Tag: Institute for Justice

Judges Should Judge

I am pleased to pass on word from our friends at the Institute for Justice that they have established a new Center for Judicial Engagement.  The center is dedicated to reinvigorating the judicial branch to stand up and perform its constitutional role instead of showing the deference so many courts now give to the political branches of state and federal government.

As much lip service that has been paid to the bogeyman of “judicial activism,” the reality is that the courts have been all-too-reluctant to sacrifice constitutional questions to acquiesce to the supposed wisdom of political actors.  Veteran IJ lawyer and friend of Cato Clark Neily will be heading the center, and had this to say about its mission:

We need judges to judge.  What we see too often now is judges who ignore evidence, invent facts, and accept implausible explanations for government regulations.  That amounts to judicial abdication.  Judges should engage the facts of every case, including constitutional cases, and require the government to justify its actions with real reasons backed by real evidence.

As outlined by IJ in a press release, the basic principles of judicial engagement include:

1.  The Constitution limits both the means and ends of government action.

The Framers wrote the Constitution to constrain government power.  The Constitution explicitly defines a limited set of powers belonging to the federal government; government actions outside the scope of those powers are illegitimate and unconstitutional.  The Constitution also demands that even legitimate powers of government be exercised fairly and without discrimination.

2.  The Constitution guarantees a broad array of individual rights.

While the powers granted to government by the Constitution are few and limited, the rights guaranteed to individuals are many and broad.  Some of those rights are specifically listed in the Constitution, and some are not.  But all rights are entitled to meaningful judicial protection, regardless of their source.  There are no “second-class” constitutional rights.

3.  The job of judges is to enforce the Constitution.

Judicial review has been a vital part of our system of government for more than 200 years, and it remains a key bulwark against government tyranny and abuse of power.  It is the duty of judges to strike down government actions that assume powers not granted by the Constitution or that violate individual rights.  It is not “judicial activism” to strike down unconstitutional laws or government actions; it is judicial engagement—taking the Constitution seriously and applying it consistently in all cases.  Refusing to strike down unconstitutional acts is not admirable “judicial restraint,” it is judicial abdication—judges literally failing to do their jobs.

4.  The government should not have a leg up on citizens challenging government actions.

Laws are not entitled to judicial “deference” simply because they result from a democratic political process.  To the contrary, the Framers were deeply concerned about interest-group politics and majority tyranny, and they designed the Constitution to protect individual rights from those dangers.  Enforcing a presumption of government power over individual liberty, as courts typically do today, gets this design exactly backwards.

5.  Facts matter.

It is impossible to determine the constitutionality of any regulation without determining the government’s actual objectives in enforcing it.  But courts often ignore that question altogether, and will accept even the most ridiculous explanations at face value or, when necessary, simply invent justifications of their own in order to uphold government action against constitutional challenge.  This is profoundly mistaken.  Judges must carefully weigh the facts of each constitutional case, just as they would in any other case, and meaningfully evaluate the government’s action.  Ignoring evidence, inventing justifications and rubber-stamping the exercise of government power—which have come to be the norm in the vast majority of constitutional cases—represents abdication, not judgment.

We fully agree – and applaud IJ for adding innovative programming such as this new center to its continuing litigation against the government Leviathan.  Please check out the new center’s homepage here and its inaugural declaration here.

Citizens United Turns One

The Supreme Court majority in Citizens United asserted plainly that the federal government’s powers are few and defined in the realm of political speech. The decision has since been cast as one that does little more than give “corporations and unions the freedom to spend as much as they like to support or attack candidates.” Of course, the stakes were far higher. As the government’s attorney asserted during the initial oral argument, the Federal Election Commission retained the authority to ban the sale of certain books (e-books included) in the weeks leading up to an election, a fact opponents of Citizens United rarely mention.

Shortly after that oral argument, Austin Bragg and I made a short video with Steve Simpson of the Institute for Justice, Allison Hayward of George Mason University School of Law (and now of the Center for Competitive Politics) and John Samples, director of the Center for Representative Government at the Cato Institute.

