FOSTA’s Failure: The 2018 Sex Trafficking Law Has Been Worse Than Useless So Far

“FOSTA and the takedown of Backpage have made finding and fighting sex criminals more difficult, according to the GAO report.

Since FOSTA’s passage, the commercial sex ad market has become more highly fragmented and more likely to be based overseas. This “heightens already-existing challenges law enforcement face in gathering tips and evidence,” the report says. Those running the newer platforms often “host servers abroad, reside abroad, use offshore bank accounts and financial institutions, or introduce third parties to attempt to obscure or distance themselves from the day-to-day operation of their platforms, according to DOJ officials.”

Whereas sites like Backpage and Craigslist were willing to work with legal authorities—reporting suspicious ads, turning over information relevant to prosecutions, etc.—the new crop of commercial sex ad platforms are much less responsive and helpful. As a result, prosecuting their users has become more difficult, as has finding the victims of sex trafficking.”

The Feds Can’t Compel States to Enforce Restrictions on Guns or Immigrants

“Contrary to what the Times reported, that policy is not “legally shaky.” It relies on the well-established anti-commandeering doctrine, which says the federal government cannot compel state and local officials to enforce its criminal laws or regulatory schemes.

That doctrine is rooted in the basic design of our government, which limits Congress to a short list of specifically enumerated powers and leaves the rest to the states or the people, as the 10th Amendment makes clear. That division of powers gives states wide discretion to experiment with different policies, some of which are bound to offend the Times.

The paper suggests that defending state autonomy is disreputable, because that argument was “deployed in the past in the South to resist antislavery and civil rights laws.” But federalism does not give states a license to violate rights guaranteed by the Constitution or to flout laws authorized by it.

Although the Times tries to tar the anti-commandeering principle as racist, the same basic idea was a crucial weapon for Northern states that refused to help the federal government enforce the Fugitive Slave Act. Today that principle likewise means that state and local officials have no obligation to participate in the “deportation crackdowns” that the Times decries.

Similarly, the ongoing collapse of marijuana prohibition—a development the Times welcomes—would be impossible if states were obligated to participate in the federal war on weed. While both progressives and conservatives might wish that federalism could be limited to achieving results they like, that is not how constitutional principles work.”

Magistrate Judges Took Bribes, Stole Money and Mishandled Cases. South Carolina Officials Now Want Reform.

“Hand-picked by politicians, some magistrates were found to have accepted bribes, stolen money, flubbed trials, trampled over constitutional protections and mishandled even the most basic elements of criminal cases.

And though they handle hundreds of thousands of misdemeanor and civil cases every year, roughly three-quarters of the state’s magistrates have never practiced law in their life, the investigation found.”

“The investigation found that a flaw in the application process removed a requirement for magistrates to disclose if they have been disciplined for misconduct by the state’s judicial watchdog. A dozen sitting judges with prior ethics offenses skated through their last reappointment, no questions asked, the investigation found.”

“Magistrates are the busiest judges in the state. They sit in judgment on cases involving petty thefts, drunken driving, domestic violence, assaults and disorderly conduct. They also issue arrest warrants, set bail, preside over trials and conduct preliminary hearings to assess if there is sufficient probable cause to support felony charges such as murder, rape and robbery.

Yet the news organizations’ investigation found that most magistrates are not lawyers and could not represent someone in a court of law — yet they preside over them.

Davis has stressed that the state must bolster its legal qualifications for all magistrates. Though he has not proposed details, he would at least increase their mandatory legal training from the current minimum of 57 1/2 hours.

By comparison, South Carolina is stricter with its barbers: Their training school mandates 1,500 hours.”

Impeach an Ex-President? The Founders Were Clear: That’s How They Wanted It

“what did the authors of the Constitution say about the timing of impeachment? That answer should matter a lot to Republicans, who are known for placing great weight in “originalism” when they invoke the Constitution—the meaning of the document when written in 1787 and then ratified by the public.”

“Even though the Constitution’s text does not explicitly address whether the Senate can try a former president, the evidence from English practice, state constitutions, the Constitutional Convention, and the Federalist Papers—all core sources for originalist legal arguments—suggest that its authors fully expected that the Senate would use its power that way.”

“As Hamilton wrote in the Federalist Papers, a core source of original meaning, the framers “borrowed” the model from the English. And, as Raskin pointed out, every English impeachment during the lifetimes of the Founders was of a former official. During the convention debates on impeachment, George Mason mentioned the impeachment of Warren Hastings, a former British official in India, which began during the summer of 1787. No delegate raised any concern about its impropriety. No early state constitution prohibited impeaching a former official—and in fact, Delaware allowed its chief executive to be impeached only “when he is out of office.” Early state constitutions are usually core evidence for originalists. The English and early American practice suggest an emphasis more on punishment—for instance, disqualification from future office—than on removal.

