Tag: amicus briefs

Even University Presidents Are Bound by the Constitution

Few could imagine a more troubling free speech and due process case than that of Hayden Barnes. 

Barnes, a student at Valdosta State University in Georgia, peacefully protested the planned construction of a $30 million campus parking garage that was the pet project of university president Ronald Zaccari.  A “personally embarrassed” Zaccari did not take kindly to that criticism and endeavored to retaliate against Barnes — ignoring longstanding legal precedent, the Valdosta State University Student Handbook (a legally binding contract), and the counsel of fellow administrators.  Zaccari even ordered staff to look into Barnes’s academic records, his medical history, his religion, and his registration with the VSU Access Office!

The district court found that Barnes’s due process rights had indeed been violated and denied Zaccari qualified immunity from liability for his actions. Now on appeal, Cato joined a brief filed by the Foundation for Individual Rights in Education on behalf of 15 organizations arguing that qualified immunity is inappropriate here given Zaccari’s brazen violation of Barnes’s constitutional rights to free speech and due process.  As stated in the brief, the “desire of some administrators to censor unwanted, unpopular, or merely inconvenient speech on campus is matched by a willingness to seize upon developments in the law that grant them greater leeway to do so.”  The brief thus asks the Eleventh Circuit to affirm the denial of qualified immunity on both First Amendment and due process grounds.

First, the immense importance of constitutional rights on public university campus is due in no small part to the reluctance of school administrators to abide by clearly established law protecting student rights.  Second, Zaccari knew or should have known that his actions violated Barnes’ rights and were illegal retaliation against constitutionally protected speech. 

Qualified immunity is intended to protect public officials who sincerely believe their actions are reasonable and constitutional, not those who willfully and maliciously ignore well known law in a determined effort to deprive another of constitutional rights. A denial of qualified immunity here would vindicate those rights and reinforce school administrators’ obligation to protect and abide by them. 

The case of Barnes v. Zaccari will be heard by the Eleventh Circuit this spring or summer.  Thanks to legal associate Nicholas Mosvick for his help on the brief and with this post.

Does Virginia Even Have Standing to Challenge Obamacare?

As I described yesterday in the context of Cato’s latest brief, Virginia’s challenge to the constitutionality of the individual mandate is now on appeal before the Fourth Circuit (the federal appellate court that covers Maryland, Virgnia, and the Carolinas).   Before the court even considers the constitutional merits, however, it must confirm that the state has standing to bring the lawsuit in the first place. 

Indeed, two amicus briefs filed by some law professors argue that the state does not have the legal power to challenge the constitutionality of Obamacare.  But Pacific Legal Foundation attorney and Cato adjunct scholar Timothy Sandefur filed a brief responding to those briefs and arguing that Virginia does have standing to bring the case.

Here’s the issue:  Article III of the Constitution only lets federal courts hear “cases and controversies,” which means that a plaintiff – whether an individual, a state, a corporation, or any other entity – must have been actually harmed in a way that courts can address.  For example, courts can’t review abstract political arguments or give advisory opinions.  Here, Virginia argues that it’s been injured because it passed a Health Care Freedom Act that prevents citizens from being forced to buy health insurance – which is obviously in conflict with the individual mandate.

The professors say, in contrast, that states can’t pass laws that conflict with federal law as a means of getting in court and challenging the constitutionality of the federal law.  They point to Massachusetts v. Mellon, a 1923 decision that said states don’t have the “duty or power to enforce … [citizens’] … rights in respect of their relations with the Federal Government.  In that field it is the United States, and not the State, which represents them as parens patriae….”  They argue that the “the state’s interest in enforcing its legal code must necessarily give way to federal law whenever a conflict arises,” and that “[m]anufacturing a conflict with federal law cannot of itself create an interest sufficient to support standing.”

PLF’s brief explains, however, that states have had the power to do precisely that since at least McCulloch v. Maryland, the 1819 case that upheld the constitutionality of the national bank (and which is central to the Necessary and Proper Clause analysis at the heart of the larger constitutional debate over Obamacare).  In McCulloch, Maryland passed a law taxing the bank simply to give it the ability to challenge the bank’s creation in the Supreme Court.  Although the Court found the bank constitutionally kosher, it never denied that the state couldn’t raise its claims.  And the Supreme Court has allowed states in many other cases to challenge federal laws that intrude on their constitutionally retained sovereignty.

