Topic: Law and Civil Liberties

What We Can Expect from the Supreme Court in the Next Month

As we head into the last month of the Supreme Court term – the Court releases its final, typically highest profile, opinions the last week of June – it’s time to take a deep breath and survey the lay of the land. Here’s what we can expect in coming weeks as the justices rush to get their final opinions out before heading out on their summer vacation/lecture/exile:

  1. Currently scheduled opinion-release days are June 2 (this coming Monday), 9, 16, 23, and 30. I’d expect the Court to cut June 30 – I’m sure some of the justices already have travel planned for that week – and add 3-4 more opinion days the weeks of June 9, 16, or 23. Each week’s extra days are typically announced on the Monday of the given week.
  2. There are 25 cases outstanding, most notably Bond (treaty power, argued in November), Noel Canning (recess appointments, January), McCullen (abortion-clinic buffer zone, January), Harris (forced unionization of home healthcare aides, January), Hobby Lobby/Conestoga Wood Specialties (Obamacare contraceptive mandate, March), Susan B. Anthony List (criminalizing false political speech, April), and Riley/Wurie (cell phone searches, April).

As for how all these cases will turn out, all I can say is that it’s fortunate that I’m not paid for my predictive abilities because I don’t think anyone could make a living doing that. Unlike many Court-watchers, however, I’m happy to go on a limb with my best guesses at what’ll happen:

“Minnesota ‘Unsession’ Dumps 1,175 Obsolete, Silly Laws”

Wow, more of this please [St. Paul Pioneer Press]:

It’s no longer a crime in Minnesota to carry fruit in an illegally sized container. The state’s telegraph regulations are gone. And it’s now legal to drive a car in neutral — if you can figure out how to do it.

Those were among the 1,175 obsolete, unnecessary and incomprehensible laws that Gov. Mark Dayton and the Legislature repealed this year as part of the governor’s “unsession” initiative. His goal was to make state government work better, faster and smarter….

In addition to getting rid of outdated laws, the project made taxes simpler, cut bureaucratic red tape, speeded up business permits and required state agencies to communicate in plain language.

If lawmakers in Minnesota could identify 1,175 worthless or outdated laws that could be rooted out with little real political resistance, imagine how many other worthless or outdated laws there are that are not so easy to uproot because they work to the benefit of one group or other.

Obama Administration Abuses Executive Power to Pursue Race-Based Government

The administration has apparently decided to combine the alarming developments I chronicled in my last two blogposts, which dealt with racial discrimination in Hawaii and President Obama’s abuse of executive power. In a classic Friday-afternoon news dump – and on the eve of a holiday weekend, no less – the Interior Department issued an advance notice of proposed rule-making (ANPR) to “solicit public comments on whether and how the Department of the Interior should facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community.” (Our friends at the Grassroot Institute of Hawaii broke the news; it helps that their weekend starts six hours after Washington’s!)

This would be an end-run around both Congress and the Constitution, marking the first step toward the creation of a race-based government in Hawaii. That is, with variations of the Akaka Bill stalled in Congress for over a decade – and Daniel Akaka no longer in the Senate, and congressional Democrats on their heels more generally – the administration has decided that this is yet another area where it can’t wait for the legislative branch. Even setting aside the Fourteenth/Fifteenth Amendment and policy problems with any proposed racial governing body, this brazen executive action raises serious separation-of-powers concerns.

As recently as September 2013, four members of the U.S. Civil Rights Commission wrote a letter to President Obama, urging him not to unilaterally push for a Native Hawaiian government. After extensive historic and legal analysis, the letter noted that “conferring tribal status on a racial group is itself a violation of the equal protection guarantees of the Constitution.” Moreover, “as beyond the scope of Congress’s powers as it would be for Congress to attempt to organize Native Hawaiians as a tribe, we believe it would be doubly so for you to attempt to do so by executive action.”

Quite so. I just wish that the next time the executive branch wanted to piggyback off my ideas, it would pick some reform proposals rather than mixing two blatantly illegal policies I’ve criticizing.

For more, see Roger Clegg at NRO and Grassroot’s continuing investigation

Your Homeland Security Dollars At Work: Tracking ‘Occupy’

Two years ago, a thorough, bipartisan Senate report concluded that the federally subsidized information-sharing hubs known as “fusion centers,” long billed as a “centerpiece of our counterterrorism strategy,” were in fact an expensive boondoggle. Despite being funded by the Department of Homeland Security to the tune of hundreds of millions of dollars over a decade, the centers produced no useful counterterror intelligence and often focused instead on local law enforcement matters unrelated to any legitimate national security purpose.

