Tag: Supreme Court

Obamacare Rethink Maybe

Right before leaving town for the summer, the Supreme Court ruled 8-1 that “Rethink Maybe” was the pop hit of the summer, overtaking last year’s remake of “Every Breath You Take”:

Rethink Maybe

I filed a brief with the Court,
Don’t worry, it’s rather short
Constitution and not tort,
But now you’re in my way

I’d trade my soul for a wish,
Limited powers it is
Nobody expected this,
But now you’re in my way

Blue-eyed stare was holdin’,
Black-robed, balls-strikes callin’
Then you started cavin’
Where you think you’re goin’, CJ?

Hey, John Roberts,
This is crazy,
Mandates aren’t taxes,
So rethink, maybe?

It’s hard to look right,
At you CJ,
Your op makes no sense,
So rethink, maybe?

I just read you,
The ruling’s crazy,
Read Article I,
And rethink, maybe?

The other justices,
Ruled on the law,
But you played politics,
So rethink, maybe?

You thought Congress was remiss,
But changed your mind after this
You gave me the Commerce Clause,
But still, you’re in my way

I beg, and argue and plead
Had foresight, reason indeed
I didn’t know how I’d feel,
But now it’s in my way

Blue-eyed stare was holdin’,
Black-robed, balls-strikes callin’
Then you started cavin’
Where you think you’re goin’, CJ?

It’s hard to look right,
At you CJ,
Your op makes no sense,
So rethink, maybe?

Hey, John Roberts,
This is crazy,
Mandates aren’t taxes,
So rethink, maybe?

It’s hard to look right,
At you CJ,
Your op makes no sense,
So rethink, maybe?

All other justices,
Ruled on the law,
Mandates aren’t taxes,
So rethink, maybe?

When you came onto the Court
I thought you so rad
My man-crush so bad
My man-crush so, so bad

Now thanks to you I’ll pay this tax
It made me so mad
But now I’m just sad
It makes me so, so sad

It’s hard to look right,
At you CJ,
Mandates aren’t taxes,
So rethink, maybe?

I just read you,
The ruling’s crazy,
Read Article I,
And rethink, maybe?

The other justices,
Ruled on the law,
But you played politics,
So rethink, maybe?

When you came onto the Court
I thought you so rad
My man-crush so bad
My man-crush so, so bad

Now thanks to you I’ll pay this tax
It makes me so sad
And you should know that

So rethink, maybe?

Fourth Amendment Gone to the Dogs—and to Lasers?!

For all their use by law enforcement across the country, drug-sniffing dogs haven’t gotten a lot of consideration in the Supreme Court. In a pair of cases next fall, though, the Court seems likely to give them some attention. Florida v. Harris is one of the cases it has taken. Harris will examine “[w]hether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle.”

This week, we filed an amicus brief in the other drug-sniffing dog case, coming out of the same state. Florida v. Jardines asks whether the Fourth Amendment would be implicated if the government brought a drug-sniffing dog to the front door of your home seeking the scent of illegality.

What the Court has done with drug-sniffing dogs so far is not very good. We homed in on the major precedent, Caballes, to illustrate the weakness of the “reasonable expectation of privacy” test that originated in United States v. Katz (1967).

In Illinois v. Caballes, 543 U.S. 405 (2005), this Court did not apply Katz analysis. It did not examine (or even assume) whether Roy Caballes had exhibited a subjective expectation of privacy, the first step in the Katz test. Thus, the Court could not take the second step, examining its objective reasonableness.

Instead, the Caballes Court skipped forward to a corollary of the Katz test that the Court had drawn in United States v. Jacobsen, 466 U.S. 109 (1984): “Official conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment.” Caballes, 543 U.S. at 408 (quoting Jacobsen, 466 U.S. at 123).

This is a logical extension of the Katz test, and one that helps reveal its weakness in maintaining the Fourth Amendment’s protections consistently over time. Now, instead of examining whether searches and seizures are reasonable, courts applying the Jacobsen/Caballes corollary can uphold any activity of government agents sufficiently tailored to discovering only crime.

What kinds of activities might those include? We talked about lasers.