In South Dakota v. Dole (1987), for instance, the Court allowed the state to challenge the constitutionality of laws that infringed on the power to regulate alcohol consumption (by tying federal highway funds to states’ raising their drinking age to 21) – a power that the Twenty-First Amendment leaves to states.  If states can defend powers retained by the Twenty-First Amendment, why can’t they defend powers retained by the Tenth Amendment? 

And states should have the power to bring these lawsuits, because the Founders intended for states to serve as a check against Congress going beyond its constitutional authority.  In Federalist 46, for example, Madison assured skeptics that states would have “means of opposition” against federal overreaching, and those means would include “the embarrassments created by legislative devices.”  States are supposed to defend their turf in the federal constitutional scheme.  As for cases like Mellon, PLF argues that these cases involved “political questions” and so were not rulings about standing: in those cases the states weren’t really exercising their sovereign powers.  But in this case, Virginia has clearly exercised its sovereignty by passing the Health Care Freedom Act.

Interestingly, one reason PLF argues that states should have standing to bring these cases is because there’s some question whether individual citizens are allowed to bring Tenth Amendment challenges.  That question will be resolved this term in Bond v. United States, a case in which Cato filed an amicus brief in December.  If individuals are hard-pressed to defend the federalist structure, then states certainly should be able to.

In short, PLF’s brief (which was also filed on behalf of Americans for Free Choice in Medicine and Matt Sissel, PLF’s client in a different Obamacare case) makes a complicated but crucial argument supporting states’ ability to defend federalism by challenging the constitutionality of federal overreaching.  More at PLF’s blog.

Cato’s Latest Obamacare Brief: Congress Cannot ‘Commandeer the People’

A recent poll showed that 22% of Americans believe Obamacare has been repealed and 26% aren’t sure.  Yet here at Cato, we’re all too aware that the massive, unconstitutional, and fundamentally unworkable overhaul of our health care system still looms on the horizon.

While two lower courts have struck down Obamacare in whole or in part, three others have ruled it constitutional, including a D.C. District Court opinion that claimed for the federal government the right to regulate the “mental activity” of decision-making.  As litigation progresses to the appellate level, this latter decision has proven to be more a hindrance to Obamacare’s supporters than a help, its Orwellian pronouncement being hard to ignore while the government downplays the significance of the power Congress is asserting.  Nevertheless, Obamacare’s constitutionality—with a focus on the individual health insurance mandate—remains an open question until ruled upon by the Supreme Court. 

Cato’s latest amicus brief is in the Fourth Circuit, in the case brought by Virginia Attorney General Ken Cuccinelli.  In this case, unlike in the Sixth Circuit (in which we also filed a brief), it is the federal government that appealed an adverse district court decision that struck down the individual mandate.  In our brief, joined by the Competitive Enterprise Institute and Prof. Randy Barnett (the intellectual godfather of the Obamacare legal challenges, and also a Cato senior fellow), we argue that the outermost bounds of existing Commerce Clause jurisprudence prevent Congress from reaching intrastate non-economic activity regardless of whether it substantially affects interstate commerce.  Nor under existing law can Congress reach inactivity even if it purports to act pursuant to a broader regulatory scheme.  

Allowing Congress to conscript citizens into economic transactions is not only contrary to existing Commerce and Necessary and Proper Clause doctrine—as broad as that doctrine is—but it would fundamentally alter the relationship between the sovereign people and their supposed “public servants.”  The individual mandate “commandeers the people” into Congress’s brave new health care world.  If Obamacare is allowed to stand, the only limit on federal power will be Congress’s own discretion.

The case will be argued before the Fourth Circuit in Richmond on May 10.  Read more from Prof. Barnett on Obamacare here and check out the half-day event we recently held on the legal and economic problems with the law.  Finally, though his name isn’t on our brief because he hasn’t yet become a member of the bar, many thanks to legal associate Trevor Burrus for his work on it.

