Topic: Law and Civil Liberties

Defending Religious Liberty Against Obamacare

Obamacare violates civil rights in so many ways. The latest example has arrived at the Supreme Court by way of the “contraceptives-mandate” cases, which will be argued March 25. Cato is proud to have filed a brief in Sebelius v. Hobby Lobby arguing that the government can’t force people to pick and choose among their constitutionally protected individual liberties. 
 
In 1970, David Green founded a picture-frame company in his Oklahoma City garage. Since then, Hobby Lobby has grown into a leader in the arts-and-crafts retail industry, with 588 stores and around 13,000 employees across the United States. 
 
Ever since the company’s founding, the Green family—David, his wife Barbara, and their three children—has managed the company in accordance with their Christian principles. For example, Hobby Lobby is closed on Sunday and often purchases newspaper advertisements suggesting that readers seek Jesus. 
 
Following in his father’s footsteps, Mart Green also founded a business, a chain of Christian bookstores called Mardel, of which he remains CEO. In the Green family tradition, Mardel is also managed in accordance with religious principles. 
 
Thanks to the Affordable Care Act, however, the Greens are being forced to choose between operating their businesses in direct contravention of their deeply held religious principles or running them into the ground. Among Obamacare’s thousands of pages is a requirement that corporations with more than 50 employees provide coverage in their group health plans for certain medical services or else face severe additional “taxes.” 

SCOTUS: Unions Can Waive Don/Doff Pay

Earlier this month I noted that despite sporadic attacks on the present Supreme Court as supposedly gripped by a result-oriented and pro-business majority, “much of its work [in business law] consists simply of trying to keep the law on a logically coherent and predictable course,” often by unanimous vote. Today we can add another example: a unanimous Court (with Justice Sotomayor withholding consent from one footnote) ruled that U.S. Steel does not owe workers back pay for time spent donning and doffing protective gear in a context where the union representing the workers had specifically bargained away any right for them to be paid for that time. 

If it seems bizarre for employees to claim a right to pay that their union has elected to waive during contract negotiations, read on. Like some others before it, this case illustrates a tension I described in my book The Excuse Factory between the old and mostly stagnant field of labor law – in which unions and their strike threat had been envisaged as the driving and potent force, and progress is measured by contracts for future higher pay – and the newer, perennially self-energizing employment law, in which private attorneys and their lawsuits act as the driving force, with the goal being big backward-looking settlements and the associated attorneys’ fees. So the first point about Sandifer v. U.S. Steel Corp. is that the steelworkers’ union was not the plaintiff, and that we shouldn’t assume unions necessarily wish suits of this kind to succeed.

Private employment-law attorneys do well enough from discrimination and harassment law, but their fastest-growing field of activity in recent years has been wage-and-hour law. Together with several associated statutes, the New Deal-era Fair Labor Standards Act (FLSA) creates many openings to sue in class or collective actions over large retroactive pots of pay for allegedly mischaracterized work – salary vs. hourly-wage, tipped vs. off-tip, employee vs. independent-contractor, and many others. That a particular company policy was well explained to workers at the time, and met with no objection, is no defense, since contracting around the rules is mostly not allowed. For example, an up-and-coming theme in wage-hour lawsuits is that employees should be able to claim retroactive on-the-clock pay for time spent away from the workplace using (or simply being available for) company cellphones, pagers, or email – a form of liability to which many employers have begun reacting by forbidding use of company cellphones or email outside work hours. 

While many of the dictates of wage-hour law are appallingly obscure – a quarter century ago Judge Frank Easterbrook eloquently decried the high cost of its tendency to leave the fact of liability uncertain until long after employers have acted – Congress had actually come very near addressing the question at issue in 1949 when it enacted a relatively narrow legislative fix declaring that it would be up to unions to decide whether to seek or waive pay for time spent “changing clothes.”  

This still left a crack of ambiguity wide enough to try to slip a suit through (the legal, if not the apparel, kind). Lawyers for Sandifer argued that the task of donning metal-tipped boots, flame-retardant jackets and leggings, and other steel-mill gear did not qualify as “changing clothing” because, among other reasons, many of the protective garments were donned on top of (rather than substituting for) street clothes. That meant, they argued, that the union had no power to bargain away the entitlement to the time, and Sandifer and others could seek back pay. The Court unanimously disagreed. It conceded that some types of technical gear, such as safety goggles and wearable electronics, will not qualify as “clothing,” but the overall activity of donning steel-mill protection still more closely resembles “changing clothes” than anything else. 

So there’s a bit of clarity for the law, at long last. Now if only Congress felt any responsibility to clarify – or better yet, move to repeal – the hundred other ambiguous demands of wage-hour law. 

