Tag: the supreme court

Keeping Pandora’s Box Sealed

In today’s Washington Times, Ken Klukowski and Ken Blackwell co-authored an op-ed about McDonald v. Chicago and the Privileges or Immunities Clause titled, “A gun case or Pandora’s box?

If that title sounds familiar, it should. Josh Blackman and I have co-authored a forthcoming article called “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment.“  As Josh put it in his reply to the Kens, “imitation is the most sincere form of flattery.”

Going beyond the title, there are several errors in the piece,  which I will briefly recap:

First, the Kens argue that the Supreme Court should uphold the Slaughter-House Cases, out of a fear that reversal – and thereby a reinvigoration of Privileges or Immunities – would empower judges to strike down state and local laws. What they neglect to mention is that it has been the role of the judiciary since Marbury v. Madison to strike down laws that violate the Constitution. There is near-universal agreement across the political spectrum that Slaughter-House was wrongly decided, causing the Supreme Court to abdicate its constitutional duty by ignoring the Privileges or Immunities Clause for 125 years. The Kens want to continue this mistaken jurisprudence.

Next, the Kens describe the Privileges or Immunities Clause as a general license for courts to strike down any law they do not like. This is not accurate. Neither the Privileges or Immunities Clause nor any other part of the Fourteenth Amendment empowers judges to impose their policy views. Instead, “privileges or immunities” was a term of art in 1868 (the year the Fourteenth Amendment was ratified) referring to a specific set of common law, pre-existing rights, including the right to keep and bear arms. The Privileges or Immunities Clause is thus no more a blank check for judges to impose their will than the Due Process Clause – the exact vehicle the Kens would use to “incorporate” the Second Amendment.

To set the record straight, Josh and I are working on an op-ed – not so much to respond to the Kens’ flawed analysis but to present the correct historical and textual view of the Privileges or Immunities Clause. To see our arguments in greater detail, read our article and Cato’s McDonald brief, both of which I’ve previously blogged about here , here, and here.

Are You a Criminal? Maybe You Are and Don’t Know It

Yesterday, Michael Dreeben, the attorney representing the U.S. government, tried to defend the controversial “honest services” statute from a constitutional challenge in front of the Supreme Court.  When Dreeben informed the Court that the feds have essentially criminalized any ethical lapse in the workplace, Justice Breyer exclaimed,

[T]here are 150 million workers in the United States.  I think possibly 140 [million] of them flunk your test.

There it is.  Some of us have been trying to draw more attention to the dangerous trend of overcriminalization.  Judge Alex Kozinski co-authored an article in my book entitled “You’re (Probably) a Federal Criminal.”  And Cato adjunct scholar, Harvey Silverglate, calls his new book, Three Felonies a Day to stress the fact that the average professional unknowingly violates the federal criminal law several times each day (at least in the opinion of federal prosecutors).  Not many people want to discuss that pernicious reality. To the extent defenders of big government address the problem at all, they’ve tried to write it all off as the rhetoric of a few libertarian lawyers.  Given yesterday’s back-and-forth at the High Court, it is going to be much much harder to make that sort of claim.

For more on this subject, go here, here,  and here.

Tuesday Links

  • Why the Supreme Court should strike down the Public Company Accounting Oversight Board: “Imagine a government agency with the authority to create and enforce laws, prosecute and adjudicate violations, and impose criminal penalties. Then throw in the power to levy taxes to pay for all the above. And for good measure, make the agency independent of political oversight.”

Likely Supreme Court Tie Would Be a Loss to Property Owners

Today, the Supreme Court heard argument in Stop the Beach Renourishment v. Florida Department of Environmental Protection, which is a Fifth Amendment Takings Clause challenge involving beachfront property (that I previously discussed here).

Essentially, Florida’s ”beach renourishment” program created more beach but deprived property owners of the rights they previously had – exclusive access to the water, unobstructed view, full ownership of land up to the “mean high water mark,” etc. That is, the court turned beachfront property into “beachview” property.  After the property owners successfully challenged this action, the Florida Supreme Court – “SCOFLA” for those who remember the Bush v. Gore imbroglio – reversed the lower court (and overturned 100 years of common property law), ruling that the state did not owe any compensation, or even a proper eminent domain hearing.

As Cato adjunct scholar and Pacific Legal Foundation senior staff attorney Timothy Sandefur noted in his excellent op-ed on the case in the National Law Journal, “[T]he U.S. Constitution also guarantees every American’s right to due process of law and to protection of private property. If state judges can arbitrarily rewrite a state’s property laws, those guarantees would be meaningless.”

