Tag: amicus brief

No Constitutional Authority for Federal Hate Crime Law

Identified by William Blackstone as a universal maxim of the common law, the protection against double jeopardy—being tried twice for the same crime—has been a part of American law since even before it was enshrined in the Constitution.  While the Fifth Amendment’s Double Jeopardy Clause (“nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”) prohibits successive prosecutions for the same offense, courts have recognized a “dual sovereignty” exception, which permits the federal government to prosecute a federal crime after completion of a state prosecution over the same conduct. Originally a small exception intended to enable Prohibition-related prosecutions, the dual sovereignty exception has widened vastly to accommodate the glut of federal crimes established since that time. 

But there are limits on such prosecutions: the federal government must have legitimate jurisdiction over the crime being prosecuted. In Hatch v. United States, William Hatch is challenging the use of the federal Hate Crime Prevention Act to federally re-prosecute him for an attack on a disabled Navajo man for which he was already convicted under New Mexico state law.

Congress passed the HCPA pursuant to Section 2 of the Thirteenth Amendment, which authorizes Congress to enforce the Thirteenth Amendment ban on slavery, which authority the Supreme Court has extended to eliminating the “badges and incidents” of slavery. The lower federal courts upheld the HCPA’s constitutionality, deferring to Congress’s power to “rationally determine” what the badges and incidents of slavery are. In petitioning the Supreme Court for review, Hatch argues that the HCPA intrudes on the states’ police power to prosecute local crimes and that Congress cannot be the judge of its own powers. In City of Boerne v. Flores  (1997), for example, the Supreme Court noted that Congress may not pass “general legislation upon the rights of the citizen.”

Joined by the Reason Foundation and the Individual Rights Foundation, Cato has filed a brief supporting Hatch’s petition. We argue that the use of hate-crime laws to sweep intra-state criminal activity into federal court has nothing to do with stamping out slavery and that the Court should decide the legitimacy of these laws before a more highly publicized and politicized case comes along and makes that task even harder. Not only are federal hate-crime laws constitutionally unsound, but, as George Zimmerman’s recent trial highlighted, they invite people dissatisfied with a state-court outcome to demand that the government re-try unpopular defendants. The administration of justice and the protections of the Double Jeopardy Clause shouldn’t be subject to the whims of public pressure and racial politics.

Net Neutrality Violates the First and Fifth Amendments

This blogpost was co-authored by legal associate Matt Gilliam.

In December 2010, the FCC adopted Preserving the Open Internet, a “network neutrality” order regulating broadband internet access service. Issued under authority (ostensibly) derived from 24 disparate provisions of federal communications law, Preserving the Open Internet is predicated on three basic rules: transparency, no blocking, and no discrimination.

Broadly speaking, “transparency” requires broadband providers to “disclose network management practices, performance characteristics, and terms and conditions of services.” The “no blocking” rule forbids fixed broadband providers from “blocking lawful content, applications, services, and non-harmful devices.” Meanwhile, mobile broadband providers are restricted from blocking “lawful websites” and certain applications. The “No Discrimination” rule prohibits broadband providers from unreasonable discrimination in transmitting lawful network traffic.

The promulgation of the FCC’s network neutrality order will have serious consequences for the constitutional rights of broadband providers. One such provider, Verizon, now seeks to challenge the FCC order in the U.S. Court of Appeals for the D.C. Circuit. This week, Cato joined TechFreedom, the Competitive Enterprise Institute, and the Free State Foundation, on a brief urging the court to uphold Verizon’s First and Fifth Amendment rights.

We first argue that the FCC order violates broadband providers’ First Amendment rights by compelling speech, forcing them to transmit messages from content providers that they might not wish to convey, preventing them from transmitting messages they want to convey, prohibiting them from exercising editorial discretion, and generally restricting the mode and content of their communications. Because the order singles out certain speakers, it demands “strict scrutiny,” which it cannot survive because it neither serves a compelling governmental interest nor is narrowly tailored. We next argue that the FCC order violates broadband providers’ Fifth Amendment rights by subjecting them to physical and regulatory takings. The FCC order enacts a physical taking by granting the content providers an unrestricted right to occupy property while slicing through the bundle of property rights broadband providers enjoy as network owners. The order essentially gives the content providers unlimited use of the network owners’ physical property without any compensation, forbidding the rightful owners from exercising their right to control the use of their property and exclude others.

