Lacking any contractual basis for its suit, Gordon-Darby claimed that New Hampshire was required to maintain its vehicle emission testing program under the federal Clean Air Act. The problem for Gordon-Darby is that the Clean Air Act does not actually require states to do anything, in that states are not forced to adopt or enforce any pollution control measures. Rather, the Act seeks to induce state cooperation by threatening various sanctions if states do not comply, such as a loss of federal funding and the imposition of federal regulations. The Act is structured this way because a direct imposition on the state would be unconstitutional, as the federal government conceded to the Supreme Court when these issues were litigated in the 1970s. Since then, the Supreme Court has made explicit that federal law cannot force states to adopt, implement, or enforce a federally desired regulatory program, as any such requirement would be unconstitutional commandeering.

Gordon-Darby first suit foundered when the U.S. Court of Appeals for the First Circuit concluded the litigation was premature. As the district court had looked more favorably on the claims, Gordon-Darby announced its plans to try again. Accordingly, it filed a new notice of intent to sue, raising the same claims.

In the first litigation, the state largely defended on narrow technical grounds, and largely failed to raise the commandeering defense. In my view, this was a mistake, as the anti-commandeering doctrine is quite clear and, in some respects, has its roots in a nearly identical conflict, when the EPA sought to force states to adopt vehicle emission inspection programs in the 1970s. Thus even if Gordon-Darby overcomes the various technical hurdles to filing suit, it has no claim, as it is asking for relief that federal courts cannot lawfully provide.

As Gordon-Darby filed its new notice of intent to sue on May 8, I suspect this means we will see a suit filed in early July. Stay tuned.

The post Gordon-Darby Prepares to Renew Effort to Commandeer New Hampshire in Order to Maintain Emissions Testing Contract appeared first on Reason.com.

In a special America 250 issue, Reason takes a look back at our country's founding people and ideas. Read more here.

The American Revolution took place in Indian country.

This is true in two senses. First, the physical landscape of the Revolution—the fields and forests through which troops marched and fought—was shaped by the continent's original inhabitants. Second, and more important, the mental landscape of the Revolution, from its originating conflicts to its military tactics to the Founders' ideas about freedom and the role of government, was also shaped by the continent's original inhabitants.

Before the arrival of Europeans, New England had been inhabited for at least 11,000 years. Those first peoples didn't like biting insects, thorny underbrush, and poison ivy. They did like berries, nuts, and tubers. Regular burning of undergrowth helped get rid of the bad stuff and promote the good stuff. Natives set fires in spring or fall, when dampness made the flames easy to control. Centuries of burning transformed big swaths of the eastern forest into woodlands so open and parklike that John Smith, of Pocahontas fame, boasted he could gallop a horse through them.

Native villages clustered around New England's many rivers. Cornfields and gardens filled the riverbanks and drifted back into fire-maintained mosaics of berry fields and orchards. Threaded through this edible landscape was a network of trails—although trails may be the wrong term to describe roadways that were as much as 10 feet wide and many miles long.

With the British came epidemic diseases, especially smallpox, that depopulated the villages. Warfare further cleared the land. Settlers erected their new homes atop the old, their fields on land already cleared for farms. The first 50 colonial villages in New England were built on the sites of emptied native settlements. The roads among them were constructed over native roads.

Much as the Thirty Years' War in Europe was fought on the geography created by the Roman Empire, the Revolution was fought on the geography created by native people. When Gen. Benedict Arnold went to capture Fort Ticonderoga, he marched along an ancient Indigenous trade route between Massachusetts Bay and the upper Hudson Valley. Today that road is Route 2, the "Mohawk Trail," the main highway across northern Massachusetts. On their final, victorious march to Yorktown, the army led by Gen. George Washington and French Gen. Rochambeau went down the King's Highway, a network of widened native roads that linked the 13 colonies. Yorktown itself had been one of the capitals of Tsenacommacah (Powhatan Confederacy), the native imperium encountered by the English at Jamestown, the first permanent English settlement in North America. And so on.

