Mary Wollstonecraft (1759–1797) was the author of acclaimed works about subjects including the education of children, political philosophy, and human liberty. She is perhaps best remembered for her great pioneering book, A Vindication of the Rights of Woman (1792), a key text in the rise and development of both feminism and liberal theory.

What is perhaps less remembered today is the fact that her landmark case for women's rights owed an important intellectual debt to the work of the political philosopher John Locke (1632–1704), who argued that the proper role of government was to protect humanity's preexisting natural rights.

Locke is sometimes mislabeled as a conservative by certain modern academics and pundits. But his ideas were deemed to be quite radical in their own day. And for the teenaged Mary Wollstonecraft, that Lockean radicalism was as welcome as the first taste of food after a grueling starvation.

The year was 1775 and Wollstonecraft was 15 years old. She was a brilliant and independent-minded young woman, increasingly outraged by the vile behavior of her drunk, domineering father. He abused Wollstonecraft's mother and maintained a strict, sexist hierarchy at home, favoring her brother while she was made to suffer.

It was at this low point in her life when Wollstonecraft first read Locke. Certain passages from his greatest work, The Second Treatise of Government (1689), caught hold of her mind and never really let go. A properly constituted social order "gives the husband no more power over [his wife's] life than she has over his," Locke wrote. "The power of the husband being so far from that of an absolute monarch that the wife has, in many cases, a liberty to separate from him, where natural right or their contract allows it, whether that contract be made by themselves in the state of nature, or by the customs or laws of the country they live in."

In her superb book, Romantic Outlaws: The Extraordinary Lives of Mary Wollstonecraft and Her Daughter Mary Shelley (2015), the historian Charlotte Gordon memorably described the far-reaching effect that Locke's ideas had on the teenaged Wollstonecraft:

She had always felt that her father had no right to tyrannize her family and that the preferential treatment he and her mother bestowed on [brother] Ned was unjust. Now, after reading Locke, she had an ethical foundation for her feelings. Not only was it her right to shape her own future; it was everyone's right. In fact, Locke's social contract made protest seem the only rational response to injustice; it was humanity's obligation to overthrow tyranny.

One of the reasons why Locke is sometimes mislabeled as a conservative today is because of his writings in favor of property rights, an issue that we now associate with conservative and libertarian thinkers. But it is worth remembering that Locke's whole case for property rights began with the idea that "every man has a property in his own person. This nobody has any right to but himself."

Is it any wonder that Locke's radical case for self-ownership would appeal to a young woman like Wollstonecraft, who longed to break free from the sexist laws and cultural strictures that held her back? Nobody was going to convince her that she did not have a right to her own body.

We might say something similar about the great abolitionist Frederick Douglass (1818–1895), who also drank deep from the principles of Lockean liberalism. "You are a man and so am I," Douglass wrote in his famous open letter to his former enslaver. "In leaving you, I took nothing but what belonged to me, and in no way lessened your means for obtaining an honest living. Your faculties remained yours, and mine became useful to their rightful owner." That is about as clear and effective a restatement of Lockean self-ownership principles as you are going to find.

Locke's influence on the American Revolution, particularly on Thomas Jefferson and the Declaration of Independence, is well-known. That Locke also had a key influence on both the women's rights and abolitionist movements is perhaps worthy of further remark.

The post When Mary Wollstonecraft Read John Locke appeared first on Reason Magazine.

Assume the following: A person unlawfully entered the United States 20 years ago and has since started a business and raised U.S.-citizen children, has no criminal record, and has never been found to be dangerous. Should federal immigration law treat that person the same way it treats someone who was just apprehended at the border? Should the law treat that person as if Congress had specifically made them subject to mandatory detention for criminal or terrorism-related conduct?

Under the Trump administration, the answer is yes. President Donald Trump's current policy treats noncitizens who entered without lawful admission as subject to mandatory detention without bond throughout removal proceedings, even if they have lived in the United States for decades and have no criminal record⁠. The executive branch adopted that position in new Immigration and Customs Enforcement (ICE) guidance issued in July 2025⁠, reversing its prior interpretation of the same detention law.

The U.S. Supreme Court will now decide whether Congress actually required the result Trump is seeking. On October 1, the justices agreed to hear the case of Rhoney v. Barbosa da Cunha⁠. Ricardo Aparecido Barbosa da Cunha, a Brazilian national, entered the United States without inspection around 2005. He later applied for asylum, received work authorization, and eventually bought a home. He operates a small construction business and lives with his wife and two U.S.-citizen children. He has no criminal record. But immigration officers still arrested him while he was driving to work in Massachusetts in September 2025.

After Cunha challenged his detention, a federal court ordered a bond hearing and an immigration judge found that he posed neither a danger nor a flight risk and therefore released him on bond while his case proceeded. The Trump administration then appealed to the U.S. Court of Appeals for the 2nd Circuit and lost. Now the Supreme Court will have the final word⁠.

The Supreme Court is not deciding whether Cunha may ultimately remain in the country. Instead, it is deciding the narrower question of whether the Immigration and Nationality Act mandates detention pending removal proceedings for someone like Cunha who is present in the United States without having been lawfully admitted⁠.

