Topic: Law and Civil Liberties

Continuing Constitutional Difficulties in Implementing the Voting Rights Act

Sue Evenwel is a citizen of the United States and of the state of Texas. She is a registered voter in Titus County and regularly votes in local and state elections. How is it, then, that Ms. Evenwel’s vote in a Texas state senate race is worth only about half that of certain other voters? The answer lies somewhere at the intersection of bad law and even worse politics that the modern Voting Rights Act has become. 

The VRA, as you may recall, was the heroic civil rights legislation that finally put a stop to the most blatant and invidious forms of racial discrimination impairing the fundamental right of racial minorities to vote. It has been several decades now since this important and proud work but now, sadly, the heroic VRA has lived long enough to see itself become a villain. As Cato has warned before—in our amicus briefs in Perry v. Perez and Shelby County v. Holder—the courts are at a “bloody crossroads” when interpreting what have become the conflicting mandates of the VRA.  To give one example, the courts have found that Section 2 requires race-based redistricting to prevent loss of minority voting power, while at the same time, the Fifteenth Amendment (and the currently inoperable VRA Section 5) prohibits discrimination in voting on the basis of race.

U.S. DoJ Won’t Charge Darren Wilson, Excoriates Ferguson In Report

Confirming expectations, the U.S. Department of Justice has announced that it will not file federal civil rights charges against the police officer who shot Michael Brown following a confrontation on the streets of Ferguson, Mo. Contrary to a visual theme repeated before countless news cameras through weeks of protests, “no, Michael Brown’s hands probably were not up” at the time of the shooting. In the end, “Hands Up — Don’t Shoot” 2014’s iconic protest gesture, was founded in the self-serving, oft-repeated eyewitness account of Brown chum/soon-established-robbery-accomplice Dorrian Johnson. And he was credible why?

At the same time, the report released yesterday by the U.S. Department of Justice makes clear that the Ferguson, Mo. police department was up to its hip in bad practices, ranging from the rights-violative (knowingly baseless arrests and stops, arresting persons for recording police actions) to the cynical (“revenue policing” aimed at squeezing money out of the populace over subjective/petty offenses that include “manner of walking.”)

Another Fishy Regulation

All across the globe, people see the United States as a land of opportunity and dream of making their way here to work hard and enjoy the prosperity that our system of laws helps provide. Cindy Vong made that dream a reality by emigrating from Vietnam, becoming a U.S. citizen, and starting her own nail salon in Gilbert, Arizona. Thanks to a state occupational-licensing scheme, however, Ms. Vong may no longer be free to pursue her vision of happiness.

The Arizona Board of Cosmetology—yes, that’s an actual entity—got wind that Ms. Vong’s spa offered a treatment that uses small fish to exfoliate dead skin from the feet. This is a perfectly safe practice popular in East Asia and the Middle East. Learning that the Board intended to apply its exfoliation-instrument sterilization standards to her fish—how does one sterilize a fish?—Ms. Vong volunteered her spa as a test project until the Board was able to revise its existing rules to address this increasingly popular treatment. Without so much as bothering to evaluate whether the fish treatment is unsafe—there is no such evidence anywhere—the Board ignored her request and, summarily concluding the treatment unsafe, shut down Ms. Vong’s business. So much for “Land of the Free.”

The Court’s Consequential Concerns: King v. Burwell

Among the countless analyses now going on of today’s 84 minutes of oral argument before the Supreme Court in King v. Burwell, perhaps none is more perceptive than that offered by SCOTUSblog’s Lyle Denniston, the dean of Supreme Court reporters. As many of us feared, however, it appears that the focus of several of the justices, perhaps a majority, was less on the law than on the “dire consequences” that would follow if the Court decided that the law was clear and that, accordingly, the government should lose. (See here for background on the case.)

Here’s Denniston:

From the time that the Supreme Court agreed in November to hear the challenge to subsidies on the thirty-four insurance exchanges set up by the federal government instead of by the states, the Obama administration and its supporters have talked darkly about the collapse of the entire ACA if that challenge succeeded. … The uncertain thing, as the hearing approached, was whether that message would get through to the nine members of the Court who would be the deciders.  If there was one dominant theme at the actual hearing, aside from how to read a complex federal statute, it was that a victory for the challengers would come at perhaps a serious loss—perhaps a constitutional loss, but at least a human and social loss in the end of the most ambitious (and audacious) health care plan ever enacted in America.

The point should not be missed. For “the Obama administration and its supporters,” the question was not whether the challengers should succeed on the law—but what will happen if they do. In a court of law, no less, the Obama team wants policy to trump law.