In a way that is difficult to imagine now, natives and newcomers lived cheek-by-jowl during the colonial era. Settlers in New England smoked tobacco, planted corn, carried wampum to trade, wore moccasins and deer hide to travel, and fished in canoes (rather than coracles). Indians cooked with steel knives and bowls, cut wood with European axes, and sometimes adopted Christianity. Cultural appropriation was two-way and rampant, and it moved at giddy speed.

As the decades went by, mingling hardened into acrimony, but the mutual influences remained. When natives and newcomers came to blows, Indians carried English weapons but attacked in their own style, with surprise raids by small parties darting in from the trees—what the missionary John Eliot called "the skulking way of war." In the first big "Indian war," the Pequot War of 1636–38, colonists shocked by Indigenous military victories ended up adopting their opponents' tactics wholesale. "God pleased to show us the vanity of our military skill, in managing our arms, after the European mode," Eliot wrote with chagrin. Fifty years later came King Philip's War (1675–78). This time, the English waged war like natives—and won decisively.

The lessons carried over to the Revolution. "They did not fight us like a regular army, only savages, behind trees and stone walls," one British soldier complained after the opening Battle of Lexington and Concord. The colonists, he wrote, are "full as bad as the Indians." After the war, British Lt. Thomas Anburey grumbled that the rebels, infected by "the Indian's idea of war," "delight more by murdering from the woods, walls and houses, [rather] than in shewing any genius or science in the art military."

Both sides wanted the powerful Haudenosaunee (Iroquois) to fight on their side. In May 1775, the colonial militia leader Ethan Allen begged them to "Join with me and my Warriors"—the Green Mountain Boys, as his guerrilla force was known. "I know how to shute and ambush just like Indian and want your warriors to come and see me and help me fight Regulars. You know they Stand all along close Together Rank and file and my men fight as so as Indians Do." The Haudenosaunee, a league of six Indigenous nations, was leery of involvement in what it saw as a foreign civil war. But individual members were drawn in on both sides, splitting the confederacy. Swept into the fight alongside them were another dozen native societies.

The contribution of native-style warfare—and natives themselves—to the Revolution should not be exaggerated. Washington was leery of both Indians and their tactics. Throughout the conflict, he sought to fight European-style, with massed armies blasting away at each other in open fields—although he did sometimes look for soldiers who were, as he put it, "accustomed to the irregular kind of wood-fighting practiced by the Indians." Gradually he warmed to working with such allies as the Iswa (Catawba) and Lënapeyok (Lenape), but he relied on them only for specialized roles—scouting, spying, and safeguarding the frontier—rather than as infantry troops in pitched battles.

If natives' impact on the battleground was limited, their impact on the war's origins, political and intellectual, was enormous.

A turning point occurred in 1763. In January, European nations signed the Treaty of Paris, which ended the Seven Years' War between Britain and France (and their respective allies). Dismaying the war-weary British government, Pontiac's Rebellion erupted barely four months later. It was a monthslong, broad-scale assault by a coalition of native nations on British forces in Michigan and the Ohio Valley. ("Pontiac" was the English name for Obwaandi'eyaag, who led the Odawa, or Ottawa, in Michigan.)

NATIVE LANDS ESTABLISHED BY PROCLAMATION OF 1763

In October, seeking to defuse what was becoming a long and costly conflict, King George III banned colonists from moving into land west of the Appalachians. The royal proclamation gave natives permanent title to what had been the eastern half of France's American holdings—all of the land between the Mississippi River and the crest of the Appalachian Mountains, plus the western half of Georgia, all of Florida, and a big chunk of Canada. It blocked off an area of something like 600,000 square miles.

Leave aside natives' annoyance at being "given" title to land they had occupied for generations. Colonists reacted with fury. From their point of view, the king was taking back the free land he had promised them—the reason that many had left their homelands, the goal of fighting the Seven Years' War. Worse, he was giving it to "savages."

Nowhere was the anger more volcanic than in Pennsylvania, through which many migrants had intended to move into the rich Ohio Valley. Even as the conflict with Pontiac continued, tensions rose between Pennsylvania's colonists and their government in Philadelphia. Settlers harassed soldiers ordered to enforce the king's proclamation. Pennsylvania's legislature, Benjamin Franklin moaned, was under siege by a "mad armed Mob."