Furthermore, in forcing network owners to give network space to content providers, the regulation shifts costs to consumers, discouraging them from using broadband service and thus diminishing the network’s economic value. The FCC order also constitutes a regulatory taking because it prevents broadband providers from attaining their networks’ full economic value and subverts network owners’ reasonable investment-backed expectations. Finally, we argue that the FCC’s assertion of authority to regulate the Internet is a dangerous aggrandizement of agency power. In sum, while seeking to benefit content providers, the FCC has promulgated a regulation that violates the First and Fifth Amendment rights of broadband providers.

The case of Verizon v. FCC will be argued at the D.C. Circuit later this summer.

Notice of Court Orders Is Important in Death Penalty Cases

The representation of prisoners accused of capital crimes is unique in its difficulty – and in the consequences – when that representation is inadequate. Maples v. Thomas, which will be argued before the Supreme Court this fall, exposes some of the serious cracks in the system charged with representing indigent defendants in such cases.   

Cato takes no position on the merits of the death penalty other than that the Constitution does not prohibit it and that our justice system is responsible for, at the very least, ensuring that prisoners receive fair notice of orders on which their lives depend.  Both the courts and counsel failed Cory Maples here. 

Maples was convicted of capital murder and sentenced to death for killing two companions.  After a series of state court appeals which affirmed his conviction, Maples filed a petition for post-conviction relief, which was ultimately dismissed. 

Maples never received notice of this deadline-triggering order because his pro bono lawyers left their big-firm jobs and a court clerk did nothing when the letter containing the order was consequently returned unopened.  Because Maples did not receive notice of the deadline, he did not timely file an appeal and his claims were procedurally defaulted.  The Eleventh Circuit affirmed the district court’s denial of Maples’s subsequent federal habeas petition because Maples “cannot establish cause for his default because there is no right to post-conviction counsel.” 

Cato has now joined The Constitution Project to file an amicus brief supporting Maples and arguing that the Supreme Court should excuse his default because the state failed to notify him of an order that could result in his death.  Moreover, if the default is not excused, the state’s inaction will deny Maples his constitutional right of meaningful access to the courts. 

The Eleventh Circuit relied on the rule that because “there is no constitutional right to an attorney in state post-conviction proceedings, a petitioner cannot claim constitutionally ineffective counsel in such proceedings.”  But Maples’s habeas claim does not involve the ineffectiveness of his post-conviction counsel; his underlying claim is that his trial counsel provided ineffective assistance. Indeed, his post-conviction counsel provided no assistance whatsoever when it was time to appeal. 

Finally, there is cause to excuse Maples’s default because this case is ultimately governed by principles of equity and basic fairness.  Few if any reasonable observers would conclude that it is fair or equitable to put a man to death without allowing the least consideration of appellate claims that could save his life simply because his lawyers left their jobs, a firm mailroom returned letters to them unopened, and the court clerk’s office did nothing when it discovered that crucial notice was never received. 

Again, the case is Maples v. Thomas and you can read Cato’s brief here.

A Life of One’s Own

Since Tuesday’s oral arguments in Virginia v. Sebelius—the first Obamacare challenge to reach the circuit court level, and one in which Cato also filed an amicus brief—the legal blogosphere has been discussing the Fourth Circuit panel’s incredulity concerning the activity/inactivity distinction at the heart of our arguments against Obamacare. As Ilya Shapiro explains, we contend that if Congress’s power to regulate “interstate commerce” reaches the inactivity of not buying health insurance, then there is nothing it does not reach. The Supreme Court will eventually have to grapple with this question and decide whether the distinction is constitutionally meaningful.

As Volokh conspirator Jonathan Adler points out, the activity/inactivity distinction is long-standing. At common law, there was no legally enforceable duty to rescue. In other words, if you didn’t act to create the danger, you would not be liable for your inactivity in not helping. To put it bluntly: you would have no legal liability if you ignored a drowning child.

Legal philosophers have grappled with the meaning of “act” and “omission” for centuries. While there are some difficult issues to ponder, there is also an element of navel-gazing in the question and the Supreme Court may have to gaze long at their navels to answer it. But it is worth remembering why the act/omission distinction matters in a free society. At the risk of getting too philosophical, I will add some thoughts of my own.

Anyone who has been to law school has likely had long conversations, probably in torts class, over whether the act/omission distinction is both meaningful and moral. If your torts class was like mine, your professor lamented the “no duty to rescue” rule as evidence of our individualistic and selfish society. Many law professors believe our slavish adherence to the act/omission distinction not only allows us to let children drown, but that it is just another “Western” belief that holds back a robust welfare state.

