Topic: Law and Civil Liberties

Court Tosses D.C. Tour Guide Licensing Scheme

Since there isn’t any other legal news this or next week, the U.S. Court of Appeals for the D.C. Circuit today decided to strike down D.C.’s absurd licensing regulations regarding Uber food trucks raw milk guns campaign finance tour guides. Believe it or not, until today District law required people to pay the government $200 and pass a 100-question test on 14 subjects, covering material from no less than eight different publications, before they can give city tours—all for the purpose of “protecting” tourists from misinformation. If you didn’t comply, you faced a fine and 90 days in jail.

I previously wrote about this case when Cato filed a brief last fall, so I’ll just provide some key excerpts from the court opinion (written by Judge Janice Rogers Brown, whom we had the honor to publish in the Cato Supreme Court Review the first year I edited it). Here’s how it starts:

This case is about speech and whether the government’s regulations actually accomplish their intended purpose. Unsurprisingly, the government answers in the affirmative. But when, as occurred here, explaining how the regulations do so renders the government’s counsel literally speechless, we are constrained to disagree.

The court later describes the reason for its disagreement:

The District’s reliance on a Washington Post article dating from 1927 to justify the exam requirement is equally underwhelming. [Citation omitted.] The article merely establishes that, nearly a century ago, the newspaper expressed concern about unscrupulous or fraudulent charitable solicitation and that an unidentified number of persons said self-styled tour guides were overly aggressive in soliciting business. Reliance on decades-old evidence says nothing of the present state of affairs. Current burdens demand contemporary evidence. [Citations of last term’s big voting right case, Shelby County v. Holder, and other cases are omitted.]

Continuing the theme that D.C. failed to justify its speech regulation, the court says:

Even if we indulged the District’s apparently active imagination, the record is equally wanting of evidence the exam regulation actually furthers the District’s interest in preventing the stated harms. Curiously, the District trumpets as a redeeming quality the fact that, once licensed, “[t]our guides may say whatever they wish about any site, or anything else for that matter.” [Citation omitted.] But we are left nonplussed. Exactly how does a tour guide with carte blanche to—Heaven forfend—call the White House the Washington Monument further the District’s interest in ensuring a quality consumer experience? [Footnote omitted.]

The IRS Scandal: Who’s Really Being Gullible?

Some figures on the left have aggressively sought to dismiss the renewed Internal Revenue Service scandal as unserious. Rep. Lloyd Doggett (D-Tex.) captured this mood at one recent Capitol Hill hearing when he suggested that after questioning whether the loss of emails was truly accidental, his GOP colleagues might go on next to quiz the IRS’s leadership about the president’s birth certificate and space aliens in Roswell, N.M. It’s not a “serious inquiry,” Rep. Doggett said. “I believe it’s an endless conspiracy theory here.”

And yet many Americans who do not care about space aliens do doubt the IRS’s account of what has happened. While we covered the story a year ago as well as more recently, this might be a good time to recapitulate why.

The IRS grants 501(c)(4) nonprofit status (less favorable than (c)(3) tax status, which affords donors charitable deductibility) to a wide array of “social welfare” organizations–many, like the ACLU, with a definite ideological valence. In recent years the status has been sought and obtained by groups whose missions are closely related to campaign and electoral politics, most notably Organizing for America, whose role on the national scene is to support President Obama’s messaging. Not surprisingly this has excited controversy about whether the eligibility rules for (c)(4) status are being drawn in the right place. Most advocates profess to believe, though, that whatever the right set of rules, they should apply alike to all sides in our political life.

By March 2012 the Associated Press was reporting on a flurry of bizarre and seemingly unprecedented IRS demands that some (c)(4) applicants of a right-of-center valence provide extraordinarily burdensome and intrusive documentation of their activities–things like copies of all books and literature distributed to participants, transcripts of leaders’ radio appearances and live speeches, printouts of all Facebook and Twitter output, and so forth, along with donor lists and names of family members. The IRS was also delaying groups’ approval for long periods–in fact, seemingly indefinitely–without explanation or a firm denial that could be appealed to a court. Defenders of the agency leadership subsequently put out a search for left-of-center groups that might have run into similar treatment, and although they did manage to turn up a few tales of bureaucratic red tape and rigmarole, they were unable to come up with anything remotely comparable.

IRS nonprofit chief Lois Lerner at first denied any targeting, then sought to blame rogue employees at the IRS Cincinnati office for it. But emails soon emerged clearly indicating guidance by high-level IRS managers in Washington. Lerner then declined to testify, asserting her Fifth Amendment privilege against admissions tending to expose herself to criminal liability.

Through the ensuing scandal, there was little hard proof that Lerner and other IRS insiders had coordinated the targeting with political actors outside the agency–on Capitol Hill, say, or in party organizations, or the White House–although a number of details on the record, such as frequent White House visits by agency insiders and coordination with outside figures on press messaging, made for suggestive circumstantial evidence. To establish that political operatives or officials outside the agency were aware of targeting at the time, or even perhaps instigated or directed it, would be to blow the scandal wide open, perhaps threatening the careers of well-known public figures. If any email documentation of such coordination is to be found, it would most likely be in the “external” (outside the agency) emails of Lerner and other key players in the targeting effort.

Magna Carta and Constitutional Criminal Procedure

In United States v. Booker (2005), the Supreme Court held that the Sixth Amendment prohibits a judge from sentencing a convicted defendant to a prison term exceeding the law’s maximum penalty for the crime committed, unless additional aggravating facts are found by the jury (or admitted by the defendant). The Court also held that all sentences must be reasonable.

