Tag: equal protection

Race-Based Tax Exemptions Are Unconstitutional

By
Ilya Shapiro

Hawaii continues to think that it’s not quite part of the United States and thus not fully subject to U.S. law.

In the 2000 case of Rice v. Cayetano, the Supreme Court struck down race-based voting requirements for certain Hawaii state officers because government schemes that distinguish between “native Hawaiian” and “Hawaiian” are racial classifications that must pass “strict scrutiny” to be deemed constitutional; they must be narrowly tailored to achieve a truly “compelling” purpose (a standard nearly impossible to meet). Yet that exact same category of “native Hawaiian” — whose frighteningly archaic definition is “any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778” — was used in the Hawaii Homes Commission Act to distinguish those who can hold certain leases that are subject to little or no property tax.

A group of Hawaiians who do not meet the state’s definition of “native Hawaiian” and therefore suffer under the explicitly race-based law decided to challenge these property-tax exemptions. After paying their taxes, these plaintiffs sought refunds on the grounds that the classification scheme violates the Fourteenth Amendment’s Equal Protection Clause.

The Supreme Court of Hawaii, however, ruled that they didn’t have standing — a legal doctrine that determines who can bring a claim — to challenge the taxes on the ground that they had not yet asked for the leases (for which they were indisputably ineligible due to not having enough “blood of the races” flowing through their veins). A lower state court had even ruled that the classification was not race-based—that it merely distinguishes leaseholders and non-leaseholders, even though Hawaiians without the sufficient “blood quantum” cannot be leaseholders!

The group of taxpayers now seek review in the U.S. Supreme Court. Cato, joined by the Pacific Legal Foundation, the Grassroot Institute of Hawaii, the Goldwater Institute, and Professor Paul M. Sullivan, filed a brief urging the Court to take the case and rectify Hawaii’s explicitly unconstitutional taxation scheme. We argue that, after Hawaii’s state judiciary refused to address the issue of racial discrimination head-on, only the U.S. Supreme Court is in a position to guarantee the constitutional protections that Hawaiians have lived under for over a century (since Hawaii became a territory). Only by taking this case and overturning the racially charged definition can the Court continue to ensure that Hawaii is a state that “neither knows nor tolerates classes among citizens.”

The Supreme Court will likely decide by the end of the year (or in early 2012) whether to hear this case, Corboy v. Louie.

Topics: 
Government and Politics, Law and Civil Liberties, Tax and Budget Policy

Private Ownership of Public Law

By
Jim Harper

Carl Malamud is a breakthrough thinker and doer on transparency and open government. In the brief video below, he makes the very interesting case that various regulatory codes are wrongly withheld from the public domain while citizens are expected to comply with them. It’s important, mind-opening stuff.

It seems a plain violation of due process that a person might be presumed to know laws that are not publicly available. I’m not aware of any cases finding that inability to access the law for want of money is a constitutional problem, but the situation analogizes fairly well to Harper v. Virginia, in which a poll tax that would exclude the indigent from voting was found to violate equal protection.

Regulatory codes that must be purchased at a high price will tend to cartelize trades by raising a barrier to entry against those who can’t pay for copies of the law. Private ownership of public law seems plainly inconsistent with due process, equal protection, and the rule of law. You’ll sense in the video that Malamud is no libertarian, but an enemy of an enemy of ordered liberty is a friend of liberty.


Topics: 
Telecom, Internet & Information Policy

Ground-Breaking Constitutional Theories

By
Ilya Shapiro

As Larry Solum notes and Randy Barnett seconds, Georgetown law professor and friend-of-Cato Nick Rosenkranz has just published a tremendous article in the Stanford Law Review.  I saw an earlier version of it and can tell you that it offers one of those singular re-thinks of accepted learning.  As Randy puts it, “It is one of those rare pieces that hits you between the eyes and causes you to reconsider how you think about the Constitution.”  The article, entitled “The Subjects of the Constitution,” argues that all of us are going about our constitutional theorizing, at least with respect to judicial review, the wrong way.  Here’s the first paragraph of the abstract:

Two centuries after Marbury v. Madison, there remains a deep confusion about quite what a court is reviewing when it engages in judicial review. Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations. But strictly speaking, this is not quite right. The Constitution prohibits not objects but actions. Judicial review is the review of such actions. And actions require actors: verbs require subjects. So before judicial review focuses on verbs, let alone objects, it should begin at the beginning, with subjects. Every constitutional inquiry should begin with a basic question that has been almost universally overlooked. The fundamental question, from which all else follows, is the who question: who has violated the Constitution?

