Tag: amicus briefs

You Shouldn’t Have to Give Up Your Health Insurance When You Take Social Security

This blogpost and the amicus brief it references were co-authored by Trevor Burrus and Kathleen Hunker.

When Brian Hall, former House Majority Leader Dick Armey, and other over-65 retirees requested to opt out of Medicare’s hospital insurance coverage (because they preferred their existing private coverage), the Social Security Administration didn’t thank them for saving taxpayers’ money. Instead, the SSA explained that, because of a guideline in its “Program Operations Manual System”—essentially a manual that explains how to operate the Social Security system—anyone who declined Medicare benefits would lose Social Security.

That is, Hall and the others could disclaim their Medicare hospital insurance coverage, but only if they forfeited all of their future claims to Social Security and repaid whatever benefits they already had received — roughly $280,000 altogether. The plaintiffs challenged the linking of Social Security and Medicare as being beyond the SSA’s statutory authority. Neither the Social Security Act nor the Medicare Act allows administrative agencies to precondition benefits under one program on acceptance of benefits from other. Instead, the plain language of both statutes states that petitioners are “entitled” to benefits, which according to legal and general usage describes someone who is “legally qualified” and thus has the option of claiming benefits.

The district court disagreed and the U.S. Court of Appeals for the D.C. Circuit, in a split decision, affirmed the trial court’s result but declined to grant the POMS rules deference. The court then unanimously denied a petition for rehearing. Recognizing that the D.C. Circuit ruling, if left in place, could encourage future encroachments on congressional power by administrative agencies, Cato filed an amicus brief supporting Hall’s request that the Supreme Court take the case and enforce the statute as it was written.

We note that administrative agencies have no powers not granted to them by Congress and that regulations must be anchored in the operative statute—as well as the agency’s fair and considered judgment—in order to warrant judicial deference. The POMS regulation fails this standard because Congress’s use of the word “entitled” was clear and unambiguous. Combined with the fiscal irresponsibility of forcing citizens to accept costly benefits in an economic recession, the POMS rule appears to be an arbitrary power grab rather than a faithful effort to implement the will of Congress. We conclude by reminding the Court that agency overreach imperils the separation of powers and therefore liberty.

When Congress fails to counter an unauthorized expansion of power by an administrative agency, the judiciary has a duty to uphold the Constitution by enforcing the relevant statute as written.

The Supreme Court will decide later this fall whether to take the case of Hall v. Sebelius.

Is the Federal Government Bound by the Agreements It Makes With States?

The Interstate Agreement on Detainers, a compact authorized by federal statute, provides a simple procedure for transferring custody of prisoners between states. Because the federal government annually seeks to prosecute thousands of prisoners already in state custody, it joined the IAD in 1970 to get the benefit of this unified procedure. When it joined, it did so as a “state” for purposes of the agreement, and exempted itself from only two provisions (which aren’t relevant here). One of the provisions that the federal government decided not to exempt itself from, Article IV(a), allows the governor of the sending state to deny any request made by a receiving state to transfer a prisoner.

In September of 2010, Jason Pleau offered to plead guilty to robbery and murder charges in Rhode Island in exchange for life in prison without parole, the harshest sentence that state’s law allows. Pleau’s crimes also allegedly violated federal law, however, and the U.S. government wanted to prosecute Pleau itself in order to seek the death penalty. The federal government thus sought custody through the IAD by filing for the little-known writ of habeas corpus ad prosequendum (“show me the body for prosecution”).

The governor of Rhode Island, Lincoln Chafee, disapproves of the death penalty and used his authority under the IAD’s Article IV(a) to deny the federal request. A federal district court, later affirmed by the U.S. Court of Appeals for the First Circuit, overruled Chafee’s denial, stating that the Supremacy Clause prevented the governor from interfering with the federal government’s wishes.

The First Circuit found that the compact’s specific text and the normal canons of statutory construction were “all beside the point.” According to the court, what was important was that Congress could not possibly have meant to grant state governors the power to deny federal transfer requests—and thus the IAD didn’t affect the balance of power between the federal government and the states. The First Circuit thus granted the writ, and Pleau is now in federal custody.

The question presented here, whether the Supremacy Clause trumps a governor’s right to deny a request for transfer of custody under the IAD, raises two important issues: First, if the First Circuit is right, then the federal government may reap the benefit of interstate bargains without having to fulfill its own obligations under them. Second, the First Circuit’s opinion effectively treats the state courts as inferior to the federal courts, which upsets the system of concurrent sovereignty that the Founders designed.

Cato has joined the Independence Institute to file an amicus brief urging the U.S. Supreme Court to hear this case, with a focus on the second issue. We argue that the U.S. legal system has always recognized the dual sovereignty of federal and state courts, dating back to Chief Justice John Marshall. As Chief Justice Marshall explained, that dual system requires that state courts not be considered inferior to federal courts, and thus federal courts have no independent authority to order prisoners under state jurisdiction to be transferred to the federal system.

