Tag: First Amendment

Obama versus the Constitution

Those engaged in my line of work – explaining and defending the Constitution, the most liberty-friendly system of governance yet devised – have been kept busy by the current occupant of the White House and the executive agencies he controls. President Obama’s signature health care legislation alone provides endless “teachable moments” regarding our founding document. To paraphrase Nancy Pelosi, the more we find out about Obamacare and its implementation, the more constitutional violations we find.

But if Obamacare is the biggest constitutional – let alone policy – disaster that Barack Obama has inflicted on the nation, it alas is far from the only one. As I put it in a new Forbes.com op-ed:

One of Barack Obama’s chief accomplishments has been to return the Constitution to a central place in our public discourse.

Unfortunately, the president fomented this upswing in civic interest not by talking up the constitutional aspects of his policy agenda, but by blatantly violating the strictures of our founding document. And he’s been most frustrated with the separation of powers, which doesn’t allow him to “fundamentally transform” the country without congressional acquiescence.

But that hasn’t stopped him. In its first term, the administration launched a “We Can’t Wait” initiative, with senior aide Dan Pfeiffer explaining that “when Congress won’t act, this president will.” And earlier this year, President Obama said in announcing his new economic plans that “I will not allow gridlock, or inaction, or willful indifference to get in our way.”

And so, as we reach the end of another year of political strife that’s fundamentally based on clashing views on the role of government in society, I thought I’d update a list I made two years ago and hereby present President Obama’s top 10 constitutional violations of 2013.

Here’s the list (only half of which is Obamacare-related):

  1. Delay of Obamacare’s out-of-pocket caps. 
  2. Delay of Obamacare’s employer mandate.
  3. Delay of Obamacare’s insurance requirements.
  4. Exemption of Congress from Obamacare. 
  5. Expansion of the employer mandate penalty through IRS regulation.
  6. Political profiling by the IRS.
  7. Outlandish Supreme Court arguments. 
  8. Recess appointments. 
  9. Assault on free speech and due process on college campuses.
  10. Mini-DREAM Act.

For more details, read the whole thing. Of course, there are still two days left in the year, so who knows what else may be in store.

 

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.

Antidiscrimination Law Can’t Trump the Freedom of Speech

While Cato supports marriage equality, a commitment to equality under the law can’t justify the restriction of constitutionally protected fundamental rights like freedom of speech or association. Yet increasingly, legislation and judicial rulings sacrifice individual liberties at the altar of antidiscrimination law. Perhaps the most prominent current example of that trend is the case of the New Mexico wedding photographer.

Elane Photography, a Christian-identified business in Albuquerque, declined to photograph Vanessa Willock’s same-sex commitment ceremony based on the business owners’ personal opposition to gay marriage. New Mexico law prohibits any refusal to render business services because of sexual orientation, however, so Willock filed a claim with the New Mexico Human Rights Commission. She argued that Elane Photography is a “public accommodation,” akin to a hotel or restaurant, that is subject to the state’s anti-discrimination law. The commission found against Elane and ordered it to pay $6,600 in attorney fees. The state trial and appellate courts affirmed that order.

The case then went before the New Mexico Supreme Court, where Cato, along with same-sex-marriage-supporting law professors Eugene Volokh and Dale Carpenter, filed an amicus brief urging the court to reverse the court of appeals. Our brief explained that photography, unlike many other wedding-related businesses (e.g., caterers, hotels, limousine drivers), is an art form protected by the First Amendment—even if it’s not political and even if the photos are taken for commercial purposes. 

The U.S. Supreme Court ruled in Wooley v. Maynard—the 1977 “Live Free or Die” license plate case out of New Hampshire—that forcing people to speak is just as unconstitutional as preventing or censoring speech. The First Amendment “includes both the right to speak freely and the right to refrain from speaking at all.” Moreover, unlike true cases of public accommodation, there are abundant opportunities to choose other photographers in the same area.

Alas, the New Mexico Supreme Court also ruled against Elane Photography, holding that the First Amendment only prohibits compelling an individual to speak the government’s message, and that even if the state law did infringe on Elane Photography’s speech rights, those rights could not be vindicated because they conflicted with Willock’s right to equal access to public accommodations. Cato, again joined by professors Volokh and Carpenter, has again filed a brief, this time urging the U.S. Supreme Court to hear the case, because the New Mexico court’s reasoning is incorrect and incompatible with Wooley. 

The Supreme Court has never held that the compelled speech doctrine is only applicable when an individual is forced to serve as a courier for the message of another. Instead, the Court has said repeatedly that what the First Amendment protects is a “freedom of the individual mind,” which the government violates whenever it tells a person what she must or must not say. Forcing a photographer to create a unique piece of art violates that freedom of the mind.

Our brief also argues that the New Mexico Supreme Court was wrong to hold that the First Amendment can be abridged if a state law creates a “new right” that the constitutionally protected expression allegedly violates. The U.S. Supreme Court has never allowed such operation of state law, and allowing the New Mexico court’s reasoning to stand would send a dangerous message to state legislators and courts that the Bill of Rights is merely a suggestion, not a rule.