Denniston reports that it looks like the government has the Court’s more liberal members in its pocket, while Justices Scalia, Thomas, and Alito are likely with the challengers. Chief Justice Roberts said relatively little. That leaves Justice Kennedy, not surprisingly, who “sort of leaned toward the idea that the language of the ACA” was clear and thus the government should lose. “But in a broader sense,” Denniston continues, Kennedy was concerned with “a difficult constitutional question”: “that Congress should ordinarily not be allowed to coerce the states into doing something that Congress wants,” which arguably it did when it told the states to create exchanges or their citizens would be ineligible for federal tax credits for their health insurance, which would “send the insurance market into a death spiral.”

But what follows from that “difficult constitutional question,” sounding in federalism? Scalia put his finger on it, asking rhetorically, Denniston writes, “whether, if a correct reading of a law creates a constitutional problem, the Court has the authority to rewrite it.” In other words, is the Court simply one more legislative branch, to which the government turns when Congress has botched its job (“We need to pass the law to find out what’s in it,” the lady said.”)? Or is it a court of law, charged with saying what the law is, even when Congress has made a mess of things and should, by rights, face the music of the people for having done so? If consequences are indeed our concern, let’s focus on the most fundamental of them, starting with those that follow from abandoning the rule of law.

Obamacare’s Fate Turns on Whether Roberts and Kennedy Think State and Federal Exchanges Are the Same

It all depends on what the meaning of “by” is.

The four liberal justices clearly believe that an exchange established “for” or “in” a state by the federal government is the same as an exchange “established by the state,” to quote the relevant statute. Justices Scalia and Alito (and presumably the silent Thomas) equally firmly believe that words mean what they say.

So this case, as expected, turns on the views of Chief Justice Roberts and Justice Kennedy, who gave very little away at oral argument. If the government wins here, then not only will Obamacare continue to be rewritten by the IRS, but any executive agency – and any future president – will be able to rewrite any law. Accordingly, for the sake of the rule of law, I fervently hope that Roberts and Kennedy decide to enforce the Affordable Care Act as written and let Congress clean up its own mess.

New Hampshire Ends Brief Flirtation with National ID Compliance

When the REAL ID Act passed in 2005, Senator Joe Lieberman (D-CT), no civil libertarian, called the national ID law “unworkable” for good reason. It seeks to herd all Americans into a national ID system by coercing states into issuing drivers licenses (and sharing information about their drivers) according to complex federal standards.

The hook REAL ID uses in seeking to dragoon states into compliance is the threat that TSA agents will refuse IDs from non-complying states at our nation’s airports. The threat is an empty one. Consistently over years, every time a DHS-created compliance deadline has come around, state leaders with spines have backed the Department of Homeland Security down. I detailed the years-long saga of pushed-back deadlines last year in the Cato Policy Analysis, “REAL ID: A State-by-State Update.”

DHS has stopped publishing deadline changes in the Federal Register–perhaps the endless retreats were getting embarrassing–and now it has simply said on its website that TSA enforcement will begin sometime in 2016. But it’s evidently back-channeling threats to state officials. Those folks–unaware that REAL ID doesn’t work, and disinterested in the allocation of state and federal power–are lobbying their state legislatures to get on board with the national ID program.

Obama Police Task Force Report Includes Worrying Recommendation

Yesterday, President Obama met with the Task Force on 21st Century Policing, which on the same day released an interim report outlining dozens of recommendations related to how policing can be improved. The report was released the day after police in Los Angeles shot and killed a man during an altercation in which, according to the LAPD, he and officers “struggled over one of the officer’s handguns.”

What makes the shooting notable is that at least one of the officers involved in the shooting was wearing a body camera. According to LAPD commander Andrew Smith, the officers who were at the scene were assigned to the LAPD’s Central Division and Safer Cities Initiative, which is outfitting officers with body cameras as part of the LAPD’s body camera pilot program. Smith has said that footage from the body camera will be used in the investigation along with footage of the shooting captured by a member of the public. 

President Obama’s Task Force interim report directly addresses police body cameras without explicitly recommending that they be required. Among the recommendations in the report is that the Department of Justice (DOJ) “develop best practices that can be adopted by state legislative bodies to govern the acquisition, use, retention, and dissemination of auditory, visual, and biometric data by law enforcement.”

The report also makes a worrying recommendation; that the DOJ’s Office of Community Oriented Policing Services (COPS Office) consider offering law enforcement agencies a financial incentive to adopt the national benchmarks and best practices they may propose. It is unclear that the COPS Office — the same office whose grants were sometimes used to fund the increased militarization of police — needs to take a lead in developing national benchmarks for police reform. As in most other policy areas, when it comes to police reform a decentralized approach is better than a centralized one.