Confirming that judgment, the New York Times has obtained documents showing how numerous regional fusion centers circulated “threat analysis” reports related to the Occupy Wall Street movement. As the Times reports, many centers circulated memoranda “sometimes describing arrests or disruptive tactics, but often listing apparently lawful, even routine activities” including campus lectures on grassroots organizing and classes on “yoga, faith & spirituality.” One example of intelligence sharing: Officials in Boston apprised the Washington, D.C. fusion center that 15 protesters were headed for the nation’s capital via bus, though reassured them that none of the activists were “known to be troublemakers.” Other reports consisted of little more than searches for “Occupy” copied and pasted from Twitter.

To be clear: There’s nothing inherently illegitimate about a local police department keeping tabs on large upcoming public gatherings–including protests–for prosaic reasons of public safety and traffic management (though it is hard to think of a legitimate reason for them to take official notice of specific individuals speaking on political topics). What’s absurd is that the federal government is throwing “homeland security” funds at institutions that, having proven hilariously incapable of making any contribution to counterterror efforts, instead busy themselves trawling Google for information about political rallies.

Setting up local law enforecement officials to play “intelligence analyst” in a toy spy agency is, as these documents show, a recipe for the very creepiest sort of mission creep—with databases of peaceful political activities classed as “potential threats.” But even leaving aside any concerns about First Amendment–chilling effects, there’s simply no reason for the federal government to be footing any of the bill for local police functions. If, as it seems, fusion centers serve no real homeland security purpose, let’s shut them down and assume municipal cops are perfectly capable of carrying out traditional crowd control functions without help from Washington.

Will Congress Allow Hawaii to Expand Racial Discrimination?

I’ve written before about the curious and recurring desire of some Hawaiians to treat other Hawaiians differently based on the quantum of “native Hawaiian” blood they have coursing through their veins. In 2005, the U.S. Commission on Civil Rights issued a scathing report saying that Hawaii was “in a league by itself” regarding racial discrimination by government entities. Yet again and again, advocates for race-based government and tax treatment seek to push their divisive policies into the most racially integrated state of the union.

The latest such development comes to us in the form of a seemingly technocratic Senate bill, S.1352, the “Native American Housing Assistance and Self-Determination Reauthorization Act,” which was introduced last July and has slowly been making its way through the relevant committees. One particular provision of this dry legislation, when cross-referenced to the underlying law that it reauthorizes, is relevant to the racial shenanigans in the Aloha State. As Hans von Spakovsky describes:

S.1352 has a seemingly innocuous provision, Section 503, which simply re-authorizes the Native Hawaiian Home-Ownership Act through 2018.  You have to dig into the existing federal law to find out that, under 25 U.S.C. §4223(d), Hawaii is exempt from the nondiscrimination requirements of Title VI of the Civil Rights Act of 1964 and the Fair Housing Act when it is distributing federal housing funds made available by the Secretary of Housing and Urban Development to “Native Hawaiians” or “a Native Hawaiian family.”

This exemption means the Department of Hawaiian Home Lands can discriminate in favor of “Native Hawaiians” and a “Native Hawaiian family” and against others such as whites, blacks, Hispanics and Asians. In other words, the federal government is authorizing Hawaii (and providing it with taxpayer funds) to engage in blatant discrimination by providing government benefits for some of its residents and denying federally funded benefits to others based solely on their ancestry and “blood quantum.”

The Limitations of State-Level Marijuana Legalizations

Vox has a nice piece on the difficulties faced by Colorado marijuana businesses due to the continued Federal prohibition of marijuana:

Even after legalization, it’s still very difficult — and potentially dangerous — to operate a marijuana business in Colorado.

The big problem: pot shops and producers still can’t work with banks, which see marijuana as too risky of a business due to federal prohibition. This is true in Colorado, where state law says marijuana is legal but federal law says it’s not.

This means marijuana businesses can’t take conventional loans, and they have to operate with only cash. And although several levels of government have tried to address the issue, they’ve had no success so far.

None of this is surprising, but it emphasizes that true legalization requires repeal of the federal ban. State-level legalizations are valuable, partly because they put pressure on the feds, but they are not enough.  Remember that during Prohibition, many states (including New York, New Jersey, and Pennsylvania) never banned alcohol, yet the federal prohibition did substantial harm, including in those states.

Obama Hits “Overload” on Executive Power

Remember that so-called “reset” button that then-Secretary of State Hillary Clinton gave her opposite Russian number back in 2009, to symbolize the Obama administration’s hopelessly naive fresh approach to relations with the Kremlin? You know, the one that actually said “overload” or “power surge,” depending on your preferred translation of peregruzka? Rather than a hilarious snafu, maybe the mistranslation was actually a Freudian slip, indicating the agreement between the presidents of two federal republics about the true scope of executive power. Not that President Obama has invaded a sovereign nation out of historical revanchism or thrown his political enemies in jail (or worse) – though the IRS scandal is the same kind of abuse, on a lesser degree – but the contempt that White House’s current occupant has shown to federalism, the separation of powers, and other aspects of the rule of law is breathtaking and unprecedented in the American context.

