Tag: Eleventh Circuit

The Constitution Still Applies on College Campuses

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 didn’t take kindly to that criticism and vowed to retaliate.

Ignoring longstanding legal precedent, the Valdosta State University Student Handbook (a legally binding contract), and the counsel of fellow administrators, Zaccari ordered staff to look into Barnes’s academic records, his medical history, his religion, and his registration with the VSU Access Office. The federal district court found that Barnes’s due process rights had been violated and denied Zaccari qualified immunity from liability for his actions, but also interpreted Barnes’s First Amendment claim narrowly and sharply reduced his award of attorney’s fees.

In the first appeal of this case to the U.S. Court of Appeals for the Eleventh Circuit (decided in 2012), Cato joined a brief filed by the Foundation for Individual Rights in Education on behalf of 15 organizations arguing that qualified immunity was inappropriate given Zaccari’s brazen violation of Barnes’s constitutional rights to free speech and due process. The Eleventh Circuit affirmed the denial of qualified immunity, restating that malicious public officials aren’t entitled to special protections when they clearly violate the rights of another.

Now again before the Eleventh Circuit on the question of damages, Barnes is appealing the district court’s narrow interpretation of his First Amendment claim and the way it handled attorney’s fees. Cato has again joined with FIRE and numerous other groups on a brief supporting the full vindication of Barnes’s freedom of speech.

In this latest brief, we argue that the district court’s ruling threatens to encourage further First Amendment violations by inexplicably letting the defendants off on lesser claims (which weren’t even pled)—even though Barnes’s complaint clearly set forth detailed allegations of First Amendment-violating retaliation. We also argue that the district court erroneously applied a severe across-the-board reduction of its attorney’s fees award, even though that amount was supposed to address costs already deducted from the total. The court even granted reverse attorney’s fees for some of the defendants who were held not liable, going so far as calling those claims frivolous solely because they were unsuccessful.

The Eleventh Circuit should rework the attorney’s fees award, especially given the incalculable public benefit derived from such suits. Students who stand up for their constitutional rights are rare, and imposing unfavorable fee awards will only make it more difficult for them to secure strong representation. (Barnes’s counsel is the renowned First Amendment lawyer, and friend of Cato, Robert Corn-Revere.) While the district court did acknowledge that Hayden Barnes’s First Amendment rights were violated, its remedy consisted of half-hearted half-measures  We hope that the Eleventh Circuit corrects that mistake, sending university officials the loud, clear message that constitutional protections don’t stop at the edge of campus.

Students Have Free Speech and Due Process Rights Too

This past Friday, a federal jury in Atlanta sent a powerful message to university administrators across the nation: you cannot violate students’ free speech and due process rights with impunity. The jury found Valdosta State University president Ronald Zaccari personally liable for $50,000 in damages for expelling former VSU student Hayden Barnes, who peacefully protested a planned $30-million campus parking garage. The trial and award followed a ruling last year by the U.S. Court of Appeals for the Eleventh Circuit that Zaccarri could not claim the immunity given to public officials acting in their official capacities because he should have known that Barnes was entitled to notice and a hearing before being expelled.

Barnes’s saga began in 2007, when Zaccarri announced, and Barnes protested, the proposed garage construction.  Barnes’s activities included sending emails to student and faculty governing bodies, writing letters to the editor of the VSU student newspaper, and composing a satirical collage on Facebook. In retaliation for these acts, Zaccari ordered that Barnes be “administratively withdrawn” from VSU, without any hearing before his expulsion in May 2007.

Barnes sued Zaccarri in 2010, and the federal district court quickly ruled that that Zaccarri had violated Barnes’ constitutional right to due process and that the administrator could not avail himself of qualified immunity because he had ignored “clearly established” law. When Zaccarri appealed to the Eleventh Circuit, Cato joined an amicus brief filed on behalf of 15 organizations, successfully asking the court to affirm on both First Amendment and due process grounds.

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 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. 

