Tag: volokh conspiracy

Activity vs. Inactivity

The challenge to the constitutionality of the individual mandate – Obamacare’s central feature, without which the whole regulatory scheme collapses (practically speaking, though I agree with Judge Vinson that it also can’t be severed as a matter of law) – boils down to whether, under modern constitutional doctrine regarding what Congress can do under the guise of regulating interstate commerce, the government can force “inactive” people into a particular action, namely buying health insurance.

That is, while cases like Wickard  (Congress can force farmer to meet quota and bring crops to market) and Raich (Congress can stop wholly intrastate growth and consumption of marijuana) – moving from wheat to weed – are disconcerting for those of us who see limits on federal power, there is a qualitative difference between regulating or prohibiting existing economic activity and mandating that someone engage in such activity.  When Randy Barnett (who argued Raich) first articulated that distinction and labeled the new assertion of federal power “unprecedented,” that’s what he meant: Congress has never forced people to engage in economic activity.  Not during the New Deal – nobody had to become a farmer or buy wheat – nor during the Civil Rights Era – if you didn’t want to serve blacks, you could shut down your restaurant or hotel.

The “activity/inactivity” distinction thus becomes the last straw holding back a general federal police power that would allow Congress to require anything of the citizenry so long as it was part of a national regulatory scheme.  No enumerated power to require people to buy Chevys?  No problem, we’ll have a full-scale auto bailout that only works if people have to buy Chevys.  No enumerated power to require people to take out Fannie Mae mortgages?  No problem, we’ll have a “National Housing Market Recovery Act” that only works if people have to do just that.  You don’t have to invoke broccoli or asparagus to make the point; the “broccoli mandate” is used so often only because, if anything, requirements to buy healthy foods and join gyms would be more closely connected to the goal of reducing taxpayer spending on health care than the individual health insurance mandate.

In any case, I won’t go on about activity vs. inactivity because you can read all about it in our latest brief and also in a fascinating  Volokh Conspiracy debate among Orin Kerr, Jon Adler – both of whom will be contributing to this year’s Cato Supreme Court Review – and Randy Barnett:

  1. Orin notes that the Fourth Circuit judges were “baffled” by the activity/inactivity distinction;
  2. Jon replies that he’s baffled that anybody could be baffled by that;
  3. Randy offers a different take on the judges’ concerns;
  4. Orin discusses a possible analogy of the definition of “activity” to its common-law equivalent, the “actus reus”;
  5. Randy issues a rejoinder to Orin’s analysis;
  6. Orin clarifies the issue.

Fascinating stuff, and a discussion that will continue – and not just on the VC.

Prop 19, Employment at Will, and Social Peace

Writing at CNN, my colleague Jeffrey Miron puts his finger on one reason for the disappointing defeat of California’s Prop 19:

Prop 19 failed also because it overreached. One feature attempted to protect the “rights” of employees who get fired or disciplined for using marijuana, including a provision that employers could only discipline marijuana use that “actually impairs job performance.” That is a much higher bar than required by current policy.

Like so many other developments in employment law in recent years, this would have chipped away at the basic principle of employment at will, which holds that in the absence of a contract specifying otherwise, either party to an employment relation may end that relation at any time for any reason or for no reason at all.

It was no doubt inevitable that the proposition would fare poorly among self-identified conservatives and older voters. But the “users’ rights” provisions were enough to raise doubts even among liberty-minded thinkers like David Henderson, who predicted that by signaling hostility toward freedom of association, such provisions would “make the drug-legalization hill even steeper.”

Marijuana of course remains illegal under federal law, which means that its consumption would at one and the same time have been 1) protected under employment-discrimination rules, and 2) illegal and subject to prison sentences. If this paradox seems vaguely familiar, maybe it’s because not that many years ago – before the Supreme Court’s 2003 decision in Lawrence v. Texas – there were localities where consenting homosexual conduct was simultaneously protected under one set of laws, and unlawful under another. Indeed, there were more than a few advocacy groups that worked to promote the new controls over employer decisionmaking and yet never troubled themselves to work for repeal of the still-on-the-books anti-gay prohibitions. If the goal is to achieve social peace, however, rather than wage constant culture war on each other, you’d think the “leave people alone” message would hold more appeal than the “fall in line or you’ll hear from our lawyers” message.

Jeffrey Miron surmises, no doubt rightly, that the problem of undislodgeable tenured stoners in the workplace would be more the exception than the rule. Yet it’s worth noting that the issue has already arisen in various lawsuits in which workers with a doctor’s note recommending marijuana use have contested firings. Lawyers have also eagerly cobbled together suits over related issues, as with this class action noted less than two years ago at my other website, Overlawyered:

Starbucks’s job application asked prospective baristas if they’d been convicted of a crime in the past seven years and added for “CALIFORNIA APPLICANTS ONLY”, at the end, that minor marijuana possession convictions more than two years old didn’t have to be disclosed, in accord with a state law along those lines. Entrepreneurial lawyers then tried to steam-press $26 million or so out of the coffee chain on the following theory: that the clarification was placed too far down the application after the original question; that Starbucks had therefore violated the California Labor Code; and that each and every Starbucks job applicant in California since June 2004, perhaps 135,000 persons, was owed $200 in statutory damages regardless of whether they had suffered any harm. Per John Sullivan of the Civil Justice Association of California, the lawyers also took the position that “it didn’t matter that two of the three job applicants who signed on as named plaintiffs testified in court that they read the entire application and knew they didn’t have to mention a marijuana conviction (which neither had anyway!)” The court refused to certify the class and made the following observations (courtesy CJAC blog):

* “There are better ways to filter out impermissible questions on job applications than allowing ‘lawyer bounty hunter’ lawsuits brought on behalf of tens of thousands of unaffected job applicants. Plaintiffs’ strained efforts to use the marijuana reform legislation to recover millions of dollars from Starbucks gives a bizarre new dimension to the every day expressions ‘coffee joint’ and ‘coffee pot.’”… “The civil justice system is not well-served by turning Starbucks into a Daddy Warbucks.”