Vanessa Willock has until February 11 to file her opposing brief, and soon thereafter the Court will decide whether to take the case. If it does, Elane Photography v. Willock would likely be argued at the beginning of next term, in October, with an ultimate decision by June 2015.

Obamacare’s Top 10 Constitutional Violations

Two years ago this week, I published an op-ed called “President Obama’s Top 10 Constitutional Violations.” Although it didn’t go into depth about any particular issue, it struck a chord (note to aspiring pundits: readers and media bookers like lists, particularly at year’s end).

There’s so much material to choose from for an updated piece on which I’m long overdue, but in the meantime the House Judiciary Committee had an important hearing last week on the president’s constitutional duty “to take care that the laws be faithfully executed.” My colleagues Michael Cannon and Nicholas Quinn Rosenkranz testified, as did GW law professor Jonathan Turley (who voted for Obama in 2008 and is not known to be libertarian or conservative), and their devastating testimony is a collective tour de force regarding this administration’s incredible and unconstitutional power grab. (My friend and frequent sparring partner Simon Lazarus of the Constitutional Accountability Center also testified, on the other side, offering a valiant if ultimately insufficient defense.)

Given the state of current affairs, the hearing focused on Obamacare, whose problematic rollout should have come as no surprise to those who follow this blog. Quite apart from the healthcare.gov fiasco – incompetent, sure, but it’s not unconstitutional to have a bad website – you simply cannot require expansive health “insurance” for all without regard to preexisting conditions and expect insurers not to cancel nonconforming policies or increase premiums. (Forget never running a business or caring about the Constitution; has nobody in the White House ever taken an economics class?)

After watching snippets of the hearing and reading the written testimony, I thought maybe I should start my “top 10 constitutional violations” update with the Affordable Care Act alone. But it seems that I’m not the only one thinking along these lines. Hot off the presses, at 10am today, the office of Senator Ted Cruz (R-TX) released its second report on “The Obama Administration’s Attempts to Expand Federal Power” – the first was on the Supreme Court’s unanimous rejection of the Justice Department’s more outlandish positions, a trend I’ve written about as well – titled “The Administration’s Lawless Acts on Obamacare and Continued Court Challenges to Obamacare.”

Here are the seven items the new Cruz report highlights:

Category One: Implementation Contrary to Statutory Text

  1. Unilateral grant of a one-year delay on all Obamacare health insurance requirements.
  2. Unilateral delay of the employer mandate.
  3. Unilateral delay of out-pocket caps.
  4. Allowing congressional staff to continue on government-subsidized health care.

Category Two : Pending Court Challenges

  1. Violates the Origination Clause because it’s a revenue-raising bill that originated in the Senate.
  2. Contraception/abortifacient mandate violates religious liberties.
  3. Expansion of employer mandate’s penalty through IRS regulation.

Add to those the individual mandate (which the Supreme Court struck down before Chief Justice Roberts rewrote and upheld the provision as a tax), the coerced expansion of Medicaid (which the Court made voluntary), and the Independent Payment Advisory Board (litigation ongoing), and you’ve got an even ten. And that’s without straining to find the constitutional defects buried in thousands of pages of legislation and hundreds of thousands of pages of regulations.

Forget PPACA, ACA, and Obamacare; what people really ought to call the healthcare law is the “Constitutional Scholar Full Employment Act.”

Another Battle Against Silly Tour-Guide Regulations

For the second time this fall, Cato has filed a brief supporting a lawsuit challenging the power of cities to stifle and regulate speech by licensing tour guides—effectively restricting who may lawfully speak to an audience about the city’s history. 

In September, we filed a brief supporting “Segs in the City,” a segway touring company challenging a D.C. law which made it illegal to give tours in Washington, D.C., without completing a licensing process that involves a thorough history exam. Now we’ve filed a brief in the U.S. Court of Appeals for the Fifth Circuit, again joined by First Amendment expert Eugene Volokh, in support of a group of tour guides challenging New Orleans’ licensing scheme. (Both the D.C. and New Orleans guides are represented by our friends at the Institute for Justice.)

Like D.C., New Orleans only licenses guides who can pass a history test. In addition to that blatantly unconstitutional speech restriction, the Big Easy also requires licensees to submit to periodic drug tests. All that just so they can talk about the history and culture of New Orleans without spending five months in prison!

We argue that the licensing regime is a content-based restraint on speech and therefore must pass the strictest judicial scrutiny, so the government needs a compelling reason for it and has no other way of accomplishing the same goal. The law is a content-based speech regulation in that it is (a) triggered by the content of speech, and (b) justified on the basis of the content that it regulates. The Supreme Court has repeatedly held that a law regulating the content of speech—as opposed to its location, timing, or manner—is subject to strict scrutiny. The justifications offered for the licensing law refer to the “sufficient knowledge” of the guides and the accuracy of their speech. That is as much a content-based justification as saying that people need to be protected from hearing “erroneous” political opinions or “controversial” historical theories.

