The annual Randsday Objectivist Conference will be held Jan. 28-Jan. 30 at the Crowne Plaza Hotel in Fort Myers, FL. The “early bird” price, effective until Nov. 1, is $385; from Nov. 1 until Dec. 31, the price is $450; after that date, $520.

In addition to a full slate of lectures, the program will feature an exclusive showing of the 1997 documentary Ayn Rand: A Sense of Life. Written and directed by Michael Paxton, this Oscar-nominated film is a worthy tribute to Ayn Rand. It includes interviews with Leonard Peikoff, Harry Binswanger, Michael Berliner and John Ridpath. Paxton will be on hand to introduce the documentary and to take questions from the audience. It will be shown, only to attendees, at 2pm on Jan. 28 at a nearby movie theater. Cost is $15.

For the full program, and for registration information, go to: RandsdayCon.com.

After 46 years of failed attempts, our government is on the verge of passing freedom-to-build legislation that will make everything more affordable, from energy to housing. We must seize this opportunity by demanding that our representatives publicly support this legislation—now.

Contact your representative now

America has a building crisis

Americans hear a lot about the fuel crisis, the electricity crisis, the housing crisis, and the munitions crisis.

But we don’t hear about the deeper, underlying crisis: the building crisis.

Despite the fact that technology has made it easier than ever to build great things quickly and cheaply, America has never been so slow and expensive at building. And that makes everything less affordable.

• We pay much more for gasoline and diesel than we should because it’s too hard to build a refinery in this country.1

• We pay much more for electricity than we should because it’s too hard to build power plants, fuel pipelines, and power lines in this country.2

• We pay much more for housing than we should because it’s too hard to build housing and apartment complexes in this country.3

• We’re running out of munitions because it’s too hard to build and run a factory in this country.4

The cause is an endless permitting process

Why is America so bad at building?

The skill of building hasn’t somehow gotten harder; in fact, technology has made it easier than ever to build great things quickly and affordably.

The problem is the government has made it far harder than ever to build things—above all through an endless permitting process for big, important projects.

Permitting delays make it much more expensive to build energy infrastructure, housing developments, and factories—with all the extra costs passed onto consumers.5

According to McKinsey, there is up to $1.5 trillion in American infrastructure awaiting federal approval, including power plants, pipelines, and factories that could be lowering prices.6

The solution is freedom-to-build legislation

The good news is that now most members of both parties recognize that endless permitting delays are a real problem—and that the solution is “permitting reform”: the freedom to build.

The freedom to build (quickly and safely) is what allowed Americans nearly 100 years ago, with far worse technology, to build the Empire State Building in just over a year—whereas if such a building took 5 years to build today that would be considered a miracle of speed.7

Endless permitting requirements in America’s major industrial and environmental laws have taken away the freedom to build.

We need to dramatically but responsibly reform permitting, so that any permitting process quickly and effectively confirms that a project is not a threat to its neighbors, their environmental quality, or their property.

And permitting reforms need to be made by Congress so that they are part of the law. This way, reasonable permitting requirements endure from administration to administration, instead of permitting selectively increasing and decreasing with every new President.

We finally, finally have a bipartisan deal with White House support: BAAJA

For decades, those who recognized America’s permitting crisis have worked to pass comprehensive, Congressional permitting reform.

In fact, as far back as 1980 the House and Senate were working on permitting reform that shortened timelines, reduced litigation, and ensured permitting certainty.8

Time after time, comprehensive reform has failed, because for one reason or another a bill could not get both bipartisan Congressional support and White House support.

But it appears we’ve reached a breakthrough.

On September 30, after 20 months of hearings and negotiations, Senators Capito (R, Environment), Lee (R, Energy), Whitehouse (D, Environment), and Heinrich (D, Energy) released the Bipartisan American Affordability and Jobs Act—BAAJA.

The White House has endorsed the deal, and as part of the negotiations agreed to unblock (at least) dozens of solar and wind projects that have been held up in various parts of the permitting process.9

Not only do we have a deal, which itself is incredibly rare, but the deal is surprisingly good from a freedom-to-build perspective. Importantly, it is a tech-neutral bill that makes it easier to build across the board vs. favoring some subset of politically-preferred industries.

Here is what the bill does on the four areas of permitting Republicans and Democrats are most focused on.