The legal dispute turns on two phrases in one section of this federal immigration law. According to Section 1225, a noncitizen present in the United States who has not been legally admitted is considered an "applicant for admission." But when Congress imposed mandatory detention later in that same section, it used additional language, applying it to an applicant for admission who is "seeking admission."

That distinction may sound technical and trivial, but its consequences are enormous. If every statutory "applicant for admission" is automatically still "seeking admission," then the government can treat someone who crossed the border 20 years ago the same as someone arriving today and keep them in jail without the possibility of bond. If the two phrases mean two different things, however, then Cunha and others like him are generally eligible for a bond hearing under Section 1226, which permits both detention and release on bond or conditional parole⁠.

The Trump administration argues that if Congress has deemed someone an applicant for admission, that person must necessarily still be seeking the admission for which they are considered an applicant. But the administration's argument asks the Court to stretch federal law beyond its reasonable limits. Congress expressly deemed certain people "applicants for admission." It did not separately deem them to be "seeking admission."

This case, in short, is about textualism. And as the late Justice Antonin Scalia and his co-author Bryan Garner argue in their book, Reading Law: The Interpretation of Legal Texts, one of the key principles of textualism is that "a material variation in terms suggests a variation in meaning." When Congress uses different words in closely related provisions, in other words, courts should hesitate before assuming that the different words mean the exact same thing.

In ordinary English, it is certainly difficult to describe a man driving from home to work after living in the United States for over two decades as presently "seeking admission." He is not seeking to enter the U.S.; he already entered decades earlier. The 2nd Circuit's unanimous opinion—written by Judge Joseph Bianco, a Trump appointee—reached this conclusion, holding that "seeking admission" describes ongoing activity rather than merely a retained statutory status⁠.

Meanwhile, when the U.S. Court of Appeals for the 5th Circuit upheld the administration's position in a similar case, Judge Dana Douglas, an appointee of former President Joe Biden, invoked the same Scalia-Garner textualist principles in dissent. 

The legal dispute, therefore, does not follow neat partisan lines. Judges from different ideological backgrounds have both concluded that the administration's reading goes beyond the words that Congress wrote.

The broader statutory structure also supports that conclusion. Congress has long required mandatory detention in Section 1226 for specified criminal and terrorism-related grounds⁠. And the Laken Riley Act of 2025 expanded those mandatory-detention categories⁠. But if nearly everyone who ever illegally entered the country is already subject to mandatory detention, as the administration asserts, then all of those carefully drawn separate categories for mandatory detention suddenly become superfluous and pointless for noncitizens who illegally entered the country, an objection that Douglas raised in dissent⁠.

History also clarifies the point. For nearly 30 years, across five presidential administrations (including Trump's first), the government generally treated people like Cunha as potentially eligible for bond. Trump only reversed course in July 2025. The 2nd Circuit thus accurately described the earlier interpretation as a well-established executive branch practice⁠.

Of course, past executive practice cannot override clear statutory language. But if Congress really did mandate a sweeping detention regime in 1996⁠, it is striking that every presidential administration since then has operated under a totally different understanding⁠.

None of this gives Cunha lawful immigration status. Nor does it guarantee his release or prevent the government from deporting him. Rather, it allows an immigration judge to ask a basic question: Is keeping this particular person in jail actually necessary while his case proceeds?

The administration may believe mandatory detention makes immigration enforcement faster or more effective. And Congress is free to adopt that policy if it chooses to do so. But Congress does have to choose it first.

Protecting the constitutional separation of powers is one of textualism's most important functions. Textualism is often described as a conservative method of statutory interpretation. But its deeper value is constitutional. It forces both courts and presidents to follow the law Congress actually passed. Sometimes that produces harsher results. Sometimes it produces more humane ones. But either way, it restrains the executive and judicial branches from exceeding their proper spheres.

Whether mandatory detention would accelerate Trump's deportation program is a question of policy. Whether it is just is a question of ethics. Whether Congress authorized it is a question of law.

In Cunha, the best textualist reading is that Congress preserved the possibility of bond and left room for an immigration judge to determine whether detention is necessary. That textualism, liberty, and compassion point to the same result is not the reason to reach it. In this case, however, it is a welcome coincidence.

The post Trump's Mandatory Immigration Detention Policy Fails the Textualist Test appeared first on Reason Magazine.

Turkish authorities seized control of Halk TV, a popular pro-opposition television station based in Istanbul. Police raided its headquarters, stopped live broadcasts, and prevented staff from entering the building. A court appointed a government administrator to run the station and other companies linked to its owner, Cafer Mahiroğlu, who is being investigated for bribery, money laundering, and rigging public contracts. Mahiroğlu, who lives abroad, denied the accusations. After the takeover, the station stopped airing live news and instead broadcast music and documentaries, while authorities also ordered its social media accounts blocked in Turkey. The seizure came as Halk TV was covering corruption allegations involving figures linked to President Recep Tayyip Erdoğan's ruling party and the trial of imprisoned Istanbul Mayor Ekrem İmamoğlu.

The post Brickbat: Turkish Banned appeared first on Reason Magazine.

"The long-term goal is to achieve statehood and autonomy," says Kymone Freeman, the Green Party candidate for Washington, D.C.'s nonvoting delegate seat in the U.S. House of Representatives. "The short-term leverage to achieve that is tax resistance."