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.  In this case, Zaccarri even rejected the advice of in-house counsel concerning the process required before Barnes could be deprived of his enrollment at VSU and neglected to abide by the procedures set forth in the VSU Student Handbook.

This verdict is cause for celebration for those concerned with individual rights.  It will encourage students to exercise and defend their freedom of speech and due process, serving as a warning to administrators that they may not willfully disregard those rights. Perhaps most importantly, it vindicates Hayden Barnes, who has endured a grueling three years of litigation in order to earn, in his own words, “a victory for students everywhere.”

Thanks to the Foundation for Individual Rights in Education for orchestrating this case, including finding longtime Cato ally Robert Corn-Revere to be Barnes’s counsel and asking Cato to join its amicus brief.  Read FIRE’s press release on Barnes v. Zaccari.

There’s No Drug War Exception to the Constitution

Florida is so zealous in pursuing the war on drugs that its laws classify the possession, sale, and delivery of controlled substances as crimes not requiring the state to prove that the defendant knew he had possessed, sold, or delivered those substances.

In Florida Dept. of Corrections v. Shelton, state prosecutors convicted Mackie Shelton of transporting cocaine under one of these “strict liability” statutes, the trial judge having instructed the jury that the state only needed to prove that Shelton delivered a substance and that the substance was cocaine. Shelton successfully challenged the constitutionality of that state law in federal court, where the district judge overturned the conviction and noted that “Florida stands alone in its express elimination of mens rea as an element of a drug offense.”

Florida appealed that ruling to the U.S. Court of Appeals for the Eleventh Circuit. Cato has joined the National Association of Criminal Defense Lawyers, Florida Association of Criminal Defense Lawyers, ACLU, Drug Policy Alliance, Calvert Institute for Policy Research, and 38 law professors on an amicus brief supporting Shelton’s position.

The Supreme Court has recognized only limited exceptions to the general rule that criminal culpability requires mens rea (a guilty mind). These “strict liability” crimes fall under the rubric of “public welfare offenses” and are typically what most people would not consider “serious,” such as traffic violations and selling alcohol to minors. Policymakers justify dispensing with mens rea requirements in such contexts by citing the need to deter businesses from imposing costs on society at large, or the burden that having to prove mens rea in these sorts of cases would overwhelm courts, or that the penalties are relatively small and carry little social stigma.

Florida’s legislature, however, went well beyond the normal boundaries of public welfare offenses in imposing strict liability for drug crimes that can carry significant prison terms — and thus violated the due process of law and traditional notions of fundamental fairness. As an alternative argument purporting to save its drug laws, Florida points to the availability of affirmative defenses, that these defenses (e.g., “I didn’t know it was cocaine”) to a presumption of guilty intent take the statute out of the (constitutionally dubious) strict liability category.

But a state may not simply presume the mens rea element of a crime: In Patterson v. New York (1977), for example, the Supreme Court held that prosecutors cannot reallocate the burden of proof by forcing a defendant to prove an affirmative defense. In requiring defendants to prove that they are “blameless” in these sorts of drug crimes, Florida’s statutes fail constitutional muster.

We urge the Eleventh Circuit to affirm the district court’s ruling that the offending state law unconstitutional.

Should You Need a License to Hang Curtains?

The latest example of liberty-reducing occupational licensing schemes comes to us from Florida, where a law restricts the practice of interior design to people the state has licensed. Those wishing to pursue this occupation must first undergo an onerous process ostensibly in the name of “public safety.”

In reality, the law serves as an anti-competition measure that protects Florida’s current cohort of interior designers. Our friends at the Institute for Justice have pursued a lawsuit against the law but lost their appeal in the Eleventh Circuit.

Cato has now joined the Pacific Legal Foundation on an amicus brief asking the Supreme Court to review that ruling. The lower court got it wrong not just with respect to the right to earn a living, however, but also on First Amendment grounds.

