Tag: amicus briefs

Court Extends Commercial Speech Protections

In an important but little-noted First Amendment case decided Thursday, Sorrell v. IMS Health Inc., the Supreme Court correctly invalidated a particular regulation of commercial speech but unfortunately left intact the general doctrine that distinguishes and privileges noncommercial speech.  Justice Kennedy authored the 6-3 decision (joined not just by the “conservatives” but also Justice Sotomayor) that struck down a Vermont law prohibiting the sale of information about doctors’ prescription histories as making viewpoint-based speech restrictions in violation of the First Amendment. 

In so ruling, the Court effectively affirmed a Second Circuit decision (involving a similar Connecticut law) I discussed previously.  Cato filed amicus briefs in both the Second Circuit and Supreme Court.

The Supreme Court first found that Vermont’s law is subject to heightened scrutiny—not simply the “intermediate” scrutiny typically applied to restrictions on commercial speech—because, on its face, it enacts content- and speaker-based burdens on protected expression.  It then rejected the two justifications for the statute the state had asserted: (1) that it is necessary to protect medical privacy, including physician confidentiality, avoidance of harassment, and the integrity of the doctor-patient relationship; and (2) that it is integral to the achievement of policy objectives—namely, improved public health and reduced healthcare costs.

That’s fine as far as it goes, but it leaves open the possibility for broader restrictions on speech, such as if a state wanted to prohibit all prescription-related speech, not just that by data-mining companies to pharmaceutical companies who would use it to tailor their marketing efforts.  Our Supreme Court brief, in contrast, argued that the Court should abandon the unworkable distinction between commercial and noncommercial speech established in the 1980 case of Central Hudson Gas & Electric v. Public Service Commission

The Central Hudson rule should be abandoned in favor of strict scrutiny of all speech restrictions because innovative and valuable commercial expression deserves full First Amendment protection.  For more on our preferred approach, see this blogpost.

Still, even as Sorrell v. IMS Health doesn’t entirely eliminate the commercial speech doctrine, the Court does make clear that information—even commercial information sold for commercial purposes—is more than a mere commodity (Vemont had likened it to beef jerky).  Commercial speech provides valuable information to the marketplace; by definition, the more such information consumers receive, the better-informed decisions they can make.

I could end my analysis there, but one amusing postscript is that the dissent, written by Justice Breyer and joined by Justices Ginsburg and Kagan, resorts to argument ad Lochneram.  That is, just as one should discount any political argument invoking Hitler and Nazis, a legal argument invoking the alleged horrors of the Lochner era (striking down regulations on economic liberty grounds) is inherently suspect.  Indeed, Justice Kennedy dismisses Breyer’s concern by noting that while the enactment of “Mr. Herbert Spencer’s Social Statics” is not at issue—alluding to Oliver Wendell Holmes’s Lochner dissent—the duly binding First Amendment is.

In any event, the battle line between the majority and dissent is clear—and it is telling that Justices Sotomayor and Kagan are on opposite sides.  (Recall that the scope of First Amendment protection was an issue in Justice Kagan’s confirmation hearings.)  If indeed Justice Breyer’s prediction that this decision “opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message,” this case may have revealed not the views of Justice Kennedy—who is strongly libertarian on speech issues—but the true First Amendment colors of President Obama’s two appointees.

Thanks to Cato legal associate Caitlyn Walsh McCarthy for her help with our briefing and this blogpost.

Obamacare’s Platonic Guardians

As followers of this blog recognize, Obamacare has more constitutional defects than just the individual mandate or even the coercive use of Medicaid funds.  One issue that is getting increasing attention (see the Weekly Standard, National Review, and George Will) is this weird new entity called the Independent Payment Advisory Board.

IPAB, which Sarah Palin famously labeled a “death panel,” will exercise virtually unchecked power to set Medicare reimbursement rates—without political or legal oversight by any branch of government.  It’s reminiscent of the Public Company Accounting Oversight Board, the part of the Sarbanes-Oxley financial regulation law that the Supreme Court found partially unconstitutional last year.  Except it has the power of life and death and is insulated even from repeal!

That is, IPAB creates “recommendations” for cutting Medicare spending, which then acquire the force of law.  Congress is specifically barred from reversing or modifying these “recommendations”; the only thing it can do is add further cuts.  It can also abolish IPAB, but only by passing a curious “resolution” that must be introduced between Jan. 3 and Feb. 1. 2017, and must be passed by 3/5 of all members of both houses by Aug. 15 of that same year.  Otherwise, Congress loses even its power to add further Medicare cuts and IPAB becomes a permanent fixture of of our health care world.

Suffice it to say, Congress cannot delegate its legislative authority to any such independent, everlasting institution.  One Congress can’t even bind its successors!

