Topic: Cato Publications

The Fourth Amendment in the Supreme Court This Week

Prior to the development of trade and commerce, movable property was “not esteemed of so high a nature, nor paid so much regard to by the law,” Blackstone tells us in his commentaries on the laws of England. Such property in transit was routinely confiscated by authorities or tariffed at exorbitant rates.

When commercial relations expanded, the quantity and value of personal property increased, and the law “learned to conceive different ideas of it.” Legal protection for movable property increased.

In parallel to the growth of commerce in movables centuries ago, commerce in information is on the rise today. It may be time to “conceive different ideas of it” as well—different ideas that accord information similar protection. This is what a group of amici have encouraged the Supreme Court to do in a brief on an important privacy case being argued this week.

In Clapper v. Amnesty International, the Gun Owners Foundation, Gun Owners of America, Inc., the U.S. Justice Foundation, the Downsize D.C. Foundation, DownsizeDC.org, and the Conservative Legal Defense and Education Fund have argued that the Court should recognize a property interest in confidential communications. Doing so would more clearly establish the standing of the respondents in this case to challenge the global wiretapping program Congress established in the FISA Amendments Act of 2008.

William J. Olson, lead counsel on the brief, articulated the issues well in an email distributing it:

Our amicus brief in the Clapper case extrapolates from the court’s holding in Jones and identifies the property interests at stake in this case as confidential communications that are critical to the practice of law and of the enterprise of journalism. Using a property analysis, the citizens in Clapper have a protectable property interest in their electronic communications as they do in their written communications. Thus, even though plaintiffs are not “targeted” by the Government, the Government’s contention that their search and seizure of plaintiffs’ communications is only “incidental” is unavailing.

Jones v. United States, of course, is the case decided in January, in which government agents tracked a suspect’s car for four weeks using a GPS device without a valid warrant. The Supreme Court found unanimously that this violated the Fourth Amendment. My article in the most recent Cato Supreme Court Review (2011-12) analyzes the case, and you can get a taste of that analysis in the most recent Cato Policy Report (September/October 2012).

I also discussed the Fourth Amendment status of communications in the Cato Institute’s brief in Florida v. Jardines, which is also being argued in the Supreme Court this week. The Court found Fourth Amendment protection for postal mail in an 1877 case, but stumbled when faced with the next iteration of communications technology.

In the year this Court decided Ex Parte Jackson, both Western Union and the Bell Company began establishing voice telephone services. Gerald W. Brock, The Second Information Revolution 28 (Harvard University Press, 2003). Now, instead of written messages in the post, representations of the human voice itself began moving across distance, at light speed, in a way few people understood. This is the technology this Court confronted in Olmstead v. United States, 277 U.S. 438 (1928).

The Court handled this technological development poorly. Chief Justice William Taft fixed woodenly on the material things listed in the Fourth Amendment’s search and seizure clause. Wiretapping had not affected any of the defendants’ tangible possessions, he found, so it had not affected their Fourth Amendment rights. Olmstead, 277 U.S. at 464. In dissent Justice Butler noted how “contracts between telephone companies and users contemplate the private use” of telephone facilities. “The communications belong to the parties between whom they pass,” he said. Olmstead, 277 U.S. at 487 (Butler, J., dissenting). Cf. Ex Parte Jackson, 96 U.S. 727 (1877) (“Letters and sealed packages … are as fully guarded from examination and inspection … as if they were retained by the parties forwarding them in their own domiciles.”).

Florida v. Jardines is not a communications case. The issue is whether the sniff of a trained narcotics-detection dog at the front door of a house is a Fourth Amendment search requiring probable cause. Cato’s brief invites the Court to dispense with the unworkable “reasonable expectation of privacy” test, using the plain meaning of “search” instead.

Black’s law dictionary defines “search” as “looking for or seeking out that which is otherwise concealed from view.” Smells that only trained dogs can detect are indeed otherwise concealed from humans.

Familiar though ordinary pet dogs are, a trained dog is a chromatograph. The Court should follow the Fourth Amendment’s language and precedents like Kyllo v. United States to find that a drug-dog’s sniff is a search.

A companion to Jardines, Florida v. Harris, is being argued the same day. That case will examine the sufficiency of drug-dogs as evidence of wrongdoing, an issue that has not received careful examination in the past.

So it’s a big week for the Fourth Amendment in the Supreme Court. Stay tuned for developments.

‘The Libertarian Vote’ — Now in an Ebook

What a long way we’ve come since David Kirby and I first started writing about the libertarian vote in 2006. Back then liberal blogger Matt Yglesias neatly summarized the conventional political wisdom: the libertarian vote is “zero percent,” “a rounding error in the scheme of things.” Why would anyone care what libertarians think? And National Review’s Ramesh Ponnuru suggested that Republicans would actually lose votes by appealing to libertarians.

In our new ebook, The Libertarian Vote: Swing Voters, Tea Parties, and the Fiscally Conservative, Socially Liberal Center, Kirby, Emily Ekins, and I bring together our studies and other writings on libertarian voters, along with some spiffy new graphics. (That’s the Amazon link; for multiple formats, go here.)

