Tag: amicus briefs

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.

Courts Must Review Agency Actions

There is a growing trend among federal agencies and courts to incrementally expand the government’s enforcement power by adopting statutory interpretations that go beyond their plain meaning and intent. National Corn Growers v. EPA exemplifies such government overreach.

Under the Federal Food, Drug, and Cosmetic Act, the Environmental Protection Agency establishes limits, or “tolerances,” for pesticide residues on food.  If a pesticide residue exceeds an established tolerance it is deemed “unsafe” and the product is removed from interstate commerce—effectively banned from use. The EPA must modify or revoke a tolerance it deems unsafe through a “notice and comment” process.  Both the FFDCA and its implementing regulations require the EPA to hold a public evidentiary hearing if any objections raise a “material issue of fact.”

In National Corn Growers, the pesticide carbofuran was registered for use in 1969 by the EPA and has been safely used for pest control for a variety of crops for more than 40 years.  Recently, however, the EPA overlooked “material issues of fact” raised by the National Corn Growers and revoked all tolerances for carbofuran without a public hearing. In a decision that gives sole discretion to the EPA to determine the fate of hundreds of thousands of products already in the market, the D.C. Circuit held that courts must defer to the agency.  The court declared that differences in scientific studies are insufficient for judicial review, essentially writing “material issue of fact” out of the Act.

Cato joined the Pacific Legal Foundation in filing a brief arguing that Supreme Court review is warranted because the D.C. Circuit undermined the legal requirement for a public hearing under the FFDCA.  Moreover, because this case sets a precedent for other regulated products and allows government agencies to unlawfully deprive citizens of their property without adequate access to court review, we argue that the Supreme Court should take this case to: (1) establish the proper standard for review under the FFDCA for a public hearing; (2) curtail abuse of the administrative process; and (3) establish that complete deference is not compatible with a summary-judgment-type proceeding.

The right not to be deprived of one’s property without fair process is a bedrock principle of American jurisprudence.  The Court should reinforce this principle and ensure that statutory safeguards intended to protect this right are not ignored. 

Thanks to Cato legal associate Caitlyn McCarthy for her help with the brief and with this summary.

Thomas Stays the Course, Scalia Returns to the Fold

A bit lost in last week’s legal news regarding a majority of states now suing over Obamacare, the House voting to repeal Obamacare, and the anniversary of Citizens United, was the first interesting Supreme Court decision of the term.  Most notably, Justices Scalia and Thomas continued their valiant struggle to limit the scope of the constitutional misnomer that is “substantive due process” doctrine.

The case was NASA v. Nelson, a suit challenging the background checks for perspective NASA contractors as violating an evanescent constitutional right to informational privacy. The Court ruled unanimously against the challengers, with Justice Alito writing for the majority that, regardless whether such a right exists, it was not violated by the government’s probing questions on sexual history and mental health.

Justices Scalia and Thomas rightly found problems with this essentially useless ruling. Scalia, joined by Thomas, concurred in the result but wrote separately to say that if a right doesn’t exist then the Court should just say so.  He would have simply held that there is no constitutional right to “informational privacy”:

I must observe a remarkable and telling fact about this case, unique in my tenure on this Court: Respondents’ brief, in arguing that the Federal Government violated the Constitution, does not once identify which provision of the Constitution that might be. The Table of Authorities contains citations of cases from federal and state courts, federal and state statutes, Rules of Evidence from four states, two Executive Orders, a House Report, and even more exotic sources of law….  And yet it contains not a single citation of the sole document we are called upon to construe: the Constitution of the United States….  To tell the truth, I found this approach refreshingly honest. One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pretense of tying it to some words of the Constitution.

In the course of his typically entertaining opinion we see Scalia back to his old self, caustically lambasting the “infinitely plastic concept of ‘substantive’ due process” and suggesting that it is “past time for the Court to abandon this Alfred Hitchcock line of our jurisprudence.”

Indeed, the seemingly oxymoronic concept of substantive due process has received much attention as of late, particularly in last term’s groundbreaking case of McDonald v. Chicago. McDonald, remember, examined whether the individual Second Amendment right articulated in District of Columbia v. Heller applied to the states.  I previously blogged about McDonald here and here, for example.

McDonald came out the right way but for the wrong reasons.  Rather than enforcing the right to keep and bear arms against the states via the Privileges or Immunities Clause, as nearly all constitutional scholars of every ideological stripe contend should be the case, the Court chose to invoke substantive due process.  Even Scalia agreed with this perversion, because apparently 140 years of bad precedent overrides originalism or whatever other interpretive theory he claims to support.  

