Tag: eugene volokh

ObamaCare’s Threat to Free Speech

On Friday, I blogged about HHS Secretary Kathleen Sebelius’ letter to the health insurance lobby, in which she attempts to stifle political speech by using the new powers that ObamaCare grants her to threaten health insurance companies that claim ObamaCare’s coverage mandates are one cause behind rising premiums.  (Never mind that the insurers’ estimates – which project that ObamaCare will increase premiums in 2011 by as much as 9 percent – are in line with those put forward by HHS.)

Here’s a smattering of reactions from others.

  • The Wall Street Journal: “The Health and Human Services secretary…warned that ‘there will be zero tolerance for this type of misinformation and unjustified rate increases.’   Zero tolerance for expressing an opinion, or offering an explanation to policyholders? They’re more subtle than this in Caracas.”
  • Chicago Tribune: “President Obama’s health care reform plan, enacted in March, is not terribly popular with the American people…The administration can’t tell the public to stop grousing. It can, however, try to silence health insurers who have the nerve to say out loud what basic economic theory indicates…Apparently, harsh punishment is in store for anyone who refuses to parrot the administration line. But there is every reason to think this alleged libel is true.”
  • Tyler Cowen: “Nowhere is it stated that these rate hikes are against the law (even if you think they should be), nor can this ‘misinformation’ be against the law…[The letter] is worse than I had been expecting.”
  • Ed Morrissey: “Rarely have we heard a Cabinet official tell Americans to stay out of political debates at the risk of losing their businesses. It points out the danger in having government run industries and holding a position where politicians can actually destroy a business out of spite.”
  • Michael Barone: “Sebelius is threatening to put health insurers out of business in a substantial portion of the market if they state that Obamacare is boosting their costs…The threat to use government regulation to destroy or harm someone’s business because they disagree with government officials is thuggery. Like the Obama administration’s transfer of money from Chrysler bondholders to its political allies in the United Auto Workers, it is a form of gangster government.”
  • Eugene Volokh: “even if such action would be constitutionally permissible, it would be quite troubling, as would threats that seem to hint as such action: It would involve the Administration’s deliberately trying to suppress criticism of its policies, under a ‘misinformation’ standard that sounds highly subjective and politically contestable. (Consider [Sebelius’] reference ‘to our analysis and those of some industry and academic experts’ — what about the analysis of other industry and academic experts?) Perhaps I’m missing some important context here. But my first reaction is that this is ominous behavior on the Administration’s part, and seems to have both the intent and effect of suppressing criticism of the Administration’s policies — including criticism that simply expresses opinions the Administration dislikes, and makes estimates that it disagrees with, and not just criticism that contains objectively demonstrable ‘misinformation.’”

In The Wall Street Journal, economist Russ Roberts recently explained one of the main themes of Friedrich Hayek’s The Road to Serfdom:

When the state has the final say on the economy, the political opposition needs the permission of the state to act, speak, and write. Economic control becomes political control.

One need not agree with all of Hayek’s conclusions to see how ObamaCare is threatening political freedom.

The Crusade against Sexting

As my colleague Tim Lynch pointed out in this post, the Third Circuit recently upheld an injunction against a prosecutor who threatened charges against teenagers who engaged in “sexting.” A conviction would have turned these minors into registered sex offenders for flirting via cellphone. Professor Eugene Volokh has more on the decision.

“Sexting” is sending an explicit photo of yourself to your significant other, and is an increasingly common occurrence with high school–aged teens. It’s dumb — those digits don’t ever go away, and they can come back to embarrass you — but it shouldn’t make you a sex offender.

Unfortunately, the laws don’t reflect this sensible distinction between poor teenage judgment (but I repeat myself) and intentional criminality. I don’t think this guy is a threat to society, but he’s a registered sex offender now.

Even staunch conservative Andy McCarthy expressed concern about the heavy mandatory minimums for possession of child pornography over at The Corner. First-time offenders can get 15-year minimum sentences, more than some of the mobsters that McCarthy prosecuted as an assistant U.S. attorney. As McCarthy puts it:

I think that’s nuts. And mind you, compared to the average person (and even the average prosecutor), I am Atilla the Hun: I would not have the slightest problem imposing capital punishment on the people who actually produce and “perform” in these depictions in which young children are sexually abused…

But the mandatory minimums have to be sensible — “Doing it for the children” is not a rationale for failing to distinguish the truly evil from the venial.

This is why Vermont legislators carved out an exemption for sexting so that teens would not be charged as child pornographers and registered as sex offenders. The video at the link shows Vermont State Senator John Campbell making the case for such a legal distinction:

If a 14- or 15-year old girl, let’s say, decides to send a photograph of her breast to her boyfriend who is 15, she has just then become a transmitter of child pornography and he is in possession of child pornography, and as such, then they are now on the lifetime registry, the sex offender registry. So take that a little bit further, and see what’s going to happen. We have a child who now, as a registered sex offender, if they are lucky to get into college, because they have to register when they get to college. If they’re fortunate enough to get there, and they want to, let’s say, go into a teaching profession. Do you think that they’re going to be hired as a teacher when they have been charged with possession of child pornography? The answer is probably not.

Internet safety advocate Donna Rice Hughes responds: “They don’t have to go into a sex offender registry. There is prosecutorial discretion currently in the child pornography laws.”