Today, libertarians are an increasingly influential and accepted part of the political mix. Ron Paul went deep into the 2012 Republican presidential primary, drawing crowds of thousands of young people and 2.1 million votes; and his son Sen. Rand Paul is being joined by other libertarian-leaning members of both houses of Congress. Tea partiers have strong libertarian roots, as Kirby and Emily Ekins discuss in two articles in this ebook. The “Audit the Fed” bill passed the U.S. House 327 to 98; all but one Republican and 89 Democrats voted yes. In academia, social scientist Jonathan Haidt teamed up with scholars at UCLA, USC, and NYU to conduct the largest study ever on “libertarian psychology.” Nick Gillespie and Matt Welch write about a “libertarian moment” in their book Declaration of Independents.

The latest Governance Survey from Gallup, earlier visions of which are cited throughout the book, finds 25 percent of respondents gave libertarian responses to two questions (“government is trying to do too many things” and “government should promote traditional values”), up from 17 percent in 2004, 21 percent in 2006, and 23 percent in 2008 and 2010. Analysts from GOPAC to Nate Silver at the New York Times have tried to measure the libertarian – or “fiscally conservative, socially liberal” – constituency.

Read all about it in The Libertarian Vote.

Those who doubt the relevance of the libertarian vote might consult the last commentary in the book, “The Real Swing Voters,” which finds evidence in an August 2012 ABC-Washington Post poll that the truly independent voters still up for grabs lean strongly libertarian.

‘The Obamacare Cases Keep Coming’

Jonathan Adler at National Review Online:

During oral arguments in the Supreme Court challenge to the individual mandate, NFIB v. Sebelius, the plaintiff’s lawyer Paul Clement warned the justices not to make the same mistake they made in the 1970s with Buckley v. Valeo. In Buckley, the Court upheld portions of the post-Watergate campaign-finance reforms while invalidating others. The result was a muddled statute that Congress and the courts would repeatedly revisit for years to come. Repeating this approach with the Patient Protection and Affordable Care Act, Clement cautioned, could produce similar undesirable results. It’s too soon to know how quickly Congress will revisit the PPACA, but Clement’s warning already seems to be coming true in the courts…

More than three months after the Court’s decision, over three dozen legal challenges to the PPACA or its implementation are pending in federal courts, and more are sure to come.

At a Cato briefing on Capitol Hill this Wednesday, Adler and I will be speaking about one of those cases.

Major New Study about the Top 1 Percent… And Much More

This new Cato Institute Working Paper by Senior Fellow Alan Reynolds confirms recent studies which find little or no sustained increase in the inequality of disposable income for the U.S. population as a whole over the past 20 years, even though estimates of the top 1 percent’s share of pretax, pretransfer (market) income spiked upward in 1986-88, 1997-2000 and 2003-2007.

It has become commonplace  to use top 1 percent shares of market income as a shorthand measure of inequality, and as an argument for greater taxes on higher incomes and/or larger transfer payments to the bottom 90 percent.  This paper finds the data inappropriate for such purposes for several reasons:

  • Excluding rapidly increased transfer payments and employer-financed benefits from total income results in exaggerating the rise in the top 1 percent’s share between 1979 and 2010 by 23 percent because a growing share of other income is missing.
  • Using estimates of the top 1 percent’s share of pretax, pretransfer income (Piketty and Saez 2003) as an argument for higher tax rates on top incomes or larger transfer payments to others is illogical and contradictory because the data exclude taxes and transfers.
  • Using highly cyclical top 1 percent shares as a measure of overall inequality leads, paradoxically, to describing most recessions as a welcome reduction in inequality, because poverty and unemployment rates typically rise when the top 1 percent’s share falls, and fall when the top 1 percent’s share rises.
  • Top 1 percent incomes are shown to be extremely sensitive (“elastic”) to changes in the highest tax rates on ordinary income, capital gains and dividends.  Although estimates of the elasticity of ordinary income for the top 1 percent range from 0.62 (Saez 2004) to 1.99 (Moffitt and Wilhelm), those estimates fail to account for demonstrably dramatic responses to changes in the highest tax rate on capital gains and dividends.

Reynolds estimates that more than half of the increase in the top 1 percent’s share of pretax, pretransfer income since 1983, and all of the increase since 2000,  is attributable to behavioral reactions to lower marginal tax rates on salaries, unincorporated businesses, dividends and capital gains. After reviewing numerous data sources, he finds no compelling evidence of any large and sustained increase in the inequality of disposable income over the past two decades.

George Will Quotes Cato Study Showing IPAB Is Even Worse than Romney Says

In Wednesday night’s presidential debate, Mitt Romney claimed that ObamaCare’s Independent Payment Advisory Board is  “an unelected board that’s going to tell people ultimately what kind of treatments they can have.”

President Obama officially denies it, yet he confirmed Romney’s claim when he said, “what this board does is basically identifies best practices and says, let’s use the purchasing power of Medicare and Medicaid to help to institutionalize all these good things that we do.”

