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[Ilya Somin] My New "Washington Post" Op Ed on Eminent Domain and the Border Wall

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The op ed describes the extensive harm likely to be caused by condemning the large amounts of private property that would need to be seized to build the wall.

The Washington Post just published my new op ed on eminent domain and President Donald Trump's proposed border wall. Here is an excerpt:

In his speech on Saturday, President Trump reiterated his determination to build his border wall. Much of the debate over this issue focuses on whether Trump can get the funding he wants.

But even if congressional Democrats agree to give him the funds in exchange for concessions on other immigration issues, that would be only the beginning of the drama over the wall. Trump cannot acquire the land he needs without forcibly displacing large numbers of property owners by using eminent domain. That inevitably threatens the property rights of hundreds, perhaps thousands, of Americans.

Less than one-third of the needed land is currently owned by the federal government. The rest — as much as 1,300 miles — is held by private owners, Native American tribes and state governments, many of whom are unlikely to sell voluntarily. Even if the wall does not cover the full 2,000 miles because it excludes some areas, such as those that have "natural" barriers, many property owners will have to be displaced....

To get that land, the government would have to resort to eminent domain: a power that allows the state to seize property from unwilling owners. The result would be one of the largest federal condemnations in modern U.S. history. In Texas alone, there are some 4,900 parcels of privately owned land within 500 feet of the probable route of the wall. In Arizona, some 62 miles of the route is owned by the Tohono O'odham Nation, which opposes the wall because it would damage the tribe's land and impede ties with members across the border. No one knows exactly how many homes, businesses and tribal properties would have to be condemned. But it is likely that thousands of people would suffer....

In 2005, the Supreme Court generated widespread outrage when it ruled in Kelo v. City of New London that the government could condemn homes to promote private "economic development." The project fell through, and today the site of Susette Kelo's house is used only by feral cats. Trump is a long-standing defender of Kelo, in large part because he himself has a history of benefiting from eminent domain abuse, including the notorious 1998 condemnation of elderly widow Vera Coking's home to build a parking lot for one of his casinos.

As legal scholar Gerald S. Dickinson notes, "The Great Wall of Trump could leave hundreds of Cokings and Kelos at risk of losing their property" — vastly more than in Kelo. They would lose their land to build a structure that is not justified by any genuine security crisis, is likely to cost more than $20 billion in taxpayer money and probably would not significantly reduce undocumented immigration. Even seizing land for feral cats seems a better deal than that.

In this post, and an op ed in the New York Daily News, I discussed the issues raised by the possibility of Trump using emergency powers to build the wall. He does not seem to be pursuing that option, for now. But it could potentially resurface if Congress continues to deny him funding for the wall.

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christophersw
23 hours ago
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[Stewart Baker] Why the FBI's counterintelligence probe of President Trump should be investigated

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If no President is above the law, does that mean no President is above the FBI?

Readers of this blog may be interested in my Lawfare post about the news that the FBI made President Trump the subject of a counterintelligence investigation after he fired their boss. My take:

The political and bureaucratic motives mixed into this incident are reminiscent of the motives mixed into the decision to launch an investigation of Russia and the Trump campaign, the decision to rely on Christopher Steele's research despite his partisan funding, and the decision to interrogate national security adviser Michael Flynn in the slipperiest of fashions. There are reasons why all of these things might have seemed necessary to honest, committed cops just doing their job. But they also offer a roadmap for how to abuse counterintelligence authority to serve partisan ends—a roadmap that more or less begins where the civil liberties protections of the 1970s end.

My concern is that we're not taking that risk seriously because so many former officials and commentators believe that President Trump deserves all this and more. Some of them still hope that the election of 2016 can be undone, or at least discredited. This leads to a perseverating focus on leaks and scraps from the investigation and a determined lack of concern about the investigation's sometimes tawdry origins. (Yes, I'm talking to you, #BabyCannon!)

If we're going to prevent future scandals, we need to look at both. We need to know the answers to a lot of questions that are not being seriously addressed today: To what extent was politics involved in the decision to open the Trump-Russia investigation; to what extent did politics drive its direction; to what extent was politics involved in the Obama administration's transition intelligence leaks; and, finally, to what extent was politics involved in adding the president to the counterintelligence probe?

The only independent review of any of these questions seems to be the investigation launched by Justice Department Inspector General Michael Horowitz. He's examining the FISA application for Carter Page. That's a good start, but it's only a start. It's a commonplace insight that President Trump's norm-defying conduct has triggered norm-defying payback by others. I'm sure we're going to learn about the first, but we can't ignore the second.

It's time to expand the Horowitz inquiry, or something like it, into all of these events.

