Topic: Law and Civil Liberties

A Great Year for Cato at the Supreme Court

By
Ilya Shapiro

The Supreme Court’s term is over, with 75 cases having been argued and decided. It’s safe to say that the most significant ones were those decided this week, on the politically fraught subjects of affirmative action, the Voting Rights Act and gay marriage. I’m extremely proud that Cato was on the winning side of each of these issues. In fact, we were the only organization to file briefs supporting the challengers on each one (Fisher v. UT-Austin, Shelby County v. Holder, Windsor v. United States & Perry v. Hollingsworth).

That says a lot. Not that the Supreme Court always takes its guidance from us – would that it were so! – but that we’re consistent in embracing the Constitution’s structural and rights-based protections for individual freedom and self-governance. It’s gratifying that the Supreme Court saw it our way in those “big” cases, even if Fisher was an extremely narrow decision and the others were all 5-4.

But that’s not all. After finishing my commentary on Windsor and Perry last night, I was curious to see how we did overall, beyond the high-profile cases. It turns out that we went 15-3 on the year. That is, looking purely at briefs we filed on the merits – you can see our record on briefs supporting cert petitions here – the Supreme Court ruled our way 15 times and against us three (and I can assure you that we don’t pick cases strategically to inflate our winning percentage. (I don’t count Perry in either column, by the way. While we ended up with a favorable result, Prop 8 struck down, the Court decided the case on standing grounds, incorrectly in my view).

Again, I’m not claiming that the Court was heavily influenced by briefs with Cato’s (or my) name on them – there’s just no way to know, and even briefs that are cited may be less influential than others – but many, many of these decisions track our thinking. That’s also gratifying, regardless of how the justices reached their conclusions.  

For the record, here’s the list of cases in which we filed this term (in order of argument):

Winning side (15): Kiobel v. Royal Dutch Petroleum, Arkansas Game & Fish Commission v. United States, Fisher v. UT-Austin, Florida v. Jardines, Bailey v. United States, Comcast v. Behrend, The Standard Fire Insurance Co. v. Knowles, Gabelli v. SEC, Koontz v. St. Johns River Water Management District, PPL Corp. v. IRS, Shelby County v. Holder, Horne v. U.S. Dept. of Agriculture, Windsor v. United States, AID v. AOSI, Sekhar v. United States

Losing side (3): City of Arlington v. FCC, Salinas v. Texas, United States v. Kebodeaux

My colleague Walter Olson has already compared our record to the greatest sports teams of all time, as well as what I consider to be the most dominate year by a baseball player, Sandy Koufax in 1963 (who went 25-5 and was the regular season and World Series MVP). I just wish that The Man With the Golden Arm could have had as long a career as Cato’s amicus brief program.

Topics: 
General, Law and Civil Liberties

Congress Spends Your Tax Dollars on a National ID

By
Jim Harper

It’s appropriations season! – that wonderful time of year when the House and Senate pass competing versions of legislation to fund government agencies, bureaus, and…whatever pork and pet projects they can squeeze in.

Congress has made most of its spending decisions over the past few years through last-minute continuing resolutions or consolidated appropriations bills. That makes it harder to follow the money (which may be part of the reason they’ve been doing it that way), but it’s important to watch the dollars because some of that money is going toward national ID systems and biometrics.

Last week the House passed their FY 2014 Department of Homeland Security appropriations bill. As in years past, the legislation contains funding for three of everyone’s favorite identification programs: REAL ID, E-Verify, and US-VISIT/the Office of Biometric Identity Management (OBIM), a DHS office covering biometrics for travelers at airports, ports, and other points of entry.

For the coming fiscal year, the House appropriated $114 million for E-Verify, $232 million for OBIM, and $1.2 billion for the State Homeland Security Grant Program (SHSGP), from which grants for REAL ID implementation get doled out to states.

These numbers are consistent with past levels of appropriations for these programs, with the exception of REAL ID, which had its own funding stream until it was folded into SHSGP in fiscal 2012.

