Tuesday , October 15 2019
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Trevor Burrus



Articles by Trevor Burrus

When Is a Regulatory Taking a “Total Taking”?

21 days ago

Janice Smyth’s parents purchased some land in Falmouth, Massachusetts in 1975, hoping to one day build a retirement home there. Unfortunately, they died before they could commence building and the land passed to Janice. For 40 years, the land has been zoned residential and either Janice or her parents paid property taxes. Janice herself paid $70,000 to various professionals to prepare plans and applications to develop the property.
The city of Falmouth had different ideas, however. Being a coastal community, the city passed the Falmouth Wetlands Protection Bylaw in 1998, creating various “no disturbance zones” around wetlands and coastal banks. In 2008, the city strengthened its bylaw and, as a result, the only developable part of Mrs. Smyth’s land is a 115 square foot section in the

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Dead Men Get No Political Favors

21 days ago

The Libertarian National Committee (LNC) is a small political party that received a surprise gift. When Joseph Shaber passed away, he left the LNC about $235,000. The LNC didn’t even know about the bequest until it was received. Prior to the gift, Mr. Shaber had been a small donor to the party, giving 46 small donations totaling just over $3,300 during his life.
The bequest created a problem. By statute, the most any person can contribute to any political party in any given year is $35,000. The Federal Election Committee (FEC) applies the same contribution limits to the dead as to the living, so Shaber’s gift was about seven times the contribution limit. For large bequests, the FEC requires that the money to be put in trust and parceled out each year as if the deceased had gone on living.

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Federal Protection of Cave Spiders Is Driving Property Owners Up the Wall

25 days ago

Much like lawyers, spiders don’t drum up warm feelings for most people. It’s probably because both are known for spinning webs. Unlike lawyers, however, the federal government has placed some spiders on the endangered species list—and not just big ones, but ones so small that it takes 14 surveys of a cave to even make sure they’re there. One such spider, the near-invisible bone cave harvestman, is found only in a small section of Texas and resides in an unknown number of underground caves.
It’s easy to imagine a property owner’s shock when he finds out his land is teeming with these small spiders and that he could face hefty fines if he accidentally steps on one. This sort of mistaken squashing, defined as a “take,” is prohibited by the Endangered Species Act (ESA). The ESA is a well-known

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Protecting Gun Manufacturers from Frivolous Lawsuits

September 11, 2019

In 2005, Congress passed the bipartisan Protection of Lawful Commerce in Arms Act (PLCAA) by a nearly two-thirds margin. PLCAA’s purpose was to curb efforts by gun-control advocates to circumvent state legislatures and attack Second Amendment rights through a never-ending series of lawsuits against manufacturers and retailers of firearms to hold them financially responsible for crimes committed using the weapons they make and sell. Although the dubious legal theories behind these lawsuits only rarely resulted in verdicts against manufacturers and retailers, the mounting costs of the lawsuits began to run gun makers and sellers out of business. Litigation-induced bankruptcy, it turned out, was an effective way of restricting Americans’ ability to exercise their Second Amendment right to

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Why Would the Government Fight a $900 Judgment? To Make it Easier to Take People’s Land

July 31, 2019

Sometimes the most important court cases are the most obscure and hard to understand. Caquelin v. United States comes out of the government vigorously opposing a judgment that it owes Norma Caquelin $900 for the 180 days that she couldn’t use a relatively small part of her Iowa farmland. But the case is part of a larger and ongoing fight over the status of abandoned railroad tracks that affects thousands of property owners.
Railroad lines once extended throughout the United States. At the peak in 1916, more than 270,000 miles of track crisscrossed the country. As railroads became less popular, however, thousands of miles of rail lines were left unused. Since the 1980s, the Rails-to-Trails Act has converted former rail lines into hiking and biking trails. But many of those rail lines

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Criminal Forfeiture Requires Actual Criminal Activity