The Drug War vs. the Constitution: 1928 Edition

Prof. Gerard Magliocca of Indiana University has been doing historical work on the Supreme Court’s “Four Horsemen”—the Justices who dug in to resist FDR’s constitutional revolution in the 1930s—and is coming up with many noteworthy tidbits. Among them is a dissenting opinion by arch-conservative James McReynolds in a 1928 case called Casey v. U.S. At issue was a man’s conviction under a federal statute providing that if an individual was found to possess morphine derivatives without official stamps, it would be prima facie evidence of having obtained them from unlawful sources. Five Justices, led by Holmes, upheld Casey’s conviction, while four (McReynolds, Brandeis, Butler, and Sanford) dissented on various grounds. Here’s McReynolds:

The suggested rational connection between the fact proved and the ultimate fact presumed is imaginary.

Once the thumbscrew and the following confession made conviction easy; but that method was crude and, I suppose, now would be declared unlawful upon some ground. Hereafter, the presumption is to lighten the burden of the prosecutor. The victim will be spared the trouble of confessing and will go to his cell without mutilation or disquieting outcry.

Probably most of those accelerated to prison under the present act will be unfortunate addicts and their abettors; but even they live under the Constitution. And where will the next step take us?

When the Harrison Anti-Narcotic Law became effective, probably some drug containing opium could have been found in a million or more households within the Union. Paregoric, laudanum, Dover’s Powders, were common remedies. Did every man and woman who possessed one of these instantly become a presumptive criminal and liable to imprisonment unless he could explain to the satisfaction of a jury when and where he got the stuff? Certainly, I cannot assent to any such notion, and it seems worthwhile to say so.

Ironic, or maybe not so, that cane-waving mossbacks like McReynolds often showed a stronger commitment to principles of civil liberty than much-hailed progressives like Holmes. 

The Voting Rights Amendment Act Is a Bad Idea

One of the responses to the Supreme Court’s eminently sensible ruling last year that deactivated part of the Voting Rights Act was to call for a new, updated law to subject particularly bad actors to enhanced federal oversight. We now see the product of that motivation, introduced by the motley bipartisan crew of Reps. Jim Sensenbrenner (R-WI) and Jim Clyburn (D-SC) and Sen. Pat Leahy (D-VT). As I write in my new Forbes.com column:

Last week, a group of lawmakers introduced the Voting Rights Amendment Act of 2014. The timing was no coincidence: The bill was announced on Martin Luther King’s birthday, right before the holiday designated to commemorate the civil rights giant (for which Congress took the week off). This is the long-expected legislation responding to the Supreme Court’s decision in Shelby County v. Holder last June that disabled one part of the Voting Rights Act. But it’s both unnecessary to protect the right to vote and goes far beyond the provision it replaces to rework the machinery of American democracy on racial lines.

Based on the reaction of certain elected officials to Shelby County you could be forgiven for thinking that a congressional fix is badly needed to prevent racial minorities from being disenfranchised. But all the Supreme Court did was strike down the “coverage formula” used to apply Section 5 of the Voting Rights Act, which required certain jurisdictions to “preclear” with the federal government any changes in election regulations—even those as small as moving a polling station from a schoolhouse to a firehouse. The Court found the formula to be unconstitutional because it was based on 40-year-old data, such that the states and localities subject to preclearance no longer corresponded to the incidence of racial discrimination in voting. Indeed, black voter registration and turnout is consistently higher in the formerly covered jurisdictions than in the rest of the country.

Nevertheless, the proposed legislation draws a new coverage formula, resurrecting Section 5’s requirements for states with five violations of federal voting law over a rolling 15-year period. (That formula would currently apply to four states: Georgia, Louisiana, Mississippi, and Texas.) It also sweeps in sub-state jurisdictions that have had one violation and “persistent, extremely low minority turnout”—which can mean simply an average racial-minority turnout rate lower than that nationwide for either minorities or non-minorities.

All that sounds reasonable—Congress is finally updating its coverage formula—until you realize that this reimposition of Section 5 comes without any proof that other laws are inadequate to address existing problems (which is what the Constitution demands to justify the suspension of the normal federalism in this area). After all, Section 5 was an emergency provision enacted in 1965 to provide temporary federal receivership of morally bankrupt state elections, not to enable a constitutional revolution based on arbitrary statistical triggers.

Read the whole thing, and download this longer piece on why the Shelby County ruling actually vindicates Martin Luther King’s dream.

Constitutional Legerdemain – Recess Appointments Branch

Constitutional restoration this far down the road will almost certainly come in small steps, one decision at a time, as in a case the Supreme Court heard last week, National Labor Relations Board v. Noel Canning. By most accounts, the justices were skeptical of the government’s claim that the president could make recess appointments when the Senate was arguably not in recess. That’s got friends of the modern executive state worried. Witness an op-ed in yesterday’s New York Times by AEI’s Norman Ornstein, than whom modern expansive government has few greater friends. Ordinarily a strong congressionalist, Ornstein here, in “Disarming the White House,” is alarmed that the case “represents the biggest threat to presidential power in decades.”

