Tag: Supreme Court

Industry Groups Cloaked with State Power Shouldn’t Get Antitrust Immunity

Under a 1943 Supreme Court decision called Parker v. Brown, state governments and private parties who act on state orders are typically immune from prosecution under federal antitrust laws. Thus, while private parties who create cartels face severe penalties, state governments can authorize the same anti-competitive behavior with impunity. 

Still, the Supreme Court has held that this kind of immunity only applies if the private parties who engage in cartel behavior are “actively supervised” by state officials. A case now before the Supreme Court, N.C. State Board of Dental Examiners v.FTC, presents an opportunity to expand on that directive.

Beginning in about 2003, the North Carolina Board of Dental Examiners issued cease-and-desist orders to beauticians and others who were offering “teeth whitening” services (in which a plastic strip treated with peroxide is applied to the teeth in order to make them brighter). Although teeth-whitening is perfectly safe—and can even be done at home with an over-the-counter kit—the state’s licensed dentists want to limit competition in this lucrative area.

The Board is made up entirely of practicing dentists and hygienists and is elected by other licensed dentists and hygienists—with no input from the general public—and evidence later revealed that the Board issued orders on this subject in response to complaints from dentists, not consumers. The Federal Trade Commission charged the Board with engaging in anticompetitive conduct. Although the Board argued that it should enjoy Parker immunity, the FTC, and later the U.S. Court of Appeals for the Fourth Circuit, rejected that argument, holding that the Board was not “actively supervised” by the state, but was instead a group of private business owners exploiting government power.

Is There a Libertarian Center at the Supreme Court?

There’s been a lot of talk lately about “The Supreme Court’s Libertarian Moment,” perhaps mostly though not entirely from Ilya Shapiro. A detailed analysis of the 2013-14 Supreme Court term in the Washington Post provides some evidence for that, if you read to the very end. In an article on the rising number of unanimous decisions this term, Robert Barnes notes at the end:

Criminal cases are often ones where the lines between the court’s liberal and conservative wings are blurred.

“There’s been a lot of talk in progressive circles about how you want to avoid taking cases to this particular Supreme Court,” said Elizabeth Wydra, chief counsel with the liberal Constitutional Accountability Center. “One of the areas we’ve seen the Roberts court taking what might be called liberal positions are areas where there are a liberal-libertarian alliance.” [A point that two of her colleagues had made at length in the Post a few days earlier.]

Noel Francisco, a Washington lawyer and former Scalia clerk who represented challengers in the recess appointments case, said there is the same gravitation on the right.

“I think one of the most interesting phenomenon we’ve seen on the court over the last 30 or 40 years is what I would call the evolution of the conservative instinct,” Francisco said. It no longer means “a thumb on the scale for the government.”

Roger Pilon explored the revival of libertarian legal thought in the Chapman Law Review last year.

The Republic of Gilead Is Not Nigh

If you were judging only from the outraged reaction  online, you could be forgiven for thinking that the Supreme Court’s ruling in Burwell v. Hobby Lobby had just mandated the adoption of Margaret Atwood’s The Handmaid’s Tale as the blueprint for American society.  Yet as my colleague Ilya Shapiro notes, there’s a profound disconnect between all the rhetoric about “denial of access” to contraception and the substance of the ruling.

At the heart of the majority’s opinion is this: The Department of Health and Human Services has already developed a way to exempt religious non-profit corporations—such as churches, charities, and hospitals—from the legal mandate to pay for employees’ contraception coverage.  In what amounts to an accounting trick, they permit those corporations to purchase plans without such coverage, and then require that insurance companies themselves independently provide it to the uncovered employees.  Because pregnancy is quite a bit more expensive than contraception, this apparently ends up not imposing any additional net cost on the insurers.  The result is that employees of religious non-profits end up with no-copay contraception coverage, exactly as if the employer were required to provide it directly, but the employers are satisfied by this ledger shuffling that they aren’t being compelled to violate their most deeply held moral convictions.  Which, one would think, is a win-win.

Against this background, the Court simply held that since HHS has already found a way to achieve the government’s aim of ensuring employees have access to free contraception without compelling non-profit employers to act against their profound religious convictions, they must do the same in the case of for-profit employers, at least where the for-profit corporation is “closely held.”  The majority quite explicitly denied this ruling has any implications for cases where there might not be such a happy win-win means of achieving the government’s ends, at no additional cost, without forcing employers to violate their convictions. As Justice Alito’s opinion emphasizes:

The Practical Impact of Harris v. Quinn: A Major Blow to Organized Labor

As noted in this previous post, the Supreme Court’s decision today in Harris v. Quinn does not remake private-sector labor law but does put an end to one of the labor movement’s greatest hopes for expansion: commandeering dues payments by recipients of state subsidies. While the decision may be narrow—the Court, after all, did not rule that no public workers may be forced to support a labor union—its impact will be anything but that.

The Illinois law at issue here in Harris was at the leading edge of a nationwide movement over the past decade to organize home-based care workers, including medical assistants and even family child-care providers, and thereby to “reinvigorate organized labor.”

Though a recent phenomenon, the use of sham employment relationships to support mandatory union representation has spread rapidly across the nation.  In just the decade since SEIU waged a “massive campaign to pressure [] policymakers” in Los Angeles to authorize union bargaining for homecare workers, home-based care workers “have become the darlings of the labor movement” and “helped to reinvigorate organized labor.”  From around zero a decade ago, now several hundred thousand home workers are covered by collective-bargaining agreements.