Furthermore, when abrogating state sovereignty via the Supremacy Clause, Congress must demonstrate its intent to do so with “unmistakably clear language”—and none of the statutes applicable here contain any such language. Finally, we argue that the First Circuit has misinterpreted relevant Supreme Court precedent and that a proper reading of the relevant case law would establish that a state is well within its rights to treat the federal government like any other state under the IAD and deny its request to transfer a prisoner into federal custody.

The Supreme Court will decide whether to take up the case of Chafee v. United States and Pleau v. United States later this fall.

The President Can’t Expand Federal Power by Signing a Treaty

This blogpost was co-authored by Cato legal associate Trevor Burrus.

In 2010, the Supreme Court decided United States v. Bond, a case that seems right out of a soap opera. 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 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 she reserved the right to appeal 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.

She won the first part of that appeal process: The Supreme 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, Bond (now with standing to challenge that law) 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 by Justice Oliver Wendell Holmes in Missouri v. Holland (1920) that has been interpreted to mean that Congress’s constitutional powers can indeed be expanded by treaties.

Writing separately, Judge Ambro agreed that Holland clearly addressed the issue but “urge[d] the Supreme Court to provide a clarifying explanation of its statement” regarding the treaty power. Bond has thus brought her case back to the Supreme Court, asking the Court to clarify and cabin Holland.

In this, our third brief in the case, we are joined again by the Center for Constitutional Jurisprudence in arguing—again based on the work of Georgetown law professor and Cato senior fellow Nicholas Quinn Rosenkranz—that 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 Executive has the ability to expand federal power by signing a treaty, but it would mean that foreign governments could change federal power by abrogating a previously valid treaty—thus removing the constitutional authority from certain laws.

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 and that the ruling is in deep tension with other cases. We’re in a constitutional quagmire with respect to the treaty power that can only be escaped by limiting or overturning Missouri v. Holland.

The Court will decide this fall whether to Bond v. United States.

I Heard It Through the Grapevine That the Government Was Violating Property Rights

This blogpost was co-authored by Cato legal associate Kathleen Hunker.

Property owners shouldn’t be made to suffer a needless, Rube Goldberg-style litigation process to vindicate their constitutional rights. Yet that is exactly what the U.S. Department of Agriculture seeks to impose on independent raisin farmers Marvin and Laura Horne when they protested the enforcement of a USDA “marketing order” that demanded that the Hornes turn over 47 percent of their crop without compensation.

The marketing order—a much-criticized New Deal relic—forces raisin “handlers” to reserve a certain percentage of their crop “for the account” of the government-backed Raisin Administrative Committee, enabling the government to control the supply and price of raisins on the market. The RAC then either sells the raisins or simply gives them away to noncompetitive markets—such as federal agencies, charities, and foreign governments—with the proceeds going toward the RAC’s administration costs.

Believing that they, as raisin “producers,” were exempt, the Hornes failed to set aside the requisite tribute during the 2002-2003 and 2003-2004 growing seasons. The USDA disagreed with the Hornes’ interpretation of the Agricultural Marketing Agreement Act of 1937 and brought an enforcement action, seeking $438,843.53 (the approximate market value of the raisins that the Hornes allegedly owe), $202,600 in civil penalties, and $8,783.39 in unpaid assessments.

After losing in that administrative review, the Hornes brought their case to federal court, arguing that the marketing order and associated fines violated the Fifth Amendment’s Takings Clause. Having litigated the matter in both district and appellate court, the government—for the first time—alleged that the Hornes’ takings claim would not be ripe for judicial review until after the Hornes terminated the present dispute, paid the money owed, and then filed a separate suit in the Court of Federal Claims.

The San Francisco-based U.S. Court of Appeals for the Ninth Circuit proved receptive to the government’s about-face. Relying on Williamson County v. Hamilton Bank (1985)—the Supreme Court case that first imposed ripeness conditions on takings claims—the court ruled in a revised opinion that the Tucker Act (which relates to federal waivers of sovereign immunity) divested federal courts of jurisdiction over all takings claims until the property owner unsuccessfully sought compensation in the Court of Federal Claims. In conflict with five other circuit courts and a Supreme Court plurality, the Ninth Circuit also concluded that the Tucker Act offered no exception for those claims challenging a taking of money, nor for those claims raised as a defense to a government-initiated action.

The ruling defies both law and common sense. It stretches the Supreme Court’s ripeness rule beyond its moorings and forces property owners to engage in utterly pointless, inefficient, and burdensome activities just to recover what should never have been taken in the first place.

