Topic: Law and Civil Liberties

Should Boehner Sue Obama?

Well into our sixth year with this president, we’re long past the point of having to demonstrate his indifference to the rule of law—the unconstitutional appointments, the Obamacare rewrites, the IRS and VA scandals, the list goes on.  In fact, it’s Obama’s indifference simply to doing his job that lately has drawn attention. “The bear is loose”—on the golf course, in the pool hall, dining late with athletes and entertainers. It’s driven House Republicans to talk of impeachment and of a House suit against him for his failure to faithfully execute the laws.

Both would be a mistake, Thomas Sowell tells us this morning, and he’s right. As November’s mid-term elections loom just ahead, either course would shift public attention from Obama to his critics, just as happened when the House impeached President Clinton. Not that there isn’t a case to be made for both impeachment and a suit. But impeachment, at the end of the day, is less a legal than a political matter, as we saw in the Clinton episode. So too is the suit that Speaker Boehner is now considering. Both proposals, therefore, have to be looked at through that lens.

To a good many in the House, however, a suit against the president seems like the lesser but wiser course. And contrary to first impressions, including my own, such a move is not as far-fetched as it might seem. In fact, if one takes the time to wade through the dense testimony that our good friend Elizabeth Price Foley presented to the House Judiciary Committee last February, it soon becomes clear that the standing objection that arises immediately with such a suit could likely be overcome in this case.

But even if a suit could get off the ground, would one be wise? True, unlike with impeachment, where the House is the “grand jury” and the Senate the “court,” in this case it wouldn’t be the other political branch attacking the president. Rather, attention would be directed to the third, non-political branch of government, where the action would be happening, and that would soften the attack to some extent, making it seem less a political than a legal charge. But those are subtleties. In the hands of the media, they’d likely pass over most heads as we move toward November.

And what turns on November? Nothing less than the courts themselves, as Sowell points out. To elaborate just a bit on the point, after November, Obama will have two more years in office. He got off to a slow start exercising the most long-lasting of a president’s powers, the power to nominate judges for lifetime appointments on our federal courts. But he’s catching up. We saw just last month how his two Supreme Court appointments have read the Constitution on some of the most important cases of the Court’s just-concluded term.

Well it’s no different below, especially in the courts of appeal, except that it’s less noticed. We tend to focus on the Supreme Court, which blinds us too often to the fact that the Court decides only 70 or so cases a year while the 13 federal appellate courts terminate some 60,000 cases—and they don’t always follow the guidance of the Supreme Court in doing so. It’s crucial, therefore, given the inclination of this president to see his view of the Constitution reflected in the people he nominates for seats on those courts, to have a Senate over the next two years that will carry out its advice and consent responsibilities more responsibly than has been done under the leadership of Harry Reid. Anything that distracts from that focus should be avoided.   

Bloomberg: “I Don’t Think There’s Roads” Where Voters Backed Gun Rights

Michael Bloomberg has now fully completed his transition from un-libertarian but arguably competent New York City mayor to abrasive, polarizing figure-of-fun on the national scene. Having dumped a sizable chunk of his billion-dollar fortune into gun control and nanny-state campaigns around the country, Bloomberg now grants an interview in the upcoming Rolling Stone, where he takes credit for Colorado’s passage of a law restricting firearms liberty and along the way casually insults substantial portions of that state’s population:

In Colorado, we got a law passed. The NRA went after two or three state Senators in a part of Colorado where I don’t think there’s roads. It’s as far rural as you can get. And, yes, they lost recall elections. I’m sorry for that. We tried to help ‘em.

“Where I don’t think there’s roads.” The Colorado media has been having a lot of fun with that one. The two successful recalls were in Colorado Springs (pop. 430,000) and Pueblo (pop. 100,000). It took me about two minutes online to establish that Colorado Springs, best known as home to the Air Force Academy, in fact has a share of residents with graduate degrees that’s 40% above the national average, a figure I believe compares favorably to that of the combined five boroughs of NYC. It has roads, too, as does Pueblo.

Lesson of Mayor Bloomberg’s interview: when people show contempt for your liberty, it can be a sign that they have contempt for you, too.

How Destroying Fish Is Not Like Destroying Financial Records

Overcriminalization is a significant problem in the United States, particularly federal overcriminalization. There are a variety of reasons for this, but one is that federal prosecutors consistently stretch laws to encompass conduct that the law was never meant to cover. Normal people who committed minor infractions will often find themselves facing long prison sentences that are entirely disproportionate to the wrongness of the act. Such is the case in an upcoming Supreme Court case, Yates v. United States.  