Like many D.C. locals, Freeman believes it's unfair that residents of the nation's capital pay federal income taxes without a voting representative in Congress. Freeman has made it a key plank in his policy platform that D.C. residents should be exempt from paying federal income tax until the district is granted statehood. "We're celebrating the 250th anniversary of America's resistance to taxation without representation, so I think it's time," says Freeman. The nation's capital is a federal district, not a U.S. territory like Guam, Puerto Rico, and the U.S. Virgin Islands, so D.C. residents are still subject to federal income tax requirements. 

Federal district or not, imposing income taxes on D.C. residents without representation would likely offend America's Founders, who met in New York in October 1765 and proclaimed that it is "inseparably essential to the freedom of a people…that no taxes be imposed on them, but with their own consent, given personally, or by their representatives." Taxation is a form of theft. Compounding the issue, D.C. residents have little recourse to challenge their tax burden.

The U.S. is the only democratically governed nation to withhold voting representation from citizens living in its capital. Worse, local officials—such as the city's mayor and the D.C. Council—must solicit congressional approval for the district's budget and laws with little more than a figurehead serving as their lone representative in the federal legislature. Reason's analysis of the Internal Revenue Service's latest available adjusted gross income data shows that D.C. tax filers paid more federal income tax per return than residents in any other state, about $26,900, compared to a national average of roughly $14,300.  

While that's partly because the city has many high-income earners, data show that excluding those in the city earning over $1 million, D.C. residents still paid more in income tax per return than filers in any state, about $16,500 compared to $8,900 nationally.

"We don't have a system where public policy is determined by public input because of the status quo," says Freeman. But challenging that status quo has proven difficult, as Congress resists attempts to make D.C. the 51st state. In 2021, the House of Representatives passed a party-line bill sponsored by Del. Eleanor Holmes Norton (D–D.C.) to establish D.C. as the 51st state. It later died in the (barely) Democratically controlled Senate.

Democrats once opposed D.C. becoming the 51st state; however, they've since warmed to the idea, unlike Republican lawmakers at the federal level, who have been reluctant to support statehood for D.C., viewing it as a move that would give Democrats an electoral stronghold. That argument has some truth: No elected Republicans serve on the D.C. Council. The city hasn't had a Republican mayor since its local government was established, and the district has reliably voted for a Democrat in every presidential election since 1964.

Even though Republicans at the national level do not support statehood for D.C., the District's local GOP does support ending taxation without representation. Denise Rosado—the Republican candidate for D.C.'s delegate seat—thinks statehood for the district is "unlikely" and "undesirable." That hasn't stopped her from campaigning for an end to federal income taxes in D.C., an outcome she claims can be "accomplished quickly."

That's doubtful given Congress' pace. Still, there's no logic in making statehood a prerequisite to abolishing the federal income tax requirement for district residents.

The post In D.C.'s Delegate Race, 2 Candidates Agree: No Federal Income Tax for District Residents appeared first on Reason Magazine.

One of the more interesting developments at the U.S. Supreme Court in recent years has been the rise of a kind of sporadic alliance in defense of civil liberties between Justices Sonia Sotomayor and Neil Gorsuch.

In 2018, for example, Gorsuch, joined by Sotomayor, blasted the Supreme Court for refusing to even hear arguments in Stuart v. Alabama, an important case about forensic evidence, criminal trials, and the Sixth Amendment right to cross-examine one's accusers.

Similarly, in United States v. Davis (2019), Sotomayor joined Gorsuch's majority opinion striking down a federal law that called for enhanced sentencing when a gun was used in connection with certain federal crimes because the law at issue was too imprecisely written to pass constitutional muster. "When Congress passes a vague law," Gorsuch wrote, "the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again."

Gorsuch and Sotomayor have also been on the same page in a number of Fourth Amendment cases, though Sotomayor's overall Fourth Amendment record is arguably stronger than Gorsuch's. In Torres v. Madrid (2021), for instance, the Supreme Court held that when the police shoot a fleeing suspect, it still counts as a "seizure" for Fourth Amendment purposes even if the suspect kept on the move after being shot. "The application of physical force to the body with the intent to restrain is a seizure," the Court held, "even if the person does not submit and is not subdued." Sotomayor joined that pro-civil liberties decision; Gorsuch, along with Justices Clarence Thomas and Samuel Alito, sided with the officers and voted in dissent.

Fortunately, the Gorsuch-Sotomayor band was back together last week to make some noise in support of the Bill of Rights in a dispute that pitted property rights against police powers. As Reason's Billy Binion reported, the Supreme Court declined to hear a case challenging a lower court's "categorical rule" that "property destroyed in the exercise of [a state's] 'police power' is immune to claims under the Takings Clause, the U.S. Constitution's pledge that government cannot usurp private property without fairly compensating the owner."

Sotomayor, joined by Gorsuch, strongly implied that she thought the lower court's rule was unconstitutional, though she accepted that "further percolation" on the issue was needed before the Court should step in. "Where, as here, a person alleges a 'classic taking in which the government directly appropriates private property for its own use' or to pay an outstanding debt, like a tax lien," Sotomayor wrote, "the talismanic invocation of the State's 'law enforcement authority,' may be insufficient to avoid the requirement of just compensation." (Citations omitted.) Sotomayor then urged the lower courts that are "considering this issue to take care that due deference to state police powers does not eclipse constitutional rights."