The aversion to mandating action, however, is not about letting children drown. I wouldn’t let a child drown and I imagine you wouldn’t either. The extreme hypothetical helps gloss over a meaningful principle for normal, run-of-the-mill cases. Just as bad facts make bad law, bad hypotheticals can blur vital principles. The act/omission distinction helps delineate, albeit imperfectly, the personal sphere of control and the governmental sphere of control.

Despite many who want to equate the two, what is legal is not the same as what is moral. In fact, these two categories can work against each other—performing an act of kindness because you fear authority diminishes the act’s moral character.

But we distinguish between the legal and the moral for deeper reasons as well: it helps maintain the crucial separation between the government and civil society, ensuring that the government doesn’t become the absolute ruler of our lives and the values we choose to hold dear. The theory that there are proper spheres of governmental control and proper spheres of private control is one of the great and under-appreciated victories of Western culture.

The act/omission distinction also matters because resources are scarce. Acting uses resources that could be used for alternate purposes. Omitting uses none. While you can take on a literally infinite set of omissions, you can only take on a finite number of acts. Using resources—time, money, strength, natural resources, etc.—for one thing means they are not being used for something else.

To put this in real-world terms: Obamacare’s individual mandate to maintain minimum health care coverage could eventually cost someone tens of thousands of dollars that they would have spent on other things. One of those things may have been another 50” television. However, it is just as likely that the money may have been spent on sending a child to college (or, given the age of those likely to go without insurance, sending oneself to college), donated to a church or a favorite non-profit, or invested in a fledgling business. Mandating action—that is, the use of scarce resources—overrides individual value preferences and substitutes other values through force. In other words, the government is telling you that your value preferences are wrong.

This is how the necessary distinction between government and civil society is slowly eroded. Creating legally enforceable duties to use your resources politicizes resource allocation problems. But our lives are already resource allocation problems, with or without government. How you manage your time and efforts is not just a question for your day-planner, it’s a profound existential quandary. Politics is one of the worst ways that resource allocation problems can be addressed. At the extremes, it becomes dehumanizing. Special interests will fight over your resources and decide how they should be allocated. It’s actually worse than watching sausages get made.

This is why libertarians are treating the Obamacare litigation as a critical moment in constitutional law. Sure we’ve been taxed before, and civil society has already been significantly eroded by government overreach. But we’ve rarely been commanded, particularly in a way so obviously designed to avoid political liability for raising taxes. Our parades of horribles—for example, the hypothetical “buy broccoli mandate”—may elicit eye-rolling from some, but violating the act/omission distinction in principle, as the government threatens to do here, means a principle is no longer standing in the way.  “Just this once” is hardly reassuring.

I understand that much of what I’ve said here, if taken to its logical conclusions, would prohibit any taxation. I am not advocating that. I am only pointing out a subtle and important distinction through which these questions can be viewed. A government that has total power to dictate when, how, and whether resources will be used is a government that has the power to dictate your life-plan and decide for you which things matter the most. The act/omission distinction has helped maintain the crucial line between the private and the public spheres, allowing for the possibility that government can be avoided by keeping to oneself.

The fact that the Fourth Circuit judges were “baffled” by the action/inaction distinction is disturbing to say the least. We lose something very important if they rule for the government, something that generations of enlightenment-era political philosophers articulated as a critical line between freedom and total government control. Let’s hope the Supreme Court doesn’t also forget those lessons.

Regulator, Leave Those Kids Alone

“These kids today and their violent [blank]….” This refrain has been around for as long as there have been kids – and elders to shake their fists at them. In the 19th century, dime novels and “penny dreadfuls” were blamed for social ills and juvenile delinquency. In the 1950s, for example, psychologist Fredric Wertham’s attack on comic books – in his bluntly titled book Seduction of the Innocent – so ignited the national ire that Congress held hearings on the cartoon menace. In response, the comic book industry voluntarily adopted a ratings system. Similarly, backlash against the movie industry and the music industry (e.g., Tipper Gore’s attack on gangsta rap) caused those respective industries to also adopt voluntary ratings systems.

The videogame industry also adopted an effective and responsive ratings system after congressional hearings in the early ’90s. Thinking this ratings system ineffective, however, California passed a violent videogame law, which prohibits minors from purchasing games that are deemed “deviant,” “patently offensive,” and lacking in artistic or literary merit. The gaming industry challenged the California law and the Ninth Circuit struck it down on First Amendment grounds.

California now seeks to overturn the lower court’s ruling by arguing that violent videogames deserve an exemption from First Amendment protection. Cato’s brief supports the videogame manufacturers and highlights not only the oft-repeated and oft-overblown stories of the “seduction of the innocent,” but the less-repeated stories of the effectiveness and preferability of industry self-regulation.

