Topic: Law and Civil Liberties

Nebraska and Oklahoma Sue Colorado

Yesterday, the attorneys general of Nebraska and Oklahoma filed a complaint asking the U.S. Supreme Court to declare Colorado’s Amendment 64, which legalized marijuana for adults, unconstitutional.

The gist of the complaint is that federal law prohibits possession of marijuana and that Colorado law “conflicts with and stands as an obstacle to the full purposes and objectives of” the federal government. Thus, the argument runs, Colorado’s Amendment 64 violates the Supremacy Clause of the Constitution and should be declared invalid. Unlike, say, Maine or Hawaii, Nebraska and Oklahoma border Colorado and claim they suffer substantial and irreparable harm from Colorado’s new policy on marijuana. (Some residents of Nebraska and Oklahoma would rather drive across the border and buy weed legally in a store rather than engage in a criminal black market transaction closer to home. This cross-border activity upsets the authorities in both states, prompting the lawsuit.)

Will the Supreme Court accept this case for review? That’s impossible to predict. However, the constitutional argument being advanced by Nebraska and Oklahoma is weak and so would likely fail. Just because the federal government enacts a law against marijuana, it does not follow that all the states have to enact laws against marijuana. And just because the federal police (FBI and DEA) have grown accustomed to having state and local police conduct marijuana raids and arrests, it does not follow that the local authorities can’t stop doing that. So long as the local police are not arresting or threatening to arrest federal agents for trying to enforce the federal law, there is no “conflict.” Thus, the Supremacy Clause does not come into play.

Here is an excerpt from a Cato paper by Robert Mikos on this subject:

The American Constitution divides governmental power between the federal government and several state governments. In the event of a conflict between federal law and state law, the Supremacy Clause of the Constitution (Article VI, Clause 2) makes it clear that state policies are subordinate to federal policies. There are, however, important limitations to the doctrine of federal supremacy.

First, there must be a valid constitutional basis for the federal policy in question. The powers of the federal government are limited and enumerated, and the president and Congress must always respect the boundary lines that the Constitution created.

Second, even in the areas where federal authorities may enact law, they may not use the states as instruments of federal governance. This anticommandeering limitation upon federal power is often overlooked, but the Supreme Court will enforce that principle in appropriate cases.

Using medical marijuana as a case study, I examine how the anticommandeering principle protects the states’ prerogative to legalize activity that Congress bans. The federal government has banned marijuana outright, and for years federal officials have lobbied against local efforts to legalize medical use of the drug. However, an ever-growing number of states have adopted legalization measures. I explain why these state laws, and most related regulations, have not been—and cannot be—preempted by Congress.

Senate Leaders Demand Treasury, HHS Inform Consumers About Risks Of HealthCare.gov Coverage

The Obama administration is boasting that 2.5 million Americans have selected health insurance plans for 2015 through the Exchanges it operates in 36 states under the Patient Protection and Affordable Care Act, and that they are well on their way to enrolling 9.1 million Americans in Exchange coverage next year. But there’s a problem. The administration is not warning ObamaCare enrollees about significant risks associated with their coverage. By mid-2015, 5 million HealthCare.gov enrollees could see their tax liabilities increase by thousands of dollars. Their premiums could increase by 300 percent or more. Their health plans could be cancelled without any replacement plans available. Today, the U.S. Senate leadership – incoming Majority Leader Mitch McConnell (R-KY), Majority Whip John Cornyn (R-TX), Conference Chairman John Thune (R-SD), Policy Committee Chairman John Barrasso (R-WY), and Conference Vice Chairman Roy Blunt (R-MO) – wrote Treasury Secretary Jacob J. Lew and Health and Human Services Secretary Sylvia M. Burwell to demand the administration inform consumers about those risks.

First, some background.