Just as Gorsuch's Fourth Amendment record has its blemishes, Sotomayor's record on property rights has also been less than impressive at times. So it is doubly welcome to see these two justices back in the trenches together on this particular civil liberties front.

Elsewhere in the Law

Writing at SCOTUSblog, Anastasia Boden, a senior attorney at the Pacific Legal Foundation, has an interesting article about the Supreme Court's landmark 1926 decision in Euclid v. Ambler, in which, as Boden put it, the Court ruled in favor of a town's "power to pass comprehensive zoning, and against a local developer who had argued the town's plan exceeded the city's police power and destroyed the property's value." In effect, the Court's ruling was "the birth of modern zoning."

One of the things that has long fascinated me about Euclid v. Ambler is the fact that the opinion was authored by Justice George Sutherland, who is probably best remembered today for his role as a leading judicial foe of President Franklin Roosevelt's New Deal. In Euclid v. Ambler, however, Sutherland endorsed a view of regulatory authority that has been celebrated by liberal academics as "a model of pragmatic and well-balanced Progressive jurisprudence."

I suppose we might call it an irony of legal history: The intellectual leader of the Supreme Court's anti–New Deal bloc actually left a greater mark on the law by shoring up the immense power of city planners.

The post Gorsuch and Sotomayor Unite in Another Civil Liberties Case appeared first on Reason Magazine.

Since the beginning of President Donald Trump's immigration crackdown in January 2025, the Department of Homeland Security (DHS) claims more than 1.1 million people have been arrested by Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) combined. But so far, the names of most arrestees have been kept secret. This lack of public disclosure threatens Americans' ability to hold the government accountable.

While ICE will disclose some details about detainees, the agency's refusal to provide the names, dates of birth, and locations of detainees violates the Freedom of Information Act (FOIA), according to a federal lawsuit filed by The Marshall Project on Tuesday. In denying FOIA requests for this information, ICE claims the "privacy interests of the individuals in the records…requested outweigh any minimal public interest disclosure of the information," and revealing such information would "increase the risk of misuse, unwanted contact, harassment, stigma, or other privacy harms," according to the complaint.

A curious position given the DHS' own "worst of the worst" website discloses all kinds of information, including names and photos, while boasting about the detention of select immigration detainees with criminal records. 

It's true that publicly disclosing someone's arrest, particularly a criminal arrest, may damage their reputation. But it's a necessary tradeoff to ensure a functioning democracy. Disapproval of anonymized arrests dates back to the Magna Carta. This pro-liberty stance was adopted early in America's Founding. In Federalist No. 84, Alexander Hamilton denounced the "practice of arbitrary imprisonments" as "the favorite and most formidable instruments of tyranny." He went on to cite Sir William Blackstone, an English jurist who greatly influenced America's Founders, quoting: "The confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." 

Throughout much of American history, law enforcement agencies have disclosed the identities of those arrested through police blotters and other means in the name of transparency and government accountability. Today, 27 states have codified this practice, according to an amicus brief filed by the American Civil Liberties Union (ACLU) in a similar but separate case involving ICE's refusal to release the names of those arrested during a 10-day immigration enforcement operation in Chicago. And even when statutes don't plainly state arrest logs qualify as public records, courts have consistently held they do, the ACLU argues. Indeed, the Supreme Court has already ruled that the constitutional right to privacy does not extend to the publication of official acts, such as arrests. 

"We are seeking transparency and access to information that have existed within the criminal justice system for centuries," said The Marshall Project's editor in chief, Jennifer Peter. Concealing the names of detainees "makes it far more difficult for their loved ones and attorneys to help them—and for organizations like The Marshall Project to shine a light on what's truly happening within immigration camps," Peter continued.

Trump immigration crackdown has been a source of ongoing debate since its inception. Leading up to the 2026 midterm elections, a recent New York Times poll found that 50 percent of Americans trust the Democratic Party to do a better job of handling immigration, compared to 46 percent trusting Republicans more. 

Opponents of Trump's approach to immigration have routinely cited concerns over the use of force, wrongful arrests, detentions, and deportations, including those of U.S. citizens, and the mistreatment of detainees. Proponents of limited government and financial accountability have also raised concerns over the opaque yet explosive expansion of federal agencies, including over $200 billion in funding for FY 2027 and the 100 percent increase in both CBP and ICE funding, reaching nearly 44,000 agents combined, all in the name of immigration enforcement. 

Since the Founding, Americans have been rightly skeptical of government overreach and the potential to abuse arrest powers. In the era of Trump's immigration crackdown, this skepticism is even more warranted, and accountability is even more needed.

The post The Founders Warned Against Secret Arrests. ICE Is Testing That Principle. appeared first on Reason Magazine.

"My contempt for the state is infinite."

—Javier Milei, explaining his willingness to make deep cuts to existing spending and regulation in Argentina, from an interview with The Economist in 2024.

The post How Much Contempt Does Javier Milei Have for the State? appeared first on Reason Magazine.