British Gen. Thomas Gage and Pennsylvania Gov. John Penn initiated peace talks with Pontiac in March 1765. The negotiators left Philadelphia with a caravan of more than 80 packhorses loaded with goods as guarantees of London's words. Viewing the talks as a sellout, a backwoods militia known as the "Black Boys" raided the supply train, attacked English forts, and kidnapped English soldiers. Penn convened a grand jury to charge the Black Boys. It refused to indict them.

Encouraged, the Black Boys seized much of western Pennsylvania, controlling traffic through the area, assaulting British forces, even issuing their own passports. The conflict continued until July 1776, when Pennsylvania, after a constitutional convention dominated by the Black Boys, became the first colony to establish an independent government, one intended to be responsive to the popular will. It was the first big revolt against British authorities—a dress rehearsal in miniature for the Revolution that was to follow.

Anger about Pontiac's rebellion and the Proclamation of 1763 bubbled into the Declaration of Independence. When the Declaration decries the king's support of "the inhabitants of our frontiers, the merciless Indian Savages," it is referring to his attempts to compromise with the native coalition in the Ohio Valley. And when the Declaration denounces the king's measures to "prevent the population of these States"—that is, to discourage immigration to the colonies—by "raising the conditions of new Appropriations of Lands," it is talking about the Proclamation.

The Revolution had causes other than the Proclamation: taxation, trade controls, forcing colonists to house troops, and so on. One of the most important was one of the most intangible: the rebels' beliefs about freedom, liberty, and governance. These, too, were deeply entwined with North America's original inhabitants.

The first European ventures into North America occurred as Enlightenment figures such as John Locke, Jean-Jacques Rousseau, and Voltaire were questioning Europe's absolute monarchies, state religions, and rigid class rules. All of these thinkers were fascinated by the recently revealed existence of Native Americans—living, breathing products of societies with wholly different social, political, and spiritual traditions. All of them made Indians central to their work.

None of these thinkers were ethnographers in the modern sense. The "natives" featured in their work mainly are foils—convenient human illustrations for ideas. Consider the protagonist of Voltaire's popular novella L'Ingénu (1767). A naive young man, half-French and half-Wendat (Huron), he was less an actual character than a vehicle for the author to mock French hypocrisy and corruption. Locke, interested in the origins of society, used Indians in his work as examples of early human development, preserved as if in amber. ("In the beginning," he wrote, "all the world was America.") Rousseau had similar views. The difference was that Locke didn't think much of these supposedly primitive societies and Rousseau admired them.

At the same time, other Europeans actually were interested in native life—and drew lessons from it. Again and again, foreign visitors to New England and Quebec described their inhabitants as having vastly more personal liberty and autonomy than Europeans. "They imagine that they ought by right of birth, to enjoy the liberty of wild ass colts, rendering no homage to anyone whatsoever," wrote Paul Le Jeune, a Jesuit missionary in France's Canadian colony from 1632 to 1649. "They have reproached me a hundred times because we fear our Captains [nobles and kings], while they laugh at and make sport of theirs."

Unlike Locke, Rousseau, and Voltaire, Le Jeune had a conception of native life that was basically accurate. As he reported, native rulers had little formal authority; they had to persuade others to follow their ideas. The Haudenosaunee, for example, have a tadadaho, who presides over the Grand Council, which itself was comprised of male leaders of the league's six member nations. Tadadaho is traditionally a lifetime appointment, like a king, but the role is more like today's speaker of the House—someone who shapes the agenda but must marshal the support of the other representatives to make anything happen. Even if the tadadaho won the Grand Council's backing, he could not act without the approval of a second, all-female council, traditionally formed of clan mothers.

Unlike European kings and nobles, Haudenosaunee leaders could be deposed if their people lost faith in them (although this was relatively uncommon). They had to have the consent of the governed and worked hard to keep it. Were the colonists who rebelled against King George and established a republic inspired by this? Surely not directly. But it seems clear that the colonists on the Atlantic seaboard were imbued with views about freedom that were strikingly different from those of their ancestors, and that they identified those views with native people.

