Tag: Supreme Court

In Defense of Truthiness

If you only read one Cato brief this Supreme Court term, it should be this one.

Believe it or not, it’s illegal in Ohio to lie about politicians, for politicians to lie about other politicians, or for politicians to lie about themselves. That is, it violates an election law—this isn’t anything related to slander or libel, which has higher standards of proof for public figures—to make “false statements” in campaign-related contexts.

During the 2010 House Elections, a pro-life advocacy group called the Susan B. Anthony List (SBA List), published ads in Ohio claiming that then-Rep. Steven Driehaus, who was running for re-election, had voted to fund abortions with federal money (because he had voted for Obamacare). Rather than contesting the truth of these claims in the court of public opinion, Driehaus filed a complaint with the Ohio Election Commission (OEC) under a state law that makes it a crime to “disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false.”

While the complaint was ultimately dropped, the SBA List took Driehaus and the OEC to federal court, seeking to have this law declared unconstitutional and thus enable advocacy groups to have more freedom going forward. The case has now reached the Supreme Court.

Joined by legendary satirist (and Cato’s H.L. Mencken Research Fellow) P.J. O’Rourke, our brief supports the SBA List and reminds the Court of the important role that “truthiness”—facts you feel you in heart, not in your head—plays in American politics, and the importance of satire and spin more broadly. We ask the Court a simple yet profound question: Doesn’t the First Amendment’s guarantee of free speech protect one man’s truth even if it happens to be another man’s lie? And who’s to judge—and on what scale—when a statement slides “too far” into the realm of falsehood?

However well intentioned Ohio legislators may have been, laws that criminalize “false” speech don’t replace truthiness and snark with high-minded ideas and “just the facts.” Instead, they chill speech, replacing the sort of vigorous political dialogue that’s at the core of the democratic process with silence. The Supreme Court of all institutions should understand that just because a statement isn’t fully true, that doesn’t mean it doesn’t have its place in public discourse. Moreover, pundits and satirists are much-better placed to evaluate and send-up half-truths than government agencies.

The Supreme Court will hear argument in Susan B. Anthony List v. Driehaus on April 22.

Time for the Supreme Court to Explain the Scope of the Second Amendment

From the 1939 case of United States v. Miller until 2008’s District of Columbia v. Heller, the Supreme Court left unclear what right the Second Amendment protects. For nearly 70 years, the lower courts were forced to make do with Miller’s vague guidance, which in many jurisdictions resulted in a cramped and limited right to keep and bear arms, erroneously restricted to militia service. While Heller did eventually clarify that the Second Amendment secures an individual right to keep and bear arms for self-defense, the ruling left many questions about the scope of that right unanswered (and 2010’s McDonald v. City of Chicago merely extended the right to people living in the states, without further defining it).

Since then, several courts have made clear that they plan to take only as much from Heller as they explicitly have to. One of these is the U.S. Court of Appeals for the Third Circuit, which last year in Drake v. Filko upheld New Jersey’s “may-issue” handgun law, which says that an individual may be granted a carry license—read: may be permitted to exercise her Second Amendment rights—only if she proves an urgent need to do so to the satisfaction of a law enforcement officer. In order to show this need, one must prove, with documentation, that there are specific, immediate threats to one’s safety that cannot be avoided in any way other than through possession of a handgun. If an individual can actually persuade the local official—who has total discretion to accept or deny the claim—then she gets a license for two years, at which time the gun owner must repeat the entire discretionary process (proving an imminent threat, etc.) to renew the permit.

The Voting Rights Amendment Act Is a Bad Idea

One of the responses to the Supreme Court’s eminently sensible ruling last year that deactivated part of the Voting Rights Act was to call for a new, updated law to subject particularly bad actors to enhanced federal oversight. We now see the product of that motivation, introduced by the motley bipartisan crew of Reps. Jim Sensenbrenner (R-WI) and Jim Clyburn (D-SC) and Sen. Pat Leahy (D-VT). As I write in my new Forbes.com column:

Last week, a group of lawmakers introduced the Voting Rights Amendment Act of 2014. The timing was no coincidence: The bill was announced on Martin Luther King’s birthday, right before the holiday designated to commemorate the civil rights giant (for which Congress took the week off). This is the long-expected legislation responding to the Supreme Court’s decision in Shelby County v. Holder last June that disabled one part of the Voting Rights Act. But it’s both unnecessary to protect the right to vote and goes far beyond the provision it replaces to rework the machinery of American democracy on racial lines.

