Tag: amcius briefs

Free Speech Week—Tuesday

Today Cato continues its celebration of the freedom of speech on day two of Free Speech Week. Throughout the week we will be celebrating freedom of speech by posting highlights from Cato’s recent work to support freedom of speech in its various forms, whether through legal advocacy, media appearances, or other public outreach.

Today’s highlight focuses on one of Cato’s recent efforts to promote free speech in the context of campaign finance. Campaign finance laws generally attempt to reduce “corruption” in politics (or achieve some other end goal of varying legal validity) by curtailing the First Amendment rights of those who attempt to participate in the electoral process by speaking out or contributing money to candidates or parties. Shawn McCutcheon is one of these people whose First Amendment rights are being curtailed by federal campaign finance laws, but not for any legally valid purpose. In addition to the limits on contributions to any individual candidate or political party per election, federal campaign finance law also places a cap on the overall amount that can be donated to all candidates and parties combined in any two-year period. Mr. McCutcheon has been waging a legal battle to vindicate his First Amendment right to support however many political candidates he pleases, so long as his contributions remain within the various individual limits. The case is now before the Supreme Court (oral arguments were last week) and stands to be one of the bigger First Amendment cases the Court hears this year. 

Cato has supported Mr. McCutcheon’s fight by filing an amicus brief in the case and by spreading awareness of the issue. Our brief asserts the unworkability of the contribution-expenditure distinction that lets the government treat political contributions as less than fully-protected speech. The Supreme Court will announce its decision in the case later in the term.

To read Cato’s amicus brief in McCutcheon v. FEC click here.

For commentary by Cato’s Ilya Shapiro on the legal issue at stake click here, and here.

For more information on Free Speech Week and to learn how you can help celebrate free speech, check out www.FreeSpeechWeek.org.

The Takings Clause Has No Expiration Date

The Obama Administration has had a bad time recently in property rights cases. In particular, three cases, Arkansas Game & Fish Commision v. United States, Koontz v. St. Johns River Water Management District, and Sackett v. EPA, were big losses for the government and big wins for the private property owners who are increasingly subject to unconstitutional attempts to take land. Last week, Cato, along with the National Federation of Independent Business and the Chapman Center for Constitutional Jurisprudence, filed a brief asking the Supreme Court to review a circuit court decision that could have far-reaching implications for property owners everywhere.

The Fifth Amendment’s Takings Clause guarantees that private land cannot be taken for public use without “just compensation.” But apparently, according to the Federal Circuit, this right has an expiration date. Specifically, the Federal Circuit ruled that Mike Mehaffy purchased his land too late to claim that the government regulated away most of his property value. Mehaffy should’ve known, said the court, that the Clean Water Act had been passed and degraded the value of the land he had purchased. This is called the “Notice Rule,” and it leaves Mehaffy without a claim, unable to recoup most of his property investment.

While the Supreme Court has never given specific guidance on how a court should balance whether a regulation that takes or lowers the value of property should be compensated, in Palazzolo v. Rhode Island the Court was very specific about one thing: no one factor should decide. Despite this admonition, the Federal and Ninth Circuits focus solely on notice to effectively bar anyone from bringing suit if they bought land too late. Cato’s brief argues that Nollan v. California Coastal Commission implicitly recognized that a challenge can be brought despite the fact that property was obtained after the regulatory act in question. Later, in Palazzolo, the Court unmistakably drove this point home: “[A takings claim] is not barred by the mere fact that title was acquired after the effective date of the state-imposed restriction.” To do so, said the Palazzolo Court, would “put an expiration date on the Takings Clause” and would absolve the state of its duty to defend its actions, no matter how unreasonable.

Despite the Supreme Court’s clear rejection of a test based solely on the Notice Rule, the Federal and Ninth Circuits circumvented the Supreme Court’s holding in Palazzolo and revived the Notice Rule. This is especially far reaching, as so many takings claims are brought in the Court of Federal Claims where the Notice Rule now controls. Moreover, by solely looking at the issue of notice, the Federal Circuit gave federal agencies an incentive to run out the clock, as once all the land has been transferred, no owner can bring a takings suit. The takings problem is compounded by difficulties in determining if land is subject to the Clean Water Act in the first place—a new owner might find himself newly regulated under changing interpretations of the Clean Water Act, and yet be denied remedy by application of the Notice Rule. Most modest landowners won’t have the means to take such a case to the government but also can’t sell the property without extinguishing their claim. This manipulates the property market, with some owners avoiding transactions that might destroy their takings claims, while most will be forced to sell at a significantly depreciated rate. This burden will likely fall most heavily on groups without the time or resources to fight, like the elderly.