BAAJA limits the abuse of bonus reviews (NEPA) to block big projects

Every project in the US has to do environmental reviews to comply with our core environmental laws: Clean Air Act, Clean Water Act, etc.

The National Environmental Policy Act (NEPA) adds what was supposed to be a short and non-binding bonus review of all a project’s potential environmental impacts. But these bonus reviews have morphed into the #1 blocker of building in America.

In 2020-2024 NEPA Environmental Impact Statements for major projects took an average of 2.6 years—nearly twice the amount of time it took to build the Pentagon in 1941-43, and ten times what it took to (safely) build the first long-distance pipeline in 1879.10

Here’s how BAAJA dramatically improves NEPA to safely expedite building:

• Only new projects or major expansions must undergo bonus reviews — NEPA will no longer be triggered by routine upgrades (e.g., replacing old engines with newer, cleaner ones) or simply having federal funding (e.g., getting a government loan).

• Any lawsuits over incomplete bonus reviews must be filed within 150 days — blockers will no longer be able to threaten lawsuits for 6 years.

• Courts can’t kill projects over errors in bonus reviews — projects will be able to continue while working on the fixes, often avoiding years of delays (e.g., a railroad that couldn’t be started because of dubious criticisms of its 3600-page bonus review).

If BAAJA passes, its NEPA improvements will make it easier and faster to build the $250 billion of projects that enter federal permitting every year—and the countless billions of projects that investors don’t back for fear of overly burdensome federal permitting. These projects include power plants, fuel pipelines, power lines, mines, factories, roads, bridges, ports, water systems, and housing developments. BAAJA can help unblock them all.

BAAJA limits the abuse of the Clean Water Act to stop vital, 100% water-safe electricity infrastructure

The Clean Water Act was supposed to protect waterways from dangerous emissions of liquids and solids. Today, it is being abused to stop interstate natural gas pipelines, even though operating these don’t emit liquids or solids.

The biggest water-related impact of gas pipelines is temporary muddying during construction.11 And yet state politicians regularly use Clean Water Act reviews—which are supposed to confirm that pipelines comply with water quality standards—to veto pipelines they don’t like.

For example, New York blocked the 97-mile Northern Access Pipeline, which would have carried 500 million cubic feet of Pennsylvania gas into New York per day, in the name of things like temporarily muddy water in nearby streams.12

Thanks in large part to inadequate pipeline capacity, New England (the home of multiple of the biggest Clean-Water-Act-abusing states) had residential retail natural gas prices last winter that were 54% higher than the national average.13

Clean Water Act abuse is also an increasingly potent tool for state politicians to use against electric transmission lines, further threatening affordability.

Here’s how BAAJA dramatically improves the Clean Water Act to safely expedite building:

• Reviews must cover only what’s relevant to water quality — not irrelevant concerns, such as temporarily muddy water.

• States must approve projects if they meet water quality standards — states can’t just veto projects they don’t like.

• Any conditions attached to an approval must be necessary to meet water quality standards — states can’t make excessive or unrelated demands.

• Once a state certifies the federal review, the state’s water requirements are deemed satisfied — federal agencies can’t reopen the review and start an endless cycle.

If BAAJA passes, both gas pipelines and transmission lines will be easier to build—meaning lower electricity and heating costs for Americans.

BAAJA gives builders certainty that a permit, once granted, will be upheld

A permit is supposed to certify that a project is legal and give it a green light. Today, permits are treated by administrations as revocable at will, which destroys investment.

Permit uncertainty kills known price-lowering projects like Keystone XL, but also stops investors from funding countless price-lowering projects due to political risk.14

A 2026 National Association of Manufacturers survey found that 50.8% of manufacturers said permitting concerns discourage them from investing in projects.15

Here’s how BAAJA dramatically increases permitting certainty:

• Developers can sue when agencies miss permitting deadlines — judges can order agencies to issue a decision within 60 days.

• Agencies can’t pull permits without proof of an urgent threat — if a judge finds the proof insufficient, developers get substantial compensation.

• Agencies can’t single out a type of energy project for worse permitting treatment — if developers can prove discrimination, they get substantial compensation.

If BAAJA passes, the greatly increased permitting certainty will lead countless new investors to eagerly invest in American industry—meaning lower prices and more job opportunities.

BAAJA modestly improves electric transmission by making it easier to build truly cost-effective projects

America could greatly benefit from cost-effective new transmission to better deal with growing electricity demand, but today’s permitting process makes projects very difficult to build. To make matters worse, the transmission that does get built is often wasteful because there is insufficient oversight over monopoly utilities who get higher (guaranteed) profits for spending more.

