Topic: Law and Civil Liberties

Unanimous Supreme Court Slaps Down President Obama on Recess Appointments, Should’ve Gone Further

For the 12th time since January 2012, the Obama Justice Department has lost unanimously at the Supreme Court. This time it was over recess appointments, with all justices agreeing with that the Senate gets to determine when it’s not in session – which triggers the president’s power to appoint federal officials without Senate confirmation. (Indeed, that’s what we argued in the brief we filed). And that’s no surprise: based on oral argument, everyone was expecting the government to lose NLRB v. Noel Canning and lose big. For example, my colleague Nicholas Quinn Rosenkranz predicted a unanimous ruling at a Cato debate in January.

Unfortunately, the conventional wisdom about a narrow ruling was also proven correct. The only “rule” that emerges from Justice Breyer’s controlling opinion is that a three-day recess, the longest the Senate can adjourn without the House’s consent, isn’t long enough to enable recess appointments. That’s a very pragmatic decision and seems to confirm executive practice prior to recent years. It also happens to lack any connection to constitutional text (as Justice Scalia points out for four justices in concurrence), whose best reading indicates that only recesses between Senate sessions – not when, e.g., the Senate takes two weeks off around Christmas – count for purposes of activating the recess-appointment power. Moreover, that power is only textually justified to fill vacancies that arise during the recess itself, not for openings that the president didn’t happen to fill while the Senate was sitting. In other words, Justice Breyer’s unprincipled opinion, while limiting recent presidential practice, cements a much more expansive reading of that power than the Constitution allows. For practical purposes, we’ll see many more “pro forma” Senate sessions and also the empowerment of those who control the House – because, again, the Senate can’t recess without the House’s consent. Speaker Boehner, call your office.

To be sure, this ruling is a strong rebuke to this administration in this case, but the most that can be said for it more broadly is what Justice Scalia did in reading his concurrence from the bench this morning: “The Court’s decision will be cited in diverse contexts, including those presently unimagined, and will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.”

The Case against 8

In the video clip below, Chad Griffin, then Board President of the American Foundation for Equal Rights, discusses the battle for gay rights with Ted Olson, who successfully litigated California’s Prop 8 case.  Griffin suggests, in an apparent attempt at humor, that he might re-think his support for same-sex marriage after hearing that the Cato Institute and I, as Cato’s chairman, are outspoken advocates for marriage equality.

Regrettably, statements such as Griffin’s are too often misunderstood by less diligent members of the media and other casual observers who conflate libertarians and conservatives.  Cato has consistently embraced civil liberties, including but not limited to the right to same-sex marriage.  By contrast, conservatives – with whom we are mistakenly equated – have been selective in their endorsement of personal freedom.  Indeed, some conservatives, who vigorously promote federalism, have also promoted a Federal Marriage Amendment.  That amendment, which defines marriage throughout the country as “the union of a man and a woman,” would prohibit states from recognizing same-sex marriage within their own borders, even if desired by the state’s citizens.  What could be less compatible with fundamental principles of federalism?

More generally, conservatives agree with Cato on some issues – such as the right to bear arms, lower taxes, reduced spending, free trade, and less economic regulation.  Liberals agree with us on other issues – such as immigration reform, drug legalization, marriage equality, and a non-interventionist foreign policy.  Does that indicate libertarians are philosophically inconsistent?  No, it indicates quite the reverse – conservatives and liberals are philosophically inconsistent.  Conservatives want smaller government in the fiscal sphere, but they condone bigger government when it comes to empire building and regulating personal behavior.  Liberals want fewer government restrictions in the social sphere, but they embrace strict limits on economic liberties.  Unlike liberals and conservatives, Cato scholars have a consistent, minimalist view of the proper role of government.  We want government out of our wallets, out of our bedrooms, and out of foreign entanglements unless America’s vital interests are at stake.

Making Sense of Federal Housing Law, Once More With Feeling!

The Fair Housing Act was enacted to prevent discrimination in the buying, selling, and renting of homes on the basis of certain protected categories, including race. While it’s clear that the Act bars discriminatory intent, such as refusing to deal with members of a certain racial group, it remains an open question whether it covers claims of “disparate impact,” where the effects of a neutral policy—say, requiring a credit check—disproportionately harms members of the protected class.

In a new brief, Cato, along with the Pacific Legal Foundation and five other groups seeks to have this question answered in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. This case involves a Texas program that allocates federal tax credits to developers to build low-income housing projects. The Inclusive Communities Project, which places low-income tenants in predominately white suburban neighborhoods, sued the Texas Department of Housing and Community Affairs because it disproportionately gave the credits to properties in minority-populated areas. ICP’s claim relied on the disparate impact theory, which reaches “conduct that has the necessary and foreseeable consequences of perpetuating segregation” and “disproportionately burden[s] a particular racial group.” The district court found for ICP after applying a ruling from another lower court that required defendants to justify their actions with a compelling governmental interest and prove that there were no less discriminatory alternatives.