Of Course Government Can’t Violate Religious Liberty for No Good Reason

Hobby Lobby is a much simpler and less important case than it’s been made out to be, for reasons the Court clearly spelled out today. Obamacare’s contraceptive mandate had to fall under the Religious Freedom Restoration Act (without even getting to the First Amendment) because it didn’t show – couldn’t show – that there’s no other way of achieving its goal without violating religious beliefs. Moreover, the fact that a for-profit corporation is asserting the statute’s protections is of no moment because neither the corporate form nor the profit motive undermines RFRA’s solicitude for the rights of humans – including owners, officers, and shareholders. In short, the mandate fell because it was a rights-busting government compulsion that lacked sufficient justification. Nobody has been denied access to contraceptives and there’s now more freedom for all Americans to live their lives how they want, without checking their freedom at the office door. 

For more on how the “corporate rights” issue in the case was really a misnomer – because the free exercise of individual humans is at issue regardless of how you style the legalese – see Cato’s amicus brief

Magna Carta and Constitutional Criminal Procedure

In United States v. Booker (2005), the Supreme Court held that the Sixth Amendment prohibits a judge from sentencing a convicted defendant to a prison term exceeding the law’s maximum penalty for the crime committed, unless additional aggravating facts are found by the jury (or admitted by the defendant). The Court also held that all sentences must be reasonable.

In a subsequent case, Justice Scalia issued a concurrence in which he expressed concern about situations in which judges issue sentences below the statutory maximum, but which would only be reasonable in light of additional facts found solely by the judge. He proposed an “as-applied” doctrine, in which the reviewing court asks whether the sentence would be reasonable as applied to only those facts that were found by the jury.

The situation that Justice Scalia feared has now become manifest for three criminal defendants who were all convicted of selling small quantities of drugs but acquitted of conspiracy charges relating to the distribution of much larger quantities. Despite the acquittals, all three defendants received sentences four times greater than any other defendant convicted of the same crimes in the post-Booker era using the guidelines issued by the U.S. Sentencing Commission.

The defendants argue—and no prosecutor or judge has disputed—that their sentences would not be deemed reasonable without consideration of the additional evidence of conspiracy. In reviewing the sentences, the U.S. Court of Appeals for the D.C. Circuit adhered to settled precedent and declined to adopt the as-applied doctrine, and so the defendants seek to further appeal their sentences to the Supreme Court and finally resolve the question, under the Sixth Amendment, of whether a judge can base a sentence on facts that the jury did not find beyond a reasonable doubt.

In an amicus brief supporting that petition, the Cato Institute, joined by the Rutherford Institute, argues that the Sixth Amendment prohibits the increased sentencing of defendants based solely on judge-found facts of the crime, regardless of whether the final sentence remains below the statutory maximum. The defendants’ constitutional right to a jury trial can be traced back to Article 39 of the Magna Carta, which is also the historical origin of the Constitution’s prohibition on ex post facto, or retrospective, criminal laws.

Article 39 reflected a deep concern that the government would undermine the jury’s role and imprison defendants without the input of their peers. Given the status of sentencing guidelines as “law” for purposes of the Ex Post Facto Clause, the Sixth Amendment should extend to the defendant’s right to the “lawful judgment of his peers,” meaning that a judge can only render a sentence based on the jury’s factual findings. 

In other words, if it’s unconstitutional to sentence a defendant based on rules issued after he commits the purported crime, it must be unconstitutional to sentence a defendant without the input of his peers.

The Supreme Court will decide whether to take the case of Jones v. United States when it comes back from its summer recess.

Unanimous Supreme Court Slaps Down President Obama on Recess Appointments, Should’ve Gone Further

For the 12th time since January 2012, the Obama Justice Department has lost unanimously at the Supreme Court. This time it was over recess appointments, with all justices agreeing with that the Senate gets to determine when it’s not in session – which triggers the president’s power to appoint federal officials without Senate confirmation. (Indeed, that’s what we argued in the brief we filed). And that’s no surprise: based on oral argument, everyone was expecting the government to lose NLRB v. Noel Canning and lose big. For example, my colleague Nicholas Quinn Rosenkranz predicted a unanimous ruling at a Cato debate in January.

Unfortunately, the conventional wisdom about a narrow ruling was also proven correct. The only “rule” that emerges from Justice Breyer’s controlling opinion is that a three-day recess, the longest the Senate can adjourn without the House’s consent, isn’t long enough to enable recess appointments. That’s a very pragmatic decision and seems to confirm executive practice prior to recent years. It also happens to lack any connection to constitutional text (as Justice Scalia points out for four justices in concurrence), whose best reading indicates that only recesses between Senate sessions – not when, e.g., the Senate takes two weeks off around Christmas – count for purposes of activating the recess-appointment power. Moreover, that power is only textually justified to fill vacancies that arise during the recess itself, not for openings that the president didn’t happen to fill while the Senate was sitting. In other words, Justice Breyer’s unprincipled opinion, while limiting recent presidential practice, cements a much more expansive reading of that power than the Constitution allows. For practical purposes, we’ll see many more “pro forma” Senate sessions and also the empowerment of those who control the House – because, again, the Senate can’t recess without the House’s consent. Speaker Boehner, call your office.

To be sure, this ruling is a strong rebuke to this administration in this case, but the most that can be said for it more broadly is what Justice Scalia did in reading his concurrence from the bench this morning: “The Court’s decision will be cited in diverse contexts, including those presently unimagined, and will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.”

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