Cato has thus filed an amicus brief, joined by the National Federation of Independent Business, Center for Constitutional Jurisprudence, and Reason Foundation, supporting the Hornes’ request that the Supreme Court take the case and correct the Ninth Circuit’s overbroad reading of Williamson County. We argue that an unjustified monetary order is inherently a taking without just compensation and that a ruling to the contrary imposes a pointless burden on property owners, particularly when the government initiated the original proceeding.

We also encourage the Court to reconsider Williamson County, noting that the text and history of the Takings Clause don’t permit the government to defer compensation—that indeed the most natural reading of the Takings Clause demands that compensation be offered as a prerequisite to government action. Just as the Court wouldn’t permit the government to seize property without some prior “due process of law,” it shouldn’t permit the government to seize property without prior “just compensation.”

The Court has no reason to treat takings claims with less deference than rights anchored in other constitutional provisions. It will decide this fall whether to address that issue in the case of Horne v. U.S. Dept. of Agriculture.

Getting Class Action Rules Right Makes Markets More Efficient

Getting the rules governing class actions right means balancing the need to keep the courthouse door open for legal claims not lucrative enough to pursue individually with the need to prevent wholesale extortion by opportunistic would-be plaintiffs (and their lawyers) who know that the settlement values of class actions are generally much larger than those of individual lawsuits.

In its recent (2011) decision in Wal-Mart v. Dukes, the Supreme Court reiterated that when considering whether to certify a lawsuit as a class action (which aggregates presumptive claims from a national “class” of plaintiffs), a trial court must conduct a “rigorous analysis” to determine that the putative plaintiffs satisfy the key requirements of Federal Rule of Civil Procedure 23: (1) the class is so large that each potential plaintiff can’t join the suit individually (“numerosity”); (2) questions of law or fact are common to the class (“commonality”); and (3) the claims/defenses of the plaintiff representatives are typical of the class as a whole (“typicality”). Despite Dukes, many courts have fallen back on a misinterpretation of an earlier Supreme Court decision, Eisen v. Carlisle & Jacquelin, to hold that a court can’t consider at the class-certification stage any issue that will overlap with the merits of the case.

In Comcast v. Behrend, the Philadelphia-based U.S. Court of Appeals for the Third Circuit affirmed the district court’s certification of a class of nearly two million past and present Comcast cable customers in an antitrust action against the company. In certifying the class, the district court refused to evaluate the admissibility of testimony presented by plaintiffs’ expert witness regarding the ability to calculate class-wide damages, considering such an inquiry to go to the merits of the case. The court thus failed to conduct “rigorous analysis” with respect to that issue, and so the Supreme Court decided to review whether a class can be certified without first determining, as part of the Dukes analysis, whether a plaintiff’s methodology for calculating damages is admissible.

Cato has filed an amicus brief urging the Court to clarify that what it meant in Dukes was that a full inquiry into the reliability and admissibility of expert testimony (a so-called Daubert inquiry) is required at the class-certification stage. A lower standard would obviously prejudice defendants because class certification “magnifies and strengthens the number of unmeritorious claims” and creates “insurmountable pressure on defendants to settle.” But it would also prejudice absent class members because certification based on inadmissible evidence may distort their perception of the likelihood of success and encourage the members to stay in the class. Since all class members who don’t opt out of the class are ultimately bound by a class action judgment, there’s a large potential for harm to these potentially valid claims as well.

The only way to sufficiently protect the interests of defendants and absent class members, as well as to stay faithful to the basic commonality requirement of Rule 23 — which balances the overall social interests described above — is for the Supreme Court to reverse the Third Circuit and clarify that the Daubert standard applies at the class-certification stage, not just at trial.

The Supreme Court will hear the case of Comcast v. Behrend on November 5.

Section 5 of the Voting Rights Act Has Got to Go

This blogpost (and the brief described herein) was co-authored by Cato legal associate Matt Gilliam.

Today Cato filed an amicus brief supporting the petitions for Supreme Court review in two cases involving similar challenges to the Voting Rights Act of 1965. Specifically, the cases challenge the requirement under Section 5 that certain jurisdictions (as determined by a 35-year-old formula in Section 4(b)) receive approval (“preclearance”) from the Department of Justice or a special federal court in Washington before implementing any change to election regulations, no matter how modest.

In Nix v. Holder, the Department of Justice rejected the decision by voters in Kinston, North Carolina, to make local elections nonpartisan – as is the case in most of the state – on the basis that “the elimination of party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice.” In Shelby County v. Holder, an Alabama county sued to attain preemptive resolution of the “serious constitutional questions” noted by the Supreme Court in the last significant VRA challenge in 2009. Both lawsuits hinge on the modern validity of Section 5, and both were turned back by the U.S. Court of Appeals for the D.C. Circuit (Shelby County over a heated dissent by Judge Stephen Williams). Both now seek Supreme Court review, and Cato’s amicus brief urges the Court to hear either case, or both.

