Topic: Law and Civil Liberties

Obama’s King v. Burwell Speech Displayed the Very Ideological Fervor that Led Him to Break the Law

In a case called King v. Burwell, the Supreme Court will soon decide whether it agrees with two lower courts that President Obama is breaking the law by subjecting 57 million employers and individuals to illegal taxes, and spending the illegal proceeds to hide the cost of HealthCare.gov coverage from 6.5 million enrollees. Today the president delivered a speech designed to cow the Supreme Court Justices into turning a blind eye to the law. Instead, he offered what for some is the missing piece of the King v. Burwell puzzle. He displayed the very ideological fervor that leads powerful people to break the rules.

“We have an obligation to put ourselves in our neighbor’s shoes, and to see the common humanity in each other,” the president said. Yet the president of the United States has an even more important obligation to “take Care that the Laws be faithfully executed.”  It’s right there in Article II, Section 3 of the U.S. Constitution, which President Obama swore to uphold. King v. Burwell is about his failure to meet that obligation.  

Feds Subpoena Reason Foundation

Two killers are on the loose, having escaped from a New York prison, but federal prosecutors in New York are hunting for some individuals who posted comments to a blog post over at the Reason web site.  Stay with me as I try to explain…

By way of background, Reason’s Nick Gillespie wrote a blog post about the federal prosecution of the man behind the Silk Road project, a sophisticated narcotics distribution operation. (If you’re tempted to comment on that post, please finish reading this post first. Seriously.) That man, Ross Ulbricht, was recently sentenced to life in prison, without the possibility of parole.  Like Cato, Reason has been a long time critic of the drug war.  Thus, most of Reason’s web site readers believe that nearly all criminal prosecutions for narcotics violations are misguided and unjust.  So it was no surprise to learn that the comments to Gillespie’s post had harsh things to say about the government, including the sentencing judge, in that case.  Some evidently went so far as to say the judge should be killed.   Enter the federal government with subpoenas to Reason so agents can track down those anonymous commentators for further investigation.

King v. Burwell: Obama Pounds the Table to Distract Attention from His Lawbreaking

There is an old lawyers’ adage: “When the facts are on your side, argue the facts. When the law is on your side, argue the law. When neither are on your side, pound the table.” President Obama will deliver a speech today in which he pounds the table with the supposed successes of the Affordable Care Act. The address is part effort to influence the Supreme Court’s upcoming decision in King v. Burwell, part effort to spin a potential loss in that case.

The problem is, those supposed successes are not due to the ACA. They are the product, two federal courts have found, of billions of dollars of illegal taxes, borrowing, and spending imposed by the IRS at the behest of the president’s political appointees.

The president can pound the table all he wants about his theories of what Congress intended, or how, in his opinion, those illegal taxes have benefited America. No speech can change the fact that he signed into law a health care bill that makes it unmistakably clear that those taxes and subsidies are only available “through an Exchange established by the State.” If he didn’t like that part of the bill, he shouldn’t have signed it.

Police Misconduct — The Worst Case in May

Over at Cato’s Police Misconduct Reporting Project, we have identified the worst case for the month of May.  It was was the death of Matthew Ajibade.

Ajibade’s girlfriend called the police because he was having a bipolar episode.  Georgia deputies arrested Ajibade but then took him to the jail instead of a hospital.  At the jail, he was placed in a restraint chair.  Deputies reportedly fired stun guns at him while he was restrained in the chair and then left him unattended in an isolation cell.  Ajibade, 22, died and the coroner now says it was homicide

Nine deputies were fired over the incident and a criminal investigation is on-going.

Texas Cop Filmed Pulling Gun on Unarmed Teens

Last Friday a group of teenagers attended an end-of-year party at a community swimming pool in McKinney, Texas. According to some of the teens at the pool police were called to the scene after adults made racist remarks and a fight between adults and the teens began. A McKinney Police Department Facebook post states that officers responded to reports of “a disturbance involving multiple juveniles” who did not have permission to be at the pool.

One of the teens, 15-year-old Brandon Brooks, filmed the encounter between the youths and police officers. The video, which can be viewed below, shows officer Eric Casebolt handcuffing two teens before throwing a 14-year-old girl to the ground, using his knees to pin her, and pulling a gun on unarmed bystanders - something he is caught on camera denying. The girl was later released without charge.