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Topics: 
Government and Politics, Law and Civil Liberties, Tax and Budget Policy, Telecom, Internet & Information Policy

Liberty’s Big Day at SCOTUS

By
Ilya Shapiro

Today, the Court upheld the equal liberty and dignity of all individuals, regardless of sexual orientation with its ruling in United States v. Windsor. This represents a major victory for gay rights, of course, but more broadly vindicates a robust view of individual liberty as protected by the Constitution. It should be axiomatic that the federal government has to treat all people equally, that it has to accept the several states’ sovereign laws on marriage (and many other subjects), and today there were five votes at the Supreme Court for that proposition.

It is now clear that there was simply no valid reason to uphold DOMA Section 3, no reason to deny the equal protection of more than 1,000 federal laws. As Justice Kennedy wrote for the unified majority, “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.”

This is exactly the result we were hoping for. 

UPDATE:

The Court’s ruling in the Prop 8 case is weird, frustrating, and leaves great uncertainty in both the law and practical effect. It’s also wrong: to say that private parties can’t step in to defend a law when the state government declines to is to allow the executive to erase properly enacted laws and even state constitutional amendments simply by not defending them in court.

For practical purposes, those of us who support marriage equality can be heartened that Prop 8 has been struck down – but there will still be extensive litigation over whether California can only issue marriage licenses to the two couples who were the plaintiffs in Perry, to everyone in the federal district where the lawsuit originated, or in the entire state. The Supreme Court may have thought it was putting off the difficult issues for another day, but it may simply have complicated matters. While clothed in complicated, technical language, and surrounded by the unusual atmospherics of gay marriage, this ruling boils down to the Court’s shying away from the full implications of its other ruling today.

In short, Perry was a frustrating decision but doesn’t detract from the significant constitutional win in Windsor.

Topics: 
Law and Civil Liberties

Service to the American People or to the American State?

By
Doug Bandow

One of the most persistent utopian visions over the last century and more is national service. By “national service” proponents never mean service to Americans. The United States long has been famous for the willingness of its people to organize to help one another and respond to social problems. Alexis de Tocqueville cited this activism as one of the hallmarks of the early American republic.

Rather, advocates of “national service” mean service to the state. To be sure, they believe the American people would benefit. But informal, decentralized, private service doesn’t count.

The latest proponent is columnist Michael Gerson, one-time speechwriter for “compassionate conservative” George W. Bush. Wrote Gerson:

How then does a democracy cultivate civic responsibility and shared identity? Taxation allows us to fund common purposes, but it does not provide common experiences. A rite of passage in which young people — rich and poor, liberal and conservative, of every racial background — work side by side to address public problems would create, at least, a vivid, lifelong memory of shared national purpose.

To Gerson’s credit, he does not advocate a mandatory program, where people would go to jail if they didn’t desire to share the national purpose exalted by their betters. But many people, from Margaret Mead to Senator Ted Kennedy, did want a civilian draft. Indeed, a number of noted liberals who campaigned against military conscription were only too happy to force the young into civilian “service.” 

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Topics: 
Finance, Banking & Monetary Policy, Foreign Policy and National Security, Government and Politics, Law and Civil Liberties

The Court Trims The Indian-Adoption Law. Enough To Make It Constitutional?

By
Walter Olson

Today, in Adoptive Couple v. Baby Girl, the Supreme Court dodged the constitutional flaws of the Indian Child Welfare Act, instead choosing to rely on statutory interpretation to reverse a lower court’s troubling decision. The very first sentence of Justice Alito’s majority opinion hints at one of the underlying constitutional difficulties with ICWA, its assignment of family-law entitlements by race: “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.” Justice Thomas’s important concurrence points to another reason to doubt the statute’s constitutionality—its ouster of state courts from their traditional supremacy in family law, based on sources of federal authority (such as the Indian Commerce Clause) that have never been recognized as supporting such ouster.

Justice Sotomayor’s dissent has some force in arguing that the majority is departing from the most natural reading of ICWA’s text, as well as Congress’s likely intent, and in particular that it may be casting doubt on some rights of biological, noncustodial Indian fathers that Congress may have intended the law to protect. As Justice Thomas rightly argues, however, today’s ruling makes sense in light of the doctrine of constitutional avoidance, in which the Court construes doubtful laws so as to avoid possible unconstitutionality. Eventually, if not in this case, ICWA’s constitutional difficulties will be back before the Court in a form it can’t evade. My April coverage of the case in Reason is here; background at SCOTUSBlog, Overlawyered, and RadioLab.