While commercial fishing in the Gulf of Mexico, John Yates had his catch inspected by the Florida Fish and Wildlife Commission for whether it complied with size restrictions. Finding some undersized fish, officials cited him for a civil violation and he was ordered to bring the undersized fish back to the docks. Instead, he threw them overboard. While he probably knew he would face a fine, what he could not have foreseen was his subsequent criminal prosecution under the Sarbanes-Oxley Act three-years later.

Sarbanes-Oxley was enacted in the wake of the Enron financial scandal and cover-up. It includes a document shredding provision, Section 1519, that punishes those who knowingly destroy or conceal “any record, document, or tangible object” in order to impede an investigation. To Mr. Yates’s surprise, he was convicted of violating Section 1519 and sentenced to 30 days in prison and three years of supervised release. On appeal, the Eleventh Circuit upheld his conviction by narrowly focusing on the dictionary definition of “tangible object.”

Now, on appeal to the Supreme Court, Mr. Yates asks the Court to overturn his conviction on the ground that he did not have fair notice that the destruction of fish would fall under Section 1519. We agree. In an amicus brief supporting Mr. Yates, Cato argues that well-established canons of statutory construction—that is, the rules that guide judges in interpreting statutes—do not allow Section 1519 to be reasonably interpreted to apply to fish. Those canons teach us that a word in a statute, such as “tangible,” should be given more precise content based on its surrounding words, and that it should only be applied objects similar to the precise words preceding it. In short, the other words in the statute, such as “record” and “document,” modify the term “tangible object” to include things like hard drives and diskettes, not fish.

Moreover, an all-encompassing reading of “tangible object” would render the words “record” and “document” unnecessary. Additionally, the broader context of the Sarbanes-Oxley Act illuminates the meaning of “tangible object.” The Act focuses on financial fraud in the context of companies, not destroying fish. Thus, the words “tangible object” should be read differently in Sarbanes-Oxley than they would be in, say, the Federal Rules of Criminal Procedure. If the term “tangible object” is read as broadly as the Eleventh Circuit’s interpretation, it could potentially criminalize an unfathomable range of activities. As such, it would not provide adequate notice to those who may violate the law. Individuals have a right to fair notice of what conduct is proscribed by the law so they may plan their actions accordingly. Legislatures, not courts, should define criminal activity.

Read Cato’s brief here

Police Misconduct — The Worst Case in June

Over at Cato’s Police Misconduct web site, we have identified the worst case for the month of June.  Police officer Ronald Harris tried to rob a woman at the Memphis International Airport.  This was an extraordinary theft.  Harris was trying to steal a bag from an employee of St. Jude Children’s Hospital who was, in turn, delivering the bag to a family. The bag was a gift from the Make-A-Wish Foundation—the organization that grants wishes to terminally ill children.  The bag held several St. Jude t-shirts and a $1500 credit card for the family to use for travel.  Harris followed the St. Jude employee into the airport and then struck a member of the family who tried to stop him from stealing their wish away.  Harris has been suspended pending an investigation and faces a long list of charges. Police misconduct is never good, but plotting to steal the wish from a terminally ill child and their family is just really low.

Full story here.

New York Caps Uber “Surge” Pricing

Yesterday the New York attorney general reached a deal with the company Uber to cap its “surge” pricing during emergencies. The company, which uses an app to summon cars via a user’s smartphone, uses an algorithm that increases prices during periods of high demand, including emergencies and bad weather, to encourage more of its drivers to work. The agreement was reached in accordance with the City of New York’s law against price gouging, passed in 1979.  

Was the agreement a good idea?  In the cover story of the Spring 2011 issue of Regulation, Texas Tech researcher Michael Giberson examines the role of high prices and the resistance to them during emergencies.

Many people object to high prices during emergencies. The use of high prices by Uber after Hurricane Sandy prompted a Time writer to describe Uber’s pricing as “economically sound, ethically dubious.”  Michael Sandel, professor of government at Harvard, is quoted in the Regulation article saying “A society in which people exploit their neighbors for financial gain in times of crisis is not a good society… . By punishing greedy behavior rather than rewarding it, society affirms the civic virtue of shared sacrifice for the common good.”

In response, Giberson argues “If it is admitted that giving merchants the freedom to pick their own prices does a better job than alternative ways of getting goods and services to where they are needed, then interference with that pricing freedom … harms precisely those persons who have been already harmed by the disaster, a result that suggests neither shared sacrifice nor promotion of a common good.”  In addition, he argues it is unfair to “place a particularized obligation to sacrifice on a discrete segment of society, namely merchants. Addressing the particular hardships faced by the poor during emergencies is a task better left to government agencies or charities.” 