We show that not only does self-regulation avoid touchy First Amendment issues but that entertainment industries take self-regulation very seriously. Moreover, evidence from the Federal Trade Commission shows that the existing videogame ratings system works more effectively than any other regulatory method. Adding a level of governmental control, even if were constitutional, would be counterproductive.

The case of Schwarzenegger v. Entertainment Merchants Association will be argued November 2 (coincidentally election day).

Another Judicial Takings Case Headed to the Court

The Montana Supreme Court overturned more than 100 years of state property law concerning navigable waters by effectively converting the title in hundreds of miles of riverbeds to the State. The majority of that court ruled that the entirety of the Missouri, Clark Fork, and Madison rivers were navigable at the time of Montana’s statehood, producing a broad holding that eradicates property rights to the rivers and riverbanks that Montanans had enjoyed for over a century.

Before this case, the hydroelectric energy company PPL Montana and thousands of other private parties exercised their property rights over these non-navigable stretches that the state never claimed.  Today, Cato joined a brief filed by the Montana Farm Bureau Federation supporting the PPL Montana’s request that the U.S. Supreme Court review the Montana high court’s ruling for possible Takings Clause violations under the Fifth Amendment.

We argue two main points.  First, that the Court should adhere to its standard for navigability rights set out in Utah v. U.S. in 1933. Unlike the approach taken by the Montana Supreme Court’s majority — that entire rivers were navigable simply because certain reaches of the river were navigable — the U.S. Supreme Court in Utah used an approach of meticulously analyzing the rivers at issue section-by-section. Second, this arbitrary ruling against rights long protected by Montana law amounts to a “judicial taking,” as explained last term Stop the Beach Renourishment v. Florida Dept. of Environmental Protection (in which Cato also filed a brief). There, a plurality of the Court held that there is no “textual justification” for limiting takings claims deriving from executive or legislative action, thereby extending it to a judicial action of the same nature (and two other members of the Court found potential relief in the Fourteenth Amendment’s Due Process Clause). Here, the Montana court did exactly that, violating due process rights that the Montana legislature could not and further violating the procedural due process rights of the thousands harmed by the decision in not affording them notice or a hearing.

The U.S. Supreme Court should thus review the case to reinforce its Utah precedent and ensure that arbitrary judicial takings of this sort cannot continue.  The name of the case is PPL Montana, LLC v. Montana.  The Court will decide later this fall whether to take it up.

Taxpayer Choice + Parental Choice = Good, Constitutional Education Reform

Arizona grants income tax credits for contributions made to school tuition organizations (“STOs”).  STOs must use these donations for scholarships that allow students to attend private schools.  This statutory scheme broadens the educational opportunities for thousands of students by enabling them to attend schools they would otherwise lack the means to attend.  Still, several taxpayers filed a lawsuit challenging the program as creating a state establishment of religion.

Although the Ninth Circuit acknowledged that increasing educational opportunities is a valid secular purpose for a legislative act, it found that the tax credit program nonetheless violates the Establishment Clause because many of the STOs—as it happens, a decreasing majority—provide scholarships for students to attend parochial schools.  Earlier this year, Cato filed a brief supporting the request for Supreme Court review filed by the various parties defending the program.  The Court granted cert.

Now Cato (led by Andrew Coulson and myself) has filed another brief, joined by four education reform groups, urging the Supreme Court to overturn the Ninth Circuit’s decision because it was based on faulty reasoning:  It equated the private and voluntary choices of individuals who donate to religious STOs with state sponsorship of religion.  The lower court also made the dubious assertion that Arizona parents feel pressured to accept scholarships to religious schools, in spite of the fact that the share of STO scholarships available for use at secular schools is almost twice as large as the share of families actually choosing secular schools. Moreover, the tax credit scheme is indistinguishable from similar charitable tax deduction programs that the Court has previously held to pass constitutional muster.

We urge the Court to reaffirm its longstanding jurisprudence—especially the 2002 school-choice case, Zelman v. Simmons-Harris—whereby instances of “genuine and independent choice” are insulated from Establishment Clause challenge. Far from being an impediment to parental freedom, the autonomy Arizona grants to taxpayers and STOs is ultimately essential to it.  More generally, should the lower court’s opinion be allowed to stand, the progress made to broaden the educational opportunities of students across the country will be stifled.

The case of Arizona Christian School Tuition Organization v. Winn will be heard by the Court this fall, probably in November.

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