A DHS program that might be directed not only at persons, but also at their houses and effects, is called the “Remote Vapor Inspection System” (or RVIS). RVIS “generates laser beams at various frequencies” to be aimed at a “target vapor.” Beams “reflected and scattered back to the sensor head” reveal “spectral ‘signatures’” that can be compared with the signatures of sought-after gasses and particulates. [citations omitted] Using RVIS, government agents might remotely examine the molecular content of the air in houses and cars, quietly and routinely explore the gasses exiting houses through chimneys and air ducts, and perhaps even silently inspect any person’s exhaled breath. If RVIS technology is programmed to indicate only on substances that indicate wrongdoing, the Jacobsen/Caballes corollary extinguishes the idea that its pervasive, frequent, and secret use would be a search.

If a dog sniff only reveals illegal activity, compromising no privacy interest, it’s not a search. So using lasers to check your breath for illegal substances is not a search either. We hope, obviously, that the Court will do away with this rule, which is so attenuated from both the language and the purpose of the Fourth Amendment.

Instead of determining whether a person has “reasonable expectations of privacy”—we called that doctrine a “jumble of puzzles”—courts should examine whether a “search” has occurred by seeing if police accessed something that was hidden from view.

When a person has used physics and law to conceal something from others, the Fourth Amendment and the Court should back those privacy-protective arrangements, breaching them only when there is probable cause and a warrant (or some exception to the warrant requirement).

To hold otherwise would be to allow the government to invade privacy not just using drug-sniffing dogs but using ever more sophisticated technology.

Is the Individual Mandate a Tax?

From my 2010 paper “Obama’s Prescription for Low-Wage Workers; High Implicit Taxes, Higher Premiums”:

President Obama argues that a legal requirement for individuals to purchase health insurance is not a tax. Yet many economists, including some of President Obama’s economic advisers, consider it to be a type of tax.

Princeton University health economist Uwe Reinhardt writes, “[Just because] the fiscal flows triggered by [the] mandate would not flow directly through the public budgets does not detract from the measure’s status of a bona fide tax.”

MIT health economist Jonathan Gruber writes, “Suppose … the government mandated that everyone buy full insurance at the average price… . This would not be a very attractive plan to careful consumers … who could view themselves as essentially being taxed in order to support this market, by paying higher premiums than they should based on their risk.”

President Obama’s National Economic Council chairman Larry Summers writes, “Essentially, mandated benefits are like public programs financed by benefit taxes.”

Sherry Glied, President Obama’s appointee to assistant secretary for planning and evaluation at the Department of Health and Human Services, writes, “The individual mandate … is in many respects analogous to a tax. It requires people to make payments for something whether they want it or not.”

When the Clinton administration proposed an individual mandate in 1993, the CBO went so far as to treat the mandatory premiums that Americans would pay as federal revenues and include them in the federal budget. So far, the CBO has not done the same for the mandates in the House and Senate bills. (As Reinhardt suggests, that does not imply that those mandates are not a tax.)

Each bill would also impose penalties on individuals (and employers) who do not comply with the health-insurance mandates. Those penalties would be paid to the Internal Revenue Service along with one’s income taxes.

Yes, the Federal Government Has a Broad Power to Tax, but That’s Different from Having a Green Light to Spend

I’m not a lawyer, or an expert on the Constitution, though I sometimes play one on TV.

But I can read, and I’ll agree with my friends on the left that the federal government has a broad power to tax. I wish the 16th Amendment had never been ratified, but its language gives the federal government a green light to rape and pillage.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

That being said, the power to tax is not the same as the power to spend. And at the risk of sounding old fashioned, my big objection to the Obamacare decision is that health care is not listed as one of the federal government’s enumerated powers in Article I, Section VIII of the Constitution.

Sadly, that horse got out of the barn many decades ago, culminating in a horrible 1942 Supreme Court decision that said a man couldn’t grow crops on his own land to feed his own animals for consumption by his own family.

But let’s look at the bright side. Even though the Obamacare case was decided incorrectly, at least the judiciary is beginning to reconsider these issues, thanks in large part to the work of the Cato Institute’s legal scholars and adjunct legal scholars.

P.S. While the federal government has a broad power to tax, I should add that this doesn’t - or at least shouldn’t - vitiate other provisions of the Constitution. This is why it is so disappointing that we’ve seen the erosion of key civil liberties such as the presumption of innocence and the 4th Amendment’s protection against unreasonable searches and seizures.