That is, interior design, as a form of artistic expression, is historically protected by the First Amendment. Indeed, interior designers are measured primarily on the value of their aesthetic expression, not for any technical knowledge or expertise. This type of artistry is a matter of taste, and the designer and client usually arrive at the end result through collaboration and according to personal preferences. Thus, the designer-client relationship has little in common with traditionally regulated professions such as medicine, law and finance, where bad advice can have real and far-reaching consequences—but even then, the Supreme Court has emphasized the First Amendment implications of placing “prior restraints” on expression through burdensome licensing schemes.

Instead of following that precedent, however, the circuit court carved out a constitutionally unprotected exception for “direct personalized speech with clients.” Florida’s “public safety” justification is similarly weak, given that the state has presented no evidence of any bona fide concerns that substantiate a burdensome licensing scheme that includes six years of higher education and a painstaking exam—instead relying on cursory allegations that, for example, licensed designers are more adept at ensuring that fixture placements do not violate building codes.

Finally, the Eleventh Circuit’s ruling disregarded the infinite array of auxiliary occupations the Florida law subjects to possible criminal sanctions: wedding planners, branding consultants, sellers of retail display racks, retail business consultants, corporate art consultants, and even theater-set designers could all get swept in. The state has already taken enforcement actions against a wide spectrum of people who are not interior designers, including office furniture dealers, restaurant equipment suppliers, flooring companies, wall covering companies, fabric vendors, builders, real estate developers, remodelers, accessories retailers, antique dealers, drafting services, lighting companies, kitchen designers, workrooms, carpet companies, art dealers, stagers, yacht designers, and even a florist. This dragnet effect also suggests that the law is too broad to survive constitutional scrutiny.

The Court will likely decide by the end of the year (or early 2012) whether to take this case of Locke v. Shore.

Obamacare Legal News Gone Wild

Developments in the Obamacare lawsuits are coming at us so quickly that it’s hard to keep up.  After a month and a half of speculation on what the administration would do after it lost in the 26-state/NFIB lawsuit (Florida v. U.S. Dept. of Health & Human Services), in the last week the D.C. Circuit heard argument in yet another case on appeal, the government decided not to seek en banc review in the Eleventh Circuit, yesterday we went from zero to three cert. petitions in that case, and the government filed a reply in the Thomas More (Sixth Circuit) case.  Here’s a breakdown:

1. D.C. Circuit Argument

This past Friday, the D.C. Circuit heard the appeal of Seven-Sky v. Holder (in which Cato filed this brief).  There wasn’t much media coverage, in part because the reporting came in on a Friday afternoon but more because the appellate developments after the Eleventh Circuit created a split from the earlier pro-government Sixth Circuit ruling are somewhat anticlimactic – because the action has moved to the Supreme Court.  I attended the hearing and can report a few key points:

(a) The government still has not managed to come up with an example of something it cannot do under its reading of the Commerce Clause.  This is shocking.  Solicitor General Verrilli (who did not argue here), a word of unsolicited advice before Justice Scalia asks you the same question: come up with a couple of outlandish things and move on.  Unless, you know, you think the government really can do anything it wants if a congressional majority exists for it.

(b) Judge Bret Kavanaugh, Bush II appointee and rising star in the conservative judicial establishment, had some serious concerns regarding the Anti-Injunction Act (the jurisdictional issue on which the Fourth Circuit based its decision to dismiss the Liberty University case).  Beth Brinkmann, arguing for the government and after floundering on the Commerce Clause (see above), seemed to have done a great job in putting Kavanaugh’s mind at ease – or at least getting him over the jurisdictional hump.

(c) Judge Laurence Silberman, Reagan appointee and author of many significant opinions over the years, has a really wide interpretation of government power under Wickard v. Filburn, the 1942 wheat-farming case.  I’m not sure that puts his vote in danger – he was also the one who most went after the government – but it does raise an eyebrow.