On November 3, the U.S. Supreme Court will hear oral arguments in a case that asks whether Colorado has unlawfully discriminated against a religious preschool because the school is barred from participating in the state's universal preschool program due to its refusal to accept LGBTQ families. In addition to involving multiple hot-button political and cultural issues, the case also has big implications for the future of federal antidiscrimination law.

St. Mary Catholic Parish v. Roy is not about a state law that directly prohibits a religious preschool from operating. Rather, at issue here is a government requirement that any preschool that wants to participate in the state's universal preschool program, and receive the public benefits that follow, must first satisfy various criteria, including that "each preschool provider provide eligible children an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability."

According to the Catholic preschools overseen by the Archdiocese of Denver, however, complying with that rule would force the schools to violate their religious beliefs. "It is undisputed that these preschools would otherwise be eligible [universal preschool] providers," the schools told the Supreme Court. "They are excluded solely because of their religious exercise—namely, their religious practices of ensuring that all enrolling families are supportive of the Catholic Church's teachings on sex and marriage and of treating enrolled four-year-olds in accordance with their biological sex."

These schools can point to a pair of recent Supreme Court precedents that will very likely count in their favor. In Espinoza v. Montana Department of Revenue (2020), the Court held that if a state provides educational subsidies that help parents send their children to private schools, the state "cannot disqualify some private schools solely because they are religious." Then, in Carson v. Makin (2022), the Court held that Maine's tuition assistance program violated the Constitution by excluding private schools that offered "sectarian" education. "A State's antiestablishment interest," the decision said, "does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise."

I would expect the outcome of St. Mary Catholic Parish v. Roy to follow in this same general pattern and hold something to the effect that when a state provides an educational public benefit, it must make some sort of accommodation for the religious views of the recipients.

In Other Legal News

Justice Elena Kagan made news a few months back when she defended her conservative colleagues on the Supreme Court from the oft-heard charge that they are totally in the tank for President Donald Trump. "I don't see this as a court that is just like, 'We're just going to rubber stamp what the current administration does.' You know, quite the opposite," Kagan said. "I think that that is a bad rap." In support of her argument, Kagan pointed to the fact that the Supreme Court had recently ruled against Trump on the two big issues that Trump himself valued the most: tariffs and birthright citizenship.

Kagan was in the news again on Tuesday, this time because she publicly blasted those same conservative colleagues for issuing decisions on voting rights and political gerrymandering that, in Kagan's words, have produced "a democracy that does not work as well as it should." According to Kagan, the Court's conservative majority "has kind of blinded itself to the very deleterious effects of their rulings on how the political system works."

Does this mean that Kagan has now stopped defending the conservative justices from the pro-Trump charge? Not at all. In fact, as The New York Times put it, "she reiterated her defense of the conservative-dominated bench from a July appearance and said it was a 'bum rap' to suggest the court had been too deferential to Mr. Trump."

I don't know about you, but I find Kagan to be a refreshing public figure in these simplistic, partisan times. She is a staunch legal liberal with clearly stated objections to what the Supreme Court's conservative majority is getting up to, yet she refuses to be associated with the laziest progressive attacks on the Court. How many people of comparable public stature these days are willing to call out the shortcomings of their own side?

The post A Religious Preschool Is Barred From a State's Universal Preschool Program. SCOTUS Will Decide What's Legal. appeared first on Reason Magazine.

I read and much enjoyed—and highly recommend—my Stanford colleague Diego Zambrano's book, How Americans Enforce the Law. He was kind enough to write up for us this post that captures the core of his argument, and I'm delighted to pass it along (though I encourage people to read the whole book):

The headlines are full of stories about a federal government retreating from enforcement. Agencies are dropping investigations, abandoning regulations, shrinking staffs and changing enforcement priorities. One week, the EEOC drops discrimination cases. The next week, the SEC and CFPB wind down investigations into securities fraud and wrongdoing affecting consumers. Critics fear that the Department of Justice's antitrust division will overlook mergers when it is convenient for the administration. And the DOJ has abruptly reduced enforcement of the Foreign Corrupt Practices Act. Facing these changes, Americans might worry that a wide range of laws will go unenforced.

But that concern misses something unique about the American system of government. We have never relied only on bureaucrats to enforce our laws.

All the way back to the colonial period, American legislators have repeatedly done something unusual: they have given ordinary people the right to sue alongside government officials. In almost every regulatory area that most Americans care about—be it regulation of wages and hours, environmental pollution, consumer protection, or securities fraud—statutes allow both government officials and private parties to file suit to enforce the law. All of this happens through little-known provisions called "private rights of action," which is just a technical name for a right to sue. Thousands of these provisions build a second enforcement system alongside the bureaucracy, turning employees, consumers, competitors and their lawyers into co-enforcers of public law.

This system of private enforcement of the law is highly unusual. In much of the rest of the world, whenever a government faces a regulatory problem, it typically empowers government officials and bureaucrats to police legal violations. In France, Germany, Japan, and even the UK, legislators are far less likely to let anyone sue over, say, environmental pollution or employment discrimination.