Government Can Tax Your Income, But It Doesn’t Own It in the First Place

As Andrew and Adam have already explained, today’s decision in ACSTO v. Winn, though grounded in the technical legal doctrine of “standing,” is a big win for school choice and state flexibility in education reform.  Even more importantly, it makes clear that there is a difference between tax credits and government spending; to find that tax money was used for unconstitutional ends here would have assumed that all income is government property until the state allows taxpayers to keep a portion of it.  That is not, to put it mildly, how we think of private property.

Of course, even had the Court found that Arizona’s scholarship scheme involved the use of state funds, the program would have been insulated from Establishment Clause challenge because it offered the “genuine and independent choice” that the Court has long required in such cases (most notably the 2002 school voucher case of Zelman v. Simmons-Harris). Many layers of private, individual decisionmaking separate the alleged entanglement of taxpayer funds with religious activities: the choice to set up a scholarship tuition organization (STO), the choice by an STO to provide scholarships for use at religious schools, the choice to donate to such an STO, the choice to apply for a scholarship, and the choice to award a scholarship to a particular student.  

Far from being an impediment to parental control over their children’s education or an endorsement of religious schooling, the autonomy Arizona grants taxpayers and STOs ultimately expands freedom for all concerned.  For more on that, see Cato’s amicus brief.

Also interesting about the case is that it offers us Justice Elena Kagan’s first significant opinion, for the dissenting four justices.  While not surprising that she would be in dissent here, in a “conventional” 5-4 split – although the “conservatives” adopted the position advocated by the Obama administration – there do appear to be some eyebrow-raising turns of phrase.  I won’t comment until I finish reading the opinion, but Ed Whelan offers an initial reaction at NRO’s Bench Memos blog.

If the Government Gives Your Election Opponent More Money the More Money You Spend, It Burdens Your Speech

Yesterday the Supreme Court heard oral arguments in the Arizona matching-public-campaign-funding case, McComish v. Bennett, spearheaded by our friends at the Goldwater Institute and the Institute for Justice.

Here’s the background:  In 1998, after years of scandals ranging from governors being indicted to legislators taking bribes, Arizona passed the Citizens Clean Elections Act. This law was intended to “clean up” state politics by creating a system for publicly funding campaigns.  Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. In short, if a privately funded candidate spends more than his publicly funded opponent, then the publicly funded candidate receives public “matching funds.”

Whatever the motivations behind the law, the effects have been to significantly chill political speech. Indeed, ample evidence introduced at trial showed that privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. Notably, in a case where a privately funded candidate is running against more than one publicly assisted opponent, the matching funds act as a multiplier: if privately funded candidate A is running against publicly funded candidates B, C, and D, every dollar A spends will effectively fund his opposition three-fold. In elections where there is no effective speech without spending money, the matching funds provision unquestionably chills speech and thus is clearly unconstitutional.  For more, see Roger Pilon’s policy forum featuring Goldwater lawyer Nick Dranias, which Cato hosted last week and you can view here.

The oral arguments were entertaining, if predictable. A nice debate opened up between Justices Scalia and Kagan about the burden that publicly financed speech imposes on candidats who trigger that sort of financing mechanism under Arizona law. Justice Kennedy then entered the fray, starting out in his usual place — open to both sides — but soon was laying into the Arizona’s counsel alongside Justice Alito and the Chief Justice.

The United States was granted argument time to support Arizona’s law, but Justice Alito walked the relatively young lawyer from the Solicitor General’s office right into what I consider to be his (Alito’s) best majority opinion to date, the federal “millionaire’s amendment” case (paraphrasing; here’s the transcript):

Alito:  Do you agree that “leveling the playing field” is not a valid rationale for restricting speech?

US:  Sort of.

Alito:  Have you read FEC v. Davis?

Note to aspiring SCOTUS litigators: try not to finesse away direct precedent written by a sitting justice.

My prediction is that the Court will decide this as they did Davis, 5-4, with Alito writing the opinion striking down the law and upholding free speech.  Cato’s amicus briefs in this case, which you can read here and here, focused on the similarities to Davis, so I’m keeping my fingers crossed that we’ll get cited.