The Notice Rule’s resurrection is plainly at odds with the Supreme Court’s precedent, creates a near total ban on those takings claims that are economically viable, and whittles away property rights. Cato urges the Supreme Court to enforce its own precedent, and make it clear that that there is no ban on pursuing “just compensation” simply because they purchased their property a little too late.

When Did Laws Denying Same-Sex Couples Marriage Licenses Become Unconstitutional?

Readers of this blog know that Cato filed a brief in Hollingsworth v. Perry arguing that state prohibitions on same-sex marriage violate the Equal Protection Clause of the Fourteenth Amendment.  But since when have they done that?  More broadly, to quote a colloquy between Justice Scalia and Ted Olson in the Perry argument:

JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became unconstitutional? Has it always been unconstitutional? …

MR. OLSON: It was constitutional when we -­ as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

With due respect to Ted Olson, a former solicitor general who’s argued more cases than I’ve watched, I think he missed the mark on this one.  How do rights spontaneously emerge?  To pick up on one of the above examples, was segregation constitutional in 1900 but then somehow not 50 years later?  No, Plessy v. Ferguson was incorrectly decided in 1896 and Brown v. Board of Education overruled it rather than merely asserting that there was an “evolutionary cycle.”  Justice Scalia himself recognized that state racial discrimination of all kinds became unconsitutional when the Fourteenth Amendment was ratified, in 1868 – and not at some time in future when each particular instance of it was found to violate that provision.

And so, either it was unconstitutional to exclude same-sex couples from marriage in 1868 or it’s still constitutional to do so.  Josh Blackman and I wrote about doing this “originalism at the right time” in our exegesis of the Privileges or Immunities Clause in the context of the right to keep and bear arms, Keeping Pandora’s Box Sealed.  (Josh later extended that analysis in a short piece on gender equality and sex discrimination.)

Which isn’t to say that what the challengers have to prove here that the drafters or ratifiers of the Fourteenth Amendment had gay marriage in mind.  But it does mean that you have to look at what “equal protection of the laws” in 1868 and apply that understanding accordingly.  As Elizabeth Wydra, my co-counsel on our Perry brief, wrote on the Constitutional Accountability Center’s blog:

While race was obviously at the forefront of the minds of the Amendment’s drafters – after all, they had just secured an amendment banning slavery in the wake of a brutal civil war–they specifically chose language that would protect against unequal treatment based on more than just racial discrimination, and in fact affirmatively rejected narrower proposals that would prohibit only racial discrimination.

Even so, had Olson given Justice Scalia the answer I have suggested, Scalia surely would have retorted that there was no way the American people were thinking of marriage equality for gay and lesbian couples when they ratified the Amendment. That’s not the point. No originalist – not even Justice Scalia – believes that the plain words of the Constitution apply only in the ways the framers expected. The ruling Justice Scalia announced from the bench just before the start of arguments this morning is a perfect example: just because there weren’t drug-sniffing police dogs in 1791, doesn’t mean their use can’t violate the Fourth Amendment’s protection against unreasonable searches and seizures, as the Court held today in Florida v. Jardines.

The Constitution guarantees equal protection of the laws to “any person.” In looking to what rights were understood to be protected equally, the framers of the Fourteenth Amendment understood state-sanctioned marriage as a personal, individual right that must be made available on an equal basis to all persons. Accordingly, by writing into the Constitution a requirement of equality under the law and equality of basic rights for all persons, which included the right to marry, the Amendment’s framers ensured that discriminatory state laws would not stand in the way of Americans exercising their right to marry the person of their own choosing. Laws that discriminate and deny to members of certain groups, including gays and lesbians, the right to marry the person of one’s choice thus contravene the original meaning of the Fourteenth Amendment.

See also Josh Blackman and Orin Kerr.  And for more on the original meaning of the Equal Protection Clause, see my op-ed with CAC’s president, Doug Kendall.