P.P.S. This Michael Ramirez cartoon about Obamacare and the Constitution is amusing, though that’s not much solace given what happened. And here’s another one of his cartoons, this one on the broader theme of Obama vs. the Founding Fathers.

P.P.S. Speaking of cartoons, this one seems especially appropriate today.

If you like that one, you can see another Breen cartoon here.

Supreme Court Finally Resists Temptation to Cite Foreign Law When Interpreting the U.S. Eighth Amendment

The Supreme Court decided more than just the Arizona immigration and Montana campaign-finance cases yesterday; by a 5-4 margin, it struck down state laws that impose mandatory sentences of life-without-parole (LWOP) on juveniles who have committed murder.  The Court left open the possibility of discretionary juvenile LWOP sentences, provided that the sentencing judge takes into account the defendant’s youth and maturity.

I don’t have much to say about this ruling—Eighth Amendment jurisprudence is too hopelessly subject to national surveys, multi-factor balancing tests, and the whims of Justice Kennedy to begin to discuss here—other than to point out one glaring ray of light: unlike past such cases, the Court did not cite foreign law as support for its ruling.  I’ve pointed out the problems with doing that many times before, and Cato even joined a brief two years ago specifically on this issue in the case involving juvenile LWOP  for non-homicide crimes.  Suffice it to say, whatever you think about “cruel and unusual punishment,” the only society whose ”evolving standards of decency” are relevant to interpretations of the U.S. Constitution’s Eighth Amendment is the United States.

More on this point from Hans Bader over at CEI’s blog.

This Is What Political Judging Looks Like

Today, as I predicted six months ago, the Supreme Court summarily reversed the Montana Supreme Court’s attempt to nullify the controversial 2010 decision of Citizens United v. FEC. The Montana Supreme Court had essentially ruled that Citizens United is a decision based on facts rather than law—that is, that Montana’s situation of corporate corruption in elections was factually unique, thus exempting the state from compliance with Citizens United. In an admirable dissent, Justice James C. Nelson explained precisely where the court went wrong:

Unquestionably, Montana has its own unique history.  No doubt Montana also has compelling interests in preserving the integrity of its electoral process and in encouraging the full participation of its electorate.  And Montana may indeed be more vulnerable than other states to corporate domination of the political process.  But the notion argued by the Attorney General and adopted by the Court—that these characteristics entitle Montana to a special “no peeing” zone in the First Amendment swimming pool—is simply untenable under Citizens United.

Admittedly, I have never had to write a more frustrating dissent.  I agree, at least in principle, with much of the Court’s discussion and with the arguments of the Attorney General.   More to the point, I thoroughly disagree with the Supreme Court’s decision in Citizens United.  I  agree, rather,  with the eloquent and, in my view, better-reasoned dissent of Justice Stevens.  As a result, I find myself in the distasteful position of having to defend the applicability of a controlling precedent with which I profoundly disagree.

That said, this case is ultimately not about my agreement or disagreement with the Attorney General or our satisfaction or dissatisfaction with the Citizens United decision. Whether we agree  with the Supreme Court’s interpretation of the First Amendment is irrelevant.  In accordance with our federal system of government, our obligations here are to acknowledge that the Supreme Court’s interpretation of the United States Constitution is, for better or for worse, binding on this Court and on the officers of this state, and to apply the law faithful to the Supreme Court’s ruling.

Unfortunately, the Supreme Court’s reliably liberal justices did not take the same admirable position as Justice Nelson. In a situation when they should have unanimously asserted the Supreme Court’s position as the final expositor the Constitution and chastised the Montana Supreme Court for its temerity, justices Kagan, Breyer, Sotomayor, and Ginsberg instead decided to re-visit their opposition to Citizens United. All four justices re-registered their dissent with Citizens United, but they did not go so far as to vote to re-hear the case. And given that only four votes are required to grant certiorari, re-hearing the case was an option available to them. It’s good they did not go this far. However, while I am a believer in registering principled dissents, this was not the time to do so. In addition to being constitutionally incorrect, overturning Citizens United after just two years on the books would have severely impaired the legitimacy of the Court.

This is what political judging looks like. While it has become de rigueur to refer to the five conservative justices as being mere pawns of their political opinions, such attacks are hardly ever leveled against the four reliable liberal justices. Here, however, they were driven by their political opinions rather than their duties as Supreme Court justices bound to ensure that the Constitution applies equally in every state.

My colleague John Samples has more here.