Europeans at the time widely believed in the "Great Chain of Being," in which society was organized by divine mandate into a rigid social hierarchy. At the top was the king, whose authority was endowed by God. One rung below him was the nobility, whose noble blood made them superior to the merchants and peasants below. So important was the social ladder that European nations had sumptuary laws prohibiting commoners from passing themselves off as their betters by donning their attire—in England, for instance, only the nobility could wear beaver-felt hats. Failing to kowtow to people of superior status was a violation of the Christian order. It was sinful, unthinkable, unnatural.

The Wendat, Haudenosaunee, and other northeastern Indigenous groups thought all that was hooey, and they loudly told this to the Europeans. They "brand us for slaves, and call us miserable souls, whose life is not worth having, alleging that we degrade ourselves in subjecting ourselves to one man [the king] who possesses all the power," reported the Baron de Lahontan, who spent nine years in French Canada. De Lahontan's accounts of his American sojourn, translated into half a dozen languages, include a 1703 book of "dialogues" with a Wendat leader, Kondiaronk, who scoffed at European pretensions. "I have the absolute disposal of myself, I do what I please," Kondiaronk told de Lahontan. The baron, he said, was a fool for "choos[ing] rather to be a French slave than a free Huron."

The appeal of native freedom was anything but theoretical. The Swedish botanist Pehr Kalm spent three years in the Northeast and returned with a best-selling account of colonial life. When Indians captured settlers in war, Kalm reported, most "never wanted to return….They found the Indians' independent way of life preferable to that of the European." Similarly chagrined observations came from Benjamin Franklin. By the time of the Revolution, wrote the aristocratic settler John Hector St. John, "thousands" of Europeans had joined native societies, "and we have no examples of even one of those Aborigines having from choice become Europeans!"

An instinctive dislike of overweening hierarchy is lodged deep in the U.S. character. Some of that surely is because settlers came to the Americas already dissatisfied with what Europe offered them. But one cannot dismiss the impact of seeing other, freer ways of life up close.

When the colonists swarmed the docks of Boston for the Boston Tea Party, they began a call for liberty that led to the Revolution. What did those colonists do to announce their quest for freedom? They disguised themselves as Indians.

The post Native Americans Taught Colonists How To Fight—and To Live Without Kings appeared first on Reason.com.

While I am not convinced the endangerment rescission is lawful, I would hardly argue it is unconstitutional or impinges upon religious liberty. The folks at Our Children's Trust--the group behind the various kids climate suits--feels otherwise. They (along with Public Justice) have filed a challenge to the endangerment finding repeal making such claims.

Last month, in Venner v. EPA, OCT and Public Justice filed a motion to stay the repeal of the endangerment finding alleging the EPA's action violates the youth plaintiffs' "fundamental free exercise rights under the Religious Freedom Restoration Act" and their "rights to life and liberties under the Fifth Amendment."

Longtime readers know that I do not think much of the federal constitutional arguments advanced in the various kids climate cases. Even without recent decisions such as Dobbs I find the claims that the federal government's failure to control greenhouse gases is a constitutional violation to be outlandish. The idea that federal courts should superintend federal energy policy is hard to fathom--and would be quite hard to contain. Thus it should be no surprise that federal courts (with one exception) have consistently concluded that they lack jurisdiction over these efforts to constitutionalize climate policy--most recently on Wednesday in Lighthiser v. Trump.

The latest filing adds a new wrinkle in that it seeks to add religious liberty claims into the mix. Specifically, the claim is that a failure to mitigate climate change will burden the exercise of the plaintiffs' religious faith because rising temperatures will make it more difficult to practice their faiths. [I have posted excerpts from the brief below the jump.]

I find this argument to be quite creative, but I am also quite confident that it will go nowhere. (The petition's claim that the EPA completely failed to respond to comments raising these concerns, on the other hand, does raise a serious administrative law issue, but I have not looked to see if the claim is correct.])

As for the endangerment finding itself, I will have a brief essay in the summer issue of Regulation expanding on some of my concerns about the lawfulness of the EPA's move. Rest assured, neither the Fifth Amendment nor RFRA is not among them.