In thinking about who violated (or allegedly violated) the Constitution, Rosenkranz contends, we get to a truer understanding of whether the Constitution was violated, and how.  Fascinating stuff, which you can download here – and the sequel, titled “The Objects of the Constitution,” is coming soon to a legal journal near you (perhaps for next summer’s blockbuster law review article season).  (Coincidentally, today the Supreme Court unanimously ruled against Nick in his first argument before the Court – a technical case regarding the award of attorneys fees under Employee Retirement Income Security Act (ERISA) – so we now know where his comparative advantage lies!)

And while I have you thinking about such high-fallutin’ theoretical matters, let me also direct your attention to a new article by an up-and-coming legal scholar, also a friend-of-Cato (and my sometime co-author), Josh Blackman.  Josh argues that the Supreme Court’s relatively new “class of one” doctrine, by which a single person can present himself as a class discriminated against in violation of the Equal Protection Clause, should be used to challenge eminent domain abuse.  That is, homeowners can establish a class of one (i.e., the person whose home the government takes) if their property is singled out for condemnation while other similarly situated properties are not.  The singled-out homeowner(s) can thus challenge the arbitrariness of the government’s taking of their property.

Josh obviously hopes that some court will accept this novel strategy of borrowing equal protection jurisprudence to check rampant eminent domain abuse and vindicate property rights.  Here you can download his article, which is titled “Equal Protection from Eminent Domain: Protecting the Home of Olech’s Class of One.”  Coincidentally, two years ago Roger Pilon wrote an essay on the Supreme Court’s most recent “class of one” decision, which you can read here.

Topics: 
Law and Civil Liberties, Political Philosophy

The Way to Stop Discrimination on the Basis of Race Is to Stop Discriminating on the Basis of Race

By
Ilya Shapiro

Today the Supreme Court heard argument in Ricci v. DeStefano, the “reverse discrimination” case in which the city of New Haven refused to certify the results of a race-neutral promotion exam whose objective results would have required, under civil service rules, the promotion of only white and Hispanic (but no black) firefighters.

The firefighters who were thus denied promotions sued the city, claiming racial discrimination under Title VII of the Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment.

Remarkably, a panel of the Second Circuit Court of Appeals—including oft-mentioned Supreme Court contender Sonia Sotomayor—summarily affirmed the district court’s ruling against the firefighters, though Judge José Cabranes (a Clinton appointee) later excoriated the panel for not grappling with the serious constitutional issues raised by the case.

The Cato Institute filed a brief, joined by the Reason Foundation and the Individual Rights Foundation, pointing out the absurd incentives at play: if the lower court’s ruling stands, employers will throw out the results of exams (or other criteria) that produce racial disparity, even if those exams are race-neutral, entirely valid, and extremely important to the employer and (as in this case) the public.

Today the Court seemed starkly divided.  The “liberal” justices hinted that an employer should be allowed to be “race conscious” to avoid Title VII lawsuits alleging “disparate impact” against minorities in hiring and promotions.  The “conservatives” were disturbed that the only reason the firefighters weren’t promoted was their race.  Nobody seemed persuaded by the government’s request—really an attempt to avoid taking a firm stand on a controversial issue—that the judgment be vacated and the case remanded for further factual development and legal rulings by the lower courts.  Justice Kennedy will likely be the swing vote, and I predict that he will side with the conservatives, albeit narrowly in a separate concurrence as he did in Parents Involved in Community Schools v. Seattle School District No.1, the race-based school assignment case from 2007.

It was in Parents Involved that Chief Justice Roberts wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Quite so. The Supreme Court should thus reverse the Second Circuit, establishing that an employer can only discount test results when there is a “strong basis in evidence” that the test is somehow biased against a particular racial group.

Topics: 
Law and Civil Liberties

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