In the 1787 Convention debates, as recorded by James Madison, four convention delegates explicitly discussed the potential problem of incumbent presidents abusing their power at the end of their terms in order to get reelected. Several of them specifically mentioned that election fraud and manipulation of the Electoral College could be grounds for impeachment.”

“When the Convention specifically debated the timing of impeachments, delegates William Davey, George Mason, Edmund Randolph and Gouverneur Morris (the last three considered among the most influential delegates) implicitly rejected the Trump team’s arguments. On July 20, 1787, the Convention turned to the proposed impeachment language, and two delegates, Morris and Charles Pinckney, objected. Madison recorded Pinckney’s objection: A president “ought not to be impeachable whilst in office.” Morris explained that such impeachments of sitting presidents would hand Congress too much power over the president, who might be compromised by fear of impeachment. This argument is similar to the concern about whether a sitting president can be indicted and prosecuted.
William Davie answered, “If [the president] be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected. [Davie] considered [impeachment of sitting presidents] as an essential security for the good behaviour of the Executive.”

Morris saw the public as the final arbiter—“In case he should be re-elected, that will be sufficient proof of his innocence,” he said—but neither Morris nor anyone else in the long ensuing debate suggested that a president who wasn’t reelected should be able to avoid impeachment for what he’d done in office. And in fact, several delegates addressed Morris by emphasizing their concerns that presidents might abuse their power at a particularly dangerous time: during bids for reelection.

On that same day, George Mason was especially concerned with election fraud and the Electoral College—with presidents corrupting electors to get elected, and then attempting to stay in power “by repeating his guilt.” It defies logic to think that a president who tried such a scheme could be impeached only if he somehow succeeded and stayed in office—especially given the British precedent of out-of-office impeachments, from which the Founders were drawing.

Then Randolph emphasized broad application: “Guilt wherever found ought to be punished”—reflecting the view that the purpose was not just removal from office, but more broadly punishment for abuses of power.

In the final speech of the debate on July 20, and perhaps the most significant, Gouverneur Morris, a supporter of a strong presidency, conceded that his colleagues had persuaded him to drop his concern about timing and to vote for the impeachment clause. After noting the infamous “Secret Treaty of Dover,” in which England’s Charles II made a corrupt deal with France’s Louis XIV that led to war, Morris concluded that “treachery” justified impeachment. But then he added other reasons, including, “Corrupting his electors, and incapacity.”

He proposed that incapacity, which implied no transgression, be punished only by “degradation from his office.” But corruption during a reelection effort deserved full impeachment, removal and disqualification from office. Impeachment proceedings for such abuses would by definition have to take place after the election. And implicitly, Morris was highlighting the urgency of disqualification for treachery and corruption of the Electoral College, regardless of removal. With Morris’ reversal, the Convention moved to vote, and impeachment prevailed 8-2.”

“The original meaning of the impeachment clauses is that they applied to former presidents, as well as presidents.”

“The point of originalism—and I say this as an originalist legal scholar—is that our Constitution is not supposed to be a wordy document narrowly fixing every point of law, but a framework that depends upon historical context to find meaning and purpose. As Senator Ben Sasse and then-nominee Amy Coney Barrett explained in a helpful exchange during her confirmation hearings, the text is not enough to understand what the Constitution calls for; that’s why, Barrett explained, the Fourth Amendment right against unreasonable searches applies to cars, cellphones and heat detection outside houses.

Contradicting the arguments they conveniently invoke for judicial appointments, the vast majority of Republican senators this week ignored the whole principle of originalism. The historical record before the Senate is clear: The founding generation understood that former officials can be impeached and tried. In looking at the Republicans’ vote this week, it’s hard not to say that the Republicans didn’t just get their history wrong: They imposed their own preferred meaning on the Constitution, following partisanship rather than historical evidence. They embraced the very lawlessness they claim to reject. They used Trump’s four years to fill the federal bench urgently with ostensible originalists. But when the rule of law is now on the line, the Senate Republicans effectively voted to disqualify “originalism” itself.”

The Constitutionality of Trump’s Impeachment Trial Is Not ‘Crystal Clear’

“Preconstitutional practice in England and America included impeachment of former officials. Ten of the 12 state constitutions that were written before the U.S. Constitution was drafted addressed impeachment. In those state constitutions, Kalt notes, “late impeachment was either required, permitted, or not discussed, but was nowhere explicitly forbidden.”

Did the Framers mean to break from historical practice by limiting impeachment to current officials? If so, they never clearly expressed that intent.