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christophersw
4 days ago
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Calculator: Opioids, Car Crashes and Falling: The Odds of Dying in the U.S.

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A new report found that, for the first time, Americans are more likely to die of an opioid overdose than in a vehicle crash. But the likeliest causes of death are still heart disease and cancer.

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christophersw
4 days ago
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How to update the firmware on your Zune, without Microsoft, dammit.

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A glorious little ZuneAs I said on social media today, it's 2019 and I'm updating the Firmware on a Zune, fight me. ;) There's even an article on Vice about the Zune diehards. The Zune is a deeply under-respected piece of history and its UI marked the start of Microsoft's fluent design.

Seriously, though, I got this Zune and it's going to be used by my 11 year old because I don't want him to have a phone yet. He's got a little cheap no-name brand MP3 player and he's filled it up and basically outgrown it. I could get him an iPod Touch or something but he digs retro things (GBC, GBA, etc) so my buddy gave me a Zune in the box. Hasn't been touched...but it has a super old non-metro UI firmware.

Can a Zune be updated in 2019? Surely it can. Isn't Zune dead? I hooked up a 3D0 to my 4k flatscreen last week, so it's dead when I say it's dead.

IMPORTANT UPDATE: After I spent time doing this out I found out on Twitter that there's a small but active Zune community on Reddit! Props for them to doing this in several ways as well. The simplest way to update today is to point resources.zune.net to zuneupdate.com's IP address in your hosts file. The way I did it does use the files directly from Microsoft and gives you full control, but it's overly complex for regular folks for as long as the zuneupdate.com server exists as a mirror. Use the method that works easier for you and that you trust and understand!

  • First, GET ZUNE: the Zune Software version 4.8 is up at the Microsoft Download Center and it installs just fun on Windows 10. I've also made a copy in my Dropbox if this ever disappears. You should too!
  • Second, GET FIRMWARE: the Zune Firmware is still on the Microsoft sites as well. This is an x86 MSI so don't bother trying to install it, we're going to open it up like an archive instead. Save this file forever.
    • There's a half dozen ways to crack open an MSI. Since not everyone who will read this blog is a programmer, the easiest ways is
    • Download lessmsi and use it to to the open and extract the firmware MSI. It's just an MSI specific extractor but it's nicer than 7zip because it extracts the files with the correct names. If you use Chocolatey, it's just "choco install lessmsi" then run "lessmsi-gui." LessMSI will put the files in a deep folder structure. You'll want to move them and have all your files right at the top of c:\users\YOURNAME\downloads\zunestuff. We will make some other small changes a little later on here.
      LessMSI
    • If you really want to, you could install 7zip and extract the contents of the Zune Firmware MSI into a new folder but I don't recommend it as you'll need to rename the files and give them the correct extensions.
    • NERDS: you can also use msiexec from the command line, but I'm trying to keep this super simple.
  • Third, FAKE THE ZUNE UPDATE SERVER: Since the Zune servers are gone, you need to pretend to be the old Zune Server. The Zune Software will "phone home" to Microsoft at resources.zune.net (which is gone) to look for firmware. Since the Zune software was made in a simpler time (a decade ago) it doesn't use SSL or do any checking for the cert to confirm the identity of the Zune server. This would be sad in 2019, but it's super useful to us when bringing this old hardware back to life. Again, there's as half dozen ways to do this. Feel feel to do whatever makes you happy as an HTTP GET is an HTTP GET, isn't it?
    • NERDS: If you use Fiddler or any HTTP sniffer you can launch the Zune software and see it phone home for resources.zune.net/firmware/v4_5/zuneprod.xml and get a 404. It if had found this, it'd look at your Zune model and then figure out which cab (cabinet) archive to get the firmware from. We can easily spoof this HTTP GET.
    • NERDS^2: Why didn't I use the Fiddler Autoresponder to record and replay the HTTP GETS? I tried. However, there's a number of different files that the Zune software could request and I only have the one Zune and I couldn't figure out how to model it in Fiddler. If I could do this, we could just install Fidder and avoid editing the hosts file AND using a tiny web server.
    • From an admin command prompt, run notepad \windows\system32\drivers\etc\hosts and add this line:
      127.0.0.1 resources.zune.net
    • This says "if you ever want stuff from resources.zune.net, I'll handle it myself." Who is "myself?" It's our computer! It'll be a little web server you (or I) will run on our own, on localhost AKA 127.0.0.1.
    • Now download dot.net core, it's small and fast to install programming environment. Don't worry, we aren't coding, we are just using the tools it includes. It won't mess up your machine or install anything at startup.
    • Grab any 2.x .NET SDK from https://dot.net and install it from an MSI. Then go to a command prompt and run these commands. first we'll run dotnet once to warm it up, then get the server and run it from our zunestuff folder. We'll install a tiny static webserver called dotnet serve. See below:
      dotnet
      dotnet tool install --global dotnet-serve
      cd c:\users\YOURNAME\downloads\zunestuff
      dotnet serve -p 80
    • If you get any errors that dotnet serve can't be found, just close the command prompt and open it again to update your PATH. If you get errors that port 80 is open, be sure to stop IIS or Skype Desktop or anything that might be listening on port 80.
    • Now, remember where I said you'd extract all those cabs and files out of the Firmware MSI? BUT when we load the Zune software and watch network traffic, we see it's asking for resources.zune.net/firmware/v4_5/zuneprod.xml. We need to answer (since Zune is gone, it's on us now)
    • You'll want to make folders like this: C:\users\YOURNAME\downloads\zunestuff\firmware\v4_5 copy/rename copy FirmwareUpdate.xml to zuneprod.xml and have it live in that directory. It'll look like this:
      A file heirarchy under zunestuff
    • The zuneprod.xml file has relative URls inside like this, one for each model of the Zune that maps from USB hardware id to cab file. Open zuneprod.xml in a text editor and add http://resources.zune.net/ before each of the firmware file cabinets. For example if you're using notepad, your find and replace will look like this.
      Replace URL=" with URL="http://resources.zune.net/
    • <FirmwareUpdate DeviceClass="1"
      FamilyID="3"
      HardwareID="USB\Vid_045e&amp;Pid_0710&amp;Rev_0300"
      Manufacturer="Microsoft"
      Name="Zune"
      Version="03.30.00039.00-01620"
      URL="DracoBaseline.cab">