(d) Overall, I cautiously predict a 2-1 ruling in favor of the plaintiffs, but we won’t know till later this fall.  For a more detailed analysis of the hearing, see Randy Barnett’s post at the Volokh Conspiracy.

2. No En Banc Review in the Eleventh Circuit

On Monday, the government allowed the deadline for seeking review of the Eleventh Circuit panel ruling by the full court to slip.  Commentators, including myself, had speculated that it might file for en banc review in an attempt to push the inevitable Supreme Court ruling past the 2012 election.  That didn’t happen, and here was my press statement:

En banc rehearing would have been legally futile and politically damaging, so the government made the correct decision in not seeking it. We can now expect the solicitor general to ask the Supreme Court to review the Eleventh Circuit’s decision to strike down the individual mandate while leaving the rest of Obamacare standing. The certainty that such review will provide to a nation battered by this among so many other pieces of economically harmful administration policies cannot come soon enough.

The government’s inactivity here, as it were, provoked a flurry of coverage.  I agree with the analysis that Peter Suderman put up at Reason

3. NFIB Files Cert. Petition

Early yesterday (Wednesday) morning, the National Federation of Independent Business and two individuals asked the Supreme Court to review the one issue on which they lost before the Eleventh Circuit: severability.  That is, despite the government’s concession that at least the community-rating and guaranteed-issue provisions are inextricably tied to the individual mandate, and the obvious practical observation that none of the legislation would’ve passed without the mandate, the Eeleventh Circuit reversed Judge Vinson’s ruling on this point and only struck down the mandate.  The petition also makes the point that the Eleventh Circuit case presents the best Supreme Court “vehicle” among all the lawsuits because it most cleanly presents the relevant issues and doesn’t face lingering concerns over standing.   It’s a strong and aggressively worded brief which makes for a good read.  Here was my press statement:

The NFIB’s cert petition forces the Supreme Court to grapple not simply with the individual mandate’s constitutional defects but with the fatal flaws those defects expose in the overall legislation. The regulatory burden and economic uncertainty – let alone direct financial cost – that Obamacare imposes on individuals, businesses, states, and the nation as a whole are part and parcel of a noxious scheme centered on the individual mandate. The Court should grant this petition and thus begin putting an end to the government’s doomed – and unconstitutional – attempt to control our lives.

Randy Barnett, who’s now part of the NFIB legal team (which is led by veteran appellate litigator Mike Carvin), has this useful post about the petition’s treatment of the Anti-Injunction Act.

4. 26 States File Cert. Petition

On the heels of the NFIB filing, the 26 states in the Florida-led lawsuit filed their own cert. petition yesterday.  “Time is of the essence,” lead counsel (and former solicitor general) Paul Clement argues. “States need to know whether they must adapt their policies to deal with the brave new world ushered in by the ACA.”  The petition asks the Court to review three questions:

(a) Does the threat to withhold all Medicaid funding if states don’t agree to Obamacare’s onerous new conditions on that program constitute impermissible coercion by the federal government? [The Eleventh Circuit said no.]

(b) May Congress treat states no differently from any other employer when imposing invasive mandates as to the manner in which they provide their own employees with insurance coverage?  [This is a new formulation of a claim that hasn’t gotten much attention, and focuses on the somewhat idiosyncratic 1985 Supreme Court decision in Garcia v. San Antonio Metropolitan Transit Authority.]

(c) Does the individual mandate exceed federal power and, if so, can it be severed from the rest of the law?

I’ve only skimmed this petition, but it too is a hard-hitting and elegant presentation of serious issues.

5. Solicitor General Files Cert. Petition

Around lunchtime yesterday, the government filed its own cert. petition.  (The parties were all clearly playing a high-stakes game of legal chicken; once the govenment declined to pursue en banc review, the NFIB incorporated that fact into a petition that it had clearly been considering filing preemptively, its co-plaintiff states soon followed, and the government’s hand was forced to throw its petition – which had obviously also been in the final stages – into the filing cascade. Note that yesterday was not any sort of deadline for seeking Supreme Court review!) 