  • The PPACA directs states to establish health-insurance Exchanges and requires the federal government to establish Exchanges in states that fail to do so.
  • The statute authorizes subsidies (nominally, “tax credits”) to certain taxpayers who purchase Exchange coverage. Those subsidies transfer much of the cost of ObamaCare’s many regulations and  mandates from the premium payer to the taxpayer. For the average recipient, Exchange subsidies cover 76 percent of their premium.
  • But there’s a catch. The law only authorizes those subsidies “through an Exchange established by the State.” The PPACA nowhere authorizes subsidies through federally established Exchanges. This makes the law’s Exchanges operate like its Medicaid expansion: if states cooperate with implementation, their residents get subsidies; if not, their residents get no subsidies.
  • Confounding expectations, 36 states refused or otherwise failed to establish Exchanges. This should have meant that Exchange subsidies would not be available in two-thirds of the country, and that many more Americans would face the full cost of the PPACA’s very expensive coverage.
  • Yet the Obama administration unilaterally decided to offer Exchange subsidies through federal Exchanges despite the lack of any statutory authorization. Because those (illegal) subsidies trigger (illegal) penalties against both individuals and employers under the PPACA’s mandates, the administration soon found itself in court.
  • Two federal courts have found the subsidies the administration is issuing to 5 million enrollees through HealthCare.gov are illegal. The Supreme Court has agreed to resolve the issue. It has granted certiorari in King v. Burwell. Oral arguments will likely occur in February or March, with a ruling due by June.
  • If the Supreme Court agrees with those lower courts that the subsidies the administration is issuing through HealthCare.gov are illegal, the repercussions for enrollees could be significant. Their subsidies would disappear. The PPACA would require them to repay the IRS whatever subsidies they already received in 2015 and 2014, which could top $10,000 for many enrollees near the poverty level. Their insurance payments would quadruple, on average. Households near the poverty level would see even larger increases. Their plans could be cancelled, and they may not be able to find replacement coverage.
  • The Obama administration knows it is exposing HealthCare.gov enrollees to these risks. But it is not telling them.

Do Businesses Have Rights?

The Washington Post reports:

As far as sales manager Brian Ward knows, Rep. Andy Harris has never shopped at Capitol Hill Bikes. But if the Maryland Republican congressman wanted to, he’d find a black and white picture of himself taped on the door with a message in bold type: NOT WELCOME.

To many in the District, Harris is a public enemy — the force behind language added to the massive federal government spending bill intended to block D.C. from legalizing marijuana despite local voters overwhelmingly approving it on the November ballot.

The move so infuriated District residents that someone has started a “Blacklist Andy Harris” tumblr asking local businesses not to serve Harris:

“My fellow Washingtonians, Rep. Andy Harris doesn’t give a d— about District residents or our rights, so let’s blacklist him! We can generate and distribute signs/stickers/posters with his face, words like “Persona non Grata” (or something similar), and ask local businesses to display them.”

I support these District of Columbia businesses’ right to refuse service to Representative Harris. Now I know there are people who would say to these small businesses, “Open a business to serve the public? You have an obligation to serve everyone.” But I say that Capitol Hill Bikes should be free to refuse service to Andy Harris, and Republicans and anti-drug activists should be free to refuse to patronize Capitol Hill Bikes. Every contract is an agreement voluntarily entered into on both sides, and no one should be forced to enter into contracts. Thus I support the right of D.C. businesses to refuse to serve those would-be customers who offend their conscience, just as I support the right (though not the rightness) of bakers, photographers, and innkeepers not to participate in gay weddings.

Suing Gun Businesses Over Sandy Hook

There’s a new legal attack under way against firearms, as the press reports

Ten families touched by the Newtown massacre filed a wrongful death lawsuit Monday against companies that made, distributed and sold the Bushmaster AR-15 rifle that Adam Lanza used to kill 20 children and six staffers at Sandy Hook Elementary two years ago. The suit argues that the gun is a military assault weapon that never should have been on the general market.

Jacob Sullum at Reason has more details, especially on the arbitrary nature of the epithet “assault weapons,” often uncritically repeated in the press. 

In 2005 Congress enacted the Protection of Lawful Commerce in Arms Act (PLCAA) specifically to put an end to product liability suits over guns that had been made and sold in accordance with law. The courts have generally enforced it as written – even the Ninth Circuit’s famously liberal Judge Stephen Reinhardt agreed that it was constitutional – which has mostly, if not entirely, led to the dismissal of such lawsuits. The new Connecticut suit seeks to reopen the question by stretching beyond recognition a narrow exception in the law allowing businesses to be sued over “negligent entrustment.” (The firearm used by the Newtown killer had been lawfully sold long previously to his mother.)