    • UPDATE: As mentioned above, I did all this work (about an hour of traffic sniffing) and spoofed the server locally then found out that someone made http://zuneupdate.com as an online static spoof! It also doesn't use HTTPS, and if you'd like, you can skip the local spoof and point your your \windows\system32\drivers\etc\hosts with an entry pointing resources.zune.net to its IP address - which at the time of this writing was 66.115.133.19. Your hosts file would look like this, in that case. If this useful resource ever goes away, use the localhost hack above.
      66.115.133.19 resources.zune.net
    • Now run the Zune software, connect your Zune. Notice here that I know it's working because I launch the Zune app and go to Settings | Device then Update and I can see dotnet serve in my other window serving the zuneprod.xml in response.

Required Update

It's worth pointing out that the original Zune server was somewhat smart and would only return firmware if we NEEDED a firmware update. Since we are faking it, we always return the same response. You may be prompted to install new firmware if you manually ask for an update. But you only need to get on the latest (3.30 for my brown Zune 30) and then you're good...forever.

image

Enjoy!

Your iPod SucksZune is the way

Guardians 2 Zune


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© 2018 Scott Hanselman. All rights reserved.
     
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christophersw
8 days ago
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Baltimore, MD
alvinashcraft
8 days ago
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West Grove, PA
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[Ilya Somin] Some Conservatives Recognize the Risks of Using Emergency Powers to Build Trump's Wall

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They correctly warn it would set a dangerous precedent that could be abused by future presidents, including liberal Democrats.

In my January 7 post on Trump's potential use of "emergency" powers to build a wall on the Mexican border, I warned that, if he succeeds in this plan, it would set a dangerous precedent that conservatives would have reason to regret the next time a liberal Democrat occupies the White House:

If Trump is able to overcome legal obstacles and use an emergency declaration to secure funds for the wall without congressional authorization and use eminent domain to seize the land he needs, conservatives are likely to have good reason to regret the precedent it would set. The same powers could easily be used by the next Democratic president for purposes that the right would hate.

Consider a scenario where Elizabeth Warren wins the presidency in 2020, but Republicans in Congress refuse to allocate funds she claims are necessary to combat climate change and institute the gigantic "Green New Deal" program many progressives advocate. President Warren could then declare climate change to be a "national emergency" and start reallocating various military and civilian funds to build all kinds of "green" construction projects. She could declare that climate change is a threat to national security, and use the Army Corps of Engineers and other military agencies to participate in the project.

Indeed, the claim that climate change is a menace to national security is at least as plausible as the claim that undocumented immigrants on the Mexican border are. The Obama Administration Department of Defense even published a report on the subject in 2014. And, of course, if President Warren decides she needs to seize some private property to carry out her plans, she could cite the Trump precedent to use eminent domain for that purpose. This is just one of many ways in which liberal Democrats could exploit the sorts of powers Trump claims here. It would not be difficult to imagine others.