The new solicitor general, Donald Verrilli, of course asks the Court to address whether the individual mandate is constitutional, but also, curiously, whether the challenges are barred by the Anti-Injunction Act.  On this second point, the government argues that the AIA does not apply but asks the Court to appoint an amicus to argue that it does, effectively to defend the Fourth Circuit’s position.  This is unusual.  The SG is essentially saying that he would prefer to win on the merits but will accept a technical victory so long as he doesn’t have to argue for it.  (This accords with my prediction that the Court will either rule for the plaintiffs or find a procedural way of avoiding the merits while allowing the individual mandate to stand.)

6. Government Responds to Thomas More’s Cert. Petition

There was one actual deadline yesterday, and the government met it: It filed a response (not labeled “opposition” as is typically the case) to the cert petition in Thomas More Law Center v. Obama, the case coming out of the Sixth Circuit.  As expected given its earlier filing, the government asked the Court to hold this petition pending resolution of Florida v. HHS.  There’s really nothing to this filing beyond expressing that position.

Conclusion

The day we’ve all been awaiting since President Obama signed his health care law in March 2010 – the Supreme Court’s ruling – is nigh.  Normally the parties on the other side of cert. petitions have 30 days to respond, after which the Court considers the filings, issues a cert. grant or denial (here a grant of some kind), and sets the case for argument a few months in the future to allow time for briefing on the merits.  In Florida v. HHS, however, all the parties – the government, the states, the NFIB/individual plaintiffs – are requesting cert., so I’m not sure what value they or the Court would get from responsive filings (which would be due Oct.27).  Regardless of that wrinkle, the Court is likely to grant cert. sometime in November – or in any case by the end of the year – and set argument for March or April. 

So we’re on track for a decision that glorious last week of June when the Court releases its most pressing opinions and gets the heck out of Dodge.

Constitutional Structure Matters: A Response to Larry Tribe

SCOTUSblog’s symposium on the constitutionality of Obamacare – to which I contributed, as did Bob Levy – provides a glimpse at the astonishing views of the law’s supporters.  It particularly shows how divorced the legal academy’s leading lights are not only from basic constitutional text and structure, but from jurisprudential reality.

Most prominently, in responding to the Eleventh Circuit’s decision striking down the individual mandate (and to Richard Epstein’s symposium essay), storied Harvard professor Laurence H. Tribe criticizes the court for “reflecting what appears to be a widely held public sentiment” that Congress cannot “mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.”  That sentiment is a problem, according to Tribe, because it elevates form over substance.  That is, just as it has done with Social Security, Congress could (under modern jurisprudence, which is wrong as a matter of first principle but not at issue in the Obamacare lawsuits) levy another income or payroll tax and use that revenue to provide health insurance and/or care for otherwise uninsured individuals:

Put otherwise, Congress may undoubtedly use its taxing power to mandate that individuals pay for coverage supplied by private insurers, so long as it acts in two steps: step 1, impose a tax, and step 2, use the proceeds of the tax to fund privately provided health insurance for each individual. If Congress may accomplish this objective in two steps, why not in one? No federalism or liberty-related concern, whether the dignity of the states or that of individuals, is served by denying Congress that authority.

Tribe’s reasoning echoes Justice Breyer’s reason (in dissent) for rejecting the notion that the Takings Clause applies when the Government orders an individual to pay another individual, in the case of Eastern Enterprises v. Apfel:

The dearth of Takings Clause author­ity is not surprising, for application of the Takings Clause here bristles with conceptual difficul­ties. If the Clause applies when the government simply orders A to pay B, why does it not apply when the government simply orders A to pay the government, i.e., when it assesses a tax?