NB: I got to the Court too late to get into the courtroom today but live-tweeted (@ishapiro) the oral arguments from the (overflow) bar members’ lounge, which has a live audio feed. I was later informed that such a practice violates the Court rules, however – ironic given how pro-free-speech this Court is – so I will not be repeating the short-lived experiment.  (That said, you should still follow me on Twitter – and also be sure to follow our friends @IJ and @GoldwaterInst!)

The First Amendment Protects All Speech

Vermont passed a law prohibiting the exchange of a variety of socially important information. Most notably, the law outlaws the transfer of doctors’ prescription history to facilitate drug companies’ one-on-one marketing — a practice known as “detailing” — because it believes detailing drives up brand-name drug sales and, in turn, health care costs. The state knew that the First Amendment prevented it from banning detailing itself, so it made the practice more difficult indirectly.

Yet data collection and transfer are protected speech — think academic research, or the phone book — and government efforts to regulate this type of speech also runs afoul of the First Amendment. See, e.g., Solveig Singleton, Cato Policy Analysis No. 295, “Privacy as Censorship: A Skeptical View of Proposals to Regulate Privacy in the Private Sector” (January 22, 1998). The First Circuit had earlier upheld a similar New Hampshire law, somehow finding that the statute regulates conduct rather than speech and that, in any event, the judiciary should defer to the legislative branch’s judgment.

When the Supreme Court declined to review that case (which cert petition Cato supported), Cato joined the Pacific Legal Foundation and a number of individuals on a brief asking the Second Circuit to split with its First Circuit brethren and reject this dangerous narrowing of protection for free expression. The Second Circuit did just that and ruled that statutes restricting commercial speech about prescription drug-related data gathering are unconstitutional. The court emphasized that the First Amendment protects “[e]ven dry information, devoid of advocacy, political relevance, or artistic expression.”

Vermont filed a petition asking the Supreme Court to review the case, which its adversaries supported in order to more quickly resolve the circuit split. Cato, again joining PLF, filed a brief supporting the respondents, two companies that collect and sell health information and analysis. Our brief argues that the Second Circuit should be affirmed and the Court should abandon the unworkable distinction between commercial and noncommercial speech set out in a 1980 case called Central Hudson Gas & Electric v. Public Service Commission.  Specifically, the Central Hudson approach to commercial speech veers into viewpoint discrimination and should be abandoned in favor of strict scrutiny because innovative and valuable commercial expression deserves full First Amendment protection.

The Supreme Court will hear argument in this new case out of Vermont, Sorrell v. IMS Health, on April 26.  Thanks to legal associate Caitlyn McCarthy for her help with Cato’s brief and this blog post.

Graduating Law Students - Come Work for Liberty!

For almost two year now, Cato has been running a highly successful legal associate program.  Talented recent law school grads have come to work for us during the time that their law firms have “deferred” their start dates (from a few months to a full year), with commensurate stipends.  The firm deferral phenomenon seems to be mostly played out as firms have adjusted their employment policies, but some law schools are now picking up the slack by creating post-grad fellowships with similar conditions.

Now that we’re again approaching graduation season, I thought I’d put out another call for more potential legal associates.  We can always use the extra brain, you can always use Cato on your resume, and your firms/schools can always use your getting substantive legal experience/counting as “employed” for US News rankings – we all win!

And so, the Cato Institute invites graduating (and recently graduated) law students and others with firm deferrals or post-grad funding – or simply a period of unemployment – to apply to work at our Center for Constitutional Studies. This is an opportunity to assist projects ranging from Supreme Court amicus briefs to policy papers to the Cato Supreme Court Review.  Start/end dates are flexible.  Interested students and graduates should email a cover letter, resume, transcript, and writing sample, along with any specific details of their availability to Jonathan Blanks at jblanks [at] cato [dot] org.  Note again that this announcement is for a non-paying job: we’ll give you a workspace, good experience, and an entree into the DC policy world, but we will not help your financial bottom line.  You don’t have to be a deferred law firm associate or funded by your school, but you do have to be able to afford not being paid by us.

Please feel free to pass the above information to your friends and colleagues.

For information on Cato’s programs for non-graduating students – or graduates who would like to be part of our internship program (which does come with some minimal compensation) – contact Joey Coon at jcoon [at] cato [dot] org.