Consider the case of oil spills. In 1989, the United States faced the Exxon Valdez oil spill off the pristine waters of Alaska.  Millions of gallons of oil laid waste to coasts, waters, and fisheries for hundreds of miles. What most Americans don't know is that a decade later, France also faced a catastrophic oil spill, caused by a ship called the Erika. So how did governments react? In the United States, private plaintiffs sued Exxon directly under existing tort and maritime law, eventually winning substantial damages. Congress, meanwhile, enacted a statute called the Oil Pollution Act with a new right-to-sue those responsible for oil spills. By contrast, in France, the oil spill led primarily to a major criminal prosecution and, eventually, to new national and European regulatory measures (including a new bureaucracy called the European Maritime Safety Agency). When France finally adopted a right to sue in 2016, it paled in comparison to the American version.

Why is the United States so different? Part of the answer, as I argue in a new book, is that Americans have always done this. Back in the colonial period, state legislatures adopted what they called "penal statutes," that empowered any person to enforce regulatory statutes and collect a bounty. So when Massachusetts wanted to regulate the storage of gunpowder, it allowed private informers to sue neighbors who stored it improperly. And this model applied across many areas of colonial life: alcohol consumption, trade, taxation, public morals, church attendance, and more. The Founders used the same tool across the board: Thomas Jefferson and James Madison co-wrote Virginia statutes full of penal statutes, and John Adams handled these suits routinely as a colonial lawyer.

The key feature of this system is that even though private parties file suit for their own aims—the employee wants their full wages paid or the consumer wants a refund for a shoddy product—they inevitably enforce the law. And those lawsuits benefit everyone else because employers and manufacturers may change their behavior with respect to other employees and consumers. In that sense, every single plaintiff is a little bureaucrat or, as some courts call them, a "private attorney general."

This system has the added benefit of reducing political disruptions in enforcement. Even though any single administration can change the enforcement priorities of the EEOC, SEC, CFPB, or Department of Justice, the president cannot control thousands of lawyers and their clients. Private enforcement, then, makes enforcement less dependent on what the bureaucracy and president want.

Right. So you might think that when the bureaucracy won't pursue wrongdoing, the obvious solution should always be new rights to sue. Indeed, many news stories decrying a lack of government enforcement immediately call for more private lawsuits.

But there's a problem with that solution. Private enforcement is not tailor-made for every regulatory area. It makes the most sense to empower private parties when the bureaucracy is truly faulty, under-resourced, politically vulnerable, or likely to be captured by regulated entities. When this isn't the case, private enforcement can cause more problems than it solves.

Consider, then, the enormous problems that rights to sue pose in the environmental context and in the construction of housing and infrastructure. There, broad rights to challenge government approvals can let private parties oppose the construction of housing, mass transit, green energy, and other projects. Examples of ruinous lawsuits abound. Neighbors in a Maryland suburb—backed for years by a nearby country club—sued to delay the Purple Line light-rail project over concerns for a microscopic organism, while the Sierra Club sued to stop a major Mojave solar energy project over the potential impact to a desert turtle. So even if a city government has approved a project that might benefit thousands of people, a single crank can use a right-to-sue to stop the project. In these settings, rights to sue have contributed to delays and increased costs of housing and infrastructure.

We need a careful approach to rights to sue. Yes, we need more of them in some areas. Especially if the government won't enforce anti-corruption or consumer protection statutes. And yes, in employment law, securities, and antitrust, private enforcement often makes a lot of sense. But this is not necessarily the case in environmental law and construction. There, we need better bureaucracies, not thousands of people with the ability to oppose construction projects for any number of reasons.

When the bureaucracy retreats, Americans should rest assured that private parties will still enforce the law. But that power to enforce the law should be given carefully.

The post "The Three Words That Explain American Government: 'Right to Sue,'" by Stanford Law Prof. Diego Zambrano appeared first on Reason Magazine.

Bringing Order to Anarchy: Governing the World to Come, by Charles Kupchan, Yale University Press, 328 pages, $32.50

In popular rendering, international politics since 1945 has been shaped by the so-called "liberal order." Led by the United States, a bundle of international institutions, rules, and norms intended to limit interstate competition and facilitate cooperation were widely embraced, contributing (per this narrative) to a peaceful and prosperous world. Today, that system seems to be breaking down, leaving policymakers, pundits, and scholars grappling with what a future order should entail and how this system should be orchestrated.

Rivers of ink have already flowed in service of this foundational question. To the mix we can now add Charles Kupchan's Bringing Order to Anarchy. Kupchan, a professor of government at Georgetown University and a senior fellow with the Council on Foreign Relations, is interested in both how the present crisis of order arrived and what should be done about it—as he puts it, "How did we get here?" and "What do we do now?" In his telling, we arrived at this moment because of the diffusion of power abroad, combined with shifts in domestic priorities among key members of the post-1945 order (especially the United States). The post-1945 order, he concludes, is thus irredeemably broken.

Going forward in what he sees as an increasingly multipolar world, Kupchan advocates a "global system of concerts" modeled on the Concert of Europe—the international order established after the Napoleonic wars. His proposed system would prioritize relations among the great powers, creating "informal and flexible steering groups" that would emphasize "building consensus, establishing lateral lines of authority across power centers, and providing top down governance." In practice, influence and authority would devolve to different regions, within which local great powers would play leading roles in shaping regional affairs. Meanwhile, the great powers would meet as part of a global concert, sitting atop regional orders as a kind of deconfliction and organizing body.