While the case was on appeal, the U.S. Department of Housing and Urban Development issued regulations establishing a similar standard for Fair Housing Act disparate-impact claims. Under the new HUD regulations, the burden of proof shifts to the defendant if the plaintiff shows that the challenged practice “caused or predictably will cause a discriminatory effect.” The defendant must then prove that the challenged practice is “necessary to achieve one or more substantial, legitimate, nondiscriminatory interests,” but the plaintiff may still prevail upon showing that there was another practice with a less discriminatory effect. The Fifth Circuit panel adopted the HUD standard and remanded the case back to the district court, at which point Texas asked the Supreme Court to step in and answer two questions: (1) Whether disparate-impact claims are cognizable under the Fair Housing Act; and (2) what are the standards and burdens of proof that should apply if such claims are cognizable?

The Supreme Court previously granted cert. in two cases dealing with these issues—Magner v. Gallagher and Mount Holly v. Mount Holly Gardens Citizens in Action—but both settled before a ruling on the merits. While the Court has never explicitly considered the use of disparate impact under the FHA, the circuit courts have developed diverging jurisprudence. The D.C. Circuit has yet to address these issues at all, and HUD’s new regulations further confuse everything. The issue is ripe and the Court should rule in order to settle this split by recognizing that the text of the FHA doesn’t support disparate-impact claims.

The relevant provision makes it unlawful to “refuse to sell or rent … because of race.” Such language connotes a purposeful, causal connection between the refusal to deal and the person’s race. Compare that language to the Age Discrimination in Employment Act, which prevents an employer from taking action against an employee that would “adversely affect his status as an employee, because of such individual’s age.”  The Supreme Court allowed disparate-impact claims to proceed under that provision, contrasting it with another section of the ADEA that forbids “discriminat[ing] against any individual … because of such individual’s age.” Whereas the first section focused on the effect on the employee, the second focuses on the action of the employer. This finding is consistent with Title VI of the Civil Rights Act, which forbids intentional discrimination but not disparate impact. Review by the Court is needed to resolve the conflict between disparate impact and equal protection.

Subjecting defendants to liability for disparate impact forces them into unconstitutional race-conscious decision making, resulting in a de facto quota system. The Supreme Court should take this case and resolve the issue once and for all.

Riley and Wurie: Beyond “Get a Warrant”

As Ilya noted earlier, the Supreme Court struck a blow for privacy and the Fourth Amendment today. It ruled that a warrant is generally required when law enforcement officers want to search a cell phone they have seized. Justice Roberts’ opinion for a unanimous court provides some crisp language:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life.” (citation omitted) The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.

In this case, we pretty well knew we were going to get a win. So let’s set aside the trumpets and talk about the margin of victory. Did we get improvements in Fourth Amendment doctrine that will bolster privacy protection in cases to come? Only a little.

OK, let’s trumpet the case a bit. This is a unanimous case with a bright-line rule. It’s about the best outcome you could hope for in Riley and Wurie themselves (argued separately, decided together), and it’s a great vindication of the constitutional status of cell phones and our data on them.

Chief Justice Roberts seems to have brought the Court together on this one (save a niggling Alito concurrence) to produce a strong opinion that doesn’t show gaps among the justices. (They may all have felt a need to huddle, avoiding an open fight or the tipping of hands on the NSA spying controversy, for example.)

And on the major privacy controversy of the day, the Court did not tip its hand. It distinguished Smith v. Maryland, the case the government uses to justify gathering records about every U.S. phone. Smith held that using a pen register to gather phone calling information was not a search. “There is no dispute here that the officers engaged in a search of Wurie’s cell phone,” Chief Justice Roberts wrote, punting for the Court in this case based on the consensus among parties.

The errant decision in Smith relied on the “reasonable expectation of privacy” test arising from the 1967 case, Katz v. United States. The very good news from this decision is that the Court once again declined to use the Katz test in resolving a Fourth Amendment issue, as our briefs invited the Court to do (or not to do, as it were). Instead, the Court implicitly found that there were searches in both cases and that those searches were of persons, houses, papers, or effects. Then it examined the reasonableness of searching cell phones.

That’s important because it means that the Court is interpreting the Fourth Amendment more like a law and not as the stack of doctrines that I’ve previously called a “jumble of puzzles.”