From the petitioners motion to stay the endangerment repeal in Venner v. EPA:

The Repeal Rule substantially burdens Petitioners Elena, J.K., M.D., and E.S.'s sincerely held religious beliefs. "Government shall not substantially burden a person's exercise of religion" unless it can demonstrate the burden furthers "a compelling governmental interest" and "is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1. RFRA offers "broad protection for religious liberty" beyond that afforded by the First Amendment. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 706 (2014); Holt v. Hobbs, 574 U.S. 352, 356 (2015). Thus, Petitioners' showing of substantial burden under the First Amendment also satisfies RFRA. See id. . . .

The Repeal Rule pressures E.S., J.K., and M.D. to modify their behavior in a way that seriously violates their sincerely held religious beliefs by forcing a choice between adherence to their religious tenets, and protecting their health and safety. Petitioners E.S. and J.K. are observant Jews whose religion requires them to walk to synagogue on the Sabbath. Declarations of L.K. ¶10 (Ex. 20); J.K. ¶¶5-6 (Ex. 21); E.S. ¶¶16-18 (Ex. 19). M.D. is an observant Muslim whose religion requires her to fast during Ramadan. M.D. ¶¶4-7 (Ex. 23); S.A. ¶¶12-13 (Ex. 22). Each Sabbath that is made too hot for E.S. and J.K. to walk safely to synagogue, and each day of Ramadan that is made too hot for M.D. to safely fast and wear hijab, is a day they are prevented from observing important requirements of their religions. E.S. ¶¶12, 22-24; L.K. ¶19; J.K. ¶¶7-9; M.D. ¶¶4-7; S.A. ¶14; Pinsky ¶¶41, 44-46, 58-59; see also L.K. ¶¶25-34 (Sukkot practice harmed); J.K. ¶¶12-14 (same). The Repeal Rule forces E.S., J.K., and M.D. to choose between religious practice and physical safety more frequently than they would otherwise because the Repeal Rule will cause an additional 8.81 gigatons of CO2 pollution to be emitted. Wilson ¶20. This staggering quantity is 1.85 times the United States' total CO2 emissions in 2024. Running ¶11. This quantity worsens local heat surrounding E.S.'s, J.K.'s, and M.D.'s homes, increasing the number of days that they are prevented from exercising their religious beliefs. Running ¶¶15-34; Wilson ¶¶6-13; Jacobson ¶9; E.S. ¶¶24, 22 ("If I'm not in a minyan, there are some prayers I can't say."); J.K. ¶11; M.D. ¶7. The burden is more substantial here than in Hobby Lobby because the pressure for youth to disobey their religion's requirements comes not from a fine that can be paid, but from physical hazards to bodily health and safety, other inalienable rights. E.S. ¶12; Pinsky ¶¶41-45.

The Supreme Court's decision4 in Mahmoud v. Taylor confirms that the Repeal Rule substantially burdens E.S., J.K., and M.D.'s religious exercise because it poses "a very real threat of undermining the religious beliefs and practices that the parents wish to instill in their children" and thus is an "objective danger to the free exercise of religion." 606 U.S. 522, 543, 565 (2025) (holding requiring LGBTQ+inclusive storybooks in school curriculum substantially burdens parents wishing to instill contrary religious beliefs in children) (citation modified). The burden imposed here is more severe than in Mahmoud because the Repeal Rule hinders E.S.'s, J.K.'s, and M.D.'s religious development by preventing their ability to safely engage in core religious practices with their family in community. E.S. is "a young person who is actively trying to develop [his] religious practice[,]" and "losing a Shabbos [Sabbath] service" makes him "less capable of internalizing Jewish Law and integrating it into [his] life." E.S. ¶23. In J.K.'s family, "[e]ach additional hot Saturday diminishes the habit of attending synagogue regularly, thereby diminishing our closeness to God, our sense of community, and our ability to inspire our children to lead Jewish lives." L.K. ¶21. This "profoundly distress[es]" J.K.'s mother because it "could impact both [J.K.'s] ability to enjoy the service as well as his ability to transmit this essential knowledge to his future children." Id. ¶22. M.D.'s mother confirms that extreme heat and climate events have disrupted their religious rituals, and she worries about her daughter's safety wearing hijab in dangerous heat. S.A. ¶¶9-16. As a parent, she must weigh her children's immediate health against her obligation to pass down religious traditions and practices "at a crucial time in my children's religious development as they are entering adulthood." S.A. ¶¶8-17. The increased localized heat from the GHG emissions from the Repeal Rule will thus "substantially interfer[e] with [Petitioners'] religious development" during their "crucial adolescent stage of development" by limiting meaningful opportunities to learn, practice, and internalize their parents' religious values. Wisconsin v. Yoder, 406 U.S. 205, 218 (1972).