In a subsequent case, Justice Scalia issued a concurrence in which he expressed concern about situations in which judges issue sentences below the statutory maximum, but which would only be reasonable in light of additional facts found solely by the judge. He proposed an “as-applied” doctrine, in which the reviewing court asks whether the sentence would be reasonable as applied to only those facts that were found by the jury.

The situation that Justice Scalia feared has now become manifest for three criminal defendants who were all convicted of selling small quantities of drugs but acquitted of conspiracy charges relating to the distribution of much larger quantities. Despite the acquittals, all three defendants received sentences four times greater than any other defendant convicted of the same crimes in the post-Booker era using the guidelines issued by the U.S. Sentencing Commission.

The defendants argue—and no prosecutor or judge has disputed—that their sentences would not be deemed reasonable without consideration of the additional evidence of conspiracy. In reviewing the sentences, the U.S. Court of Appeals for the D.C. Circuit adhered to settled precedent and declined to adopt the as-applied doctrine, and so the defendants seek to further appeal their sentences to the Supreme Court and finally resolve the question, under the Sixth Amendment, of whether a judge can base a sentence on facts that the jury did not find beyond a reasonable doubt.

In an amicus brief supporting that petition, the Cato Institute, joined by the Rutherford Institute, argues that the Sixth Amendment prohibits the increased sentencing of defendants based solely on judge-found facts of the crime, regardless of whether the final sentence remains below the statutory maximum. The defendants’ constitutional right to a jury trial can be traced back to Article 39 of the Magna Carta, which is also the historical origin of the Constitution’s prohibition on ex post facto, or retrospective, criminal laws.

Article 39 reflected a deep concern that the government would undermine the jury’s role and imprison defendants without the input of their peers. Given the status of sentencing guidelines as “law” for purposes of the Ex Post Facto Clause, the Sixth Amendment should extend to the defendant’s right to the “lawful judgment of his peers,” meaning that a judge can only render a sentence based on the jury’s factual findings. 

In other words, if it’s unconstitutional to sentence a defendant based on rules issued after he commits the purported crime, it must be unconstitutional to sentence a defendant without the input of his peers.

The Supreme Court will decide whether to take the case of Jones v. United States when it comes back from its summer recess.

A Win, But a Major Missed Opportunity: NLRB v. Canning

To expand on Ilya’s earlier post, the Supreme Court today did indeed check President Obama’s unprecedented expansion of his recess appointments power when in January 2012 he filled three vacancies on the National Labor Relations Board with nominees that the Senate, then in “pro-forma” session, had to that point refused to confirm. In NLRB v. Noel Canning, the Court ruled unanimously in upholding the unanimous January 2013 decision of the D.C Circuit, which had vacated an NLRB order against the Noel Canning company, finding the three appointments to be unconstitutional. At issue, therefore, was the scope of president’s recess appointments power, his power “to fill up all Vacancies that may happen during the Recess of the Senate” by granting temporary commissions.

That power, however, is subsidiary to the president’s main appointments power, which is to make major appointments to his administration only “by and with the Advice and Consent of the Senate.” It was granted because, for much of our history, the Senate was in session only during certain periods of the year. If important vacancies should “happen” when the Senate was not in session, the president would be able to fill them so that the business of government could continue. Recess appointments were thus the exception, not the rule. In particular, the power was not meant to enable the president to make an end-run around the advice and consent of the Senate.

Unfortunately, in writing for the Court today, Justice Breyer has made a hash of Judge David Sentelle’s well-argued opinion below, as Justice Scalia makes clear in his concurrence for himself, Chief Justice Roberts, and Justices Thomas and Alito. As Scalia writes, the Recess Appointments Clause restricts the president’s power in two main ways. First, “it may be exercised only in ‘the Recess of the Senate,’ that is, the intermission between two formal legislative sessions. Second, it may be used to fill only those vacancies that ‘happen during the Recess,’ that is, offices that become vacant during the intermission.” The text is clear, Scalia says, and both conditions were clearly understood at the founding. But, he continues:

Today’s Court agrees that the appointments were invalid, but for the far narrower reason that they were made during a 3-day break in the Senate’s session. On its way to that result, the majority sweeps away the key textual limitations on the recess-appointment power. It holds, first, that the President can make appointments without the Senate’s participation even during short breaks in the middle of the Senate’s session, and second, that those appointments can fill offices that became vacant long before the break in which they were filled.

What was Breyer’s rationale for so watering down the clear constitutional text and so expanding the president’s power? To trump the text he offers what can only be called a tendentious reading of historical practice, to which Scalia answers: “What the majority needs to sustain its judgment is an ambiguous text and a clear historical practice. What it has is a clear text and an at-best-ambiguous historical practice.” Indeed,

The majority replaces the Constitution’s text with a new set of judge-made rules to govern recess appointments. Henceforth, the Senate can avoid triggering the President’s now-vast recess-appointment power by the odd contrivance of never adjourning for more than three days without holding a pro forma session at which it is understood that no business will be conducted. How this new regime will work in practice remains to be seen.

Scalia concludes sadly that today’s decision “will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers”—just what we need as the House considers whether to bring suit to try to check an increasingly out-of-control presidency. The decision today was a win, but it was also a major missed opportunity to restrain a power that for too long has been abused, flagrantly in this case. At least it illustrates, as we look to future elections, how important a question who sits on the Court is.

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.