Tag: amicus briefs

Cato Brief Gains National Acclaim

Remember Bond v. United States, that typical story of adultery, federalism, and chemical weapons?  Cato has actually filed four briefs in Bond, most recently last month, the last three making the point that the president can’t expand federal constitutional powers simply by signing a treaty.

Our arguments are based on a 2005 law review article by Georgetown law professor (and Cato senior fellow) Nicholas Quinn Rosenkranz, the primary author of these last three briefs. It’s certainly unusual for a law review article to play a pivotal role in a Supreme Court case, but, as those following Bond know, there’s little “usual” about this case. 

Maybe that’s why the national media is starting to pay attention to our attempt to get the Supreme Court to be faithful to this particular corner of the Constitution: last week, the National Law Journal declared our Bond filing its “brief of the week.”

For more on this case, and our arguments, watch the lunch panel we had on Friday, featuring Nick Rosenkranz and Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit.  The Supreme Court will hear oral argument in Bond in October.

Government’s Legal Arguments Shrivel on the Vine

Yet again the unanimous Supreme Court has slapped down a government attempt to deprive property owners of their civil rights.  What was at stake in Horne v. Dept. of Agriculture wasn’t even the property – raisins! – but the mere ability to challenge the government’s desire to take that property without meaningful judicial review.

Nobody should have to suffer a needless, Rube Goldberg-style litigation process to vindicate their constitutional rights. Yet that’s exactly what the U.S. Department of Agriculture sought to impose on raisin farmers Marvin and Laura Horne when they protested the enforcement of a USDA “marketing order” that demanded that the Hornes turn over 47% of their crop without compensation.

These New Deal-era regulations are bad enough – forcing raisin “handlers” to turn over some of their crop to the government so it can control raisin supply and price – but here the government kept throwing up obstacles to the Hornes’ attempts to assert that they shouldn’t legally be subject to them.  The government demanded about $650,000 from the Hornes and didn’t want to give them a day in court until they paid the money and jumped through assorted administrative hoops.

The Supreme Court correctly rejected that absurd position and reversed the California-based U.S. Court of Appeals for the Ninth Circuit that upheld it, reinforcing the line drawn by five other circuit courts.  “In the case of an administrative enforcement proceeding,” Justice Thomas wrote on all his colleagues’ behalf, “when a party raises a constitutional defense to an assessed fine, it would make little sense to require the party to pay the fine in one proceeding and then turn around and sue for recovery of that same money in another.”

Indeed, there’s no reason to treat Fifth Amendment takings claims any differently than lawsuits against government violations of other constitutional provisions.

Here’s more background on the case and Cato’s amicus brief.

Minnesota Supreme Court Punts on Key Privacy/Property Rights Case

The city of Red Wing, Minnesota, has a rental property inspection program—one that’s unfortunately not unusual—whereby landlords and tenants must routinely open their doors to government agents. These searches take place even if both the landlord and tenant believe it not to be necessary. The owner of the property even has to pay a fee for the unwanted search to receive a rental license! The city only sometimes makes initial requests for consent as a mere courtesy, because it proceeds with an administrative warrant in the event of a refusal—without a showing of probable cause to believe there’s a housing code violation or other problem. The inspection ordinance doesn’t even attempt to prevent the disclosure of information revealed during the search; the whole neighborhood may find out the contents of your medicine cabinet or choice of DVDs.

A group of landlords and tenants challenged the inspection program, arguing that several alternatives are available to meet what legitimate interests local governments have. Last September, Cato joined the Reason Foundation, Libertarian Law Council, Minnesota Free Market Institute at the Center of the American Experiment, and Electronic Frontier Foundation and filed an amicus brief urging the Minnesota Supreme Court to confirm that no Minnesotan should be subjected to an intrusive invasion of privacy when there has been no showing of some cognizable public health or safety issue within the home subject to inspection.

Last Friday, the Minnesota Supreme Court handed down its decision in McCaughtry v. Red Wing. Unfortunately, the Court decided to dodge the question of whether the government is required to obtain a warrant to inspect a residence without individualized probable cause under the U.S. or Minnesota Constitution.

The court’s reasoning is maddening: Red Wing’s ordinance allows judges to imagine individualized standards even when the city doesn’t present any individualized evidence when applying for a warrant. Moreover, the Court determined that the challenge was facial and thus the law would need to be unconstitutional in all of its potential applications in order to be struck down. Because some warrants could be constitutional, the Court ruled against the homeowners, and had absolutely nothing to say about the propriety of warrants issued without individualized probable cause. It did this even though the city has never sought such a warrant and has never said it has any interest in asking for one. The court was clear that its holding had absolutely nothing to say about whether a warrant issued without individualized probable cause would be unconstitutional.

So after nearly seven years of litigation, the plaintiffs are left where they started: these warrants may be unconstitutional, but the courts won’t say so. As a result, Minnesota residents remain subject to unconstitutional, over-broad, and intrusive searches of their homes, belongings, and lives.