Finally, we argue that tour guides are not members of a “profession,” such as lawyers, doctors, and accountants, which could merit less First Amendment protection in order to protect the public from harm. Unlike those professions, tour guides don’t have intimate relations with clients. Instead, like most businesses, they simply have customers. The government can’t possibly require authors, public lecturers, or documentary filmmakers to get licensed in order to protect the public from “misinformation,” and it has no more basis for licensing tour guides.

The Fifth Circuit will hear argument in Kagan v. City of New Orleans early in the new year.

Against Forced Unionization

The Supreme Court has long applied exacting scrutiny to limitations placed on the freedoms of speech and association. Unfortunately, the Court has not extended such protection to those forcibly unionized.

In Abood v. Detroit Board of Education (1977), the Court accepted that promoting “labor peace”—limiting the number of competing workplace interests that bargain over the conditions of employment—was an interest so compelling that a state may mandate its employees’ association with a labor union, forcing them to subsidize that union’s speech and submit to it as their exclusive representative for negotiating with the government regarding their employment. Since that time, more than a dozen states have forcibly unionized independent contractors who are paid through Medicaid.

In 2003, Illinois forced its home healthcare workers to join and pay dues to the Service Employees International Union as their sole representative before the state. Workers subject to this coerced association have challenged the law as a violation of their First Amendment rights and the case is now before the Supreme Court. Cato, joined by the National Federation of Independent Business, has filed an amicus brief in support. We argue that Abood was wrong when it was decided and should now be overturned. Abood simply assumed without analysis that the Supreme Court had already recognized “labor peace” as a “compelling interest.”

But the cases Abood relied on only regarded “labor peace” as justifying Congress’s exercise of its Commerce Clause authority to regulate labor relations, not as a basis to override workers’ First Amendment rights—and a Commerce Clause analysis is logically irrelevant to the First Amendment. Furthermore, Abood turns the logic of the First Amendment on its head: Unions are designated as the exclusive representatives of those employees that are compelled to support them for the sole purpose of suppressing the speech of dissenting employees, but under Abood it is exactly this suppression of speech that validates coerced association under the First Amendment. Such logic can’t be reconciled with the Court’s strict scrutiny of laws in other First Amendment contexts.

Even if the Court chooses to maintain Abood, it should reject the coercive programs at issue here because they’re unsupported by Abood’s rationale and serve no other compelling state interest. The homecare workers subject to the law aren’t employed by the state. Although they’re paid through a Medicaid disbursal, every crucial aspect of the employment relationship, including workplace conditions, hiring, and firing, is determined by the individual cared-for by the worker. The union is thus limited to petitioning the state for greater pay and benefits. Given this limited scope, there can be no serious claim that SEIU’s exclusive representation of some workers has freed Illinois from any great burden due to “conflicting demands” from other workers. Whatever Abood’s long-term vitality, that flawed case doesn’t support the compelled unionization of workers who are in no way managed by the state.

The Supreme Court will hear Harris v. Quinn on January 21.

This blogpost was co-authored by Cato legal associate Lauren Barlow.

No Constitutional Authority for Federal Hate Crime Law

Identified by William Blackstone as a universal maxim of the common law, the protection against double jeopardy—being tried twice for the same crime—has been a part of American law since even before it was enshrined in the Constitution.  While the Fifth Amendment’s Double Jeopardy Clause (“nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”) prohibits successive prosecutions for the same offense, courts have recognized a “dual sovereignty” exception, which permits the federal government to prosecute a federal crime after completion of a state prosecution over the same conduct. Originally a small exception intended to enable Prohibition-related prosecutions, the dual sovereignty exception has widened vastly to accommodate the glut of federal crimes established since that time. 

But there are limits on such prosecutions: the federal government must have legitimate jurisdiction over the crime being prosecuted. In Hatch v. United States, William Hatch is challenging the use of the federal Hate Crime Prevention Act to federally re-prosecute him for an attack on a disabled Navajo man for which he was already convicted under New Mexico state law.

Congress passed the HCPA pursuant to Section 2 of the Thirteenth Amendment, which authorizes Congress to enforce the Thirteenth Amendment ban on slavery, which authority the Supreme Court has extended to eliminating the “badges and incidents” of slavery. The lower federal courts upheld the HCPA’s constitutionality, deferring to Congress’s power to “rationally determine” what the badges and incidents of slavery are. In petitioning the Supreme Court for review, Hatch argues that the HCPA intrudes on the states’ police power to prosecute local crimes and that Congress cannot be the judge of its own powers. In City of Boerne v. Flores  (1997), for example, the Supreme Court noted that Congress may not pass “general legislation upon the rights of the citizen.”

Joined by the Reason Foundation and the Individual Rights Foundation, Cato has filed a brief supporting Hatch’s petition. We argue that the use of hate-crime laws to sweep intra-state criminal activity into federal court has nothing to do with stamping out slavery and that the Court should decide the legitimacy of these laws before a more highly publicized and politicized case comes along and makes that task even harder. Not only are federal hate-crime laws constitutionally unsound, but, as George Zimmerman’s recent trial highlighted, they invite people dissatisfied with a state-court outcome to demand that the government re-try unpopular defendants. The administration of justice and the protections of the Double Jeopardy Clause shouldn’t be subject to the whims of public pressure and racial politics.