Given that President Obama, nearly every day, is making good on Nancy Pelosi’s counsel that we needed to pass Obamacare to find out what’s in it, we’ll be forgiven for thinking that the power of the president to make law as he goes along could use some threatening. But here it’s not some imagined presidential lawmaking power that’s at issue. It’s a real power, grounded in the Constitution, “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

The problem as Ornstein sees it is that the D.C. Circuit Court below, and the justices last week, actually read that constitutional language for what it says. Rather than focus on the narrow question of “whether a president or the Senate gets to decide when the legislative body is in recess,” about which the Constitution is also clear, the judges below “ruled that virtually all recess appointments violated the direct language of the Constitution: Only those vacancies occurring during the recess between the two sessions of Congress, and only those filled during that recess, would be allowed.”

Wall Street Journal on Jury Nullification

Today, the Wall Street Journal has an article about recent developments to revive the doctrine of jury nullification.

Here’s an excerpt:

Juries in criminal cases in the U.S. have long had the power to acquit using the nullification principle. But New Hampshire is the only state in recent years to take steps to ensure juries in the state are aware of the concept.

The New Hampshire bill is a follow-up to one the state legislature passed in 2012 that explicitly says lawyers are allowed to tell jurors about nullification. That law has led to more defense lawyers urging juries to disregard the law if they find it unfair or overly harsh, say several New Hampshire lawyers.

The action that New Hampshire has taken on nullification has raised hopes of a revival of the idea among some constitutional scholars, defense lawyers and legislators in other states who view it as a way to boost civic engagement and cut down on what they see as overly aggressive prosecutions.

“What New Hampshire is doing represents the most significant development with jury nullification in a long, long time,” said Tim Lynch, the director of the libertarian Cato Institute’s criminal-justice project. “We’re hopeful that this marks the start of a resurgence.”

Not everyone shares his enthusiasm. Nullification is an “extremely dangerous notion,” said Scott Burns, executive director of the National District Attorneys Association.

I understand ‘disagree with’ and ‘have reservations about,’ but ‘extremely dangerous’? Please. 

Remember all the discretion that resides with the government. The police officer who can opt to tell the drunk: “quiet down and go home to sleep,” instead of taking him in for disorderly conduct. The prosecutor who can opt to dismiss charges–even if another, less busy prosecutor might file those charges. Jury nullification is about allowing the jury some discretion.

Cato has the most comprehensive book on the subject. Related items here and here.

Can Litigation Save American Education?

Next week, the case of Vergara v. California goes to trial. The question being litigated is whether or not the state’s laws on teacher tenure (“permanent employment”), dismissals, and last-in-first-out layoffs disproportionately harm poor minority kids, thereby violating California’s constitution.

Plaintiffs in the case feel they have the evidence to prove this point (see the links above), and so far the courts have acknowledged that their view is at least plausible. Certainly these laws are incompatible with efforts to maximize the quality of the teaching workforce. And it does seem as though they do the most damage in districts and schools serving the most disadvantaged kids. But will a victory by the plaintiffs in this lawsuit do substantial and lasting good?

That’s less obvious. For one thing, these employment practices can be found in many places where they are not codified in state statutes.They are employment guarantees and benefits of the sort that are often sought and obtained by teachers’ unions in collective bargaining with districts. So getting rid of the laws won’t necessarily get rid of the practices.

More broadly, over a dozen states have explicit constitutional provisions demanding that they create “uniform” education systems—a more stringent equality requirement than is contained in California’s constitution—and it’s not at all obvious that this seemingly strict legal guarantee has made any difference in the quality of educational opportunity in those states.

It’s easy to empathize with the desire to see state legal precedents enforced, and bad laws overturned. But neither state constitutions nor legal precedents have been able to secure either the uniformity or the quality of American education systems, and there is no reason to expect that to change no matter how the Vergara case is decided. More than half a century after the victory in Brown v. Board of Education, poor African-American kids are  still disproportionately likely to be assigned to lousy schools. I wrote about this 11 years ago, and little has changed since then. Lawsuits can redress specific legal wrongs, like compelled segregation, but they can’t produce educational outcomes that require the coordination and relentless dedication of thousands or even millions of people, year after year.

For those who really want to maximize the quality of education offered to disadvantaged and minority students—indeed to all students—the best hope is to study the different sorts of education systems that have been tried around the world and across history, and then ensure universal access to the best among them: a free educational marketplace.