There was a small silver lining in all this, a concurrence by Justice Paul Anderson, who said that he agreed with the court’s (unanimous) opinion but that the Minnesota Constitution does require individualized probable cause to obtain a warrant to enter someone’s residence.  Although no other justices joined his opinion, this is the first statement by a state supreme court judge ever that narrows administrative warrants in the context of home inspections since the U.S. Supreme Court’s unhelpful and unclear Camara decision in 1967 started the trend toward such programs. (Telllingly, this concurrence was Justice Anderson’s last official act; he retired on Friday.) And that will be something to use on this issue going forward, whether in state courts or in federal courts, to eventually ask the U.S. Supreme Court to reconsider Camara.

Supreme Court Errs in Giving Agencies Power to Define Their Own Power

Although it did good by taxpayers today, the Supreme Court also issued a divided ruling that unfortunately expands the power of administrative agencies generally.  In City of Arlington v. FCC, six justices gave agencies discretion to decide when they have the power to regulate in a given area – which expands on the broad discretion they already have to regulate within the areas in which Congress granted them authority.

But why should courts defer to agency determinations regarding their own authority?  Courts review congressional action, so why should theoretically subservient bureaucrats – appointed by the executive branch and empowered by Congress – escape such checks and balances?  

Underneath the legal jargon and competing precedent regarding the line between actions that are “jurisdictional” (assertion of authority) versus “nonjurisdictional” (use of authority) is a very basic question: whether a government body uses its power wisely or not, it cannot possibly be the judge of whether it has that power to begin with.  Yet Justice Scalia, writing for the majority, essentially says that there’s no such thing as a dispute over whether an agency has power to regulate in a given area, just clear congressional lines of authority and ambiguous ones, with agencies having free rein in the latter circumstance unless their actions are “arbitrary and capricious” (what lawyers call Chevron deference, after a foundational 1984 case involving the oil company).

That makes no sense.  As Cato explained in our brief, since the theory of deference is based on Congress’s affirmative grant of power to an agency over a defined jurisdiction, it’s incoherent to say that the failure to provide such power is an equal justification for deference. Furthermore, granting an agency deference over its own jurisdiction is an open invitation for agencies to aggrandize power that Congress never intended them to have. One doesn’t need a doctorate in public choice economics to recognize that we need checks on those who wield power because it’s in their nature to husband and grow that power.

More broadly, this case should make us question the whole doctrine of Chevron deference: Yes, decisions about the scope of agency power should be made by elected officials, not by bureaucrats insulated from political accountability, but courts should also review with a more skeptical eye agency decisions about the use of power even within the proper scope.

Supreme Court Strikes Another Blow against IRS

As if the IRS weren’t reeling enough already, today the unanimous Supreme Court dealt the beleaguered agency another blow, unanimously ruling that companies who paid a British “windfall tax” could get credit for that payment against their U.S. tax liabilities. This should’ve been a simple case, and the federal tax court got it right – the tax code credits foreign income taxes – but the court of appeals found a convoluted way to rule for the IRS.

As Cato’s brief explained, however, taxpayers have the right to be free from double taxation and here the IRS improperly disregarded the substance of the windfall tax. A foreign tax’s form or label can’t mask its substantive character for legal purposes. American businesses operating overseas should be able to rely on a stable, substantive application of U.S. tax law instead of arbitrary interpretations and constructions manipulated to generate payments to the IRS.

The Supreme Court had to invoke and explain complicated equations to reach its decision – I’ve never seen so much math in an opinion – but this ruling ultimately boils down to the longstanding doctrine regarding how to evaluate a tax: (1) A tax’s “predominant character,” or the normal manner in which it applies, controls what kind of tax it is for other legal purposes; and (2) foreign tax creditability depends not on the way a foreign government characterizes its tax but on is economic effect – whether the tax, if enacted in the United States, would be an income tax or something else.

That’s the big takeaway here: The specific since-repealed UK tax at issue in PPL Corp. v. Commissioner of Internal Revenue isn’t likely to come up again, but the IRS is on notice that it doesn’t have discretion to err in favor of the Treasury whenever it feels like it. The tax code provides rules –albeit often overly complicated ones – that courts will enforce.

Once More Unto the Treaty-Power Breach

The Carol Anne Bond saga continues. Now in her second trip to the Supreme Court—and with Cato’s support for the fourth time—Bond is still hoping to avoid federal punishment stemming from her attempts to get back at her erstwhile best friend for having an affair with her husband.

Bond, a microbiologist, spread toxic chemicals on her friend’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, however, a federal prosecutor reached into his bag of tricks and charged Bond with violating a statute that implements U.S. treaty obligations under the 1993 Chemical Weapons Convention.

Yes, rather than being charged with attempted murder and the like, Bond is essentially accused of chemical warfare.