Pacific Legal Foundation principal attorney and Cato adjunct scholar Timothy Sandefur unearthed this great nugget by someone defending Obamacare:

Amazingly, Timothy Jost, one of Obamacare’s most vocal advocates, has proudly proclaimed that IPAB will act like:

A board of “Platonic Guardians” to govern the health care system or some aspects of it. The cost of health care is spinning dangerously out of control…. [O]ur traditional political institutions—Congress and the executive administrative agencies—are too driven by special interest politics and too limited in their expertise and vision to control costs. Enter the Platonic guardians…an impartial, independent board of experts who could make evidence-based policy determinations based purely on the basis of effectiveness and perhaps efficiency.

Think about that for a second. Plato’s “Guardians” (also known as philosopher kings) were a group of “godlike” officials (that’s Plato’s word) who would wield undemocratic power to form the perfect utopian state without oversight. According to The Republic, the Guardians would, among their other things, enforce:

by law…such an art of medicine…[which] will care for the bodies and souls of such of your citizens as are truly wellborn, but those who are not, such as are defective in body, they will suffer to die, and those who are evil-natured and incurable in soul they will themselves put to death. This certainly…has been shown to be the best thing for the sufferers themselves and for the state.

America’s constitutional democracy was created in direct contradiction to such authoritarian ideas.

Luckily, our friends at the Goldwater Institute have a lawsuit pending against IPAB, Coons v. Geithner (here’s the case page).  You’ll be hearing a lot more about this case regardless of the final result of the individual mandate lawsuits.  Here’s PLF’s amicus brief on the important “non-delegation doctrine” issue at its heart.

The Treaty Clause Doesn’t Give Congress Unlimited Power

In 1920, the Supreme Court decided an obscure case concerning the implementation of a treaty between the United States and Canada regarding migratory birds. Tucked into Justice Oliver Wendell Holmes’s five-page decision in Missouri v. Holland was a sentence that expressed a truly startling idea: that Congress can transcend its enumerated powers via its power to implement treaties.

That is, although Congress has no enumerated power to pass, say, general criminal laws, if a ratified treaty with France demands that we pass such laws, then Congress’s power expands to allow for such legislation. Thus, foreign nations and the executive branch are given the power to change, almost at will, one of the most hotly debated and carefully crafted sections of the Constitution, the scope of Article I congressional power!

Now an equally obscure case relating to copyrights gives the Court an opportunity to revisit Missouri v. Holland’s starkly erroneous proposition and reaffirm the Framers’ vision of Congress’s powers as “few and defined.” Golan v. Holder concerns a law Congress passed after the president signed and the Senate duly ratified the “Uruguay Round” general trade agreement, which in part amended the 1971 Berne Convention on intellectual property. This new law reinstated copyright protection to works that were previously in the public domain.

A number of orchestra conductors, educators, performers, film archivists, and motion picture distributors who depend on the public domain for their livelihood challenged the law on two grounds: 1) that it violates the “promote progress in Science and the Useful arts” limitation on the congressional power to pass copyright laws (the Copyright Clause), and 2) it violates the First Amendment. Cato and Georgetown law professor Nicholas Quinn Rosenkranz filed a brief that supports this challenge by highlighting the problems with an expansive interpretation of the treaty power.

We argue that, as a matter of constitutional structure, history, and logic, a treaty cannot increase Congress’s legislative powers. Not only is the power to “make treaties” distinct from the power to execute treaties already made, but such an expansive interpretation of the treaty power would allow Congress and the Executive to circumvent the Article V amendment process.  Even more shockingly, it would allow foreign governments to have control over the scope of congressional power. In sum, Missouri v. Holland is a structural and doctrinal anomaly in tension with other precedent and based on a misreading of constitutional history. It should be overruled.

The Supreme Court will hear argument in Golan v. Holder this fall.

In Global Warming Case, Supreme Court Reaches Correct Result But Leaves Room for Mischievous Litigation

In the important global warming case decided today, American Electric Power Co. v. Connecticut, the Supreme Court unanimously reached the correct result but one that still leaves room for plenty of mischievous litigation.  While it’s clearly true that, as the Court said, the Clean Air Act and the EPA exist to deal with the claims the plaintiffs made here—that the defendants’ carbon dioxide emissions are pollutants that cause global warming—the Court left open the possibility of claims on state common-law grounds such as nuisance.  And it unfortunately said nothing about whether any such disputes, whether challenging EPA action or suing under state law, are properly “cases and controversies” ripe for judicial resolution.

The judiciary was not meant to be the sole method for resolving grievances with the government, even if everything looks like a nail to lawyers who only have a hammer.  This case is the perfect example of a “political question” best left to the political branches: The science and politics of global warming is so complex and nuanced that there simply isn’t a judicial role to be had.