NIDA Director Has Misguided Views on Marijuana Legalization

Today’s Washington Post contains a Ruth Marcus interview of Nora Volkow, head of the National Institute on Drug Abuse.

Volkow opposes marijuana legalization; she believies it will generate a large increase in use, which will (allegedly) harm users and society.

No one knows how much use might increase under legalization; existing evidence suggests a modest change, but since few countries have fully repealed their drug (or alcohol) prohibitions, we do not have decisive evidence.

The fact Volkow ignores, however, is that if use increases substantially, this means many people perceive a significant benefit from increasing their use or from initiating use; that is a positive of legalization, not a negative!

Marijuana use can, of course, generate unwanted side effects, but Volkow exaggerates these enormously. And other goods, like alcohol, also generate negative spillovers; yet we keep them legal (in part) because they generate substantial benefits.

Volkow further ignores the fact that prohibition generates its own negatives, such as violence, corruption, poor quality control, civil liberties infringements, medical restrictions, enforcement costs, and foregone tax revenue (which forces other tax rates to be higher).

So even if legalization means far greater use, and even if this generates undesirable consequences, the sum of benefits for current and prospective users, combined with elimination of prohibition’s costs, makes legalization the right choice.

Unanimous Supreme Court Correctly Stops Police from Searching Peoples’ Entire Lives Willy-Nilly

In its ruling today in Riley v. California, the Supreme Court unanimously established a clear new rule for police-citizen interaction: The police can’t, without a warrant, search the digital information on cell phones they seize from people they arrest. This is a big deal because it means that being arrested for, say, not paying a speeding ticket, will no longer open you up to having your entire life examined by law enforcement. Unlike the satchels and billfolds of yore, people now carry essentially all their private documents with them at all times: address books, financial and medical records, photo albums, diaries, correspondence, and more. To allow police to review all of that information just because they happen to have arrested someone would violate the Fourth Amendment’s protection of personal papers and effects against unreasonable searches and seizures.

If the police have independent probable cause to access someone’s digital information, they can get a warrant. If they don’t, making an arrest shouldn’t give them license to go on a fishing expedition.

What’s really surprising about this ruling is that it’s both broad and unanimous. Sweeping rulings on high-profile subjects tend to split the Court, whether ideologically or, in criminal procedure cases like this one, between formalists and pragmatists. Unanimous rulings, meanwhile, tend to be cautious, splitting the baby in a way that doesn’t significantly change the law. Yet here we have a loud and unified “bright-line rule” that sets a major standard for the digital age. Kudos to the Court—and raspberries to the federal government, which has now had its expansive arguments rejected unanimously 11 times since January 2012.

Senseless in Seattle: The Minimum-Wage Follies

Meet the Marxist behind Seattle’s wage hike,” read the headline of the lead item at CNN Money late this morning. It seems that one Kshama Sawant, an immigrant from India who earned a Ph.D. in economics from North Carolina State University before taking a teaching position at Seattle Central Community College, is credited by the local press with being the political force behind the city council’s recent vote to raise the minimum wage there to $15 an hour, phased in for large businesses by 2017 and all businesses by 2021.

A self-described Marxist, Ms. Sawant went from Occupy Wall Street to occupying Seattle City Council, the story says, adding that she was “radicalized politically by the gaping inequality she observed upon arriving in the world’s richest country.” Thus, she ran for city council last year “under the banner of Socialist Alternative, an organization that calls for ‘international struggle’ against global capitalism.”

Say this for Ms. Sawant: Whatever she learned about economics in the course of getting her degree, at least she’s not hiding her views. But what can we say about the Seattle City Council, which passed her proposal unanimously? Perhaps there’s something in the coffee out there. Or perhaps they really believe, as Ms. Sawant does, that this measure will “transfer $3 billion from businesses to low-wage workers over the next decade.”

Well it turns out that you don’t need a Ph.D. in economics to understand that economies are not static. That elementary insight from Econ 101 was captured, in fact, in an earlier lead item at CNN Money, “Seattle $15 wage plan is unfair to me.” Quoting several small business owners on what’s in store for them—and their employees—here we find Subway franchise owner Matthew Hollek lamenting that, although he has only eight employees, he’ll have to start paying them 60 percent more by 2017—while the sandwich shop next door will be immune from the law for another four years. The reason? The law counts him as a large employer because he’s part of a national chain. It looks like these “gaping inequalities” are more difficult to close than Ms. Sawant seems to have realized.

Indeed, not only are economies dynamic and is Seattle not an island, but if the benefits of a minimum wage were as good as its advocates believe, then why stop at $15? Why not $20, or $30, or more? You never hear an answer to that because there is none. For a sampling from Cato of a more serious approach to the subject, see here, here, and here.