or how rudely expressed. Second, the chief example of incivility mentioned in Chardy's story, one that came up during Canton's presentation to the Herald's editorial board, involved an unhinged Donald Trump supporter who called a local Starbucks barista "trash" and "garbage" while accusing her of refusing to serve him because of his taste in presidential candidates (and possibly his skin color; it's not entirely clear). Canton's civility courts evidently will have to weigh the motivations of rude people before punishing them, which will create an incentive to mention a politician or a cause while castigating an inattentive barista or telling a nosy neighbor to fuck off.

"I'm not a fan of lunatics shouting at baristas about Donald Trump," writes Popehat's Ken White, who noted the Herald story on Twitter. "But honestly, I am far more offended by lawyers—especially government lawyers—promoting civic illiteracy by proposing patently unconstitutional policies."

• President-Elect Donald Trump called military contractors to his Mar-a-Lago estate to talk about spending—the CEO of Boeing says it will cut costs on Air Force One while Trump says he'll get costs down "beautifully" on the F-35 program.
• Nearly 70 percent of Democrats polled said they didn't want to see Hillary Clinton run for president again in 2020, while 22 percent said they would be excited by it.
• Rand Paul celebrates Festivus.
• Uber pulled its self-driving cars off the road in California after the DMV revoked their registrations.
• Japan is spending a record-breaking amount on the military this year.
• China says it launched a carbon-tracking satellite into space.
• Nokia is suing Apple in the latest patent licensing battle.