Last year I wrote a piece entitled “Six Myths About the Law That Bans Gun Lawsuits” for the Power Line blog, pointing out that the PLCAA for the most part codified the common law treatment of gun liability as it had stood for centuries, thus advancing both a constitutional liberty and the legitimate freedom of interstate commerce against efforts to obtain a radical change in doctrine. I also noted that PLCAA probably make little ultimate difference in the Sandy Hook case because claims against gun makers and distributors over that massacre would probably not have succeeded anyway. And I rebutted a notion that came to be promoted years later, that the law was somehow not meant to reach privately filed liability suits:

A Washington Post report in January [2013] claimed the law poses “unexpected hurdles” to victims of recent mass shootings, whose lawyers are supposedly “surprised” at its pre-emptive effect. At the time Congress passed the law, the Post concedes, big-city mayors had filed a wave of lawsuits on novel theories demanding (for example) that courts begin treating gun sales as a “public nuisance” . “But over the past eight years, the legal shield has increasingly been used to block a different stripe of legal action.” The Post’s implication that Congress intended to restrict only municipal suits, and not tort suits on behalf of individuals, is false. Lawmakers debated the question and chose to include both. One reason is that anti-gun strategists were actively employing individual as well as municipal suits in their nearly successful effort to bury gun makers under the costs of legal defense. An editorial complaining that the law banned both kinds of suits appeared on June 2, 2005 in (yes) the Washington Post.

Let’s not forget that the relatively shallow pockets of gun-related businesses was part and parcel of the abusive strategy of the politicians and lawyers promoting the suits back then: 

because gunmakers were too thinly capitalized to withstand the costs of years of legal defense, it was thought they’d fold their hands and yield to “gun control through litigation” (explicitly couched as an end run against a then-Republican Congress resistant to gun control proposals). …the suits eventually reached judges and were generally thrown out, but not before imposing huge and uncompensated costs on many small companies that had violated no laws. Some were bankrupted.

We may hope that the courts are alive to the ongoing importance of PLCAA, and willing, as appropriate, to apply the tool of sanctions against legal strategists and campaigners who would seek to circumvent its provisions in the name of ideological grandstanding, profit, or revenge.

Today Is Bill of Rights Day

Today is Bill of Rights Day. So it’s an appropriate time to consider the state of our constitutional safeguards.

Let’s consider each amendment in turn.

The First Amendment says that “Congress shall make no law… abridging the freedom of speech.” Government officials, however, have insisted that they can gag recipients of “national security letters” and censor broadcast ads in the name of campaign finance reform.

The Second Amendment says the people have the right “to keep and bear arms.” Government officials, however, make it difficult to keep a gun in the home and make it a crime for a citizen to carry a gun for self-protection.

The Third Amendment says soldiers may not be quartered in our homes without the consent of the owners. This safeguard is one of the few that is in fine shape – so we can pause here for a laugh.

The Fourth Amendment says the people have the right to be secure against unreasonable searches and seizures. Government officials, however, insist that they can conduct commando-style raids on our homes and treat airline travelers like prison inmates by conducting virtual strip searches.

The Fifth Amendment says that private property shall not be taken “for public use without just compensation.” Government officials, however, insist that they can use eminent domain to take away our property and give it to other private parties who covet it.

The Sixth Amendment says that in criminal prosecutions, the person accused is guaranteed a right to trial by jury. Government officials, however, insist that they can punish people who want to have a trial—“throwing the book” at those who refuse to plead guilty—which explains why 95 percent of the criminal cases never go to trial.

The Seventh Amendment guarantees the right to a jury trial in civil cases where the controversy “shall exceed twenty dollars.” Government officials, however, insist that they can impose draconian fines on people without jury trials.

The Eighth Amendment prohibits cruel and unusual punishments. Government officials, however, insist that a life sentence for a nonviolent drug offense is not cruel.

The Ninth Amendment says that the enumeration in the Constitution of certain rights should not be construed to deny or disparage others “retained by the people.” Government officials, however, insist that they will decide for themselves what rights, if any, will be retained by the people.

The Tenth Amendment says that the powers not delegated to the federal government are reserved to the states, or to the people. Government officials, however, insist that they will decide for themselves what powers they possess, and have extended federal control over health care, crime, education, and other matters the Constitution reserves to the states and the people.

It’s a disturbing snapshot, to be sure, but not one the Framers of the Constitution would have found altogether surprising. They would sometimes refer to written constitutions as mere “parchment barriers,” or what we call “paper tigers.” They nevertheless concluded that having a written constitution was better than having nothing at all.

The key point is this: A free society does not just “happen.” It has to be deliberately created and deliberately maintained. Eternal vigilance is the price of liberty. To remind our fellow citizens of their responsibility in that regard, the Cato Institute has distributed more than five million copies of our pocket Constitution. At this time of year, it’ll make a great stocking stuffer.

