Topic: Law and Civil Liberties

A Libertarian Argument for Bernie Sanders?

Will Wilkinson notes that there is a libertarian argument for Bernie Sanders. I’m not sure I buy the precise point Wilkinson is making. Sanders says he wants to make the United States more like Finland, Sweden, and Denmark. And those countries do indeed rank higher than the United States in the Cato Institute’s Human Freedom Index, compiled by my colleagues Ian Vásquez and Tanja Porčnik. But Sanders wants to emulate those countries in the ways they are less free than the United States (i.e., expanding government transfers), not in the ways they are more free (taxes and regulation). I think this powerful Sanders ad featuring Eric Garner’s daughter Erica is a much better libertarian argument for Sanders.

Obama’s Abysmal Record Before the Supreme Court

I’ve written exhaustively about this administration’s sheer statistical failure at the Supreme Court. It has the worst record of any modern presidency, whether you count in absolute won-loss – where the solicitor general’s office struggles to get to 50 percent, against a historical norm of 70 percent – or by unanimous losses alone.

While we’re still in the part of the Court’s term before the decisions start flying fast and furiously, I thought I’d present the latest update on where we stand with respect to those unanimous losses, where President Obama doesn’t even get the votes of the two justices he appointed. Here are the stats:

  • In the first 6.5 years of Obama’s presidency (January 2009 to June 2015), the government lost unanimously at the Supreme Court 23 times, an average of 3.62 cases per year.
  • In all 8 years of George W. Bush’s presidency, the government lost unanimously 15 times (1.875 cases per year).
  • In all 8 years of Bill Clinton’s presidency, the government lost 23 times (2.875 cases per year).
  • In other words, Obama has lost unanimously twice as often as Bush and 1.5 times as often as Clinton. Obama also passed Bush’s 8-year total in less than 5 years.
  • The Justice Department’s unanimous loss rate from 2012 to 2014 was especially bad – 13 cases in 30 months – almost three times Bush’s overall rate and almost twice Clinton’s (and that doesn’t count amicus litigating positions with unanimous losses).

For the record, here are the unanimous losses in the last four terms, so we can reminisce about the greatest hits (cases in which Cato filed marked with an asterisk):

  • 2012 (4 cases): United States v. Jones*; Sackett v. EPA*; Hosanna-Tabor v. EEOC; Arizona v. United States
  • 2013 (5 cases): Gabelli v. SEC*; Arkansas Fish & Game Commission v. United States*; PPL Corp v. Commissioner of Internal Revenue*; Horne v. USDA*; Sekhar v. United States
  • 2014 (4 cases): Burrage v. United States; Bond v. United States*; Riley v. California*; Noel Canning v. NLRB*
  • 2015 (3 cases): Mach Mining v. EEOC; Henderson v. United States; McFadden v. United States

These cases have nothing in common, other than the government’s view that federal power is virtually unlimited: Citizens must subsume their liberty to whatever the experts in a given field determine the best or most useful policy to be. If the government can’t get even one justice to agree with it on any of these unrelated cases, it should realize there’s something seriously wrong with its constitutional vision. 

And so, as we look ahead to the opinions due to come down this spring and summer, keep in mind that if the government loses, it won’t be because its lawyers had a bad day in court or because the justices ruled based on their political preferences. It will be because the Obama administration continues to make legal arguments that don’t pass the smell test.

How David Brooks Created Donald Trump

Donald Trump, David Brooks (Credit: AP/John Locher/Nam Y. Huh/Photo montage by Salon)

The ugliness of this year’s presidential race makes The New York Times’ resident erstwhile conservative David Brooks wistful for Barack Obama. The irony is that David Brooks, Barack Obama, and their respective tribes bear much of the responsibility for the rise of Donald Trump.

“I miss Barack Obama,” Brooks laments, because “over the course of this campaign it feels as if there’s been a decline in behavioral standards across the board.” Brooks cites Hillary Clinton’s emails and some other stuff, but everyone knows he’s talking about The Donald. “Many of the traits of character and leadership that Obama possesses, and that maybe we have taken too much for granted, have suddenly gone missing or are in short supply. The first and most important of these is basic integrity. The Obama administration has been remarkably scandal-free.” By the time he’s done, Brooks upgrades Obama’s integrity to “superior.”

We all have difficulty seeing our blind spots. That’s why we call them what we call them. But Brooks’ obliviousness here is awe-inspiring.

Donald Trump has risen to the top of the GOP presidential field by appealing to resentments stoked by both political tribes. Even Brooks is even doing it, right there in his column.

Trump is riding resentments Obama has stoked by ruling as an autocrat. Rather than accept that voters elected a Republican Congress for the purpose of restraining his ambitions, Obama famously boasted he can act without Congress, because “I’ve got a pen and I’ve got a phone.”

He has repeatedly circumvented the democratic process and he knows it, as when he boasts, “I just took an action to change the law.” When challenged, he tries (with some success) to intimidate courts into writing tortured opinions in his favor. Still his executive overreach has been on the losing end of more unanimous Supreme Court rulings than either of his two immediate predecessors. Even allies admit he plays fast and loose with the rule of law.


When a president doesn’t play by the rules, he is telling his political opponents their votes don’t matter. That breeds resentment.

The Fundamental Fallacy of Redistribution

The idea that government could redistribute income willy-nilly with impunity did not originate with Senator Bernie Sanders. On the contrary, it may have begun with two of the most famous 19th Century economists, David Ricardo and John Stuart Mill.   Karl Marx, on the other side, found the idea preposterous, calling it “vulgar socialism.”

