Topic: Law and Civil Liberties

Presidents, Precedents, and Perpetual War

Good news: after nearly three months of airstrikes in Iraq and Syria, the branding’s finally caught up to the bombing. Our latest war in the Middle East finally has a name: “Operation Inherent Resolve” is what we’re calling it, the Pentagon recently announced. DoD planners had initially rejected that name as uninspiring and “just kind of bleh,” but after several weeks of fruitless searching, they’ve decided it’s the best we can do.

Get Excited! (Photo Credit: Dept. of Defense)Here’s Defense.gov’s banner graphic for “Operation Inherent Resolve”: simple, spare, sort of Sisyphean. 

Actually, with its air of uninspired resignation, “Inherent Resolve” suits well enough, even if something like “Operation Eternal Recurrence” might have fit better. But it surely says something that, as with hurricanes, we’re running out of cool names for the wars presidents launch.

Now that we know what to call it, what should we make of Obama’s latest military intervention and how it fits into the president’s emerging legacy on constitutional war powers? Jack Goldsmith and Matthew Waxman have an important piece on that subject in the New Republic, arguing that “it is Obama, not Bush, who has proven the master of unilateral war.” “The war powers precedents Obama has established,” they explain, “will constitute a remarkable legacy of expanded presidential power to use military force.”

It’s a remarkable legacy, all right, though I might put somewhat less emphasis on “precedent” as such. Taken individually, as Goldsmith and Waxman acknowledge, very few of Obama’s actions are wholly unprecedented. But taken as a whole, the president’s approach to war powers begins to look like something new under the sun. As I argued recently at The Federalist, Obama will “go down in history as a ‘transformational’ president, having completed America’s transformation into a country where continual warfare is the post-constitutional norm.”

Attorneys General Aim at New Targets, Who Respond as Expected

The New York Times launches a series of investigative reports on corporate lobbying of state attorneys general. But you have to read fairly far down in the story to find the “nut graf” on why this is happening now. Radley Balko summed it up in a tweet: “As prosecutors get increasingly powerful, lobbyists will increasingly spend money to try to influence them.” And the article does note that: 

A robust industry of lobbyists and lawyers has blossomed as attorneys general have joined to conduct multistate investigations and pushed into areas as diverse as securities fraud and Internet crimes….

The increased focus on state attorneys general by corporate interests has a simple explanation: to guard against legal exposure, potentially in the billions of dollars, for corporations that become targets of the state investigations.

It can be traced back two decades, when more than 40 state attorneys general joined to challenge the tobacco industry, an inquiry that resulted in a historic $206 billion settlement.

Microsoft became the target of a similar multistate attack, accused of engaging in an anticompetitive scheme by bundling its Internet Explorer with the Windows operating system. Then came the pharmaceutical industry, accused of improperly marketing drugs, and, more recently, the financial services industry, in a case that resulted in a $25 billion settlementin 2012 with the nation’s five largest mortgage servicing companies.

The trend accelerated as attorneys general — particularly Democrats — began hiring outside law firms to conduct investigations and sue corporations on a contingency basis.

I wrote about this 30 years ago in the Wall Street Journal, citing Hayek’s assessment from 40 years before that:

Nobel laureate F.A. Hayek explained the process 40 years ago in his prophetic book The Road to Serfdom: “As the coercive power of the state will alone decide who is to have what, the only power worth having will be a share in the exercise of this directing power.”

As the size and power of government increase, we can expect more of society’s resources to be directed toward influencing government.

Those who work to increase the size, scope, and power of government need to recognize: This is the business you have chosen. If you want the federal government to tax (and borrow) and transfer – and reallocate through prosecution – $3.8 trillion a year, if you want it to supply Americans with housing and health care and school lunches and retirement security and local bike paths, then you have to accept that such programs come with incentive problems, politicization, corruption, and waste. And that special interests will find ways to influence such momentous decisions, no matter what lobbying restrictions and campaign finance regulations are passed.

Return of the Vampire Lawsuit Against School Choice

Just in time for Halloween, a vampire lawsuit against school choice has risen from the dead.

Nearly a month ago, a Florida judge dismissed the Florida Education Association’s (FEA) lawsuit against a bill amending the state’s school choice laws, ruling that the plaintiffs lacked the standing to sue because they were not harmed. The union wanted to block the creation of the Personalized Learning Scholarship Accounts program for students with special needs, and “in particular” the so-called “expansion” of the Florida Tax Credit Scholarship (FTCS) law, which provides tax credits to corporations in return for donations to nonprofit scholarship organizations that help low-income children attend the schools of their choice. There are two additional lawsuits against school choice in Florida, including another involving the FEA.