Supreme Court Accepts Another Chance to Reverse Ninth Circuit, Uphold First Amendment

Today, the Supreme Court agreed to review McComish v. Bennett (consolidated with Arizona Free Enterprise v. Bennett), which challenges Arizona’s public financing of elections as an unconstitutional abridgment of speech. Because the case concerns a crucial new battleground in the fight between free speech and “fair” (read: government-controlled) elections, Cato filed an amicus brief supporting the cert petitions filed by our friends at Goldwater Institute and the Institute for Justice.

McComish centers on Arizona’s “Clean Elections” Act, which provides matching funds to publicly funded candidates if their privately funded opponent spends above certain limits. In other words, by ensuring that his speech will not go “unmatched” by his opponent, the privately funded candidate is penalized for working too hard and speaking too much. The law violates established Supreme Court precedents that have consistently held that forcing a speaker to “disseminate hostile views” as a consequence of speaking abridges the freedom of speech. Although the Ninth Circuit upheld the Arizona law, the Second Circuit recently struck down a similar Connecticut law, thus creating a circuit split that undoubtedly encouraged the Court to take the case.

In 2008 the Court decided Davis v. FEC (in which Cato also filed a brief), which overturned the “millionaires amendment” to the McCain-Feingold campaign finance “reform.” That provision gave similar assurances to candidates faced with the possibility of being outspent by their opponent. There, however, the concern was with rich, self-funded candidates: The act provided increased fundraising limits – triple the amount normally allowed – for candidates whose opponents spent too much (by the government’s judgment) of their own money on their campaign. The Davis Court held that this provision “impose[d] an unprecedented penalty on any candidate who robustly exercises [his] First Amendment right.”

The Arizona law is even worse. It doesn’t even delve into the messiness of fundraising – tripling the contribution limit does not, after all, mean that those funds will be raised – but rather guarantees that a candidate’s “robus[t] exercise[] of [his] First Amendment right” will be met with contrary speech from his opponent. And the law sweeps still broader: it applies the same matching funds provision to groups that spend independently from any campaign but are nevertheless deemed to be supporting a given candidate. Such “uncoordinated speech” by third parties – speech that, many times, the candidate does not want even if it is thought to be on his behalf – also triggers matching funds for the candidate’s opponent.

The end result, as extensive evidence shows, is that numerous speakers – from the candidate to the independent groups – will be reluctant to spend money to speak (which is, of course, required for nearly all effective campaign speech) because their opponents are guaranteed the funds needed to reply. In elections, where the freedom of speech “has its fullest and most urgent application,” such laws simply cannot fly.

Finally, it is also worth remembering what is at stake when we allow politicians to pass laws that determine the very rules by which they hold their jobs. Justice Scalia put this most poignantly in Austin v. Michigan Chamber of Commerce: “the Court today endorses the principle that too much speech is an evil that the democratic majority can proscribe. I dissent because that principle is contrary to our case law and incompatible with the absolutely central truth of the First Amendment: that government cannot be trusted to assure, through censorship, the ‘fairness’ of political debate.” As we now well know, the Court overruled Austin this past January in Citizens United, vindicating Scalia’s pro-free speech position.

It will be exciting to see how McComish unfolds. Expect another Cato amicus brief early in the new year, oral arguments in the spring, and a decision by the end of June.

Court Enforces Secrecy about Constitutional Abuses

The purpose of filing amicus briefs is to bring to courts’ attention certain supplemental arguments or relevant facts that go beyond those which the parties present.  It is also to show that a particular group – ranging from policy activists and think tanks to industry groups to ad hoc collections of academics to companies and organizations  that would be directly affected by the case – has a particular interest in a case, as well as educating the public about important issues.  Cato files its briefs for all these reasons, and we’ve found them to be an effective method of spreading our message, both in court and in the “court of public opinion.”