The Repeal Rule also imposes a substantial burden on Petitioner Elena, a Catholic youth, by forcing her to choose between two sincerely held beliefs: the obligation to procreate, and the obligation to protect the lives of children. Elena ¶¶9 14. Elena cannot do both because the worsening, rather than improving, air pollution and climate conditions created by the Repeal Rule limit the conditions which Elena sincerely believes are necessary for nurturing and protecting children. Elena ¶¶1314; Pinsky ¶¶10-16, 28, 37, 60-62; Wilson ¶¶4-34; Running ¶¶16, 25-50. "It violates my beliefs to bring someone into this world whose life would be burdened with hazardous air quality and increasing extreme and dangerous heat," because such conditions undermine "life, in utero, for newborns, for growing children, and for mothers[.]" Elena ¶¶13-14; Pinsky ¶¶61-62 ("More babies will be born early or at low weight . . . [a] small number of these babies will also die."); Wilson ¶¶4-34; Running ¶¶16, 25-50. The Repeal Rule thus substantially burdens Elena's exercise of her Catholic faith by forcing her to "engage in conduct that seriously violates" her beliefs by making it impossible for her personally to safely practice her faith's call to procreate and protect life. See Hobby Lobby, 573 U.S. at 720.

The post Youth Climate Plaintiffs Challenge Endangerment Repeal on Religious Liberty Grounds appeared first on Reason.com.

Drunk History debuted in 2007 with a riotous retelling of the political rivalry between Aaron Burr and Alexander Hamilton—a rivalry that eventually resulted in Hamilton's death. The Founders made frequent appearances throughout the series' lifetime, from Benjamin Franklin's more salacious activities to Revolutionary War stories to the political dramas that unfolded in the republic's early years.

The colorful renditions of the 1800 presidential election are particularly entertaining, highlighting the intensity with which Thomas Jefferson and John Adams campaigned against one another. The two men's close friendship devolved as Jefferson and his supporters slandered Adams in the press, using phrases like "monarchical tyrant" and "hideous hermaphroditical character."

With the help of libations, Drunk History makes the Founding Fathers come alive—and reminds us that in American politics, scandal is nothing new.

The post Review: <i>Drunk History</i> and the American Revolution appeared first on Reason.com.

Robby Soave and Christian Britschgi kick off this week's episode of Freed Up with a look at California's socialist elections and Los Angeles' worsening homelessness problem. Then, they discuss why socialism keeps failing, Sen. Ted Cruz's (R–Texas) claim that he is "quite libertarian," and the U.K.'s decision to ban Hasan Piker and Cenk Uygur.

Later, they break down Graham Platner's growing list of scandals, debate whether Dracula is really a romance story, and consider when science and religion come into conflict. Finally, they talk about Robby's struggles as a light sleeper, revisit the moment COVID-19 experts betrayed the public's trust, examine how annual homelessness counts are calculated, and close with Robby's memory of former President Barack Obama speaking at his university commencement.

0:00—The socialist elections in California

4:50—The Los Angeles homeless problem and Spencer Pratt

11:22—Socialism is bad.

19:48—Cruz claims he is "quite libertarian."

22:49—Piker and Uygur banned from the U.K.

31:12—Platner has had enough scandals.

38:27—Dracula is a romance story.

41:33—When are science and religion in conflict?

50:03—Robby is a light sleeper.

58:13—This was the moment the COVID-19 experts betrayed us.

1:12:30—How they come up with the annual homelessness numbers

1:24:55—Obama was the speaker at Robby's university commencement.

The post California Elections, Graham Platner, Recalling COVID Insanity appeared first on Reason.com.