The Constitution says “the President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” It gives the House the “sole Power of Impeachment” and the Senate “the sole Power to try all Impeachments,” while limiting the penalties to removal from office and disqualification from future federal office.

This “poor drafting,” as Kalt describes it, leaves unresolved the question of whether the optional penalty of disqualification is enough to justify a Senate trial when the mandatory penalty of removal from office is no longer possible. As Turley sees it, “a private citizen is being called to the Senate to be tried for removal from an office that he does not hold.”

Kalt and many other scholars argue that the aims of accountability and deterrence would be frustrated if a president could avoid impeachment or trial by committing “high crimes and misdemeanors” toward the end of his term (as Trump is accused of doing) or by resigning (as Belknap and Richard Nixon did) after his misconduct comes to light. They also argue that disqualification is an important remedy when a president guilty of serious misconduct might plausibly make a comeback.

The “good faith” to which Turley aspires is hard to perceive in the arguments offered by most of Trump’s critics and defenders. As Stanford law professor Michael McConnell (who thinks Trump’s trial is constitutional) notes, “much of the discussion…consists of motivated reasoning on both sides that no doubt would be the opposite if partisan roles were reversed.””

13 federal criminal laws that the pro-Trump mob may have violated, explained

“federal law makes it a crime to engage “in any rebellion or insurrection against the authority of the United States or the laws thereof.” Someone who violates this statute faces a fine and up to 10 years in prison.

It’s also worth noting that this law makes it a crime to incite such a rebellion, and violators “shall be incapable of holding any office under the United States.” Thus, to the extent that a government official was complicit in Wednesday’s riot, they could potentially be stripped of their office.

Second, the law prohibits a “seditious conspiracy” to “overthrow, put down, or to destroy by force the Government of the United States” or to “by force to prevent, hinder, or delay the execution of any law of the United States.” Participants in such a conspiracy could face up to 20 years in prison.

Third, federal law provides that “whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States … by force or violence” may face up to 20 years in prison, and may also be stripped of their ability to be employed by the federal government for up to five years.”

“another statute makes it a crime to conspire “to injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” Thus, to the extent that members of Congress were exercising a “privilege” secured to them by the Constitution while they were disrupted by rioters, those rioters could potentially face criminal charges.”

“Members of the pro-Trump insurrection may have also violated several federal statutes intended to protect the peace.”

“Other criminal laws seek to protect the lives and safety of federal officials. Anyone who attempts to kill a member of Congress, for example, faces life in prison. And anyone who assaults a member of Congress may face 10 years in prison if they do so with a dangerous weapon or if “personal injury results.”
Even a relatively minor assault against a federal lawmaker can be punished by a year in prison.

Additionally, the law prohibits a conspiracy to “prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States.” As the purpose of the pro-Trump insurrection appears to be to prevent President-elect Biden from holding the office of president, this statute could apply to members of that insurrection.

Violators of this law face up to six years in prison.”

“Other federal laws make it a crime to damage, rob, or unlawfully occupy federal property.”

Scrapping a subsidy to homeowners

“In the February issue of the American Economic Review, researchers Kamila Sommer and Paul Sullivan consider the implications for the US housing market if this $90 billion subsidy to homeowners were to be scrapped. They find that getting rid of it would actually improve overall welfare by lowering home prices and expanding opportunities for home ownership among younger and lower-income households.
“The people who are the primary beneficiaries of the deduction are the high-income households,” Sommer said in an interview with the AEA. “When you take it away, house prices fall, they consume less housing, live in smaller houses…but the decline in house prices reduces the entry cost for the marginal households that are previously renting. It’s almost like this reallocation of housing from high-income households to low-income households.”

Critics say the mortgage interest deduction is a regressive tax policy that inflates prices and encourages buyers to choose more expensive houses and take on debt rather than sinking money into other investments. It also robs the Treasury of tax revenue that could be used to close the deficit. But real estate lobbyists say its repeal would depress homeownership and negatively impact social welfare.”

“More than half of all existing homeowners — 58 percent — would see their consumption improve after the reform, with most of the benefits going to young, low-income households. Rich homeowners with big properties suffer the most, since they have outsized amounts of mortgage interest that can be deducted from their income tax burden. When that benefit goes away they end up bearing the brunt of the impact.

It’s less certain whether there would be any meaningful impact on tax revenue for the government, the authors say. Getting rid of the deduction leads to a 2.6 percent increase in income tax revenue, but the falling home prices translate to a 7.8 percent drop in property tax revenue. Overall, it’s essentially a wash, with a total revenue gain of just one-half of a percentage point.”