BAAJA modestly improves this bad status quo by making transmission easier to build while imposing imperfect but meaningful limits on federal authority to approve wasteful projects and force ratepayers to fund them.

Specifically, it creates:

• A new legal limit on wasteful long-distance transmission — FERC (Federal Energy Regulatory Commission) can authorize new interstate transmission projects anywhere (vs only in certain “corridors”) but only if the project contributes to reliability or affordability (vs being able to authorize virtually any project).

• A new process to limit wasteful local transmission — States can request that FERC investigate and penalize utilities for building wasteful local transmission that consumers are forced to pay for.

We can’t allow wishful thinking or anti-building activists to stop passage

BAAJA is a huge step forward in freedom-to-build, advancing major priorities of both parties and addressing, more than anything else the government can do right now, Americans’ number one concern: affordability.16

But if we do not put incredible pressure on politicians right now, BAAJA will very likely not pass due to three challenges: wishful thinking, anti-building activists, and time.

Wishful thinking

Since Democrats are, according to current polling, likely to take control of the House or the Senate starting in January, many say the party should hold out for “a much better deal” next Congress instead of the current “Republican deal.”17

But the current permitting deal is a bipartisan deal that extensively factored in Democratic priorities in order to secure the many Democrat votes needed to meet the Senate’s 60-vote threshold.

Any deal in the next Congress would have to be very similar to get sufficient Republican votes in the Senate—and above all to get Donald Trump to sign it.

It is a near-miraculous opportunity that President Trump has put his support behind a bill that explicitly reduces his executive power. America needs to take that opportunity and pass BAAJA this Congress.

Time

There are about 20 days left on the Congressional calendar this year. And there are many other priorities, both essential (funding the government, funding defense) and popular (farm bill extension, college sports legislation, nominations) competing for time.18

Unless Congress makes BAAJA an absolute top priority, it will not happen this Congress—and then will have to be restarted next Congress (which would mean almost certain failure).

And unless everyone agrees to pass this with few-to-no changes, there are multiple friction points that can kill the bill: from getting 60 votes in the Senate to start the consideration process, to getting the House to pass a “rule” to start their process, to the time-consuming potential of the House sending a bill back to the Senate.

Anti-building activists

There are certain constituencies that do not want anything like BAAJA to pass. They welcome wishful thinking, and will do anything they can to run out the clock.

The most obvious constituency here is anti-development groups that just fundamentally think it’s wrong for humans to build because building involves extensive development (impacting) of nature.19

It is these groups that made permitting so difficult in the first place, so of course they don’t want it to be (a lot) easier.

The main excuse anti-development groups make for opposing BAAJA is that, by making it easier to build all projects—including fossil fuel projects—it contradicts their goal of reducing CO2 emissions as much as possible.20

But, as many pro-BAAJA CO2-focused groups have pointed out, there is no politically viable way of passing permitting reform without including fossil fuel projects. And non-carbon sources of energy need the freedom to build if they are to evolve and scale to become truly cost-competitive with fossil fuels—which is the only way CO2 emissions will decline.21

So long as fossil fuels are the lowest-cost form of energy, most countries, including China, India, and Russia, will choose to use them and increase emissions. Whether you think this is right or wrong (I think it’s right) that is the reality. Anti-development groups pretending that opposing BAAJA will somehow lower global CO2 emissions are just making a convenient excuse to justify their long-standing hostility toward building.

A more surprising source of opposition to BAAJA comes from many monopoly electric utilities. These monopolies, whom the government forces us to pay, (including a guaranteed profit margin), currently make a lot of money via 3 forms of wasteful spending that BAAJA restricts.

1. Building local transmission lines and forcing ratepayers to pay for them with little oversight.

2. Building new transmission lines when it would be more cost-effective to upgrade existing ones using technologies such as “reconductoring.”

3. Building transmission lines without any competitive bids.

While most utilities have not been publicly attacking BAAJA, behind the scenes many are using their enormous political machines to threaten various politicians and nonprofits into making major changes to BAAJA—changes that would almost certainly prevent it from passing.22

We cannot allow these efforts to succeed.

Demand that your representatives support the new legislation before the election

Now is one of the few times you can make a big difference politically. Congress almost never passes anything useful these days, and it could be passing something incredibly useful.