The most welcome contribution here is Kupchan's call to accept the end of the post-1945 order and to work within the constraints of a new distribution of power. For all that policymakers and analysts recognize that change is needed, the debate over the future of international order tends to focus on preserving whatever elements of the existing order we can. It also tends to attribute the need for change to shifts in U.S. domestic politics. Kupchan, on the other hand, helpfully reminds us that order depends first and foremost on the distribution of power. States, after all, are the building blocks of any international system, just as relative power affects both what they want and their options for pursuing their interests. The creation and maintenance of an order therefore hinges on whether it broadly reflects the distribution of power, allowing states to get some of what they want, through means most can accept.

It follows that pronounced shifts in the distribution of power require adjustments in the larger system. The greater the shift, the greater the change. And since the power shift underway today is foundational—with China emerging as a peer competitor to the United States, American power in relative decline, and power diffusing away from the West (broadly conceived)—it would be extremely foolhardy to try to preserve an order created at a very different historical moment. With a new distribution of power, Kupchan recognizes, a new system is required. Hard stop.

Still, Kupchan's call for creating a concert to replace the extant order is not entirely convincing. Two problems stand out.

First, the very same power shifts that require change to the current system leave the efficacy of the concert approach open to question. If great powers are to play the leading role in a concert system, it matters both which states constitute the great powers and how their relative power compares to one another. But amid a power shift, these are the very issues that are likely to be intensely contested, if not fundamentally uncertain. It's inauspicious for the envisioned concert, for instance, that scholars of international politics cannot agree whether the world today is unipolar, multipolar, bipolar, or something else altogether. Absent some baseline understanding of the distribution of power, it is difficult to see how a concert would form, gain buy-in, and operate successfully. 

Kupchan's invocation of the Concert of Europe itself alludes to the problem. It is no accident that the Concert formed only after 25 years of warfare clarified the European distribution of power, and waned as power shifted (due heavily to the emergence of Germany). Nevertheless, Kupchan doesn't seriously engage with this core requirement for a concert model when he makes the case for a concert today. The result is a tension between the book's underlying logic and its top-line policy prescription.

Second, and relatedly, it is not completely clear what the concert's remit would actually entail. On one hand, Kupchan argues that the "Global Concert would be a consultative body, not a decision-making one"; it would "tee up decisions that could be taken and implemented" by other ordering bodies. Yet Kupchan also notes that a key virtue of concerts writ large is their ability to "lower the bar to reaching and abiding by agreements"; similarly, he calls for concert diplomacy that would set up "bespoke steering groups to tackle specific challenges," particularly in security affairs. This suggests something grander than a consultative body. "Reaching and abiding by agreements" and setting up ad hoc fora to tackle specific challenges are decisions. Indeed, even "teeing up" ideas and decisions that could be tackled by subordinate international institutions and structures is a kind of decision. 

One gets the sense that Kupchan is not totally comfortable with the implications of his own reasoning. If new great powers are emerging and are poised to dominate international politics, and if these states are to coordinate with one another in small group settings, it seems likely that the concert would be a decision-making body. Alternatively, if the concert is to truly function as a consultative body, it is unclear why new great powers eager to assert influence over the international agenda would sign up and give credence to this exercise.

Beyond the logic of the concert system itself, no review of Bringing Order to Anarchy would be complete without some reflection on the volume's discussion of U.S. politics. The book contains a lengthy list of proposed domestic changes, including calls to encourage civility, forge bipartisan consensus, put the U.S. fiscal house in order, and avoid ideological excesses at home. No doubt many readers would agree with these recommendations. Still, it is not really clear what these proposals do to advance Kupchan's core arguments. Rather than directly affecting the creation or operation of a concert order, the domestic challenges he wants to remedy act as constraints on U.S. power: They impede the translation of U.S. material capabilities into international influence. Accordingly, a concert system could operate even with a domestically dazed and confused United States—the U.S. would simply be a less effective participant. Changing the domestic status quo may be a good thing, but it is not central to the mission of explaining what a future international order entails. The book's domestic discussion ends up being an odd discursion.

Still, this is an important book. In calling for casting the former order aside, Kupchan brings needed clarity to a meandering discussion. By the same token, it is very useful to bring insights from the Concert of Europe into the policy conversation. Whatever gaps there might be in its ideas about the logic and operation of a concert system—or the relationship of domestic politics to a concert—the book raises a new set of options, and that in itself is a valuable contribution to the discussion.

The post After the International 'Liberal Order' appeared first on Reason Magazine.

The U.S. Supreme Court's 2026–2027 term just got a whole lot boozier. On Monday, the justices agreed to hear arguments later this year or next in the case of Department of Justice v. McNutt. At issue is whether the 1868 federal ban on distilling liquor at home is unconstitutional because it exceeds the lawful regulatory power of the federal government. If any modern Supreme Court case ever deserved its own drinking game, this one is it.

In April, the U.S. Court of Appeals for the 5th Circuit found the federal ban on home distilling to be unconstitutional because Congress lacked the proper authority to issue such a ban in the first place. It was not a legitimate exercise of the congressional authority "To Lay and collect Taxes," the appellate court reasoned, because "the purpose of a tax is to raise revenue for the government;" yet this law "amount[s] to an anti-revenue provision" that only "prevents distilled spirits from coming into existence." And if it does not exist, of course, the government cannot tax it.

