Tag: unconstitutional

SCOTUS Deferred to Executive Agencies. What Happened Next Will Infuriate You!

In the 1996 case Auer v. Robbins, the Supreme Court ruled that where there is any ambiguity or disagreement over what a federal regulation means, courts should defer to the interpretation favored by the agency that issued the regulation. The practical consequence of this decision has been that government agencies have had the power not just to create and enforce their own rules but also to definitively interpret them. Given the mind-boggling number of federal regulations that exist—and the exceptional breadth of behavior that they govern—the importance of this “Auer deference” can’t be overstated.

While handing the powers of all three branches of government to the bureaucracy is problematic in and of itself, a recent decision by the U.S. Court of Appeals for the Ninth Circuit further extended the deference courts show to agency rulemakers by declaring that an agency’s interpretation of its own rule is authoritative even if the agency has altered its interpretation dramatically since the regulation came into effect. Under that logic, an agency could spend decades saying that its regulation governing footwear only applied to shoes—and then, without warning or consultation, unilaterally decide to extend the rule to sandals and slippers (despite explicitly saying for years that they were not covered by the regulation).

Such a power to rewrite regulations through after-the-fact “reinterpretation” is incredibly tempting, freeing agencies to change the rules of the game without further legislation or congressional oversight, or even the formalized rulemaking process required by the Administrative Procedure Act.

Peri & Sons, a family-run farm in Nevada (one of America’s largest onion producers), is caught in just such an Kafkaesque morass. In its case, the Ninth Circuit ruled that even though the Department of Labor for over five years interpreted regulations issued under the Fair Labor Standards Act to mean that employers aren’t required to pay employees for the costs of moving for a job (including passport and visa applications), DOL is free to change its interpretation to now require employers to cover those costs.

Cato, along with the Center for Constitutional Jurisprudence and the National Federation of Independent Business, filed a brief urging the Supreme Court to hear this case. We argue not just against the Ninth Circuit’s extension of Auer to cases where the agency has reversed its position, but also that Auer itself was incorrectly decided. Granting agencies post-hoc control over their regulations’ textual meaning is an abdication by the courts of their constitutional duty to zealously guard against executive encroachment on the judiciary’s role as interpreters of the law. And we’re not alone in questioning the wisdom of Auer; as recently as 2011, Justice Scalia criticized the ruling as being “contrary to [the] fundamental principles of separation of powers.”

The Supreme Court will be deciding this spring whether to hear Peri & Sons Farms v. Rivera.We urge the Court to take the case and restore a modicum of the Constitution’s separation and balance of powers.

An Unconstitutional Tax Bill in Virginia?

My long-ago colleague Norman Leahy, once a young research assistant at the Cato Institute, has an op-ed in the Washington Post today. I wonder where he got the idea that an act of the legislature is invalid just because it violates the state constitution.

Those praising the Virginia General Assembly’s transportation compromise may not realize that the bill runs afoul of the plain language in the state’s constitution.

Virginia’s constitution is clear that the General Assembly can impose only uniform taxes across the state for similar activities. But the bill that emerged from the House-Senate conference committee last weekend upsets the historic balance between localities and state government; it contains new provisions about taxation, some of which would effectively set up a two-tier system for residents in certain parts of the state. It’s difficult to see how some of these provisions could survive legal challenge….

As a constitutional matter, these local tax provisions could probably be struck down without affecting the rest of the legislation.

But few should know better than Gov. Bob McDonnell (R) that state legislators don’t have the power to impose a discriminatory local tax. He was the state’s attorney general when his office defended before the state Supreme Court the General Assembly’s previous attempt at a transportation tax package. The court rejected the argument.

 

ObamaCare in Four Words

Cato Senior Fellow Randy E. Barnett argued on behalf of Angel Raich at the Supreme Court in 2004. It was the last big case at the High Court dealing with broad federal assertions of power under the Commerce Clause. On Friday at the Cato Institute’s new F.A. Hayek Auditorium, Barnett laid out the four words that define ObamaCare’s individual mandate: unprecedented, uncabined, unnecessary, and unconstitutional.


Barnett and I chatted for a bit about whether Antonin Scalia is bound to uphold the Affordable Care Act (ObamaCare) based on his opinion in Raich.

You can watch the full event from Friday here.

Alaska’s Parnell Becomes 2nd Gov. to Refuse to Implement ObamaCare

The Associated Press reports that Alaska Gov. Sean Parnell (R) told the Juneau Chamber of Commerce that he will not be implementing ObamaCare:

“The state of Alaska will not pursue unlawful activity to implement a federal health care regime that has been declared unconstitutional by a federal court,” Parnell told the Juneau Chamber of Commerce, to applause, Thursday.