July 31, 2019

Criminal forfeiture permits the government to confiscate the assets of those who have been convicted of a crime if those assets are the product of criminal activity or connected to criminal activity. Unlike civil forfeiture, which goes after assets that are merely suspected of being connected to criminal activity and requires no criminal conviction, criminal forfeiture is justified by preventing criminals from profiting from their crimes. Civil forfeiture is much more widely abused, but even criminal forfeiture can be abused, especially if law enforcement officials and departments can profit from taking assets.
Peithman v. United States is an important criminal forfeiture case currently on petition to the Supreme Court. Allen Peithman and his mother owned two “head shops” in Nebraska

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Judge Issues Temporary Restraining Order Against Blueprints for Homemade Muskets

August 1, 2018

Late yesterday, U.S. District Court Judge Robert Lasnik issued a temporary restraining order (TRO) blocking the release of design files for 3D-printed guns. The order comes in response to a lawsuit filed by a number of state attorneys general who claim that the Trump administration acted unlawfully in reaching a settlement in a lawsuit brought by Defense Distributed, a company that produces digital blueprints for 3D-printed guns, and the Second Amendment Foundation. Judge Lasnik found that states were likely to suffer irreparable harm—the standard for a TRO—if the digital blueprints became distributable via a website, and he felt that the situation was such an emergency that the order was issued within a day of when the suit was filed.
This is a deeply silly order. People have been

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Senate Appropriations Committee Report Criticizes Barriers to Marijuana Research

July 6, 2018

Last week, the Senate Appropriations Committee filed a report along with the appropriations bill for the Departments of Labor, Health and Human Services, and Education. The report mostly consists of broad policy recommendations and guidance for how to spend the appropriated money. On page 108 of the 273 page report, however, is a discussion of “barriers to research,” specifically, how the “Committee is concerned that restrictions associated with Schedule 1 of the Controlled Substance Act effectively limit the amount and type of research that can be conducted on certain Schedule 1 drugs, especially marijuana or its component chemicals and certain synthetic drugs.”
While the report is not law, it signals a welcome change in attitude. For decades, marijuana’s Schedule 1 status has made

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Did Minnesota Lose Their Free Speech Case at Oral Argument?

June 14, 2018

In a 7-2 decision today, the Supreme Court struck down Minnesota’s blanket ban on wearing anything with a political insignia at a polling place. Chief Justice Roberts’s opinion agreed with many parts of Cato’s brief, particularly regarding the inherent unworkability of such a broad ban on political speech. The decision is a small but important victory for free speech.
In highlighting the unpredictability of the what counts as “political,” Chief Justice Roberts’s opinion cites one moment from oral argument that Supreme Court observers found particularly telling. When asked by Justice Alito whether the law would ban a shirt with the text of the Second Amendment, Daniel Rogan, counsel for Minnesota, said “I think that that could be viewed as political.” Alito then immediately asked

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These Kids Today: The Long History of Complaining About Violent Entertainment

March 9, 2018

On Thursday, President Trump held a meeting to discuss how and whether violent video games affect gun violence, particularly school shootings. Before getting into the details of this claim, perhaps we should take a step back and read a classic fairy tale from 1812, printed in the Brothers Grimm’s Nursery and Household Tales and titled “How the Children Played Butcher with Each Other”:
A man once slaughtered a pig while his children were looking on. When they started playing in the afternoon, one child said to the other: “You be the little pig, and I’ll be the butcher,” whereupon he took an open blade and thrust it into his brother’s neck. Their mother, who was upstairs in a room bathing the youngest child in the tub, heard the cries of her other child, quickly ran downstairs, and when

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Senator Hatch Thinks It’s High Time to Fix Barriers to Medical Marijuana Research; It Is

