Tag: Institute for Justice

Free Trade Begins at Home

When pundits discuss “free trade,” most people think of international trade, eliminating tariffs, import quotas, and the like. That’s because the Constitution’s Commerce Clause – the one Congress has been using and abusing for decades – grants the government the power to “make regular” trade between the several states.  For example, Oklahoma can’t ban imports of beef from coming across the Red River and New York can’t have a different licensing regime for long-haul tracks entering from New Jersey rather than Pennsylvania.

While this commerce- (and liberty-) enhancing feature of our federal system has required a Supreme Court reminder for traditional wine retailers in recent years, Americans have generally taken for granted that buying and selling products between American jurisdictions is perfectly normal.

It may surprise you to learn, then, that in Lake Elmo, Minnesota, proprietors of a 40-year-old family farm that yields flowers, pumpkins and Christmas trees, are facing fines and 90-day jail sentences for attempting to sell their products in that town.  The reason?  Part of their farm lies outside city limits, and in Lake Elmo it’s illegal for farmers to sell products – even from their own land – unless they were grown within the city.  You can view a short video about their story here:

Thankfully, our friends at the Institute for Justice are stepping up to defend these folks for making a living by engaging in domestic free trade.  This blatant protectionism is harmful and foolish when practiced with foreign trading partners, and is all the more repugnant when practiced against one’s own neighbors who provide the community with valuable goods and services.  That these law-abiding entrepreneurs face potential jail time for the crime of “selling produce across city lines” is anathema to the Constitution.

You can read Cato’s work on agricultural free trade here

Fifth Anniversary of Kelo v. New London

With all the property rights news coming out of the Supreme Court and New York Court of Appeals in the last week, I almost missed Wednesday’s fifth anniversary of the dreadful Kelo v. New London decision.  Justice Stevens’s  opinion in Kelo sanctioned a transfer of private property from homeowners to a big company in the name of (promised but, as we’ve seen, never realized) job creation and increased tax revenue. 

This was a Pyrrhic victory for eminent domain abusers, however, given:

  • 9 state high courts have limited eminent domain powers;
  • 43 state legislatures have passed greater property rights reform;
  • 44 eminent domain abuse projects have been defeated by grassroots activists;
  • 88 percent of the public now believes that property rights are as important as free speech and freedom of religion.

To learn about these and other fascinating developments that turned a property rights lemon into at least some type of lemonade, see the Institute for Justice’s new report and video.

No One’s Property Is Safe in New York

Sad to say, but as expected, New York State’s highest court, the New York Court of Appeals, has just upheld yet another gross abuse of the state’s power of eminent domain, exercised by the Empire State Development Corporation on behalf of my undergraduate alma mater, Columbia University, against two small family-owned businesses, one of them owned by Indian immigrants. Details can be found in the press release just issued by the Institute for Justice, which filed an amicus brief in the case and has been in the forefront of those defending against such abuse across the country.

IJ has had success in obtaining eminent domain reform in over 40 states, but New York remains a backwater, where collusion between well-connected private entities and government is rampant, and the courts play handmaiden to the corruption by abdicating their responsibilities. Just one more example of why New York is an economic basket case, with a population that continues to flee to more hospitable climes. I’ve discussed the property rights issues more generally here.

Cato’s Amicus Brief Helps School Choice Get to the Court; Congrats, IJ!

As Andrew Coulson noted, the Supreme Court has agreed to hear Arizona Christian School Tuition Organization v. Winn, the education tax credit case whose cert petition Cato supported with an amicus brief.  So we didn’t get the summary reversal we optimistically hoped for but I’m confident that this means only that the Ninth Circuit’s reversal will have to wait 8-10 months.  Congratulations to Tim Keller, Dick Komer, and our friends at the Institute for Justice, which successfully litigated the Zelman v. Simmons-Harris case that is the pro-school choice precedent the Ninth Circuit so blithely ignored here. 