We should not create a criminal code broad enough to give prosecutors the ability to charge anybody with something, and then leave it to the prosecutors’ good sense to rein themselves in.

It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.”

— Chief Justice Morrison Waite, United States v. Reese, 92 U.S. 214, 221 (1875)

The problem goes beyond sexting. Last year the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on “cyberbullying” legislation that would have criminalized using the internet to hurt someone else’s feelings. Setting aside the First Amendment issues with such a concept, this was a bill directed at making a federal felony out of teenagers’ rude conduct, in spite of the fact that there are no federal juvenile detention facilities to deal with this newly criminalized class of citizens.

Vermont’s sexting fix is a good start, but we have a long way to go before our laws again reflect traditional notions of criminal justice.

Due Process Victory for Concealed Carry Permit Holder

That’s the outcome in the Second Circuit (full decision here), where a Connecticut man who has held a concealed handgun permit since 1982 was given the run-around when he tried to renew it, prompting a year-and-a-half of delay.

In March 2007, Kuck applied to DPS to renew his permit to carry a firearm. He was subsequently contacted by Defendant Albert J. Masek, an employee of DPS, who requested that Kuck provide a U.S. passport, birth certificate, or voter registration card in support of his renewal application…

Kuck objected to the requirement, arguing that he had submitted proof of citizenship when he first applied for a permit in 1982 and, over the subsequent 25 years, had never before been asked to provide such proof with a renewal application. He claimed then, as he does now, that the DPS requirement was arbitrary, designed to harass, and, in any event, not authorized by state law. Ultimately, he refused to provide the requested documents. As a result, DPS denied his renewal application.

Why the additional citizenship inquiry?

Notably, at the time of his renewal application, Kuck was the Secretary of the [Board of Firearms Permit Examiners]. Members of the Board are appointed by the Governor and include individuals nominated by gun clubs in Connecticut. In 1998, Kuck was nominated by Ye Connecticut Gun Guild, Inc. to the seat on the Board reserved for its representative.

Kuck alleges that, since his appointment, the estimated waiting-period for a hearing has increased dramatically, and that the Board Chairman, Christopher Adams, opposed his efforts to speed up the appeals process. He contends that DPS and the Board have acted to burden gun-owners’ ability to obtain carry permits by improperly denying applications in the first instance and then subjecting applicants to unjustified and prolonged appeals…

It appears that being critical of the discretionary licensing process can earn you extra scrutiny from bureaucratic overseers.

As I’ve said previously (and before that), enforcement of the right to bear arms against the states will force them to abandon discretionary “may-issue” permitting regimes. Where Due Process is owed, Due Process shall be honored.

Selective Taxation Is Tyranny

The House of Representatives has passed a 90 percent tax on the bonuses paid to AIG employees, seemingly forgetting President Obama’s admonition “that in a time of crisis, we cannot afford to govern out of anger, or yield to the politics of the moment.”

Everybody’s angry. But anger doesn’t make good law. And there are real questions about both the wisdom and the legality of such legislation. Bloggers like Conor Clarke, Megan McArdle, and Eugene Volokh have asked if the bonus tax is legal or constitutional. And thank goodness for bloggers who ask the questions that members of Congress and print journalists seem to ignore!

The bloggers wonder if after-the-fact taxes on specific people violate the constitutional ban on bills of attainder and ex post facto laws. (Ex post facto = after the fact.) Good questions indeed. But they should go further and ask, Are laws like this tyrannical? Ex post facto legislation isn’t just bad because it’s unconstitutional. It’s unconstitutional because it’s bad. (Nate Silver did raise these broader questions, arguing that the bonus tax bill was like the congressional intervention into the Terri Schiavo case: quite possibly legal and constitutional, but “it represented a gross overreach of the chamber’s authority, and ultimately undermined, at least a little bit, the rule of law.”)

Harvard law professor Laurence Tribe tells Conor Clarke, “It would not be terribly difficult to structure a tax, even one that approached a rate of 100%, levied on some or all of the bonuses already handed out (or to be handed out in the future) by AIG and other recipients of federal bailout funds so that the tax would survive bill of attainder clause challenge. …The fact that the individuals subject to the tax in its retroactive application would in principle be readily identifiable would not suffice to doom the tax either from a bill of attainder perspective or from a due process perspective.”

Which led liberal blogger Kevin Drum to this conclusion:

it looks like the answer here is simple: even though the purpose of this tax would pretty clearly be punitive with extreme prejudice, we need to carefully pretend that it’s not.  And we need to make sure the legislative history shows that it’s not (it should be “manifestly regulatory and fiscal” Tribe says).

Considering that the rage of the anti-bonus army is being egged on by New York Post headlines such as “Not So Fast You Greedy Bastards” and “Tax the Damn Bonuses to Hell,” it might be tough to persuade a judge that this was “regulatory and fiscal,” not punitive, legislation.

The rule of law requires that like people be treated alike and that people know what the law is so that they can plan their lives in accord with the law. In this case, a law is being passed to impose taxes on a particular, politically unpopular group. That is a tyrannical abuse of Congress’s powers. And in addition, it is retroactive legislation, changing the law upon which AIG and its employees had relied. As James Madison wrote in Federalist 62, “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws … undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.”

Selective taxation is tyranny. Ex post facto legislation violates the spirit of the liberal order, even if a particular piece of legislation can be “structured” to pass constitutional muster.