The Fifteenth Amendment gives Congress the power to craft “appropriate” enforcement legislation to secure the rights of all citizens to vote, regardless of race or color. Congress’s initial attempts to enforce those rights, however, were frustrated by tactics designed to evade federal authority. Congress thus enacted Section 5, meant to apply to jurisdictions with a history of disenfranchising black voters. The Supreme Court, in upholding Section 5 against constitutional challenge in the 1960s, recognized that the measure is extraordinary, exacting perverse and substantial costs on federalism and equal protection principles – but as long as Congress’s electoral concerns were substantiated, Section 5 remained constitutionally justified. Enforcement of the VRA went on to successfully defeat the systemic discrimination that had once justified Section 5.

In 2006, however, Congress reauthorized the VRA for another 25 years, without explaining why certain jurisdictions had to be subject to such an intrusive process on the basis of an obsolete formula, particularly when all of the evidence showed that the goal of minority representation and access to voting in the South was achieved (and indeed that black registration and voting rates were higher in covered jurisdictions than elsewhere in the country). Indeed, the 2006 revisions made matters worse, authorizing the federal government to reject any electoral changes in a covered jurisdiction, no matter how small or insignificant, whenever they are believed to evince “any discriminatory purpose” or “diminish[] the ability of minority citizens … to elect their preferred candidate of choice.” Beyond the harm to federalism, the modern Section 5 thus creates a serious equal protection dilemma, mandating that covered jurisdictions factor race into their election laws even as the Fourteenth and Fifteenth Amendment’s non-discrimination principles forbid it.

In addition to these problems, Section 5 cannot coexist with Section 2 (a provision aimed at discrete instances of discrimination in voting). The Supreme Court should excise Section 5, leaving Section 2 private rights of action as the proper remedy for voter disenfranchisement. Because Section 5’s burdens are no longer justified by “current needs,” they fail to satisfy the Court’s requirements for “appropriate” enforcement legislation. In other words, Section 5’s early success quickly obviated its legitimacy. Accepting that point is not an admission of defeat, but a declaration that the VRA has achieved its promise.

The Court will decide this fall whether to hear Nix v. Holder and/or Shelby County v. Holder.

The Fourth Amendment Doesn’t Allow Roving Licenses to Detain People Without Probable Cause

This blogpost was co-authored by Cato legal associate David Scott.

Searches and seizures have long been held to be unreasonable under the Fourth Amendment unless supported by probable cause. There are only a few narrow exceptions to that probable cause requirement.

The Supreme Court found one such exception in the 1981 case of Michigan v. Summers, which gave police a limited authority to detain the occupants of premises that were lawfully being searched. The Court justified this limited detention by invoking the need for officers to have “unquestioned command” of the premises and prevent flight should incriminating evidence be found, thus “minimizing the risk of harm to the officers” and facilitating “the orderly completion of the search.”

In 2005, police officers were preparing to execute a search warrant on a home in Wyandanch, New York, when they witnessed Chunon Bailey—who was unaware of the search warrant or its pending execution—exit the home and begin to drive away. Officers followed and subsequently stopped Bailey, detaining him about a mile from the premises to be searched. The government contends that Bailey’s detention was proper pursuant to Summers.

The district court agreed and the U.S. Court of Appeals for the Second Circuit affirmed, holding that the interests expounded in Summers justify the detention of a prior occupant of the premises to be searched so long as the detention is made “as soon as practicable” after identifying “an individual in the process of leaving the premises.” The Supreme Court agreed to review the case and Cato has now joined the ACLU and the New York Civil Liberties Union in filing an amicus brief urging the Court to reverse the Second Circuit.

Our argument is three-fold. First, the Second Circuit’s extension of Summers lacks any limiting principles to the power to detain without probable cause. Without an outer limit, the Summers exception would be applicable to any number of situations in which detention without probable cause is unreasonable. A warrant to search a particular place would be transformed into a roving license to detain any person thought to be associated with that place.

Second, the Second Circuit’s attempt to establish a limiting principle by requiring the detention to occur “as soon as practicable” is insufficient because it has no principled basis and is inconsistent with the underlying values of the Fourth Amendment. Furthermore, the “as soon as practicable” standard provides no clear guidance to officers as to when a detention is permissible.

Finally, the extension of Summers here is unnecessary to ensure that officers maintain “unquestioned command” of the premises during a search: The detention of an individual away from the premises to be searched has nothing to do with police “command” of the premises, but is instead merely a means of holding someone pending the speculative emergence of probable cause.

The Supreme Court will hear argument in Bailey v. United States on October 30.