As Cato’s amicus brief argued, the chain of causation between the defendants’ carbon emissions and the alleged harm caused by global warming is so attenuated that it resembles the famed “butterfly effect.” Just as butterflies should not be sued for causing tsunamis, a handful of utility companies in the Northeastern United States should not be sued for the complex (and disputed) harms of global warming. Even if plaintiffs (here or in a future case) can demonstrate causation, it is unconstitutional for courts to make nuanced policy decisions that should be left to the legislature.  Just as it’s improper for a legislature to pass a statute punishing a particular person (bill of attainder), it’s beyond courts’ constitutional authority to determine wide-ranging policies in which numerous considerations must be weighed in anything but an adversarial litigation process.

If a court were to adjudicate claims like those at issue in American Electric Power and issue an order dictating emissions standards, two things will happen: 1) the elected branches will be encouraged to abdicate to the courts their responsibilities for addressing complex and controversial policy issues, and 2) an already difficult situation would become nearly intractable as regulatory agencies and legislative actors butt heads with court orders issued across the country in quickly multiplying global warming cases. These inevitable outcomes are precisely why the standing and political question doctrines exist.

Dissatisfaction with the decisions and pace of government does not give someone the right to sue over anything. Or, as Chief Justice Marshall once said, “If the judicial power extended to every question under the laws of the United States … [t]he division of power [among the branches of government] could exist no longer, and the other departments would be swallowed up by the judiciary.”

Of Course Defendants Can Challenge the Constitutionality of Laws Under Which They’re Prosecuted

Hard cases make bad law, the saying goes.  Well, a bizarre case that the Supreme Court decided unanimously today has set a good precedent for the enforcement of residual Tenth Amendment powers. 

As I described in December when Cato filed a brief in Bond v. United States:

Carol Anne Bond learned that her best friend was having an affair with her husband, so she spread toxic chemicals on the woman’s car and mailbox. Postal inspectors discovered this plot after they caught Bond on film stealing from the woman’s mailbox. Rather than leave this caper to local law enforcement authorities to resolve, however, a federal prosecutor charged Bond with violating a statute that implements U.S. treaty obligations under the 1993 Chemical Weapons Convention.

Bond pled guilty and was sentenced but now appeals her conviction on the ground that the statute at issue violates the Tenth Amendment – in that her offense was local in nature and not properly subject to federal prosecution. The Third Circuit declined to reach the constitutional question, holding that Bond did not have standing to raise a Tenth Amendment challenge and that, following Supreme Court precedent, a state actor must be a party to the suit in order to challenge the federal government for impinging on state sovereignty. Bond now seeks Supreme Court review on the ground that the statute, as applied to her, is beyond the federal government’s enumerated powers.

Our brief argued that a defendant clearly has standing to challenge the constitutionality of the statute under which she was convicted, but also that lower courts are wrong in assuming that both the president’s power to make treaties and Congress’s power to make laws executing those treaties are unconstrained by the Constitution.  That is, many judges seem to erroneously think that treaties can give the federal government powers it doesn’t otherwise have under the Constitution.

The Court’s ruling today, in a tight opinion by Justice Kennedy, makes clear that individuals can indeed raise Tenth Amendment claims that the federal government has overstepped its enumerated powers.  The Court took no position on the merits of Bond’s constitutional argument – relating to the expansion of federal criminal law via the Treaty Power into areas that should be handled at the state and local levels – but this non-decision is in itself a positive development because it signals that the underlying issue is in dispute.

The Third Circuit is now charged with determining in the first instance whether the law implementing the chemical weapons treaty is “necessary and proper for carrying into execution” the Treaty Power, including whether it’s overbroad if it snares people like Bond.

Even if Bond loses on the merits in the Third Circuit and/or the Supreme Court, however, her case has confirmed the idea that someone directly and particularly harmed by a federal law can challenge that law’s constitutionality.  As Justice Ginsburg said in her concurrence,

a court has no “prudential” license todecline to consider whether the statute under which the defendant has been charged lacks constitutional application to her conduct. And that is so even where the constitutional provision that would render the conviction void is directed at protecting a party not before the Court. ….

In short, a law “beyond the power of Congress,” for any reason, is “no law at all.” Nigro v. United States, 276 U. S. 332, 341 (1928). The validity of Bond’s conviction depends upon whether the Constitution permits Congress to enact §229.  Her claim that it does not must be considered and decided on the merits.

For more on the proper scope of the Treaty Power, I recommend Georgetown law professor Nicholas Quinn Rosenkranz’s “Executing the Treaty Power.”

Update:

Josh Blackman parses Justice Kennedy’s opinion and shows how it tracks the approach that Randy Barnett and Cato have been taking in our Obamacare briefs.