Price gouging laws are an attempt to deny the economic realities of emergency situations. Price gouging laws reduce the incentives to provide needed goods and services in areas affected by emergencies and disasters. The cap on Uber’s surge pricing may make its customers happy now, but they may not be so happy when they wait hours for an Uber during the next blizzard, thunder storm, or other disaster. The writer concluded that “Price gouging might, at least in theory, help shrink lines and reduce shortages. But I think most people would rather wait in line than have someone make a windfall profit off their desperation.”  With this agreement we will conduct the experiment to test his theory.

For more on Uber, see the recent blog posts by Cato’s Matthew Feeney and this article from the Summer 2013 issue of Regulation. 

Tax Notes Praises Law-Review Article that Got Halbig Cases Rolling

A panel of the U.S. Court of Appeals for the D.C. Circuit, which is often referred to as the second-highest court in the land, is expected to rule any day now on Halbig v. Burwell, a legal challenge that “may actually crush,” “kill,” and “wreck” the Patient Protection and Affordable Care Act, a.k.a. Obamacare.

The tax-law journal Tax Notes has chosen the law-journal article that got Halbig and similar cases rolling – Jonathan H. Adler and Michael F. Cannon, Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA, Health Matrix: Journal of Law-Medicine 23, No. 1 (2013): 119-195 – as one of “the 10 law most noteworthy law review articles on employee benefits and executive compensation issues published in 2013 that a broad audience of employee benefits professionals would find relevant and worthy of attention.” Tax Notes calls the Adler-Cannon article “innovative and thought provoking” and one that “practitioners should have read” in 2013.

To read the Adler-Cannon Health Matrix article, click here. For more on the Halbig cases, click here.

The End of Forced Union Dues?

Defenders of the status quo in education have long used lawsuits to protect themselves from competition and force state legislatures to increase funding. Lately, rather than merely play legal defense, some education reformers have turned to the courts to push reform. In some cases, the long-term prospects of positive reform through litigation are slim, even when the court’s ruling is favorable.

However, one lawsuit currently making its way through the court system has the potential to remove a major obstacle to reform: compulsory union dues. In 19 states, would-be government school teachers are forced either to join the teachers union or to remain a non-member but pays dues anyway—sometimes more than $1,000 per year.

The unions contend that these compulsory dues are necessary to overcome the free rider problem (non-union members may benefit from the collectively-bargained wages and benefits without contributing to the union), but plaintiffs in Friedrichs v. California Teachers Association point out that numerous organizations engage in activities (e.g. – lobbying) that benefit members and non-members alike without giving such organizations the right to coerce non-members to pay. That’s especially true when the individuals who supposedly benefit actually disagree with the position of the organization. Indeed, the plaintiffs argue that the compulsory dues violate their First Amendment rights because collective bargaining is inherently political:

Current federal law allows union workers to opt out of the political portion of union dues — for California teachers that usually amounts to between 30 and 40 percent of the total dues automatically taken from their salaries each year — but in closed-shop states such as California, workers cannot opt out of the rest of the dues, predominantly designated for collective bargaining. However, the plaintiffs argue that collective bargaining is inherently political, involving such debated issues as school vouchers and teacher tenure.

“Since my first years of teaching, I’ve been bothered by the fact that a large portion of my mandatory dues goes to pay for political endeavors of a union whose political positions have nothing to do with my job and have nothing to do with improving education for me, for my students, or for their parents,” Friedrichs tells me. “In fact, often these policies have negative effects.” 

The legal justification for compulsory union dues rests primarily on a 1977 U.S. Supreme Court decision, Abood v. Detroit Board of Education. But as Andy Smarick noted last week, the recent majority opinion in Harris v. Quinn displayed a willingness to revisit and perhaps overturn Abood:

The Abood Court’s analysis is questionable on several grounds. Some of these were noted or apparent at or before the time of the decision, but several have become more evident and troubling in the years since then. 

For example:

Abood failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector. In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector. 

Justice Alito also wrote that “preventing nonmembers from freeriding on the union’s efforts” is a rationale “generally insufficient to overcome First Amendment objections.”

The Friedrichs case, resting as it does on a First Amendment objection based on the premise the collective bargaining in the public sector is inherently political, appears to match perfectly the majority’s objections to Abood in Harris. It very well may spell the end of compulsory public sector union dues.