And what you can do is very simple.

Tell your Congressman to publicly support BAAJA before the election.

I have created a very simple tool to track where your Representatives and Senators are on this issue, and to draft a personalized message, then submit it through your representative’s contact form (or better yet make a phone call) about it.

Contact your representative now

Most politicians are not focused on freedom-to-build right now. But they are focused on your vote.

Tell them that they need to publicly support BAAJA now, before the election. If we can get dozens or preferably hundreds of politicians on board, we dramatically increase our chances of them prioritizing the bill and passing it as-is quickly.

We’ve seen from the last 46 years of failed negotiations that it’s extremely hard to get a bipartisan deal that a President will sign. We cannot wait any longer for the freedom to build. If we don’t do it, it will likely be punted to some distant future. And Americans will wonder why everything is getting more and more expensive, and why we can’t produce enough munitions to beat even Iran, and why it’s harder and harder to afford a house, and why we have blackouts when it gets cold in the winter.

Or we can act with urgency and enough of us can tell our politicians: Support BAAJA, the biggest affordability legislation in decades, now.

Michelle Hung, Steffen Henne, and Daniil Gorbatenko contributed to this piece.

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Governments have spent decades issuing dietary guidelines, sponsoring public health campaigns, and encouraging consumers to cut back on sugary, salty, and fatty foods. Now they're moving beyond persuasion and adopting more aggressive measures to influence what people eat.

In an October 8 article titled "Nagging People to Eat Healthily Does Not Work," The Economist describes a growing international movement to tax unhealthy foods, restrict advertising, require warning labels, and regulate how supermarkets display and promote their products. Such measures are needed, officials argue, because the earlier approach failed to curb rising obesity rates.

The Economist notes, for example, that from 1992 through 2020 Britain adopted 14 national strategies to reduce obesity, comprising 689 individual policies. Most of these sought to educate consumers about healthy eating or improve access to healthier foods. Yet England's obesity rate doubled over roughly the same period.

The article treats the rise in obesity as evidence that these efforts failed, and its framing implies that governments need to go further. But the fact that obesity increased despite these initiatives doesn't tell us whether they were effective. (After all, obesity might have increased even faster without them.) More importantly, it doesn't follow that more intrusive interventions will improve health outcomes.

The Economist article cites a study that attributes Mexico's reductions in calories, added sugar, and saturated fat sold to mandatory warning labels. But these measures reflect changes in food purchases and product formulations, not demonstrated improvements in health. The article provides no evidence that the labeling requirements have reduced obesity, diabetes, cardiovascular disease, or mortality.

And who decides which foods should carry warning labels, face higher taxes, or be restricted in where retailers can display them? The government has a poor track record in providing nutritional advice.

Terence Kealey, Bautista Vivanco, and I wrote a Cato Institute article earlier this year examining the history of federal dietary guidelines. We traced how officials adopted dietary recommendations grounded in scientific theories that were contested from the outset and inadequately supported by experimental evidence.

In 1977, the Senate Select Committee on Nutrition and Human Needs issued Dietary Goals for the United States, urging Americans to reduce fat and cholesterol intake while increasing carbohydrate intake. The recommendations reflected the prevailing hypothesis that dietary fat and cholesterol were major causes of cardiovascular disease.

But the evidence was far from conclusive. Researchers had challenged the correlations underpinning the hypothesis, and randomized trials available at the time had failed to show a mortality benefit from reducing dietary fat. The American Medical Association warned in 1977 that the evidence supporting universal dietary goals was inconclusive and that the recommendations could have harmful consequences.

Nevertheless, federal officials pressed forward.

For decades, government dietary guidance encouraged Americans to limit cholesterol-rich foods, including eggs and shellfish. It wasn't until 2015 that the Dietary Guidelines Advisory Committee concluded that dietary cholesterol was no longer a nutrient of concern for overconsumption.

Meanwhile, the campaign against dietary fat coincided with—and may have contributed to—significant shifts in American eating habits. According to the U.S. Department of Agriculture (USDA), from 1970 through 2003 per capita availability of grains rose by 43 percent, while added fats and oils rose by 63 percent. A separate USDA report found that per capita consumption of whole milk declined by 70 percent over that period, while consumption of lower-fat and skim milk increased by 140 percent. The USDA attributed this shift to warnings about saturated fat. Even after scientists raised concerns about trans fats, federal dietary guidelines continued to favor margarine over butter. Some margarines contained partially hydrogenated oils, which the Food and Drug Administration (FDA) later determined were no longer generally recognized as safe because of their cardiovascular risks.