Justice Thomas, on the other hand, agreed with the principled approach favored by most scholars (and Cato’s own amicus brief) and wrote separately to advocate overruling the Slaughter-House Cases and reinvigorate the Privileges or Immunities Clause.  Curiously, Justice Thomas couldn’t resist filing a separate one-paragraph concurrence in Nelson, seemingly for the sole purpose of citing—and reminding Justice Scalia of—his McDonald concurrence.

After all, Scalia is often regarded as the font of originalism.  In reality, he has proven himself to be an originalist of convenience, accepting corrupt interpretations when the mood strikes him.  During oral arguments in McDonald, for example, Scalia mocked attorney Alan Gura for daring to make an originalist argument that would overturn an old precedent.  Why challenge the substantive due process doctrine, wondered Scalia, when “even I have acquiesced to it?”

Scalia’s faint-hearted originalism does a disservice to that jurisprudential method.  With his acerbic wit, infectious personality, and unrivaled rhetorical skills, Scalia has become the poster-boy for originalism.  In response, the academic elite—who overwhelmingly reject originalism—focus on every Scalia opinion, hoping to catch a glimpse of the true justice who uses originalism to hide decisions often based largely on policy preferences.

Indeed, given Scalia’s pointed and insightful prose, there is always an opportunity to hoist him by his own petard.  In McDonald, for example, it was Scalia who, to use his own Nelson lines, “invoked the infinitely plastic concept of ‘substantive’ due process,” which of course “does not make this constitutional theory any less invented.”  For more on this, see “Judicial Takings and Scalia’s Shifting Sands,” the law review article I recently published with my colleague Trevor Burrus—in which we criticize Scalia’s conflicting views on constitutional fidelity in two cases from last term, McDonald and Stop the Beach Renourishment.

Recall that originalism involves a jurist’s resisting personal biases by trying to maintain fidelity to the very document that gives him his job.  This highly textualist approach is what makes Justice Thomas arguably the most predictable justice in the history of the Court.  And in the law, predictability is a good thing.  Underscoring this point is the concern about Justice Scalia’s vote in the Obamacare litigation—because of his concurring opinion in the medicinal marijuana case of Gonzales v. Raich—while Justice Thomas’s vote is assumed to be in hand.  (Precisely because Scalia is somewhat outcome-oriented, however, I personally don’t share that concern.)

I just hope that going forward, Justice Scalia will have the same thing for breakfast that he did the morning NASA v. Nelson came down.

H/t to my sometimes collaborator Josh Blackman; head over to his spectacular blog to read more extensive analysis.  And thanks to Trevor Burrus for his help with this post.

A Year After Citizens United, Campaign Finance Back at the Court

As Caleb noted earlier, today marks the one-year anniversary of Citizens United, a case I first thought ”just” concerned some weird regulation of pay-per-view movies, but turned out to be about asserted government power to ban political speech — including books and TV commercials — simply because the speaker was not one individual but a group (in corporate or or other associational form).  See also this op-ed by ACLU lawyer Joel Gora.

Roger similarly noted the continuing discussion in Congress and elsewhere about the public financing of elections.  As it turns out, the Supreme Court has agreed to hear a challenge to such a system, specifically Arizona’s Clean Elections Act.  Brought by our friends at the Institute for Justice and the Goldwater Institute and supported by our brief at the cert petition stage, this lawsuit challenges a law that aimed 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. That is, if a privately funded candidate spends more than her publicly funded opponent, then the publicly funded candidate receives public “matching funds.”

Whatever the motivations behind the Clean Elections Act, the effects have been to significantly chill political speech: privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. In elections, where there is no effective speech without spending money, matching funds provisions such as those at issue here diminish the quality and quantity of political speech.

In 2008, however, the Supreme Court struck down a similar part of the federal McCain-Feingold law in which individually wealthy candidates were penalized for spending their own money by triggering increased contribution limits for their opponents (Davis v. FEC, in which Cato also filed a brief). Even this modest opportunity for opponents to raise more money was found to be an unconstitutional burden on political speech.

Cato’s latest brief thus asks the following question: Whether Arizona may give a publicly funded candidate extra money because a privately funded opponent or his supporters have, in the state’s judgment, spoken too much. We highlight Davis and numerous other cases that point to a clear answer: if the mere possibility of your opponent getting more money is unconstitutional, then the guarantee that your opponent will get more money is even more so. Allowing the government to abridge political speech in this fashion not only diminishes the quality of political debate, but ignores the fundamental principle upon which the First Amendment is premised: that the government cannot be trusted to regulate political speech for the public benefit. Moreover, the state cannot condition the exercise of the right to speak on the promotion of a viewpoint contrary to the speaker’s.

The case is McComish v. Bennett, consolidated with Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.  The Court will hear it March 28, with a decision expected by the end of June.