Now, imagine if, after filing a brief, you discover that the court has “sealed” it – meaning removed it from public view or access – precisely because your goal “is clearly to discuss in public [your] agenda.”  As Adam Liptak describes in a troubling New York Times column today, that’s the situation facing our friends at the Institute for Justice and Reason Foundation in a case before the Tenth Circuit (the federal appellate court based in Denver).

I won’t regurgitate the column here, but suffice it to say that the IJ/Reason brief shines a spotlight on various abuses by the Kansas U.S. attorney office, and supports a case in which the federal district court in Topeka has come down hard on an activist who thinks the government is too aggressive in prosecuting doctors who prescribe pain medications.  As my friend and IJ lawyer Paul Sherman is quoted as saying, “It’s a profound problem.  We want to bring attention to important First Amendment issues but cannot share the brief that most forcefully makes those arguments.”

Read the whole thing.

Eminent Domain Shenanigans

Five years ago, in the landmark property rights case of Kelo v. New London, the Supreme Court upheld the forced transfer of land from various homeowners by finding that “economic development” qualifies as a public purpose for purposes of satisfying the Fifth Amendment’s Takings Clause.  In doing so, however, the Court reaffirmed that the government may not “take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.”

State and federal courts have since applied that pretext standard in widely differing ways while identifying four factors as indicators of pretext: evidence of pretextual intent, benefits that flow predominantly to a private party, haphazard planning, and a readily identifiable beneficiary.  Moreover, since Kelo, 43 states have passed eminent domain reform laws that constrain or forbid “economic development” condemnations.

While many of these laws are strong enough to curtail abuse, in at least 19 states the restrictions are undercut by nearly unlimited definitions of “blight.”  The state of New York has seen perhaps the most egregious examples of eminent-domain abuse in the post-Kelo era, and now provides the example of Columbia University’s collusion with several government agencies to have large swaths of Manhattan declared blighted and literally pave the way for the university’s expansion project.  In this brazen example of eminent-domain abuse, the New York Court of Appeals (the highest state court) reversed a decision of the New York Appellate Division that relied extensively on Kelo’s pretext analysis and thus favored the small business owners challenging the Columbia-driven condemnations.  The Court of Appeals failed even to cite Kelo and ignored all four pretext considerations, instead defining pretext so narrowly that even the most abusive forms of favoritism will escape judicial scrutiny.

Cato joined the Institute for Justice and the Becket Fund for Religious Liberty in a brief supporting the condemnees’ request that the Supreme Court review the case and address the widespread confusion about Kelo’s meaning in the context of pretextual takings.  Our brief highlights the need for the Court to establish and enforce safeguards to protect citizens from takings effected for private purposes.  We argue that this case is an excellent vehicle for the Court to define what qualifies a taking as “pretextual” and consider the weight to be accorded to each of the four criteria developed by the lower and state courts.

The Supreme Court will decide whether to hear the case later this fall. The name of the case is Tuck-It-Away, Inc. v. New York State Urban Development Corp and you can read the full brief here (pdf).  You can read more from Cato on property rights here.

Victory for Free Trade - At Least Within the Country

In July, I blogged about the case of Minnesota farmers who were facing criminal sanctions for engaging in interstate trade.  Now I am happy to report that the city of Lake Elmo has torn down its onerous and unconstitutional trade barriers:

The change was made in response to a federal judge’s opinion in August that Lake Elmo’s protectionist law likely violated the U.S. Constitution because it discriminated against interstate commerce.  Magistrate Judge Franklin L. Noel stated that the law “squelche[d] competition … altogether, leaving no room for investment from outside,” and would likely have “obliterate[ed] … the Lake Elmo markets in pumpkins and Christmas trees… . In fact, Plaintiffs have shown that the markets will be wiped out.”

Congrats to our friends at the Institute for Justice who spearheaded this case!  You can read more here.  And you can find Judge Noel’s opinion here.

Hat tip to Baylen Linnekin at Crispy on the Outside.