It’s thus no surprise that my most popular op-eds during my time at Cato have been the two examinations of Obama’s high rate of unanimous Supreme Court losses – one for the Wall Street Journal in 2012, the other for Bloomberg last year – plus the two “top 10 constitutional violations” pieces I’ve done, one for the Daily Caller in 2011, the other for Forbes last year.

Well, apparently I’ve been lazy. Comes now the junior senator from Texas, Ted Cruz, with a report called “The Obama Administration’s Abuse of Power” that lists no fewer than 76 charges. They’re divided into the following categories:

  • Governing by Executive Fiat (9 items)
  • National Security (5 items)
  • Obamacare (10 items)
  • Economy (6 items)
  • Executive Nominees and Personnel (4 items)
  • Free Speech and Privacy (7 items)
  • Other Lawless Acts (9 items)
  • Other Abuses of Power (26 items)

To be fair, not all of these are unconstitutional actions, or even illegal ones. (For example: “Increased the national debt more in one term than President Bush did in two terms.”) Others are a bit inside-baseball. (“Reneged on a campaign promise to wait five days before signing any non-emergency bill (at least 10 times during first 3 months in office),” citing my colleague Jim Harper writing at this blog.) A few bad ones can’t really be attributed to the president’s actions or policy preferences. (“As of 2011, 311,566 federal employees or retirees owed $3.5 billion in taxes.”)

Still, it’s quite an indictment, one that’s broad in scope, varied in types of abuses, and diligently footnoted.

Not surprisingly, the report raised the hackles of Washington Post columnist Dana Milbank, who found that the report “reveals less about the lawlessness of the accused than about the recklessness of the accuser.” Milbank called the 76-item list a “recitation of policy grievances … interspersed with some whoppers that the senator, a former Texas solicitor general, couldn’t have researched thoroughly.”

The biggest “whopper” – or at least the one worth mentioning first – is that the president “[b]acked the release of the Lockerbie bomber.” While Milbank is correct that the the article Cruz cites says that “the U.S. wanted Megrahi to remain imprisoned in view of the nature of the crime,” the thrust of the piece, titled “White House Backed Release of Lockerbie Bomber Abdel Baset al-Megrahi,” is that the administration worked to secure the bomber’s “compassionate release” back to Libya (see also here).

Milbank’s on surer footing in criticizing the allegation that Obama wrongly “extended federal marriage benefits by recognizing, under federal law, same-sex marriages . . . even if the couple is living in a state that doesn’t recognize same-sex marriage.” The practical effect of the Supreme Court’s ruling in United States v. Windsor – striking down the part of the Defense of Marriage Act regarding federal benefits – was precisely to require the federal government to treat people who were lawfully married the same regardless of sexual orientation. Yes, that presents cases of Schrodinger’s marriage for same-sex couples who, say, move to Texas after having gotten hitched in New York – married for federal but not state purposes – but such is the current lay of the legal land.

And Milbank is right that some of the items are there to score political points rather than as an example of a high crime or misdemenor. (“Canceled all White House tours after sequestration . . . even though President Obama had spent more than $1 million in tax money to golf with Tiger Woods.”) (Though I would argue that this item, like putting up barricades around national monuments during the sequester, is very much an abuse of political power, if not quite rising to the level of all the Obamacare and IRS stuff.)

Nevertheless, Milbank’s complaint – and this is common to all critics of critiques of Obama’s abuses, as I’ve witnessed first-hand in debating the subject around the country – boils down to the conclusion that what’s really at issue is a difference of policy preference.

Well, there is some truth to that: some people believe that the government’s range of policy options is limited by the Constitution’s structural limits on federal power, while others don’t. But you’d be hard-pressed to argue that any attack on Barack Obama’s abuse of executive power or expansion of federal power is mere political sour grapes. (And I should add that Cato calls out presidents of both parties when they stray.) As the Cruz report’s preamble states:

In the more than two centuries of our nation’s history, there is simply no precedent for the White House wantonly ignoring federal law and asking others to do the same.

For all those who are silent now: What would they think of a Republican president who announced that he was going to ignore the law, or unilaterally change the law? Imagine a future president setting aside environmental laws, or tax laws, or labor laws, or tort laws with which he or she disagreed.

That would be wrong—and it is the Obama precedent that is opening the door for future lawlessness. As Montesquieu knew, an imperial presidency threatens the liberty of every citizen. Because when a president can pick and choose which laws to follow and which to ignore, he is no longer a president.

For more on these sorts of issues, please join us for a policy forum May 21 called “Suspending the Law: The Obama Administration’s Approach to Extending Executive Power and Evading Judicial Review.”