Let’s enjoy the holidays but let’s also resolve to be more vigilant about defending our Constitution. To learn more about Cato’s work in defense of the Constitution, go here. To support the work of Cato, go here.

The Hobbylobbification of America

If you ask reasonably informed consumers of news media what the year’s big Supreme Court case was, most would probably say Burwell v. Hobby Lobby, that case where “five white men” (in Harry Reid’s description) decided that corporations can deny women access to birth control. But, as I’ve said elsewhere, what was at stake in Hobby Lobby has nothing to do with the power of big business, the freedom to use any kind of legal contraceptive, or how to balance religious liberty against other constitutional considerations. Much like Citizens United (which struck down restrictions on corporate political speech without touching campaign contribution limits) and Shelby County (which struck down Section 4(b) of the Voting Rights Act because it was based on obsolete voting data that didn’t reflect current realities as constitutionally required), Hobby Lobby is doomed to be misunderstood.

The case was actually a rather straightforward question of statutory interpretation regarding whether the government was justified in this particular case in overriding religious liberties. The Supreme Court evaluated that question and ruled 5-4 that closely held corporations can’t be forced to pay for all of their employees’ contraceptives if doing so would violate their religious beliefs. There was no constitutional decision, no expansion of corporate rights, and no weighing of religion versus the right to use birth control.

That’s it. Nobody has been denied access to contraceptives and there’s now more freedom for all Americans to live their lives how they want, without checking their conscience at the office door. The contraceptive mandate fell because it was a rights-busting government compulsion that lacked sufficient justification.

That the Hobby Lobby dissenters and their media chorus made so much noise over this case is evidence of a larger process whereby the government foments needless social clashes by expanding its control over areas of life we used to think of as being “public” yet not governmental. The government thus uses private voluntary institutions as agents in its social-engineering project. These are places that are beyond the intimacies of the home but still far removed from the state: churches, charities, social clubs, small businesses, and even “public” corporations (which are nevertheless part of the “private” sector).

Where Alexis de Tocqueville celebrated the civil society that proliferated in the young American republic, the Age of Obama has heralded an ever-growing administrative state that aims to standardize “the Life of Julia” from cradle to grave. Through an ever-growing list of mandates, regulations, and assorted other devices, the government is pushing aside the “little platoons” that made this country what it was. We can call this tide of national collectivism overtaking the presumptive primacy of individual liberty and voluntarism the “Hobbylobbification of America.”

For more on all this, read my recently published book – Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution – where my co-author David Gans and I debate all sorts of interesting issues. Perhaps most curious is that I minimize the significance of the ruling or its precedential value, while David says it’s really, really big (and really, really bad). That’s an unusual inversion in Supreme Court commentary; typically the winning side trumpets its victory while the losers try to explain why the decision really doesn’t mean that much. (If you’re curious about any of this, come to our book forum/debate this Tuesday, or watch online.)

Brennan, Torture and the Accountability Vacuum

Yesterday, CIA Director John Brennan delivered his public response to the Senate Select Committee on Intelligence report on the CIA’s detention and interrogation program. Rather than use the opportunity to fully acknowledge and accept the report’s findings and implications, Brennan offered a vigorous defense of the CIA, invoking the emotional trauma suffered by the country to help justify subsequent his agency actions.

Indeed, there were numerous, credible, and very worrisome reports about a second and third wave of major attacks against the United States,” Brennan said. “And while we grieved, honored our dead, tended to our injured, and embarked on the long process of recovery, we feared more blows from an enemy we couldn’t see … and an evil we couldn’t fathom.

“This is the backdrop against which the Agency was directed by President Bush to carry out a program to detain terrorist suspects around the world.

“In many respects, the program was uncharted territory for the CIA, and we were not prepared. We had little experience housing detainees, and precious few of our officers were trained interrogators. But the President authorized the effort six days after 9/11, and it was our job to carry it out.” (emphasis added)

But as the Senate report makes clear (p. 11), President Bush’s covert action Memorandum of Notification (MON, the formal authorization for the rendition and detention program) “made no mention of interrogations or interrogation techniques.” Thus, the initiative for the interrogations—including techniques involving torture under international and U.S. law—originated within the CIA. And as the Senate report lays out repeatedly—using the CIA’s own internal documents—agency personnel, and particularly its attorneys, knew very well that what they were proposing almost certainly violated U.S. and international law.

Pages