These trends don't prove that government dietary advice caused Americans to change their diets. But government recommendations can influence what manufacturers produce and what consumers buy. When these recommendations are wrong, the consequences can be widespread.

Nutritional science is complex, and scientific consensus can shift. Government officials are no less susceptible to error than anyone else. Yet when the government endorses a particular dietary theory, its recommendations carry authority that can discourage competing approaches and magnify the consequences of mistakes.

The latest federal dietary guidelines illustrate this problem. The Trump administration's 2025–2030 guidelines introduced a new food pyramid that places greater emphasis on proteins and fats while discouraging refined carbohydrates. Whatever the merits of those changes, the reversal demonstrates how dramatically official dietary recommendations can shift.

The uncertainty doesn't end with fats and carbs.

Consider the growing campaign against ultra-processed foods. Numerous observational studies link higher consumption of these products to obesity, cardiovascular disease, diabetes, and other adverse health outcomes. Yet researchers have not yet determined precisely which ingredients, additives, processing methods, or combinations of these factors account for many of those associations, or at what exposure levels.

Nor is there universal agreement on what constitutes an "ultra-processed" food in the first place. As Kealey, Vivanco, and I pointed out in another Cato article, the widely used NOVA classification system places a broad range of products in the ultra-processed category, including some fortified cereals and breads that provide valuable nutrients. Researchers have struggled to classify certain foods consistently. A 2025 systematic review identified six different systems for classifying highly processed foods, each with its own criteria.

Even the federal government recognizes the problem. In July 2025, the Department of Health and Human Services (HHS), the FDA, and the USDA announced plans to develop a uniform definition of ultra-processed foods. Their request for information acknowledged that existing classifications can include nutritious foods such as whole grains and yogurt. In August 2026, HHS announced that the agencies had submitted a proposed definition for final review.

Some ultra-processed foods may indeed pose health risks. But broad categories can obscure important differences among products, and observational associations alone cannot tell us which ingredients or processing methods cause adverse health outcomes.

The Economist article reports that Britain is considering a system that would require supermarket chains to meet government-defined nutritional targets across their entire sales. Rather than merely informing customers about nutritional content, the government would make retailers responsible for altering the composition of what consumers buy. Supermarkets could comply by promoting certain foods, discouraging others, or pressuring manufacturers to reformulate their products.

Government nutrition authorities would thus have considerable power to influence what supermarkets sell and what consumers buy. If their nutritional assumptions prove mistaken, the consequences could affect millions of consumers.

Consumers benefit from accurate information about the ingredients and nutritional content of the foods they buy. But providing information is different from using government power to manipulate prices, restrict advertising, or pressure retailers to change what they sell.

Moreover, people have different nutritional needs, preferences, and attitudes toward risk. Some may willingly trade potential long-term health benefits for convenience, affordability, or the simple pleasure of eating foods they enjoy. These are choices individuals are entitled to make for themselves.

That raises a more fundamental issue. Even if officials had perfect knowledge of nutrition, why would that entitle them to dictate the dietary choices of competent adults?

Most people would likely oppose the government compelling patients with hypertension to take their medications, forcing sedentary adults to exercise, or prohibiting people from engaging in recreational activities that pose health risks. Why should eating be any different?

Adults should be free to seek dietary advice from physicians, nutritionists, researchers, or anyone else they trust—and to decide whether to follow it. They should also be free to disregard that advice, even if that might increase their health risks.

The post The Government Doesn't Know What's Best for You. Why Let It Decide What You Should Eat? appeared first on Reason Magazine.

Contemporary controversy over Columbus Day tends to focus on Christopher Columbus himself, and in particular on the treatment of Native Americans that followed European colonization. Somewhat lost in the controversy is why Columbus Day became an important American holiday in the first place: in significant part, it was a response to the severe discrimination faced by Italian immigrants.

The relevant history begins with large-scale immigration of Italians to the United States in the late nineteenth century. Italians, especially Sicilians and other southern Italians, were widely viewed as culturally and otherwise inferior, prone to criminality, and incapable of assimilating into American society.