Based on the reaction of certain elected officials to Shelby County you could be forgiven for thinking that a congressional fix is badly needed to prevent racial minorities from being disenfranchised. But all the Supreme Court did was strike down the “coverage formula” used to apply Section 5 of the Voting Rights Act, which required certain jurisdictions to “preclear” with the federal government any changes in election regulations—even those as small as moving a polling station from a schoolhouse to a firehouse. The Court found the formula to be unconstitutional because it was based on 40-year-old data, such that the states and localities subject to preclearance no longer corresponded to the incidence of racial discrimination in voting. Indeed, black voter registration and turnout is consistently higher in the formerly covered jurisdictions than in the rest of the country.

Nevertheless, the proposed legislation draws a new coverage formula, resurrecting Section 5’s requirements for states with five violations of federal voting law over a rolling 15-year period. (That formula would currently apply to four states: Georgia, Louisiana, Mississippi, and Texas.) It also sweeps in sub-state jurisdictions that have had one violation and “persistent, extremely low minority turnout”—which can mean simply an average racial-minority turnout rate lower than that nationwide for either minorities or non-minorities.

All that sounds reasonable—Congress is finally updating its coverage formula—until you realize that this reimposition of Section 5 comes without any proof that other laws are inadequate to address existing problems (which is what the Constitution demands to justify the suspension of the normal federalism in this area). After all, Section 5 was an emergency provision enacted in 1965 to provide temporary federal receivership of morally bankrupt state elections, not to enable a constitutional revolution based on arbitrary statistical triggers.

Read the whole thing, and download this longer piece on why the Shelby County ruling actually vindicates Martin Luther King’s dream.

Scalia the Unlikely Swing Vote in Big Workers Rights Case

Today the Supreme Court heard oral argument in Harris v. Quinn, the case regarding the forced unionization of home healthcare workers in Illinois (and by extension the 10 other states with similar laws). To me this is a pretty easy case: just because the state is paying these workers through its Medicaid program doesn’t mean it employs them – just like my doctor isn’t employed by my health-insurance company – which means that it can’t force them to pay dues to a union that negotiates Medicaid reimbursement rates. 

Like most of the labor cases in recent years, however, this one is likely to go 5-4. The so-called “liberal” justices were all openly hostile to the workers’ position, so the challengers will have to sweep the rest of the bench of to win. Fortunately, such an outcome is more than possible – though much will depend on the thinking of Justice Scalia, who was hostile to everyone.

The argument began in a frustrating manner, with a focus on the right to petition the government for redress of grievances, and whether a union asking for a pay increase was different from an individual public-sector employee (a policeman, say) asking for the same raise. Justice Scalia correctly pointed out that this wasn’t really the right at issue here, but he further confused the matter in distinguishing the right to petition from the First Amendment (when in fact that right is found in that amendment). He meant to invoke the First Amendment right to the freedoms of speech and association, but also indicated that he was prepared to give the government plenty of leeway when it was acting as an employer.

Justice Alito was the most skeptical of the union/government position, pointing out that unions don’t necessarily act in all workers’ interest, even when they succeed in negotiating certain “gains.” For example, a productive young worker might prefer merit pay to tenure provisions or a defined-benefit pension plan. Chief Justice Roberts was similarly concerned about administering the line between those union expenses that could be “charged” even to nonmembers (because related to collective bargaining) versus those that can’t because they involve political activity. Justice Kennedy, meanwhile, noted that in this era of growing government, increasing the size and cost of the public workforce is more than simple bargaining over wages and benefits; it’s “a fundamental issue of political belief.” In no other context could a government seek to compel its citizens to subsidize such speech. A worker who disagrees with the union view on these political questions is still made to subsidize it. 

It was also heartening to see that the continuing vitality of Abood v. Detroit Board of Education (1977) was in play. That case established that, in the interest of “labor peace,” a state could mandate its employees’ association with a 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. (Abood simply assumed, without further analysis, that the Supreme Court had recognized labor peace as a compelling interest.)

Justices Breyer and Kagan were particularly concerned that so many employers and unions had relied on the Abood doctrine over the years, so touching it would implicate significant reliance interests. But overruling or severely limiting Abood would only be one more step in the Court’s trend of protecting individual workers from having to support political activities. More workers could thus opt out of supporting a labor union – but if unions truly provide valuable services for their members, few workers would do so.

Of course, the Court could shy away from touching Abood and simply rule that being paid by state funds alone isn’t sufficient to make someone a state employee. Such a position might more easily attract Justice Scalia’s vote – and that of Chief Justice Roberts, who goes out of his way to rule narrowly – even if it leaves unresolved some of the contradictions at the heart of the jurisprudence in this area, such as the duty of courts to police the murky line between “chargeable” and “nonchargeable” union expenses.

For more on the case, see George Will’s recent op-ed and the Wall Street Journal’s editorial.