This year, nearly 70,000 low-income students received FTCS scholarships. One former scholarship recipient, Denisha Merriweather, recently wrote an op-ed for the Wall Street Journal explaining how the FTCS allowed her to switch from her assigned district school, which failed to meet her needs, to a private school where she thrived.

Last week, the FEA filed an amended complaint with additional plaintiffs. The union argues that the new plaintiffs have standing as district school teachers and parents of district school students because they “are threatened by the implementation of […] the expansion of the Florida Tax Credit Scholarship Program,” which they claim would cause the district schools to “[lose] considerable funding” since the scholarship funds “that otherwise would go to support the public schools are instead redirected through an intermediary to provide vouchers [sic] for Florida children to attend private schools.” (The FEA’s complaint did not discuss the impact of the Personalized Learning Scholarship Accounts.)

The union’s argument suffers from at least two fatal flaws.

First, the FTCS does not “redirect” any state funds. The state of Florida allocates funds to school, in part, on a per-pupil basis, but the fiscal impact of a student leaving her assigned district school to accept a tax-credit scholarship is no different than the fiscal impact of a student moving out of the district, attending private school without a scholarship, or homeschooling. Moreover, if the funds were actually “redirected” then the state would not realize any savings. In fact, the state’s own Office of Program Policy Analysis and Government Accountability found that the FTCS generates significant savings ($36.2 million in 2008-09) because the forgone revenue is less than the reduction in state expenditures.

Second, the union is factually incorrect in asserting that the challenged legislation, SB 850, “expanded” the FTCS. The bill loosened eligibility requirements by eliminating the requirement that recipients spend the prior academic year in a district school; allowing foster students to continue receiving scholarships if adopted; and raising the income thresholds for eligibility for full and partial scholarships. However, the bill did not expand the amount of tax credits available nor did it add any new credits against other taxes. In other words, while the bill increased the number of students who can apply for scholarships, it did not increase the actual amount of available tax credits or scholarship funds.

The FEA’s vampire lawsuit misunderstands how the FTCS law works and misstates the facts about what the legislation does. The judge should drive a stake through its heart.

Top Ten Reasons You Should Attend Cato’s Conference on the Halbig Cases This Thursday

Here are ten reasons everyone should attend this Thursday’s Cato Institute conference, “Pruitt, Halbig, King & Indiana: Is Obamacare Once Again Headed to the Supreme Court?

  1. The very next day – October 31 – the Supreme Court could grant certiorari in King v. Burwell. Reporters who attend will be able to write their stories in advance.
  2. Our luncheon keynote speaker, Oklahoma attorney general Scott Pruitt, filed the first Halbig-style challenge in September 2012. (Does that mean I should call them “Pruitt-style challenges”?) Last month, a federal district court sided with Pruitt against the federal government. Our morning keynote speaker, Indiana attorney general Greg Zoeller, filed the fourth such challenge, Indiana v. IRS. A ruling is expected at any time. Pruitt and Zoeller will discuss why they have asked the Supreme Court to grant cert in King.
  3. We’ve already been King-ed! The Center for American Progress and Families USA were so impressed (or worried) about our conference that they scheduled a conference call with reporters to piggyback on (or drown out) any coverage of our conference. Their teleconference is on Wednesday, October 29, at 10am ET. Dial in: 888-576-4398. Confirmation code: 1635383.
  4. Case-Western Reserve University law professor Jonathan Adler, an intellectual father of the Halbig cases, will discuss recent and future court rulings. So will law professor Jim Blumstein, intellectual father of the Supreme Court’s Medicaid ruling in NFIB v. Sebelius, who also played a seminal role in the Halbig cases.  
  5. Len Nichols, who advised the Senate on state-run vs. federal Exchanges will explain why all this is nonsense.
  6. Health-insurance industry expert Bob Laszewski will explore the possible impact of Halbig.
  7. University of Washington law professor David Ziff will discuss how Halbig critics could improve their arguments.
  8. The Constitutional Accountability Center’s Brianne Gorod, who wrote the amicus briefs filed by the members of Congress who wrote Obamacare, will explain what Congress really intended.
  9. AEI’s Tom Miller, who helped launch the Halbig cases, will explore how states might respond to a Halbig win.

And finally, the number-one reason you should attend this conference…

  1. Obamacare architect Jonathan Gruber will explain his flip-flop on Halbig. Ha! Just kidding. The real number-one reason is: these lawsuits have more of a shot than you thought, and you need to get up to speed.

Register now.