Warning: This video contains profanity

Casebolt, who has been placed on administrative leave following the incident, was named Patrolman of the Year in 2008 and is reportedly a vice president of the McKinney police union. He was also once an instructor at Executive Self-Defense and Fitness, and was described on that company’s website as someone with “experience in the use of all levels of force” and “a strong working knowledge of human behavior.”

It is hard to imagine the incident earning as much attention as it has without Brooks’ footage, which serves as another reminder of how important it is that citizens film the police. In the forthcoming investigation into the incident Casebolt will not be able to plausibly claim that he felt threatened by a 14-year-old girl and that his use of force against her was justified. Nor will he be able to claim that he did not unholster his weapon and point it at unarmed teens.

Citizen footage of police officers can be instrumental in investigations into allegations of police misconduct. Today a grand jury indicted former North Charleston, South Carolina police officer Michael Slager for the killing of Walter Scott, whose death was caught on camera by an onlooker. Scott was shot multiple times in the back while running away from Slager. I wrote about Walter Scott’s death in April, noting how footage of the killing contradicted what was included in police reports.

The Cato Institute released a video on citizens filming police officers in 2010. It can be viewed below.

Truancy Laws: What Libertarians Knew

My new piece at Reason begins:

We’ve seen it happen again and again: libertarians are derided over some supposedly crazy or esoteric position, years pass, and eventually others start to see why our position made sense. It’s happened with asset forfeiture, with occupational licensure, with the Drug War, and soon, perhaps, with libertarians’ once-lonely critique of school truancy laws.

In his 1980 book Free To Choose, economist Milton Friedman argued that compulsory school attendance laws do more harm than good, a prescient view considering what’s come since: both Democratic and Republican lawmakers around the country, prodded by the education lobby, have toughened truancy laws with serious civil and even criminal penalties for both students and parents. Now the horror stories pile up: the mom arrested and shackled because her honor-roll son had a few unexcused sick days too many, the teenagers managing chaotic home lives who are threatened with juvenile detention for their pains, the mother who died in jail after being imprisoned for truancy fines. It’s been called carceral liberalism: we’re jailing you, your child, or both, but don’t worry because it’s for your own good. Not getting enough classroom time could really ruin a kid’s life.

My article also mentions that a bill to reform Texas’s super-punitive truancy laws has reached Gov. Greg Abbott’s desk, following the reported success of an experiment in San Antonio and pressure from a Marshall Project report. Finally, truancy-law reform is looking to become an issue across the political spectrum — but libertarians were there first.

Snowdenversary Gifts for Privacy Advocates

Today marks the second anniversary of The Guardian’s first blockbuster story derived from files provided by former NSA contractor Edward Snowden—launching what would become an unprecedented deluge of disclosures about the scope and scale of communications surveillance by American intelligence agencies. So it seems appropriate that this week saw not only the passage of the USA Freedom Act, but also the approval in the House of several privacy-protective appropriations amendments, about which more momentarily.  Snowden himself takes a quick victory lap in a New York Times editorial reflecting on the consequences of his disclosures, (very much in line with his remarks during our interview at the inaugural Cato Surveillance Conference):

Privately, there were moments when I worried that we might have put our privileged lives at risk for nothing — that the public would react with indifference, or practiced cynicism, to the revelations.

Never have I been so grateful to have been so wrong.

Two years on, the difference is profound. In a single month, the N.S.A.’s invasive call-tracking program was declared unlawful by the courts and disowned by Congress. After a White House-appointed oversight board investigation found that this program had not stopped a single terrorist attack, even the president who once defended its propriety and criticized its disclosure has now ordered it terminated.

He’s referring here to last month’s appellate court ruling against the notorious telephone records dragnet, followed this week by passage of the USA Freedom Act.  That law should bar bulk collection not only under §215 of the Patriot Act, the basis of the phone program, but also under §214—the “pen register” provision previously used to vacuum up international Internet metadata—and National Security Letters, which can be issued by senior FBI officials without judicial approval.  Since the latter two authorities are permanent, they would not have been affected by what quite a few lazy reporters described as “the expiration of the Patriot Act,” though in fact only about 2 percent of the law’s provisions were actually due to sunset.  While the law is far from ideal, incidentally, I think it does constitute more robust reform than many libertarians fear, for reasons I lay out in this piece at Motherboard and this blog post at Just Security.  It will, of course, be necessary to vigilantly watch for efforts to water down the law’s protection—something the public is finally at least somewhat empowered to do by a transparency provision requiring significant legal interpretations by the secret Foreign Intelligence Surveillance Court to be published in unclassfied form.