Tag: amicus briefs

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.

Judicial Takings and Scalia’s Shifting Sands

Last term, the Supreme Court decided what could end up being an important precedent for protecting property rights – even as the Court ruled unanimously against the property owners in that particular case!  How is this possible?  Read the new article by Cato legal associate Trevor Burrus and me, “Judicial Takings and Scalia’s Shifting Sands.”

Here’s the background:  Seeking to restore beaches damaged by hurricanes, the Florida Department of Environmental Protection began dredging sand from the Gulf of Mexico ocean floor and transporting it to Florida’s gulf coast. The expanded area of the beach became state property, depriving beachfront landowners of their littoral rights. In reviewing the landowners’ lawsuit against the state, the Florida Supreme Court (SCOFLA, if you remember your Bush v. Gore trivia) departed from long-established state law principles protecting littoral property rights and held that littoral rights are an ancillary concept subsumed by the right of access. In so doing, the court effectively discarded 100 years of property law and rewrote the definition of property.

The U.S. Supreme Court had never formally addressed whether state court rulings eliminating formerly established property rights can effect a taking, or violate an owner’s due process rights, under the Fifth and Fourteenth Amendments to the U.S. Constitution. Cato joined the National Federation of Independent Business Small Business Legal Center and the Pacific Legal Foundation on a brief supporting the landowners.

In June, Court finally decided Stop the Beach Renourishment v. Florida Department of Environmental Protection.  The decision waded through a jumbled mass of arcane waterfront law to reach a very simple and unanimous holding: the Florida Supreme Court did not subvert an existing property right to such an extent that its decision constituted a “judicial taking.”  The state won.  The property owners lost.  SCOFLA was vindicated.

Still, while all eight justices ultimately ruled for the state – Justice Stevens recused himself because his Florida property is subject to the renourishment program – six accepted the idea that judges can violate the Constitution by reinterpreting pre-existing property rights (albeit under two different theories), and the other two declined to reach the question.  Although the Stop the Beach Court found that SCOFLA had not departed from sufficiently established state property law to constitute a taking, the idea of a judicial taking – whether through the Fifth Amendment’s Takings Clause or the Fourteenth Amendment’s Due Process Clause – is very much alive.

And that’s where our article in the Vermont Law Review picks up.  In this article, Trevor and I examine the background of the judicial takings doctrine, react to the Court’s decision here in light of Cato’s amicus brief, and contrast Justice Scalia’s views of Substantive Due Process as expressed in Stop the Beach with that in another high-profile case whose plurality opinion he joined, McDonald v. City of Chicago, to argue that the judicial takings doctrine is necessary to a robust constitutional protection of property rights.

Supreme Court Non-Rulings More Important Than Cases It Actually Hears

While all the hot constitutional action of late, on issues ranging from Obamacare to gay marriage to immigration, has been in the lower courts — or even in Congress! — the Supreme Court still goes about its daily business.  After last year’s blockbuster term, however, this term is pretty low-profile aside from a spate of First Amendment cases (funeral protests, violent video games, school choice tax credits, public financing of election campaigns, etc.).  And so it was yesterday, when Supreme Court arguments over securities law and Western water rights were overshadowed by news of cases on which the Court decided not to rule:

  • Without comment, the Court denied an unusual request — a petition for a writ of mandamus — in the Gulf Coast global warming lawsuit, Comer v. Murphy Oil.  This is the case, you may recall, where the Fifth Circuit lost its quorum as it was about to hear the en banc (whole court) appeal of a panel ruling that allowed the suit to proceed, resulting in the odd situation of the appeal being dismissed altogether and the district court decision to dismiss the lawsuit being the law of the case.  Those complicated procedural twists would’ve made for an ungainly case, but the Supreme Court will hear a different global warming–related case, which I also previously discussed and in which Cato filed a brief
  • The Court declined to review the constitutionality of a federal ban on felons’ possession of body  armor (e.g., a bulletproof vest) — in a challenge arguing that these are issues properly left to the states, there being no interstate commerce connection.  In ruling for the government, the Ninth Circuit (always them!) had applied a precedent that antedated the seminal cases of Lopez (1995) and Morrison (2000), where — as you know if you’ve been paying attention to the Obamacare lawsuits — the Court struck down the federal Gun-Free School Zones and Violence Against Women Acts, respectively, as beyond Congress’s power to regulate interstate commerce.  Notably, Justice Thomas, joined by Justice Scalia in all but one footnote, filed a trenchant dissent from this cert denial (starts on page 33 here), saying that, ” Today the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence…. [The lower court’s] logic threatens the proper limits on Congress’ commerce power and may allow Congress to exercise police powers that our Constitution reserves to the States.”  Perhaps more notably, neither the Chief Justice nor Justice Alito joined Thomas’s dissent.  (H/T Josh Blackman)
  • The Court also declined to review the constitutionality of criminal convictions by non-unanimous juries — which are only allowed in Oregon (the place where this case originates) and Louisiana — denying a cert petition filed by UCLA law professor Eugene Volokh.  The interesting angle here is that it’s not at all clear whether (1) all the rights protected by the Bill of Rights — here the Sixth Amendment requirement that jury convictions be unanimous — are “incorporated” against the states and (2) whatever incorporation there is goes through the Due Process Clause or the Privileges or Immunities Clause (which is important for courts’ consideration of the scope of constitutional rights).  Recall that in McDonald v. Chicago, the Court extended the right to keep and bear arms to the states but could not agree on the jurisprudential methodology for doing so — yet still hinted that it would be open to revisiting these issues in a case relating to unanimous jury verdicts… but apparently not yet.
  • The Court took off its argument calendar a case regarding the sovereign immunity of Indian tribes, specifically whether that doctrine prevents the enforcement of property taxes against those legally peculiar entities.  This is a huge issue for federalism, state revenues, and a host of other policy matters — and is quite complex legally — but New York’s Oneida tribe, perhaps fearing what would have been an epic loss at the Supreme Court, here decided to waive its immunity claim and thus moot the case.