I should note that ours was one of only three amicus briefs filed in this case, and studies have shown that the first few such briefs increase chances of Supreme Court review significantly (having more than about three seems to be redundant).  Which isn’t to say that we take credit for the successful strategy that IJ and its co-counsel are pursuing – indeed, as is good appellate practice, we coordinated with IJ so our brief would offer the Court some arguments and nuance for which the parties’ briefs didn’t have space – but it is gratifying to see the Court impliedly see the validity of our position.  We will of course be filing again at the merits stage, which briefs won’t be due for a few months.  The Court will likely hear the case in late fall, so we should expect a final decision in winter 2011.

For all the filings in the case, see its SCOTUSwiki page or its Supreme Court docket page.  I blogged about the case here and here and George Will wrote about it last week.  Andrew also blogged the original Ninth Circuit decision here.

Policing for Profit

The Institute for Justice has produced a study, Policing for Profit, which highlights the abuse of civil asset forfeiture laws. Law enforcement agencies are empowered across the nation to seize and keep property suspected of involvement in criminal activity. Unlike criminal  asset forfeiture, however, with civil forfeiture, a property owner need not be found guilty of a crime—or even charged—to permanently lose her cash, car, home or other property.

Most state laws are written in such a way as to encourage police agents to pursue profit instead of seeking the neutral administration of justice. The report grades each state and the federal government on its forfeiture laws and other measures of abuse. The results are appalling: Six states earned an F and 29 states and the federal government received a grade of D.

Institute for Justice has more on the report here, including a video showing the injustice created by these laws.

Cato is holding an event to highlight the findings of this report on Wednesday, April 28. Please join us for a discussion of policing, constitutional rights, and government accountability. You can register here.

Policing for Profit

Our friends at the Institute for Justice just released a comprehensive report on the abuses that go on under the legal procedure known as “civil asset forfeiture.”  The report is called Policing for Profit (pdf). Here is a short video clip that IJ put together:

Senior IJ attorney Scott Bullock will be speaking on this subject here at the Cato Institute on April 28.  Details on that event are forthcoming.

For related Cato work on forfeiture, go here and here.

Taxpayer Choice + Parental Choice = Education Reform That’s Constitutional

Arizona grants income tax credits for contributions made to school tuition organizations (“STO”).  These STOs must these donations for scholarships that allow students to attend private schools.  This statutory scheme broadens the educational opportunities for thousands of students by enabling them to attend schools they would otherwise lack the means to attend. 

The Ninth Circuit held that the tax credit program violated the Establishment Clause because many of the STOs – as it happens, a decreasing majority – provide scholarships for students to attend parochial schools.  Counsel for the defendants, including the Institute for Justice, asked the Supreme Court to review the case – and indeed to summarily reverse the Ninth Circuit, based in part on a 2002 case (Zelman v. Simmons-Harris) rejecting a similar challenge to a school voucher program.  Cato filed a brief, joined by the Foundation for Educational Choice and the American Federation for Children, supporting this request. 

Our brief argues that the funds received by STOs are the product of individual taxpayers’ “genuine and independent choice” – the touchstone by which the Court judges the religious neutrality of statutes allowing for taxpayer money to fund religious education.  Moreover, the tax credit scheme is indistinguishable from similar charitable tax deduction programs that the Court has previously held to pass constitutional muster.  While the Ninth Circuit reasoned that Arizona parents feel pressured to send their kids to parochial schools due to limited scholarships available for secular schools, it failed to consider that the share of STO money available to secular schools was nearly twice as large as the share of families choosing to send their children to secular schools. 

Far from being an impediment to parental freedom, the autonomy Arizona grants to taxpayers and STOs is ultimately essential to it.  More generally, should the lower court’s opinion be allowed to stand, the progress made to broaden the educational opportunities of students across the country will be stifled. 

The name of the case is Arizona Christian School Tuition Organization v. Winn.  The Court will likely decide before it breaks for the summer whether to take it up – and, indeed, whether to summarily reverse the Ninth Circuit.