September 14, 2017

On Wednesday, Senator Orrin Hatch of Utah came out in support of medical marijuana and, in particular, removing federal barriers to medical marijuana research. This is a welcome development. Hatch, the longest serving senator in U.S. history, comes from a state where there is a strong aversion to intoxicating substances. Nevertheless, lawmakers in Utah recognized the medical potential of cannabis-derived medicines when they legalized cannabidiol oil (CBD) in 2014.
The MEDS Act, first introduced by Senator Brian Schatz of Hawaii, would greatly streamline the arduous process of research into marijuana’s medicinal applications. As I recently discussed at a Capitol Hill event, as well as in a recent article and on a recent Cato Daily Podcast, it is unnecessarily difficult to research

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The Venerable Tradition of Opposing “Government Schools”

August 2, 2017

Writing in Monday’s New York Times, Katherine Stewart–author of 2012’s The Good News Club: The Christian Right’s Stealth Assault on America’s Children–has purportedly uncovered what “what the ‘government schools’ critics really mean.” According to Stewart, those who criticize government schools “have their roots in American slavery, Jim Crow-era segregation, anti-Catholic sentiment and a particular form of Christian fundamentalism.” She then catalogues a litany of unsavory characters who opposed “government schools” because they believed in the righteousness of slavery or because they saw the schools as insufficiently fundamentalist.
I’m not going to directly address Stewart’s claims about people like Robert Lewis Dabney or James W. Fifield Jr., both of whom, according to her, opposed

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Does the Seventh Amendment Mean What it Says?

July 24, 2017

James Madison once wrote: “Government is instituted to protect property of every sort … . This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.” Because the power of eminent domain so readily runs the risk of violating private property rights, you would think that those individuals subjected to it would be afforded every procedural protection the Constitution has to offer, including the right to a trial by jury. But according to the federal government, you would be wrong.
When a group of 20 Michigan landowners contested the feds’ use of eminent domain, they asked for a jury trial. By doing so, they challenged a provision of the Tucker Act that says suits against the government for over $10,000 must be brought in

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Betting on Freedom: The Federal Ban on States Legalizing Sports Gambling

June 19, 2017

Have you ever played fantasy sports for money? Have you ever participated in your office March Madness pool? Well, if you did, you may have broken federal law, which is quite ridiculous. If you’ve bet on your local jai alai match, though, that was probably safe.
In sports gambling, as is so often the case with many things, the law is not keeping up with our behavior and attitudes. There’s a growing movement to modernizing our gambling laws, including some new coalitions, such as the American Sports Betting Coalition (ASBC), and at least one case pending at the Supreme Court. That case, Christie v. NCAA, is a challenge to the constitutionality of the Professional and Amateur Sports Protection Act of 1992 (PASPA). Cato supported the petition, which will be discussed by the justices next

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School Inc. Under Attack: Milton Friedman, PBS, and the Quixotic Pursuit of “Balance” in Public Broadcasting

June 16, 2017

Our departed colleague Andrew Coulson spent the last years of his life producing School Inc., a wonderful and informative documentary about the possibilities of private, choice-based schooling. I highly recommend it. Amazingly, at least to me, PBS agreed to air the documentary, and in April it debuted on PBS stations around the country.
Unsurprisingly, a chorus of critics are angered that PBS would air such a program. Media Matters for America seems to call for the outright censorship of any critique of public education on public television by wondering, “why would a public broadcast channel air a documentary that is produced by a right-wing think tank and funded by ultra-conservative donors, and that presents a single point of view without meaningful critique, all the while

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Supreme Court Reaffirms the Presumption of Innocence

April 20, 2017

On Wednesday, the Supreme Court decided a relatively small but important case out of my home state of Colorado. Colorado, like many states, imposes certain monetary penalties and costs on convicted defendants. Those can include court costs, docket fees, and payments into victim restitution funds. What happens, however, if a defendant’s conviction is later overturned, either by a higher court or on a re-trial? Can the once-convicted defendants easily get their money back, as would seem to be only fair? Not in Colorado, which is (was) unique in requiring that exonerated defendants go to court again to prove their innocence by clear and convincing evidence before they could get their money back. Thankfully, the Supreme Court, in a 7-1 opinion (Justice Gorsuch only began participating in

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Could President-elect Trump’s Business Dealings Violate the Constitution?