After all this “active non-action” — which may be how the government next tries to characterize the non-purchase of health insurance in its next attempt to somehow find constitutional authority for the individual mandate — the Court did release one opinion of note today.  The opinion itself, in a technical bankruptcy case regarding the compelling issue of whether a debtor can take a car-ownership deduction if she does not make loan or lease payments, is not particularly noteworthy, but the author — rookie Justice Elena Kagan — is.  And so, with 18 dry pages and over a lone dissent by Justice Scalia, the Kagan era has begun.

Supreme Court Should Uphold Incentives to Sue the Government

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.

Cato, joining the Liberty Institute, the Independence Law Center, the Institute for Justice, and the James Madison Center for Free Speech, filed a brief supporting a request that the Supreme Court reverse the Fifth Circuit and making three points:

First, by awarding the defendant fees for the entire suit based on the dismissal of one claim, the Fifth Circuit’s decision imposes prohibitive costs on the enforcement of civil rights.

Second, the exceptional timing of the fee award in this case — before resolution of the plaintiff’s related state-law claims — creates a dangerous precedent that threatens to derail civil rights actions. By prematurely deeming a plaintiff’s suit frivolous and ordering the plaintiff to pay the defendant’s fees before the conclusion of the litigation, the Fifth Circuit’s rule imposes financial penalties that would shut down legitimate lawsuits midstream.

Third, 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. Otherwise, the threat of a fee award will improperly burden the plaintiff’s decision to bring a federal claim in state court at all — contrary to the law’s purpose here.

In addition to reversing the judgment below, the Court should reinforce that a mid-litigation fee award is improper when a plaintiff voluntarily drops a federal claim in order to return to state court.  The Court will hear Fox v. Vice on March 22, with a decision expected in June.

Obamacare Reaches Its First Appellate Court

The legal battle against Obamacare has hit the appellate court level.  In October, a district court in Detroit granted the government’s motion to dismiss a lawsuit brought by the Thomas More Law Center and four individuals.  The judge there endorsed the government’s theory that federal power under the Commerce Clause could reach the decision not to buy health insurance because that decision had a substantial effect on interstate commerce.  The plaintiffs have appealed that ruling to the U.S. Court of Appeals for the Sixth Circuit, and Cato, joined by Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a brief supporting that appeal.

We argue that the outermost bounds of existing Commerce Clause jurisprudence – the “substantial effects doctrine” – 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. Even the district court recognized that “in every Commerce Clause case presented thus far, there has been some sort of activity. In this regard, the Health Care Reform Act arguably presents an issue of first impression.” What Congress is attempting to do here is quite literally unprecedented. “The government has never required people to buy any good or service as a condition of lawful residence in the United States.” Cong. Budget Office, The Budgetary Treatment of an Individual Mandate to Buy Health Insurance 1 (1994).

Nor has it ever said that people face civil penalties for declining to participate in the marketplace. Even in the seminal New Deal case of Wickard v. Filburn, the federal government claimed “merely” the power to regulate what farmers grew, not to mandate that people become farmers, much less to force people to purchase farm products. Finally, even if not purchasing health insurance is considered an “economic activity” – which of course would mean that every aspect of human life is economic activity – there is no legal basis for Congress to require individuals to enter the marketplace to buy a particular good or service. It is no more “proper” under the Necessary and Proper Clause for the federal government to “commandeer” individuals than to “commandeer” state officials.

Just consider our brief an early Christmas present to liberty.