In this excerpt from his column in today’s The Washington Post, George F. Will quotes my coauthor Diane Cohen and me to show that IPAB is even worse than Romney claimed:

The Independent Payment Advisory Board perfectly illustrates liberalism’s itch to remove choices from individuals, and from their elected representatives, and to repose the power to choose in supposed experts liberated from democratic accountability.Beginning in 2014, IPAB would consist of 15 unelected technocrats whose recommendations for reducing Medicare costs must be enacted by Congress by Aug. 15 of each year. If Congress does not enact them, or other measures achieving the same level of cost containment, IPAB’s proposals automatically are transformed from recommendations into law. Without being approved by Congress. Without being signed by the president.

These facts refute Obama’s Denver assurance that IPAB “can’t make decisions about what treatments are given.” It can and will by controlling payments to doctors and hospitals. Hence the emptiness of Obamacare’s language that IPAB’s proposals “shall not include any recommendation to ration health care.”

By Obamacare’s terms, Congress can repeal IPAB only during a seven-month window in 2017, and then only by three-fifths majorities in both chambers. After that, the law precludes Congress from ever altering IPAB proposals.

Because IPAB effectively makes law, thereby traducing the separation of powers, and entrenches IPAB in a manner that derogates the powers of future Congresses, it has been well described by a Cato Institute study as “the most anti-constitutional measure ever to pass Congress.”

Our paper is titled, “The Independent Payment Advisory Board: PPACA’s Anti-Constitutional and Authoritarian Super-Legislature.” It broke the news that, as Will writes, ObamaCare “precludes Congress from ever altering IPAB proposals” after 2017.

Privatization at Cato Unbound

Longtime Freeman editor Sheldon Richman leads this month’s Cato Unbound with a look at privatization – the transfer of assets and responsibilities from the government to private holders.

In the first part of his essay, Richman explains why we should want such a thing. As he points out, there are solid economic reasons to expect that governments will be worse than private actors at providing many different types of goods and services.

But how do you actually let go? Richman argues for a fairly absolutist position; for him, vouchers, charters, and contracting with private firms are no proper solution. “[W]hen a company becomes a monopoly government contractor,” he writes, “to that extent it is an arm of the state rather than a private firm.” When privatization ends here, things have not improved at all, and even the word “privatization” is misleading. Worse, whole swathes of the government’s work shouldn’t be done by anyone. We don’t make the war on drugs any better by putting it in the hands of a private contractor.

Is he right? Over the next week, we’ll have a series of response essays from Leonard Gilroy, Director of Government Reform at the Reason Foundation; Dru Stevenson, Professor of Law and the Helen and Harry Hutchins Research Professor at the Southern Texas College of Law; and Cato Senior Fellow Randal O’Toole.

Readers are encouraged to take up our themes and enter into the conversation on their own websites and blogs, or on other venues. We also welcome letters. Send them to jkuznicki at cato dot org. Selections may be published at the editors’ option.

Called it! Eleven Years Ago

What is this blog for, if not to let Cato scholars call out what smarty-pantses they are?

The Wall Street Journal reports on automobile license plates as the “new tracking frontier.”

For more than two years, the police in San Leandro, Calif., photographed Mike Katz-Lacabe’s Toyota Tercel almost weekly. They have shots of it cruising along Estudillo Avenue near the library, parked at his friend’s house and near a coffee shop he likes. In one case, they snapped a photo of him and his two daughters getting out of a car in his driveway. Mr. Katz-Lacabe isn’t charged with, or suspected of, any crime. Local police are tracking his vehicle automatically, using cameras mounted on a patrol car that record every nearby vehicle—license plate, time and location.

I didn’t have every detail, of course, but 11 years ago I noted the coming problem of license-plate tracking in testimony to a House Transportation subcommittee.

It was a little odd at the time, and still is, to talk about the privacy problem with license plates. But the emerging technology environment makes it essential to analyze and assess more carefully the information and identification demands that the government places on us.

[T]he requirement in all fifty states that cars must exhibit license plates linked to their owners is “anti-privacy” law, as would be a law requiring people to wear name tags in order to walk on public sidewalks. Mandatory license plates prevent citizens from exhibiting the expectation of privacy that Justice Harlan wrote about in Katz. Roughly speaking, they require people to expose their identities to police as a condition of driving on our roadways.

I expanded on “anti-privacy” law in my 2004 Cato Policy Analysis, “Understanding Privacy—and the Real Threats To It.”

We’re still grappling with the problem of privacy “in public.” The Supreme Court’s decision on GPS tracking in the Jones case is the most significant recent iteration of that. (Cato brief and related blog post; pre-decision posts: 1, 2, 3; post-decision posts: 4, 5, 6.) The latest Cato Supreme Court Review (also available digitally) includes an article of mine on the case. My latest thinking on Fourth Amendment privacy can by found in Cato’s brief in Florida v. Jardines.

It is possible to think systematically about privacy. Privacy is not just a morass of feelings about advancing technologies. Once one understands privacy (in its strongest sense) as the exercise of power to control information about oneself, one can see a decade ahead that license plates create privacy problems.

Pretty smart, huh? Yeah.