Since then, a number of conservative commentators who (unlike me) support the basic idea of building a wall, have also warned against the dangers of setting this kind of precedent for sweeping presidential power. They include David French, Philip Klein of the Washington Examiner, and the editors of the National Review. French correctly cautions that "[e]ach [such] abuse builds on the next; hypocrisy builds on hypocrisy. The only clear winner is the imperial presidency." Klein points out that conservatives could easily end up as long-term losers, even (perhaps, especially) if Trump's emergency ploy stands up in court:

If President Trump tries to invoke emergency powers to build a border wall and fails in courts, it would be bad for conservatives. But if he succeeds in court, it would be even worse....

All cases carry risks for conservatives, as in all cases a substantial number of Republicans and prominent conservatives will inevitably endorse the move, thus weakening their ability to resist the next Democratic president who tries to stretch the boundaries of executive power. However, some outcomes are worse than others.

If the Trump loses in court, the wall most likely will not get built; however, it will have a silver lining of having established a court precedent limiting the use of emergency powers, thus hindering the ability of the next Democratic president to invoke them to advance liberal policy goals....

If the Trump wins in court and the wall gets built, at first blush, that would seem like a home run for conservatives. And it's true that they'd get something they want: a wall. However, in the long run, it also means that it will have established a precedent that will allow the next Democratic president to declare national emergencies to advance liberal policy goals.

That brings us to the final scenario, which would undoubtedly be the worst case scenario for conservatives. In that case, Trump wins the case in court, but the decision comes too late for him to get much construction done by the end of his first term. Then, he loses re-election. The next Democratic president could then stop construction on the border wall but still turn around and use the precedent set by court decision as a means of advancing any big-ticket liberal items that can't get through Congress. In this case, conservatives give the next Democratic president a blank check and don't even have a wall to show for it. Nightmare.

Perhaps most interestingly, GOP Senator Marco Rubio recently warned that the use of emergency powers to build the wall could set a precedent for a Democratic president to use it to deal with climate change:

A national emergency declaration by President Donald Trump over border security could wind up hurting Republicans, GOP Sen. Marco Rubio told CNBC on Wednesday.

The Florida Republican contended that Trump was elected on the promise of building a wall along the U.S.-Mexico border and the president has to "keep that promise." But "we have to be careful about endorsing broad uses of executive power," he added. "I'm not prepared to endorse that right now."

Such a declaration would set a precedent, Rubio said. "If today, the national emergency is border security ... tomorrow the national emergency might be climate change."

Unlike French, Klein, and the National Review, Rubio has not actually definitively come out against using emergency powers to try to build the wall. He only said he's "not prepared to endorse that right now" (emphasis added). But if he and other congressional Republicans are genuinely worried about setting a dangerous precedent, they could (along with Democrats) pass legislation forbidding such shenanigans, and place tight restrictions on the president's power to reallocate funds and condemn property without specific congressional authorization. In my view, using emergency powers to build the wall is barred even under current law. But the relevant statutes are murky enough that misguided judicial deference to executive power might allow Trump to prevail - and thereby set a dangerous precedent for the future.

The flip side of this is that some liberals might actually like the prospect of using emergency powers to circumvent Congress and seize property for the purpose of combating climate change, or other liberal goals. They might even conclude that letting Trump have his "emergency" wall is a worthwhile tradeoff, if a future liberal president can use the same authority to combat global warming.

Unlike the largely bogus "crisis" on the Mexican border, I believe that climate change is a genuine problem (though there is surely room for disagreement about the extent of the risk, and strategies to reduce it). But that doesn't mean that rule by presidential decree is the right way to address it. And given that we still have many years to address the danger, it would be especially wrong to deal with it by means of emergency powers intended to address fast-moving crises that develop too quickly for ordinary legislative processes. As with other problems requiring government action, it would be best to handle it in a way designed to minimize both the pain caused and the opportunity for power-grabs that expand government control over our economy and society. The revenue-neutral carbon tax advocated by environmental law expert (and Volokh Conspiracy co-blogger) Jonathan Adler, among others, strikes me as a potentially sound approach.

Liberals tempted to use Trumpian emergency powers to fight climate change should remember that Trump is unlikely to be either the last GOP president, or the last dangerous demagogue to get in the White House. In the long run, both left and right would be better off in a world where no one man or woman has the kind of dangerous power to raid the treasury and seize property that Trump now seeks.

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christophersw
9 days ago
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‘One day in East Africa’, woodblock prints by Toshi Yoshida (1980).

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‘One day in East Africa’, woodblock prints by Toshi Yoshida (1980).

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jhamill
11 days ago
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Fantastic.
California
christophersw
9 days ago
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