Government Will Lose Recess Appointments Case

This morning’s oral argument couldn’t have gone any better for those challenging President Obama’s recess appointments (see previous commentary and Cato’s brief for background on NLRB v. Noel Canning). Not only were Justices Scalia and Alito sticklers for constitutional text and structure, but the more liberal justices joined in to express extreme skepticism about the government’s theories. Justice Kagan pointed out that modern presidents don’t face congressional absences—the reason for the president’s power to appoint federal officials without the Senate’s “advice and consent”—but merely congressional “intransigence.” And the Recess Appointments Clause doesn’t exist to solve those kinds of political problems, noted Justice Breyer. Justice Breyer also pointed out that, if you follow the government’s argument that so-called “pro forma” Senate sessions don’t count, then the Senate repeatedly violates the Constitution by not having a “actual” sessions on January 3 (as the 20th Amendment requires) and by recessing for more than three days without the House’s consent (as Article I, Section 5 requires).

Solicitor General Verrilli’s suggestion that the Senate has to be engaging in business to deny the president the recess-appointments power didn’t seem to satisfy anyone. As Justice Kagan put it, any such test can be easily evaded by a clever Senate (that could name post offices by unanimous consent, for example, or, in Chief Justice Roberts’s example, note in the Senate Journal for “pro forma” sessions that “no business is anticipated to be [rather than will be] conducted”). Justice Kennedy said that he was “in search of a limiting principle” to the government’s position—so as not to simply give the president sole discretion to determine when the Senate is or isn’t in recess. Justice Kagan was left asking both sides how the Court should rule given that the presidential practice—whose history prior to the Truman administration the parties dispute—seemed to so clearly contradict the constitutional text and structure.

And indeed that is the question: If it’s true, as an overwhelming majority of the justices seemed to think, that the president was only supposed to have the power to make recess appointments during intersession recesses, and only for vacancies that arose during such recesses, what does it mean that this correct interpretation has never been followed? The challengers had several ready answers: (1) The Court hasn’t hesitated to make significant rulings upsetting existing practice based on separation-of-powers concerns (for example regarding the authority of criminal sentencing guidelines); (2) Past nominations won’t be unduly disturbed because of various finality rules, statutes of limitation, and agencies’ ability to ratify past decisions; (3) Given the changed modern context, with Congress in session for much longer periods and senators able to fly back to Washington on a moment’s notice, recess appointments are less important; and (4) Regardless of the correct interpretation of the recess-appointments power, it is the Senate that gets to determine when it’s in session or in recess, not the president.

While it’s unclear how exactly the Supreme Court will write its opinion in this case and where its focus will lie, it’ll be a real shock if the government wins this case. The justices recognized that the battle over executive and judicial nominations is a political one and that in cases of impasse, the Framers designed a system encouraging either political compromise or a final decision by the voters—not endless constitutional brinksmanship.

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.

 

Connecticut, Drunk on Power, Uses Bottle Bill to Steal Money

For nearly 30 years, Connecticut beverage distributors received the unclaimed refund value of recycled bottles as part of the state’s Bottle Bill, which set up a refund system for used bottles as an attempt to encourage recycling. As in other states, the law requires beverage dealers to pay refunds for every bottle turned in.

Fiscal troubles in 2008 prompted Connecticut to amend the law, however, to require a “deposit account” from which distributors were to pay the refunds. This requirement was intended to aid the state environmental agency to study the rates of deposit payments and returns. The following year, the fiscal situation worsened, and the Bottle Bill was again amended, this time to require the remaining funds in the deposit accounts (after returns were paid out) to be paid to the state—retroactively including any unpaid remainder funds since the accounts went into effect in 2008.

A. Gallo & Co. and other beverage distributors in Connecticut saw this as an uncompensated taking of their property and sued the state. They took their case through the state court system, but even the Connecticut Supreme Court turned a blind eye, holding that beverage distributors never had a property right in the remainder funds in the first place. The distributors have now asked the U.S. Supreme Court to hear their case, and Cato joined the New England Legal Foundation, the Southeastern Legal Foundation, and the National Federation of Independent Business on a brief supporting their petition.

We argue that Connecticut’s budgetary troubles are no excuse for violating a longstanding property right without compensation. Moreover, by twisting its statutory interpretation to satisfy political pressures, the Connecticut Supreme Court has made itself complicit in the uncompensated taking. It’s bad enough when strapped-for-cash legislatures unfairly force public burdens onto the shoulders of private parties to feed their spending addictions, but when all three government branches – including the one entrusted with soberly interpreting the law, especially in times of fiscal emergency – get drunk on power and deny even the existence of a property right, it’s time for a Supreme Court intervention.

The Supreme Court will decide by winter’s end whether to take the case of A. Gallo & Co. v. Esty.