I sat in on the arguments today and predict that the property owners will suffer a narrow 4-4 defeat.  That is, Justice Stevens recused himself – he owns beachfront property in a different part of Florida that is subject to the same renourishment program – and the other eight justices are likely to split evenly.  And a tie is a defeat in this case because it means the Court will summarily affirm the decision below without issuing an opinion or setting any precedent.

By my reckoning, Justice Scalia’s questioning lent support to the property owners’ position, as did Chief Justice Roberts’ (though he could rule in favor of the “judicial takings” doctrine in principle but perhaps rule for the government on a procedural technicality here).  Justice Alito was fairly quiet but is probably in the same category as the Chief Justice.  Justice Thomas was typically silent but can be counted on to support property rights.  With Justices Ginsburg, Breyer, and Sotomayor expressing pro-government positions, that leaves Justice Kennedy, unsurprisingly, as the swing vote.  Kennedy referred to the case as turning on a close question of state property law, which indicates his likely deference to SCOFLA.

For more analysis of the argument, see SCOTUSblog.  Cato filed an amicus brief supporting the land owners here, and earlier this week I recorded a Cato Podcast to that effect. Cato also recently filed a brief urging the Court to hear another case of eminent domain abuse in Florida, 480.00 Acres of Land v. United States.

Obama, International Law, and Free Speech

Stuart Taylor has a very good article this week about the Obama administration, international law, and free speech.  This excerpt begins with a quote from Harold Koh, Obama’s top lawyer at the State Department:

“Our exceptional free-speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet.” The Supreme Court, suggested Koh – then a professor at Yale Law School – “can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation” that he espouses.

Translation: Transnational law may sometimes trump the established interpretation of the First Amendment. This is the clear meaning of Koh’s writings, although he implied otherwise during his Senate confirmation hearing.

In my view, Obama should not take even a small step down the road toward bartering away our free-speech rights for the sake of international consensus. “Criticism of religion is the very measure of the guarantee of free speech,” as Jonathan Turley, a professor at George Washington University Law School, wrote in an October 19 USA Today op-ed.

Even European nations with much weaker free-speech traditions than ours were reportedly dismayed by the American cave-in to Islamic nations on “racial and religious stereotyping” and the rest.

Read the whole thing.

The Real Story Behind the Chrysler Bankruptcy

If you worry about the abuse of executive power and declining respect among elected officials for the rule of law, you should watch this eloquent illumination of what really went down in the Chrysler bankruptcy earlier this year. The speaker is Richard Mourdock, Treasurer of the state of Indiana. The setting is a Cato Institute policy forum on October 15 about the “sordid details of the Bush/Obama auto industry intervention.”

As state treasurer, Mourdock is the person responsible for investment decisions concerning Indiana’s state employee pension funds, some of which owned a small share of Chrysler’s $6.9 billion in secured debt and some of which opposed the administration’s offer of $.29 on the dollar for that debt. Though these small secured holders were publicly castigated by President Obama as “unpatriotic” and unwilling to sacrifice for the greater good, Mourdock led the effort to stop the “sale” of Chrysler all the way to the U.S. Supreme Court.

Mourdock’s presentation gives a flavor for the tactics employed by the  Obama administration to “encourage” senior, priority creditors to back off their claims so that chosen parties could take priority—tactics that included backroom reminders that some of those creditors had received and might seek more TARP funding, threats of bringing the full weight and measure of the White House press office to bear down on dissenters, public condemnation, and other forms of arm-twisting most Americans would find unseemly for a U.S. presidential administration.

At the Cato event, Mr. Mourdock was joined by University of Pennsylvania Law School professor and corporate law expert David Skeel, who demonstrated quite clearly that the “sale” of Chrysler, as orchestrated by the Obama administration under cover of Chapter 11 bankruptcy reorganization, was indeed a sham sale. Skeel’s presentation begins at 20:15 of this video.

If you want to have a better sense of what’s going on in Washington (or to affirm your worries), I recommend you watch Mourdock here, listen to Mourdock here, read the Indiana Pensioners’ petition for Writ of Certiorari (appeal to the Supreme Court), and read the Cato Institute’s amicus brief in support of the Indiana pensioners here.

Fact-checking Drug Czar Barry McCaffrey

I appeared on the CNN program Lou Dobbs Tonight last Thursday (Oct. 22) to discuss the medical marijuana issue and the drug war in general.  There were two other guests: Peter Moskos from John Jay College and the organization Law Enforcement Against Prohibition (LEAP) and Barry McCaffrey, retired General of the U.S. Army and former “Drug Czar” under President Bill Clinton.

I was really astonished by the doubletalk coming from McCaffrey.  Watch the clip below and then I’ll explain two of the worst examples so you can come to your own conclusions about this guy.