Bond challenged the federal government’s power to charge her with a crime, arguing that Congress lacks constitutional authority to pass general criminal statutes and cannot somehow acquire that authority through a treaty. Before a court could reach this issue, however, there was a question whether Bond could even make that argument under the Tenth Amendment, which reaffirms that any powers not delegated to Congress are reserved to the states or to the people. On Bond’s first trip to the Supreme Court, the Court unanimously accepted the argument, offered in an amicus brief by Cato and the Center for Constitutional Jurisprudence, that there’s no reason in constitutional structure or history that someone can’t use the Tenth Amendment to challenge the constitutionality of the statute under which she was convicted.

On remand to the Philadelphia-based U.S Court of Appeals for the Third Circuit, and now with standing to challenge that law, Bond raised the argument that Congress’s limited and enumerated powers cannot be increased by treaties. We again filed in that case in support of Bond. The Third Circuit disagreed, however—if reluctantly—based on one sentence written by Justice Oliver Wendell Holmes in the 1920 case of Missouri v. Holland, which has been interpreted to mean that treaties can indeed expand Congress’s powers. With Cato supporting her bid to return to the Supreme Court on that treaty power question, Bond’s case reached the high court.

Now, in a brief authored by professor Nicholas Quinn Rosenkranz and joined by the Center for Constitutional Jurisprudence, the Atlantic Legal Foundation, and former attorney general Edwin Meese III—in what we hope will be our final filing in the case—we argue that a treaty cannot give Congress the constitutional authority to charge Bond. Allowing Congress to broaden its powers via treaties is an astounding manner in which to interpret a document that creates a federal government of limited powers.

Not only would this mean that the president has the ability to expand federal power by signing a treaty, but it would mean that foreign governments could change federal power by abrogating previously valid treaties—thus removing the constitutional authority from certain laws. This perverse result makes Missouri v. Holland a doctrinal anomaly that the Court must either overrule or clarify. We also point out how the most influential argument supporting Holland is based on a clear misreading of constitutional history that has been repeated without question.

Although Holland is nearly 100 years old, there is thus no reason to adhere to a precedent that is not only blatantly incorrect, but could severely threaten our system of government. We’re in a constitutional quagmire with respect to the treaty power, one that can only be escaped by limiting or overturning Missouri v. Holland.

The Supreme Court will hear oral arguments in Bond v. United States in October.

The First Amendment Protects Both Political Donations and Campaign Spending

The First Amendment broadly protects political speech and the use of resources (printing presses, the internet, money) to facilitate that speech. Yet when someone wants to engage in the most obvious kind of political speech — supporting election campaigns — the government is allowed to restrict this important constitutional right. In a new case coming to the Supreme Court, Shaun McCutcheon, a wealthy political donor, and the Republican National Committee contend that the limits on political donations are unconstitutionally low and not supported by a sufficient governmental interest.

Currently, an individual may contribute up to $2,500 per election to federal candidates, up to $30,800 per year to a national party committee, and up to $5,000 per year to any non-party political committee. The Federal Election Campaign Act of 1971, as amended most recently by McCain-Feingold in 2002, also imposes an overall limit on the aggregate amount one may contribute in a two-year period. For 2011-2012, an individual could contribute up to $46,200 to all federal candidates combined, and $70,800 to political action committees and political party committees—a total of $117,000.

Of course, this isn’t the first time that the Supreme Court has dealt with contribution limits. In the seminal 1976 case of Buckley v. Valeo, the Court held that while contribution limits implicate fundamental First Amendment rights, such limits are justified if they’re closely tied to an important governmental interest, such as preventing quid pro quo corruption or the appearance thereof.

But the Court also decided that restrictions on campaign spending put a heavier burden on political expression, one which the government couldn’t justify. One of the plaintiffs’ arguments here is that the biennial contribution limits are simultaneously a limit on expenditures—a position which Cato elaborated in a new amicus brief.

We argue that Buckley’s distinction between contributions and expenditures, with limits on the former but not the latter being constitutional, is problematic. Not only does it allow infringements on the freedom of speech, but it has led to an unbalanced and unworkable campaign finance system.

Various justices over the years, some even in Buckley itself, have questioned the Court’s logic on this point. Justice Thomas in particular has assailed the distinction, pointing out that both contributions and expenditures implicate First Amendment values because they both support political debate. Moreover, candidates must spend an inordinate amount of time fundraising instead of legislating because they face an unlimited demand for campaign funds but a tapered supply. At the same time, money has been pushed away from politically accountable parties and candidates and towards unelected advocacy groups, leading to a warping of and decrease in political competition.

The special three-judge district court that first heard this case was legally bound to the framework the Supreme Court laid out in Buckley and restated that contribution limits are constitutional as such, dismissing the lawsuit. Still, Judge Janice Rogers Brown wrote that “the constitutional line between political speech and political contributions grows increasingly difficult to discern.”

In a truly free society, people should be able to give whatever they want to whomever they choose, including candidates for public office. We urge the Supreme Court to strike down the biennial contribution limits and give those who contribute money to candidates and parties as much freedom as those who spend money independently to promote campaigns and causes.

The Supreme Court will hear argument in McCutcheon v. FEC this fall.