The 5th Circuit also denied that the federal ban on home distilling could be saved by the government's appeal to the Necessary and Proper Clause, which says that Congress has the authority "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

But the federal ban on home distilling cannot be "necessary" to the execution of the enumerated taxing power, the 5th Circuit argued, because the provisions of federal law at issue "tax nothing, and are distinct from the regulation of distilling alcoholic products that is permitted by federal tax law."

Nor did the 5th Circuit find the ban to be "proper." "By purporting to ban activity without a plain connection to the exercise of Congress's taxation power," it held, "Congress has essentially—and 'improperly'—invaded the reserved police and regulatory power of the states."

The Trump administration lost this case at the 5th Circuit and has now successfully urged the justices to hear its appeal. In its petition seeking review, the Trump administration faulted the 5th Circuit for its overeagerness to "second-guess" the "legislative judgment" of Congress. Instead, the Trump administration argued, the federal judiciary owes a great deal more deference to the federal government's regulatory priorities in a case like this. "A law is necessary and proper if it is 'convenient' or 'useful' for carrying an enumerated power into effect, and 'plainly adapted' to that legitimate end," the Justice Department's brief argued. "That is the case here."

This case may lead to an interesting divide among the Supreme Court's more conservative members. In United States v. Comstock (2010), a 7–2 Supreme Court embraced the Necessary and Proper Clause as sufficient constitutional grounding for the Adam Walsh Child Protection and Safety Act, which had empowered federal officials to order the indefinite civil commitment of "sexually dangerous" individuals who had already finished serving their prison sentences. Chief Justice John Roberts joined the majority opinion in that case, while Justice Samuel Alito voted in concurrence. In other words, they both endorsed a broad view of congressional power under the Necessary and Proper Clause. By contrast, Justice Clarence Thomas, joined by the late Justice Antonin Scalia, voted in dissent. The Comstock ruling, Thomas protested, "comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that 'we always have rejected.'"

Are we about to see a similar Alito-Thomas split over the proper reach of federal power in this case? And what about Justices Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh? Will one or more of them play the Scalia part and similarly reject the Trump administration's broad reading of the Necessary and Proper Clause?

Stay tuned.

The post Trump Administration Urges SCOTUS To Uphold Federal Ban on Distilling Liquor at Home appeared first on Reason Magazine.

From a press release last month, just posted on Westlaw:

N.C. Detective Agency, a Durham-based security company, will pay $65,231 in compensatory damages and back pay, and take other corrective actions to voluntarily resolve a religious discrimination investigation by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

The EEOC's investigation found reasonable cause to believe that an employee requested to be excused from work due to a Muslim religious holiday, but the request was denied. The company was aware of the employee's need for a religious accommodation but did not engage in the legally required interactive process, and instead terminated her in June 2025 when she did not report for duty.

And from another press release two weeks later, also just posted on Westlaw:

Reynolds IGA Foodliner, Inc., owner and operator of a chain of grocery stores, will pay $65,000 and provide other equitable relief to settle a religious discrimination and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the suit, shortly after she was hired as a deli clerk at the Piggly Wiggly store in Hazlehurst, Georgia, the employee requested Sundays off to observe her Sabbath. The employee's supervisor denied the request, claiming that, if the store gave the employee Sundays off, it would have to do the same for all other employees. The employee continued to request the accommodation, and the company fired her in January 2025.

More from the second press release:

"Employers cannot deny religious accommodation requests simply for fear of upsetting other employees," said Marcus G. Keegan, regional attorney for the EEOC's Atlanta District. "The EEOC remains committed to enforcing federal anti-discrimination law and protecting employees' rights to religious freedom."

Darrell E. Graham, director of the EEOC's Atlanta District, said, "Employers must thoughtfully consider each request for religious accommodation on an individual, case-by-case basis and otherwise make good-faith efforts to accommodate their employees' religious beliefs. Employers must be aware of their obligations under federal law to provide reasonable religious accommodations absent undue hardship."

Finally, from a third press release from last month (it was published in between the first two, but was again just posted on Westlaw); this one involves a lawsuit and not a settlement:

Blue Bell Creameries, Inc., a Brenham, Texas-based frozen snack manufacturer and distributor with a production facility in Sylacauga, Alabama, unlawfully terminated a Jewish body shop technician soon after he requested a beard‑related religious accommodation, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit announced today.

Even supporters of bans on religious discrimination by private employers might debate whether employers should be required to give religious exemptions from generally applicable rules (exemptions that could themselves be seen as discrimination in favor of religious observers). But Congress has indeed mandated such exemptions: Title VII of the Civil Rights Act, as amended in 1972, generally requires employers to accommodate religious objectors' requests for exemptions from generally applicable work rules, unless doing so would pose an "undue hardship" for the employer.

That extends to time off for religious holidays: Indeed, the leading recent case on the subject, Groff v. DeJoy, involved a Christian employee's request for an exemption from having to work Sundays. And of course it extends, as it must, to all religions.

The post $65K Settlements with EEOC Over Failure to Accommodate Muslim and Christian Employees' Religious Days Off appeared first on Reason Magazine.