Doubletalk: Example One:

Tim Lynch: “Some states have changed their marijuana laws to allow patients who are suffering from cancer and AIDS–people who want to use marijuana for medical reasons–they’re exempt from the law. But there’s a clash between the laws of the state governments and the federal government. The federal government has come in and said, ‘We’re going to threaten people with federal prosecution, bring them into federal court.’ And what the [new memo from the Obama Justice Department] does this week is change federal policy. Basically, Attorney General Eric Holder is saying, ‘Look, for people, genuine patients–people suffering from cancer, people suffering from AIDS–these people are now off limits to federal prosecutors.’ It’s a very small step in the direction of reform.”

Now comes Barry McCaffrey: “There is zero truth to the fact that the Drug Enforcement Administration or any other federal law enforcement ever threatened care-givers or individual patients. That’s fantasy!”

Zero truth? Fantasy?  This report from USA Today tells the story of several patients who were harassed and threatened by federal agents. Excerpt:  ”In August 2002, federal agents seized six plants from [Diane] Monson’s home and destroyed them.”

This report from the San Francisco Chronicle tells the story of Bryan Epis and Ed Rosenthal.  Both men, in separate incidents, were raided, arrested, and prosecuted by federal officials.  The feds called them “drug dealers.”  When the cases came to trial, both men were eager to inform their juries about the actual circumstances surrounding their cases–but they were not allowed to convey those circumstances to jurors.  Federal prosecutors insisted that information concerning the medical aspect of marijuana was “irrelevant.”   Both men were convicted and jailed.

This report from the New York Times tells readers about the death of Peter McWilliams.  The feds said he was a “drug dealer.”  McWilliams also wanted to tell his story to a jury, but pled guilty when the judge told him he would not be allowed to inform the jury of his medical condition.  Excerpt:  “At his death, Mr. McWilliams was waiting to be sentenced in federal court after being convicted of having conspired to possess, manufacture and sell marijuana…. They pleaded guilty to the charge last year after United States District Judge George H. King ruled that they could not use California’s medical marijuana initiative, Proposition 215, as a defense, or even tell the jury of the initiative’s existence and their own medical conditions.”  The late William F. Buckley wrote about McWilliams’ case here.

Imagine what Diane Monson, Bryan Epis, Ed Rosenthal, and Peter McWilliams (and others) would have thought had they seen a former top official claim that federal officials never threatened patients or caregivers?!

Doubletalk: Example Two:

Tim Lynch: “After California changed its laws to allow the medical use of marijuana, [General Barry McCaffrey] was the Drug Czar at the time and he came in taking a very hard line. The Clinton administration’s position was that they were going to threaten doctors simply for discussing the pros and cons of using marijuana with their patients. That policy was fought over in the courts and [the Clinton/McCaffrey] policy was later declared illegal and unconstitutional for violating the free speech of doctors and for interfering with the doctor-patient relationship. This was the ruling by the Ninth Circuit Court of Appeals in a case called Conant – “C-O-N-A-N-T.”

Lou Dobbs: “The ruling stood in the Ninth Circuit?”

Tim Lynch: “Yes, it did.”

Now comes Barry McCaffrey: “That’s all nonsense!”

Nonsense?  Really?

Go here to read the New York Times story about McCaffrey’s hard-line policy.

The Conant ruling can be found here.  The name of the case was initially Conant v. McCaffrey, but as the months passed and the case worked its way up to the appeals court, the case was renamed Conant v. Walters because Bush entered the White House and he appointed his own drug czar, John Walters, who maintained the hard line policy initiated by Clinton and McCaffrey.

I should also mention that Conant was not an obscure case that McCaffrey could have somehow ”missed.”  Here’s a snippet from another New York Times report:  “The Supreme Court, in a silent rebuff on Tuesday to federal policy on medical marijuana, let stand an appeals court ruling that doctors may not be investigated, threatened or punished by federal regulators for recommending marijuana as a medical treatment for their patients.”  The point here is that the case was covered by major media as it unfolded.

When our television segment concluded, Lou Dobbs asked me some follow-up questions and asked me to supply additional info to one of his producers, which I was happy to do.

Whatever one’s view happens to be on drug policy, the historical record is there for any fair-minded person to see – and yet McCaffrey looked right into the camera and denied  past actions by himself and other federal agents.  And he didn’t say, “I think that’s wrong” or “I don’t remember it that way.”  He baldly asserted that my recounting of the facts was “nonsense.”   Now I suppose some will say that falsehoods are spoken on TV fairly often–maybe, I’m not sure–but it is distressing that this character held the posts that he did and that he continues to instruct cadets at West Point!

My fellow panelist, Peter Moskos, has a related blog post here and he had a good piece published in the Washington Post just yesterday.  For more Cato scholarship on drug policy, go here.

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