November 22, 2016

At the New York Times, Adam Liptak has a story on whether President-elect Trump’s business dealings–in particular the possibility that he may use his presidential power to secure business advantages–would violate the obscure Emoluments Clause of Article I, Section 9 of the Constitution. Since the clause has never been directly addressed by the Supreme Court, we’ll have to do some guesswork.
The short answer: very possibly, but it will depend upon the facts of the situation.
The longer answer: whether or not Trump’s dealings violate the text and original public meaning of the Emoluments Clause, it should be highly concerning to everyone that the President-elect seems committed to still being closely involved in his businesses. Unless he wants a pall of suspicion hanging over his every

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Let’s Build a New Consensus to Restrain Executive Power

November 9, 2016

It happened.
Don’t worry, our country is strong enough to deal with what might be coming. Unfortunately, however, our Constitution has some holes in it, many of which were created by the last two administrations, that allow presidents to assert shockingly broad powers. We will gladly welcome back to the fold our left-wing friends who have spent eight years cheering for executive power. They resisted executive power during the Bush administration, and it should be like riding a bike. We hope we will be joined by principled people on the right who understand the need for constitutional limits. Maybe, in the process, we can create a new consensus around limiting executive power.
Constitutionally limited government exists to protect the freedom of the citizens from the vicissitudes of

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Could It Be Unconstitutional to Raise the Obamacare “Tax” for Not Purchasing Health Insurance?

October 28, 2016

As many predicted, especially us at Cato, the Affordable Care Act is beginning to make health insurance less affordable for many Americans. Part of the problem, in a nutshell, is precisely what my colleague Michael Cannon described in 2009, the young and the healthy avoiding signing up for health insurance and choosing to pay the fine, or, as Chief Justice John Roberts would call it, a tax.
MIT economist Jonathan Gruber, often described as an architect Obamacare, recently said that some of these problems can be alleviated by increasing the “tax” on those without insurance. “I think probably the most important thing experts would agree is we need a larger mandate penalty,” said Gruber.
Depending on how high the penalty goes, there could be a constitutional problem with that. In

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Could It Be Unconstitutional to Raise the Obamacare “Tax” for Not Purchasing Health Insurance?

October 28, 2016

As many predicted, especially us at Cato, the Affordable Care Act is beginning to make health insurance less affordable for many Americans. Part of the problem, in a nutshell, is precisely what my colleague Michael Cannon described in 2009, the young and the healthy avoiding signing up for health insurance and choosing to pay the fine, or, as Chief Justice John Roberts would call it, a tax.
MIT economist Jonathan Gruber, often described as an architect Obamacare, recently said that some of these problems can be alleviated by increasing the “tax” on those without insurance. “I think probably the most important thing experts would agree is we need a larger mandate penalty,” said Gruber.
Depending on how high the penalty goes, there could be a constitutional problem with that. In

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The Debate Over Voting: Helping Jim Harper Count for Something

October 19, 2016

On November 2nd, Cato will host a debate over whether libertarians should vote. On the “no” side will be me and my colleague Aaron Ross Powell. On the losing side will be our colleagues Jim Harper and Michael F. Cannon. You should come, that is, of course, unless you’re sensitive to the sight of public executions.
But Jim wants to start the debate early. Yesterday, he criticized the standard economist’s argument for why people (including libertarians) shouldn’t vote. “Given the exceedingly low likelihood that one person’s vote will sway the outcome,” as Jim describes the argument, “the time and effort spent on voting is pure waste.”
This is true under most circumstances: if you’re voting solely to change an election, then your voting is irrational. If you get no pleasure out of

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