The most infamous manifestation of anti-Italian hostility occurred in New Orleans in 1891. After Police Chief David Hennessy was murdered, a group of Italians was prosecuted for the crime. The trial failed to produce the expected convictions. On March 14, 1891, a mob broke into the jail and killed eleven of the Italian defendants and prisoners. Some had been acquitted and others had not yet been tried. The Italian consul described them at the time as "defenseless Italian prisoners."

The lynching caused a major diplomatic crisis. Italy withdrew its minister from Washington, and in April 1892 the Harrison administration paid 125,000 francs to Italy for distribution to the victims' families. Secretary of State James Blaine expressed the hope that this would end the dispute and restore friendly relations between the two countries.

Six months later, on the four-hundredth anniversary of Columbus's arrival in the Americas, President Benjamin Harrison proclaimed a nationwide Columbus Day observance.

Harrison did not invent the idea of celebrating Columbus. Americans had commemorated Columbus long before the 1890s, and the four-hundredth anniversary would have been a major event regardless of the controversy over Italian immigration. So it would be too strong to say that the New Orleans lynching caused Columbus Day.

But the connection between the rise of Columbus Day and the status of Italian Americans is nevertheless important. Columbus provided Italian immigrants with a particularly useful American hero. At a time when Italians were commonly portrayed as undesirable foreigners who could never become real Americans, Italian Americans could point out that an Italian stood at the traditional beginning of the American story.

Italian-American organizations accordingly made Columbus celebrations a major vehicle for ethnic pride and assimilation. In New York, Italian Americans raised the money for the Columbus monument at Columbus Circle, dedicated in October 1892. Columbus Day parades combined Italian ethnic pride with conspicuous displays of American patriotism.

Anti-Italian prejudice, meanwhile, continued well beyond the 1890s. Immigration restrictionists commonly portrayed southern Italians as inferior and inherently prone to criminality, and the immigration restrictions enacted in the 1920s drastically reduced Italian immigration.

Columbus Day gradually became institutionalized. Franklin Roosevelt established an annual federal Columbus Day observance in the 1930s. Italian-American organizations then spent years lobbying to make it a federal holiday. Congress finally did so in 1968 as part of the Uniform Monday Holiday Act. The National Archives' history of the legislation specifically notes that making Columbus Day a federal holiday had been "a goal sought for years by Italian-American groups."

None of this tells us what to think of Columbus himself. There is much greater awareness today, appropriately, of the terrible treatment of Native Americans following European colonization. But that increased awareness has tended to obscure a very different part of the history of Columbus Day.

For Italian immigrants and their descendants, Columbus Day was not simply a celebration of European conquest. It was also part of an effort to gain acceptance for an immigrant group that faced widespread prejudice and, sometimes, horrific violence. Whatever one thinks of Columbus, that history is worth remembering.

The post The Forgotten Origins of Columbus Day appeared first on Reason Magazine.

George Anibowei, a U.S. citizen, is a Texas-based immigration attorney with many clients battling the Department of Homeland Security. Border agents have searched his phone at least five times without a warrant as he returned to the United States.

In the first search, agents copied the phone's entire contents, including his confidential communications with clients. The government still has that data, and Anibowei still doesn't know why it was kept or who has seen it. He now leaves his work phone at home when he travels.

On September 29, the Supreme Court asked the federal government to respond to Anibowei's petition, which asks whether the Fourth Amendment lets border agents search the contents of a phone without a warrant. (I'm one of his lawyers.) The government waived its response, expecting the Court would deny the petition without a second look.

But in 2021, the solicitor general told the Court that this very question had produced an "entrenched circuit conflict" of "considerable practical importance." The conflict has only deepened since. Seven federal appeals courts now hold that a warrant is never required to search a phone at the border, while the 4th and 9th Circuits require one in at least some cases. That means one of your constitutional rights currently depends on which airport you fly into.

While circuit courts may disagree, the Supreme Court has already shown the best answer for this question. In Riley v. California (2014), the Court unanimously held that police generally need a warrant to search the phone of someone they arrest. There is an exception for searches incident to arrest, which allows the police to arrest someone without a warrant; that exists to protect officers and preserve evidence. Data can't hurt an officer, and a phone can be secured while police get a warrant. An extension of an old exception to digital data, the court said, "has to rest on its own bottom." Treating a phone like any other container in an arrestee's pockets was like saying "a ride on horseback is materially indistinguishable from a flight to the moon."