Shooting for State Sovereignty

On October 1, 2009, Montana passed the Montana Firearms Freedom Act, the purpose of which was to regulate guns manufactured and kept within Montana state lines under a less restrictive regulatory regime than federal law provides. That same day, to ensure that Montanans could enjoy the benefits of this less restrictive state regulation, the Montana Shooting Sports Association filed a declaratory judgment claim in federal court.

The lawsuit’s importance is not limited to Montana, as seven other states have passed laws similar to the MFFA and 20 states have introduced such legislation. The goal here is to reinforce state regulatory authority over commerce that is by definition intrastate, to take back some of the ground occupied by modern Commerce Clause jurisprudence.

The district court granted the government’s motion to dismiss, however, and MSSA appealed to the Ninth Circuit. Now on appeal, Cato has joined the Goldwater Institute to file an amicus brief supporting the MSSA and arguing that federal power does not preempt Montana’s ability to exercise its sovereign police powers to facilitate the exercise of individual rights protected by the Second and Ninth Amendments. More specifically, for federal law to trump the MFFA, the government must claim that the Commerce and Necessary and Proper Clauses give it the power to regulate wholly intrastate manufacture, sale, and possession of guns, which MSSA argues is a state-specific market distinct from any related national one.

Our brief argues that federal preemption would violate the “letter and spirit of the Constitution” and that heightened judicial scrutiny is required whenever the federal government invokes an implied power to override state sovereignty. The MFFA should not be preempted because: (1) principles of state sovereignty limit federal power; (2) preemption would violate the federalism framework established in National League of Cities v. Usery; and (3) preemption would not allow state sovereignty to serve its role as a proper check of federal power. The Supreme Court has made clear that Congress is not the sole venue for states and individuals to seek protection from federal overreach and so this case is fundamentally a dispute over federalism—which should allow for state regulation of local matters to flourish in concert with federal power over “truly national” concerns.

Allowing preemption here would have the perverse effect of allowing the federal government to regulate “states as states” while impairing states’ ability to operate in areas of traditional governmental functions. The Ninth Circuit should thus find that district court committed reversible error in dismissing the lawsuit and, as a result, MSSA should be allowed to pursue its case beyond the pleadings stage.

The Ninth Circuit will hear the case of Montana Sports Shooting Association v. Holder in late summer or early fall.

Unanimous Supreme Court Vindicates Market-Based Fees for Civil Rights Claims

It hasn’t happened that much under my watch, but it’s gratifying when the Supreme Court overwhelmingly endorses Cato’s position in a given case.  Not a 5-4 split dependent on what Justice Kennedy had for breakfast or some narrow “win” that doesn’t reach the issues we care most about, but a solid across-the-board victory for our first principles.

But such was the case in Justice Kagan’s (!) opinion for a unanimous Court in Fox v. Vice, in which Cato filed a brief last December that I discussed here:

Private lawsuits challenging government violation of civil rights are notoriously difficult and expensive to bring and win. To address such impediments to the vindication of civil rights, Congress passed a law that, among other things, awards attorneys’ fees to the prevailing parties in certain cases. As noted by the House Judiciary Committee, this was necessary because “a vast majority of the victims of civil rights violations cannot afford legal counsel, they are unable to present their cases to the courts …. [the law at issue, 42 U.S.C. § 1988] is designed to give such persons effective access to the judicial process.” Congress thus harnessed market principles, creating an economic incentive for citizens to vindicate their civil rights directly rather than relying exclusively on enforcement actions by the federal government itself.

In the case of Fox v. Vice, however, the Fifth Circuit ruled that an unsuccessful result on a threshold or procedural matter relating to part of a lawsuit could justify a court order requiring the plaintiff to pay all of the defendants’ attorney’s fees — even those expended to address other, meritorious claims. Such a rule departs from the market-oriented legal structure Congress designed and, if allowed to stand, would significantly harm the ability of plaintiffs to bring private civil rights claims.

Today the Supreme Court essentially agreed 9-0 with our view that (1) the Fifth Circuit’s decision imposes prohibitive costs on civil rights enforcement of civil rights; (2) by prematurely deeming a suit frivolous and ordering the plaintiff to pay the defendant’s fees, the lower court imposed penalties that would shut down legitimate lawsuits midstream; and (3) the Court should not permit fee awards in situations where a plaintiff dismisses a federal claim in order to secure a remand of related state-law claims to state court, contrary to the law’s purpose here.

In short, when a plaintiff’s lawsuit is for both frivolous and non-frivolous claims, a court may grant reasonable fees but only for the costs that a defendant would not have incurred but for the frivolous claims – so no fee awards even for work that goes towards both frivolous and non-frivolous claims.  You can read the opinion here

Thanks to our pro bono counsel at WilmerHale and to the organizations who joined us on our brief: the Liberty Institute, the Independence Law Center, the Institute for Justice, and the James Madison Center for Free Speech.