The AP included a couple of interesting comments from ObamaCare supporters Timothy Jost, a law professor at Washington & Lee University, and Ron Pollack, executive director of Families USA.

Jost described Judge Roger Vinson (to whom Parnell referred) as “one renegade judge,” when in fact two federal judges have struck down ObamaCare’s individual mandate as unconstitutional.  (Since only two federal judges have upheld ObamaCare, who’s to say which pair are the renegades?)

Jost also called Alaska an “outlier” among states, while the AP reported, “Neither [Pollock] nor Jost knew of any other state taking action similar to Parnell.”  Jost and Pollack should know that Florida Gov. Rick Scott (R) had already refused to implement ObamaCare.  (Here he is telling an approving audience of Cato supporters.)  Ironically, the AP story overlooking Scott’s leadership appeared on the Miami Herald web site, which had previously reported that Scott even returned to the federal government the ObamaCare money that his predecessor Charlie Crist accepted but hadn’t spent. Scott may not be enough company to keep Parnell from being an outlier.  But Jost should also know that dozens of governors who are implementing ObamaCare are also hoping the Supreme Court will strike it down as unconstitutional.  Parnell and Scott are outliers for their courage, not because they oppose ObamaCare.

The news about Parnell came as the U.S. Department of Justice filed a motion asking Judge Vinson to clarify that his declaratory judgment “does not relieve the parties of their rights and obligations under [ObamaCare] while the declaratory judgment is the subject of appellate review.”  Ilya Shapiro and I clarified that issue in our oped, “President Should Heed Court and Stop Implementing ObamaCare.”

Not a Good Week for Obamacare

It has not been a good week for Obamacare.  Another court ruled that the bill was unconstitutional, while it took a party-line vote in the U.S. Senate to avoid a legislative repeal.  Meanwhile, chipping away at the legislation began, with the Senate voting to repeal one of the bill’s most unpopular provisions, a requirement that businesses file 1099 tax forms on even small purchases.  Supporters of the bill are bailing as fast as they can, but the ship is sinking rapidly.

Heritage and Prop. 19

Over at the Huffington Post,  I scrutinize a recent Legal Memorandum published by the Heritage Foundation on the Prop. 19 ballot initiative.

Here is an excerpt:

The Heritage memorandum claims that if Prop 19 were approved, it would conflict with the federal criminal statute, the Controlled Substances Act and thus “invite litigation that would almost certainly result in [Prop 19] being struck down” as unconstitutional. This legal claim is dead wrong. While it is true that the supremacy clause of the Constitution makes it clear that federal law will override a conflicting state law, that clause simply has no application here. The federal law on marijuana remains in force, but that does not mean that a state government is under any obligation to assist the feds. As the Supreme Court noted in New York v. United States (1992), the state governments are neither “regional offices nor administrative agencies” of the federal government. Let’s take another example. Suppose Congress were to criminalize, say, cotton candy–would California be in violation of the Constitution because its police agents are not now empowered to arrest people producing and possessing cotton candy? No. Nor could Congress compel the California legislature to move against cotton candy producers and consumers. Here again is the Supreme Court: “Even where Congress has the authority to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.” (New York v. United States, 505 U.S. 144, 166 (1992)). Prop 19 is consistent with the constitutional principle of federalism.

For additional Cato scholarship on drug policy, go here and here.

The Unbearable Vagueness of “Honest Services Fraud”

Cato adjunct scholar Tim Sandefur, who authored an amicus brief in the case of Skilling v. U.S., writes on his home blog:

Today, the Supreme Court decided the case of Jeffrey Skilling, the CEO of Enron, who had been convicted of the crime of “honest services fraud.” The statute, however, is so vague, that nobody knows what the term “honest services fraud” actually means. Pacific Legal Foundation (joined by our friends at the Cato Institute) filed a brief in the case arguing that statutes that are so vague violate the constitutional guarantee of due process of law—and that the constitutional protection against vague laws should apply in the business realm the same as anywhere else. Vague laws are dangerous because you cannot know what they prohibit and cannot therefore avoid breaking the law. It is unfair and unconstitutional to hold vague statutes over their head in such a way.

Unfortunately, the Court has in the past been reluctant to apply it outside the regular criminal context, on the theory that businesses are wealthier and can afford expert legal advice. But in a case like this, even the experts have no idea what the statute actually means. The federal circuit courts are in disarray as to what it means. And nobody should be convicted under a statute that is so broadly and vaguely worded, that even the prosecuting lawyer can’t tell you what that law actually means.

As they say, read the whole thing.