Federalism Doesn’t Mean That States Can Do Whatever They Want

Cato and the Constitutional Accountability Center have filed another amicus brief in a marriage case, this one challenging Louisiana’s restriction of marriage licenses to opposite-sex couples and its non-recognition of out-of-state same-sex marriages. Filed in the U.S. Court of Appeals for the Fifth Circuit—where last month we filed in a case out of Texas—this is an appeal from the only ruling to uphold a state marriage law since the Supreme Court’s decision in United States v. Windsor struck down part of the Defense of Marriage Act. (A federal judge in Puerto Rico also recently upheld that commonwealth’s law.)

Our previous briefs, including in that Texas case and also regarding the marriage laws of Oklahoma, Utah, Virginia, Michigan, Tennessee, Kentucky, Indiana, and Wisconsin in the TenthFourth, Sixth, and Seventh Circuits, respectively, focused on the original public meaning of the Fourteenth Amendment’s Equal Protection Clause and its guarantee of “equality under law” for all. Here, however, we focus on federalism, democracy, and why states shouldn’t automatically get judicial deference when they pass legislation.

That is, the Fourteenth Amendment significantly reworked the constitutional order such that the U.S. Constitution now protects individual liberty against state infringement (which wasn’t the case before the Civil War). When the district court held that Louisiana was free to deny loving, committed same-sex couples the freedom to marry because the state “has a legitimate interest … for addressing the meaning of marriage through the democratic process,” it empowered the people of the states to use the democratic process to oppress disfavored minorities and thus overturned the constitutional order we’ve had since 1868.

Is Idaho Really Forcing Ministers to Officiate Weddings?

It’s important to push back against the tendency of modern anti-discrimination law to trample the rights of private business and property owners to follow the dictates of their own religious scruples or other personal conscience. It’s also important to get the facts right in each of these controversies as they arise, lest we be stampeded into mistaken assumptions and alarmist misreadings. At Overlawyered, I’ve got some thoughts on the Hitching Post wedding chapel case from Coeur d’Alene, Idaho, which may pose dangers in both of these directions. 

Now More Than Ever, Courts Should Police Administrative Agencies

Under the Bush administration, the Labor Department interpreted a piece of the Fair Labor Standards Act as exempting mortgage-loan officers from eligibility for overtime pay. The Obama Labor Department didn’t see the law the same way, however, and issued a re-interpretation.

This was a worrying development for the Mortgage Bankers Association, which represents banks that relied on the original interpretation and whose interests were greatly affected by the re-interpretation, but were given neither notice nor the chance to comment on the change. The MBA thus sued the Labor Department, arguing that the re-interpretation violated the Administrative Procedure Act, the 1946 law that determined (among other things) the processes that agencies must go through when exercising their “interpretive” and “legislative” powers—that is, when they interpret laws and when they make their own regulations.

Under the APA, agencies have to give affected parties notice and the opportunity for comment when making legislative rules, but do not have to do so when they merely make interpretive rules. The MBA argued that the APA requires an agency to go through the notice-and-comment process when it changes its interpretation of a law or regulation to such a degree that it is effectively making a legislative rule.

The U.S. Court of Appeals for the D.C. Circuit agreed with the MBA, and now the Supreme Court has decided to review the case. The government argues that agencies are due deference when they change the application of a law through interpretive rules—so long as they come in the form of an interpretation—and that the courts don’t get a say regarding when this action becomes a legislative rulemaking.

Cato disagrees with the government’s position—if there’s anything our country needs, it’s not fewer checks on the administrative state—and has filed a brief supporting the MBA, joined by the Competitive Enterprise Institute and the Judicial Education Network, and with former White House Counsel Boyden Gray as co-counsel. In our brief, we examine the APA’s framers’ goal of rebutting the government’s assertion of administrative power. We argue that the boundary between “interpretive” and “legislative” rules is a blurry one that should be policed by the courts. The APA’s architects assumed that the courts would play such a role; they wouldn’t have made interpretive rulemaking so procedurally easy otherwise. Scholarly sources and legislative history agree that judicial review is necessary—for example, determining when “interpretive” flip-flopping necessitates greater due-process protection—to protect those whose livelihood depends on relying on and complying with agency interpretations.

In sum, our brief looks to history to make clear a few important points that only the government would dispute. In a time when more people’s lives are staked on administrative rulings than ever before, we shouldn’t weaken the APA’s due-process protections. This case boils down to the government’s desire for agencies to more easily exercise power and for the subjects of regulations to have a harder time challenging that awesome authority. We, with the APA’s framers, think it should be the other way around.

The Supreme Court will hear oral argument in Perez v. Mortgage Bankers Association on December 1.

This blogpost was coauthored by Cato legal associate Julio Colomba.

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