Mill wrote, “The laws and conditions of the production of wealth partake of the character of physical truths.  There is nothing optional or arbitrary about them… . It is not so with the Distribution of Wealth.  That is a matter of human institution only.  The things once there, mankind, individually, can do with them as they like.”[1]

Mill’s distinction between production and distribution appears to encourage the view that any sort of government intervention in distribution is utterly harmless – a free lunch.  But redistribution aims to take money from people who earned it and give it to those who did not.  And that, of course, has adverse effects on the incentives of those who receive the government’s benefits and on taxpayers who finance those benefits.

David Ricardo had earlier made the identical mistake. In his 1936 book The Good Society (p. 196), Walter Lippmann criticized Ricardo as being “not concerned with the increase of wealth, for wealth was increasing and the economists did not need to worry about that.” But Ricardo saw income distribution as an interesting issue of political economy and “set out to ascertain ‘the laws which determine the division of the produce of industry among the classes who concur in its formation.’

Lippmann wisely argued that, “separating the production of wealth from the distribution of wealth” was “almost certainly an error. For the amount of wealth which is available for distribution cannot in fact be separated from the proportions in which it is distributed… . Moreover, the proportion in which wealth is distributed must have an effect on the amount produced.” 

The third classical economist to address this issue was Karl Marx.  There were many fatal flaws in Marxism, including the whole notion that a society is divided into two armies – workers and capitalists.[2]  Late in his career, however, Marx wrote a fascinating 1875 letter to his allies in the German Social Democratic movement criticizing a redistributionist scheme he found unworkable.  In this famous “Critique of the Gotha Program,” Marx was highly critical of “vulgar socialism” and considered the whole notion of “fair distribution” to be “obsolete verbal rubbish.”  In response to the Gotha’s program claim that society’s production should be equally distributed to all, Marx asked, “To those who do not work as well? … But one man is superior to another physically or mentally and so supplies more labor in the same time, or can labor for a longer time… . This equal right is an unequal right for unequal labor… It is, therefore, a right to inequality…”  

Bernie Wins and Super PACs Continue to #FeeltheBern

The Seattle Times reports that more super PAC money has been spent in express support of Sen. Bernie Sanders than for either of his Democratic rivals, including Hillary Clinton. For the record, Sanders would happily abolish super PACs by working to overturn one of the two major court rulings that gave rise to the super PAC:

Of course, that’s not quite how it works, but you get the idea. A President Sanders would do his level best to make sure that he becomes the last candidate to receive the benefits of supportive speech facilitated by the super PACs.

The fight for free political speech is a regular topic on the Cato Daily Podcast (subscribe!: iTunes / Google Play / CatoAudio). I recently spoke with Paul Sherman of the Institute for Justice about Bernie’s massive support from super PACs and common misconceptions about how the groups actually function.

 

Supreme Court Stops Obama’s Latest Power Grab

Last night, while everyone was focused on New Hampshire, the Supreme Court issued an order that is likely to end up being more consequential than the primary victories of Donald Trump and Bernie Sanders: By a vote of 5-4, it stayed the implementation of the so-called Clean Power Plan. A group of states led by West Virginia challenged the regulation, and eventually sought a stay from the high court pending resolution of that lawsuit in the lower courts. 

As I described in a recent op-ed:

In June 2014, the Environmental Protection Agency proposed a new rule for regulating power-plant emissions. Despite significant criticism, on August 3, 2015, it announced a final rule. It gives states until 2018 — it “encourages” September 2016 — to develop final plans to reduce carbon dioxide emissions, with mandatory compliance beginning in 2022. EPA cites Section 111 of the Clean Air Act as justification for the Clean Power Plan, but that section can’t give the agency such authority. Section 111(d) doesn’t permit the government to require states to regulate pollutants from existing sources when those pollutants are already being regulated under Section 112, as those deriving from coal-fired plants are.

The Supreme Court’s stay is a welcome development. The regulations constitute an unprecedented assertion of agency authority, so the Court had to step in to prevent irrevocable harm to the energy sector. As we saw last term in Michigan v. EPA, often it’s too late to fix administrative abuses judicially after the fact. Lawlessness must be nipped in the bud.

And this move may have foreshadowed the death knell of the Clean Power Plan altogether; the only question is whether the justices will have a chance to strike it down for good before the next president reverses it.

For more commentary, see Jonathan Adler.

Is New York’s Climate-Speech Probe Constitutional?

New York Attorney General Eric Schneiderman is pursuing an investigation of the Exxon Corporation in part for making donations to think tanks and associations like the American Enterprise Institute and American Legislative Exchange Council, which mostly work on issues unrelated to the environment but have also published some views flayed by opponents as “climate change denial.” Assuming the First Amendment protects a right to engage in scholarship, advocacy, and other forms of supposed denial, it is by no means clear that information about such donations would yield a viable prosecution. Which means, notes Hans Bader of the Competitive Enterprise Institute, that the New York probe raises an issue of constitutional dimensions not just at some point down the road, but right now:

A prolonged investigation in response to someone’s speech can violate the First Amendment even when it never leads to a fine. For example, a federal appeals court ruled in White v. Lee, 227 F.3d 1214 (9th Cir. 2000) that lengthy, speech-chilling civil rights investigations by government officials can violate the First Amendment even when they are eventually dropped without imposing any fine or disciplinary action. It found this principle was so plain and obvious that it denied individual civil rights officials qualified immunity for investigating citizens for speaking out against a housing project for people protected by the Fair Housing Act.

In another case, in which a company had been sued seeking damages over its participation in trade-association-related speech, a federal appeals court found that the pendency of the lawsuit all by itself caused enough of a burden on the firm’s speech rights that the court used its mandamus power to order the trial judge to dismiss the claims, a remarkable step.

Pages