But there is a very good reason why courts should deny Congress the power to compel individuals to purchase products from private parties or, for that matter, the power to order A to pay B – even if a similar result could be accomplished through the taxing power: political accountability. As Georgetown law professor (and Cato senior fellow) Randy Barnett explains:

Like mandates on states, economic mandates undermine political accountability, though in a different way. The public is acutely aware of tax increases. Rather than incur the political cost of imposing a general tax on the public using its tax powers, economic mandates allow Congress and the President to escape accountability for tax increases by compelling citizens to make payments directly to private companies.

Indeed, scholars as diverse as Richard Epstein and Cass Sunstein have argued that the Takings Clause requires just compensation precisely to preserve political accountability in the provision of public goods. As Justice Scalia explained in the case of Pennell v. City of San Jose:

The politically attractive feature of regulation is not that it permits wealth transfers to be achieved that could not be achieved otherwise; but rather that it permits them to be achieved “off budget,” with relative invisibility and thus relative immunity from normal democratic processes.

Under modern jurisprudence, essentially the only check on Congress’s taxing and spending powers under the General Welfare Clause (as opposed to its regulatory power under the Commerce Clause) is political.  So yes, Professor Tribe, there is a constitutional reason for depriving Congress of the power to do in one step what it could surely do in two other steps: to maintain that remaining constitutional qua political check. Indeed, the very reason why Congress adopted the individual mandate was because it lacked the political will – it feared political accountability too much – to impose single-payer universal coverage, where the government would first impose a tax on everyone and then provide health care (at this point it’s no longer “insurance”) to everyone.

To accomplish the same result without having to impose significant new taxes – as President Obama famously promised there would not be – Congress tried to evade political accountability through the individual-mandate mechanism. That’s why the Eleventh Circuit wisely declined to grant Congress the power to move a significant part of its spending “off budget” and “mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.”

Cato legal associate Chaim Gordon co-authored this blogpost.

Cato’s Latest Obamacare Brief

As I noted yesterday, Obamacare is moving towards its inevitable date with the Supreme Court.  Although the pace may be aggravating, attorneys on both sides are strengthening their arguments and clarifying the issues presented.

Cato’s latest brief, filed today in the Eleventh Circuit in support of 26 states and the National Federation of Independent Business, sharpens the position we already expressed in briefs filed in the Fourth Circuit and the Sixth Circuit.  Our focus remains the question of whether the Constitution authorizes Congress to mandate that individuals purchase health insurance or suffer a fine.

The government has subtly shifted its thinking at this stage, however, to argue that the individual mandate does not so much compel “inactive” citizens to act but merely regulates when and how health care is purchased. Everyone will eventually purchase health care, the argument goes, and the mandate requires that people pre-pay for that care so they don’t shift the costs onto others.

We point out how this argument is a spurious misdirection, an attempt to recharacterize the individual mandate in terms that are directly contrary to the purpose and function of the overall statute.  Obamacare explicitly regulates the status of being uninsured—and not just those who seek to shift health care costs to the future or slough them onto taxpayers (indeed, the politically uncomfortable truth is that those most likely to incur health care expenses they cannot pay, the poor, are exempt from the mandate).

We argue that, regardless of the spin that the government places on it, the individual mandate “regulates” inactivity, something that not even modern constitutional doctrine allows.  The status of being uninsured cannot be transformed into economic activity via semantic prestidigitation; no matter how artfully articulated, a decision not to purchase insurance, or to do nothing, or to self-insure, is not a federally regulable action.  The outermost bounds of Congress’s power under the Commerce Clause, as exercised via the Necessary and Proper Clause, reach certain classes of intrastate economic activity that substantially affects interstate commerce.  But Congress cannot reach inactivity even if it purports to act pursuant to a broader regulatory scheme.

Allowing Congress to conscript citizens into economic transactions would not only be unprecedented—as government-friendly the precedent is—but would fundamentally alter the relationship between the sovereign people and their supposed “public servants.”  The individual mandate “commandeers the people” into the federal government’s brave new health care world.

The Eleventh Circuit will hear Florida v. U.S. Dep’t of Health & Human Services in Atlanta on June 8.