The border-search exception fails the same test. Those searches exist to collect duties, keep out people who may not enter, and stop contraband. But duties attach to physical goods, not data. And as the legal scholar Orin Kerr has put it, agents "will not find a person smuggled inside a computer hard drive." As for digital contraband, anyone who wants illicit files can carry a clean phone and download them after clearing customs. Suspicionless phone searches burden millions of innocent travelers while barely inconveniencing smugglers.

The appeals courts that disagree mostly cite one another. But the Supreme Court rejected a lopsided lower-court consensus in Riley, and again in Carpenter v. United States (2018). Counting courts is not a constitutional argument.

Defenders of these searches lean on history. In United States v. Ramsey (1977), the Court noted that the first Congress authorized warrantless customs searches in 1789, less than two months before it proposed the Fourth Amendment. True enough. But that statute let officers search ships for hidden dutiable goods. To search a house, store, or other building for the same goods, officers needed a warrant. And nothing in the statute let officers read a traveler's papers.

That distinction was no accident. Customs abuses had helped spark the Revolution. Writs of assistance gave British customs officers blanket authority to search wherever they pleased, which James Otis said placed "the liberty of every man in the hands of every petty officer." And the founding generation guarded letters especially closely. Benjamin Franklin, as the first postmaster general, made postal workers swear they would not open mail without an express written warrant.

Even Ramsey, the government's favorite border search precedent, respected that distinction. It upheld opening international mail to look for contraband, but the regulations before the court flatly prohibited reading correspondence without a warrant, a point the justices stressed repeatedly. The Court has never held that border agents may read a traveler's papers without a warrant. A phone holds years of correspondence. It deserves at least the same protection the Founders gave a sealed envelope.

Last month, however, the 2nd Circuit joined those courts that have disregarded this tradition. In United States v. Alisigwe, Judge Steven Menashi wrote that agents need no suspicion whatsoever to search a traveler's property at the border, phones included. A border search becomes non-routine, he reasoned, only when it intrudes on the person, as a strip search does. A phone is property, so searching it is routine.

Judge Eunice Lee concurred, agreeing that no warrant was required. But she warned that the majority's rule permits suspicionless searches for any reason, "including political or discriminatory ones."

The Alisigwe majority's premise miscasts the Fourth Amendment. The amendment's text secures "persons, houses, papers, and effects" in a single, unranked list. The abuses that produced the amendment were searches of property, including private papers. Agents may properly physically examine a phone to ensure it's not really a container for smuggling contraband. But reading or viewing its digital contents without a warrant trespasses on a person's papers and effects. The framers protected property because they recognized that human beings are not ghosts: We live in the physical world by exercising our property rights, and so searching our property can reveal much about our lives.

Alisigwe is the latest word from a Court of Appeals, but it contains complications for the constitutional issue. The trial court found that agents had reasonable suspicion, so the no-suspicion holding arguably wasn't needed to decide the case. That suspicion involved a forged passport, which goes to identity and admissibility, the core of border authority. Finally, Alisigwe was a permanent resident, not a citizen, so the government's interest in deciding who may enter was heightened.

Anibowei is simple on each of these counts, which is why one can be hopeful the Supreme Court will take it and address the Fourth Amendment question now. Anibowei is a naturalized citizen, no one suspects him of anything, and he challenges the government's search policies directly rather than seeking suppression of evidence in a criminal case. As the 5th Circuit itself acknowledged, his case "turns squarely and solely" on the warrant question.

The stakes keep growing. In FY 2025, Customs and Border Protection (CBP) searched 55,318 electronic devices, nearly 11 times as many as in 2012—and nearly a quarter of those searches targeted U.S. citizens. According to the directives Anibowei challenges, agents may keep what they find and share it with federal, state, local, and foreign agencies. Investigators have learned to wait for a target to travel and ask CBP to search his phone on the way back in, rather than go to the trouble of demonstrating probable cause to a judge. No wonder universities, bar associations, and press freedom groups now advise travelers to leave their devices at home.

The Founders rebelled against customs officers who could search wherever they pleased and read whatever they found. A rule letting border agents scroll through a citizen's correspondence, photos, and client files without a warrant, or any suspicion at all, revives that power. The Supreme Court should take Anibowei's case. Our papers don't lose Fourth Amendment protections at the border just because they're digital.

The post Are Warrantless Phone Searches at the Border Constitutional? The Supreme Court May Soon Decide. appeared first on Reason Magazine.