Ilya Somin at Volokh Conspiracy notes that “the case against the War on Drugs and other ‘morals’ regulations is very similar to the standard conservative critique of economic regulation.” But if a much-needed rollback of morals regulation is made the excuse for an expansion of economic regulation, there may be grounds to wonder whether the goal is truly freedom at all.

That Which is Seen and That Which is Not Heard

Cato adjunct scholar David Post writes on the Volokh Conspiracy blog about the sticky copyright wicket facing some impressive jazz recordings from the 30s and 40s.

I get pretty excited … when I read that the collection also contains live performances of a Goodman-Wilson duet on “Lady Be Good” (with Wilson playing harpsichord!), Lester Young and Herschel Evans on “Tea for Two,” Charlie Christian playing electric guitar with the Goodman sextet in a 1939 performance of “Shivers,” the Count Basie and Duke Elllington bands’ performances at the 1938 “Carnival of Swing” on Randalls Island, … all previously unreleased. Oh, lordy — you’ve got to be kidding me! And listening to the excerpts from the recordings here, if anything, makes me even more delirious — this is truly great stuff by some of the greatest musicians that ever lived.

But:

[T]he potential copyright liability that could attach to redistribution of these recordings is so large — and, more importantly, so uncertain — that there may never be a public distribution of the recordings. Tracking down all the parties who may have a copyright interest in these performances, and therefore an entitlement to royalty payments (or to enjoining their distribution), is a monumental, and quite possibly an impossible, task, and it may well be that nobody steps forward with the resources to (a) undertake the efforts required and (b) take on the risk of liability.

Some of Post’s observations on copyright policy:

[I]f you give people a property interest in their creations, they’ll be able to work out market arrangements to receive compensation for them; knowing that in advance, they’ll create more works of art than they otherwise would absent that protection, and we’re all better off as a result. That’s easy enough to see. What’s harder to see is why that principle should ever be limited…

This case makes seen some costs of overbroad copyright protection through the medium of what we may not hear.

A Civil Liberties Roundup

Here are some interesting new items on the web:

  • Cato Senior Fellow Nat Hentoff is interviewed by John W. Whitehead of the Rutherford Institute.  Nat says “Obama has little, if any, principles except to aggrandize and make himself more and more important.”  And “Obama is possibly the most dangerous and destructive president we have ever had.”  Go here for the full interview.
  • Cato adjunct scholar Harvey Silverglate is blogging this week over at the Volokh Conspiracy on his new book, Three Felonies a Day.
  •  Cato Adjunct Scholar Marie Gryphon, who is also a Senior Fellow with the Manhattan Institute, has just put out a new paper, It’s a Crime: Flaws in Federal Statutes That Punish Regular Businesspeople.
  • Cato Media Fellow Radley Balko takes a look at the pathetic machinations in the Chicago Police Department.  Reminds me of the proud boast from a patronage worker in the political machine: “Chicago ain’t ready for reform!”

Good stuff here.  For more Cato scholarship, go here.

‘Is Obama Punting on Human Rights?’

That’s today’s Arena question over at Politico.

My response:

This morning, both Bret Stephens, in the Wall Street Journal, and Mona Charen, at Real Clear Politics, catalogue Obama’s silence on human rights – China, Tibet, Sudan, Iran, Burma, Honduras – and his backpedaling from his campaign rhetoric. Meanwhile, Eric Posner, at the Volokh Conspiracy, rightly credits Obama for, among other things, not backing the Goldstone Report and pressuring Spain to water down its undemocratic “universal jurisdiction” statute, even as he condemns the administration, again rightly, for its decision to join “the comically named U.N. Human Rights Council,” bastion of some of the world’s worst human rights abusers.

What’s missing, it seems, is any coherent and systematic approach to those matters. During the Reagan administration I served for a time at State as director of policy for the Bureau of Human Rights and Humanitarian Affairs – now called, interestingly, the Bureau of Democracy, Human Rights, and Labor. Things were simpler during the Cold War. We focused on totalitarian regimes, somewhat less on authoritarian regimes, since people were allowed to leave those. And, yes, realpolitik played at least a part in our thinking, as inevitably it must. But the basic principles were clear: If human rights were to be respected, not simply behavioral but systematic change would be required. And Reagan kept the pressure on, publicly. With the fall of the Berlin Wall, millions saw that kind of change, in varying degrees. But the contrast between totalitarianism and democratic capitalism is less clear today than it was then, and the Obama administration, in both its foreign and domestic policies, is doing little to clarify it.

The promotion of human rights starts at home, with allowing people to plan and live their own lives, not with vast public programs that compel people to live under government planning. And in foreign affairs it requires both private and public diplomacy, quiet and not-so-quiet attention to the conditions that give rise to human rights abuses. That doesn’t mean military intervention to change those conditions. But neither does it mean remaining silent, as the Obama administration too often has. Countless victims of abuse, from Cuba to China and far beyond, have written about how important it was that they knew that the world knew about them: When America speaks, the world listens. But equally important, history demonstrates that regimes that respect their own people respect other people as well. It’s time for Obama to speak out.