Topics: 
Law and Civil Liberties

NSA Spying, NSA Lying, and Where the Fourth Amendment Is Going

By
Jim Harper

If you want a good primer on the NSA spying disclosed so far, check out the item by Cato alum Tim Lee on the Washington Post’s WonkBlog. It’s a blessedly brief but informative run-down covering:

- mass collection of phone records;

- the PRISM program, which gathers data about Americans incidentally to its stated aim of foreign surveillance; and

- the NSA’s fiber optic eavesdropping: “[T]he NSA has a broad program (actually, several of them) to sweep up Internet traffic from fiber optic cables.”

Also, be sure to read the letter Senators Wyden (D-OR) and Udall (D-CO) sent to NSA head General Keith Alexander yesterday. In it, they point out inaccurate and misleading statements the NSA made in a recently distributed fact sheet. At a certain point, inaccuracies become willful.

On the question of whether surveillance of every American’s phone calling is constitutional, Lee notes how the government and its defenders will rely on a 1979 case called Smith v. Maryland. In that case, the government caused a telephone company to install a pen register at its central offices to record the numbers dialed from the home of a suspected robber. Applying doctrine that emerged from Katz v. United States (1967), the Court found that a person doesn’t have a “reasonable expectation of privacy” in phone calling information, so no search occurs when the government collects and examines this information.

It takes willfulness of a different kind to rely on Smith as validation the NSA’s collection of highly revealing data about all of us. Smith dealt with one suspect, about whom there was already good evidence of criminality, if not a warrant. The NSA program collects call information about 300+ million innocent Americans under a court order. And the Supreme Court is moving away from Katz doctrine, having avoided relying on it in recent major Fourth Amendment cases such as Jardines (2013), Jones (2012), and Kyllo in 2001.

Nobody knows where exactly the Court is headed with the Fourth Amendment in the challenging area of communications, but I’ve argued for reaching back to the wisdom of Justice Butler, dissenting in Olmstead (1929):

Telephones are used generally for transmission of messages concerning official, social, business and personal affairs, including communications that are private and privileged – those between physician and patient, lawyer and client, parent and child, husband and wife. The contracts between telephone companies and users contemplate the private use of the facilities employed in the service. The communications belong to the parties between whom they pass.

Topics: 
Law and Civil Liberties, Telecom, Internet & Information Policy

Local Government Mugged by the Constitution

By
Roger Pilon

Is the government like a mugger: “Your money or your life”? The Florida Supreme Court said yes. So did the U.S. Supreme Court’s four liberals. But Justice Samuel Alito, joined by his conservative brethren, begged to differ today as the High Court reversed the court below in Koontz v. St. Johns River Water Management District, a ringing victory for property rights.

In 1994 (note when this case began), Coy Koontz Sr. sought a permit from the District to develop his 15-acre tract. He offered to mitigate several environmental effects and to foreclose any future development on 11 acres. But that wasn’t enough for the District. Among other things, they demanded that he (1) reduce the size of his development to one acre and deed to the District a conservation easement on the remainder of his property, or (2) hire contractors to make improvements on District-owned wetlands several miles away.

No dice, he said. So he did what every red-blooded American would do – he sued. And today the Supreme Court said he was right to do so – as Cato and the Institute for Justice did in our amicus brief supporting Mr. Koontz. Under the Court’s Nollan and Dolan, precedents, governments cannot condition the approval of a land-use permit on an owner’s relinquishing a portion of his property unless there’s a nexus and rough proportionality between the government’s demand and the effects of the proposed land use. And there was no such nexus here.

As important a win as this is for the Fifth Amendment’s Takings Clause, it is equally important for adding heft to the Court’s often uncertain “unconstitutional conditions” doctrine, which at its core stands for a simple proposition: the government cannot put you to a choice between two of your entitlements. As Justice Scalia put it in the Nollan case, this was “not a valid regulation of land use, but ‘an out-and-out plan of extortion.’” The government cannot act like a mugger.

Topics: 
Government and Politics, Law and Civil Liberties

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