Topic: Law and Civil Liberties

Scalia the Unlikely Swing Vote in Big Workers Rights Case

Today the Supreme Court heard oral argument in Harris v. Quinn, the case regarding the forced unionization of home healthcare workers in Illinois (and by extension the 10 other states with similar laws). To me this is a pretty easy case: just because the state is paying these workers through its Medicaid program doesn’t mean it employs them – just like my doctor isn’t employed by my health-insurance company – which means that it can’t force them to pay dues to a union that negotiates Medicaid reimbursement rates. 

Like most of the labor cases in recent years, however, this one is likely to go 5-4. The so-called “liberal” justices were all openly hostile to the workers’ position, so the challengers will have to sweep the rest of the bench of to win. Fortunately, such an outcome is more than possible – though much will depend on the thinking of Justice Scalia, who was hostile to everyone.

The argument began in a frustrating manner, with a focus on the right to petition the government for redress of grievances, and whether a union asking for a pay increase was different from an individual public-sector employee (a policeman, say) asking for the same raise. Justice Scalia correctly pointed out that this wasn’t really the right at issue here, but he further confused the matter in distinguishing the right to petition from the First Amendment (when in fact that right is found in that amendment). He meant to invoke the First Amendment right to the freedoms of speech and association, but also indicated that he was prepared to give the government plenty of leeway when it was acting as an employer.

Justice Alito was the most skeptical of the union/government position, pointing out that unions don’t necessarily act in all workers’ interest, even when they succeed in negotiating certain “gains.” For example, a productive young worker might prefer merit pay to tenure provisions or a defined-benefit pension plan. Chief Justice Roberts was similarly concerned about administering the line between those union expenses that could be “charged” even to nonmembers (because related to collective bargaining) versus those that can’t because they involve political activity. Justice Kennedy, meanwhile, noted that in this era of growing government, increasing the size and cost of the public workforce is more than simple bargaining over wages and benefits; it’s “a fundamental issue of political belief.” In no other context could a government seek to compel its citizens to subsidize such speech. A worker who disagrees with the union view on these political questions is still made to subsidize it. 

It was also heartening to see that the continuing vitality of Abood v. Detroit Board of Education (1977) was in play. That case established that, in the interest of “labor peace,” a state could mandate its employees’ association with a union, forcing them to subsidize that union’s speech and submit to it as their exclusive representative for negotiating with the government regarding their employment. (Abood simply assumed, without further analysis, that the Supreme Court had recognized labor peace as a compelling interest.)

Justices Breyer and Kagan were particularly concerned that so many employers and unions had relied on the Abood doctrine over the years, so touching it would implicate significant reliance interests. But overruling or severely limiting Abood would only be one more step in the Court’s trend of protecting individual workers from having to support political activities. More workers could thus opt out of supporting a labor union – but if unions truly provide valuable services for their members, few workers would do so.

Of course, the Court could shy away from touching Abood and simply rule that being paid by state funds alone isn’t sufficient to make someone a state employee. Such a position might more easily attract Justice Scalia’s vote – and that of Chief Justice Roberts, who goes out of his way to rule narrowly – even if it leaves unresolved some of the contradictions at the heart of the jurisprudence in this area, such as the duty of courts to police the murky line between “chargeable” and “nonchargeable” union expenses.

For more on the case, see George Will’s recent op-ed and the Wall Street Journal’s editorial.

Good First Steps, But Real Surveillance Reform Will Require More

The president’s speech on surveillance today proposed some welcome first steps toward appropriately limiting an expanding surveillance state — notably, an end to the NSA’s bulk phone metadata program in its current form, and a recognition that judges, not NSA analysts, must determine whose records will be scrutinized.

The details are important, however. Obama’s speech left open the possibility that bulk collection might continue with some third party — which would in effect be an arm of government — as a custodian. If records are left with phone carriers, on the other hand, it’s important to resist any new legal mandate that would require longer or more extensive retention of private data than ordinary business purposes require.

It was disappointing, however, to see that many of the recommendations offered by Obama’s own Surveillance Review Group were either neglected or specifically rejected. While the unconstitutional permanent gag orders attached to National Security Letters will be time-limited, they will continue to be issued by FBI agents, not judges, for sensitive financial and communications records.

Nor did the president address NSA’s myopic efforts to degrade the security of the Internet by compromising the encryption systems relied on by millions of innocent users. And it is also important to realize that changing one controversial program doesn’t alter the broader section 215 authority, which can still be used to collect other types of records in bulk—and for all we know, may already be used for that purpose.

Most fundamentally, Congress must now act to cement these reforms in legislation — and to extend them —to ensure safeguards implemented by one president cannot be secretly undone by another.

In Maryland, A Left-Right Alliance on Surveillance

Some issues lend themselves well to cooperation between liberals and conservatives who can both see the need to limit the arbitrary power of government. One prime prospect: the dangers to individual privacy of government surveillance run amok. This week in Annapolis several members of the Maryland legislature held a press conference to announce that they would push for an agenda of reforms setting out rules for law enforcement’s use of techniques including phone location tracking, automatic license plate readers, email surveillance, and drones. The group is led by Sen. Jamie Raskin (D-Silver Spring), one of the strongest liberals in the state legislature, and Sen. Chris Shank (R-Hagerstown), one of the strongest conservatives. Here (quoting verbatim) is the summary provided by the ACLU of Maryland

  • Email surveillance. Legislation to require that law enforcement go before a neutral arbiter and prove that the information they are obtaining is likely to turn up evidence of a crime before intercepting and accessing online data.
  • Location Tracking. Legislation to require that law enforcement get a warrant based on probable cause prior to obtaining mobile phone tracking information.
  • Drones. Legislation to impose limits and regulations on aerial surveillance that would protect against police fishing expeditions, and abusive use of these tools.
  • Automatic License Plate Recorders. Legislation that would keep law enforcement from storing records of license plates and locations that are not ‘hits’ against any database.

Others sponsoring the bills include Democratic delegates from Baltimore City and Montgomery County as well as Del. Mike Smigiel (R-Eastern Shore), a prominent supporter of Second Amendment rights. 

Looks like something worth keeping an eye on.

Obama Allows Congress to Participate in Lawmaking

This headline appeared in Thursday’s Washington Post:

Obama allows Congress a voice in NSA

The story reports that President Obama “will call on Congress to help determine the [NSA surveillance] program’s future. Which is good because Article I, Section 1, of the Constitution of the United States provides that:

All legislative Powers herein granted shall be vested in a Congress of the United States.

Deciding the scope and extent of any federal surveillance powers is clearly a legislative matter. Subject to the constraints imposed by the Constitution’s limits on federal powers, legislative powers are vested in Congress, not the president. How can reporters (and headline writers) write so cavalierly about the president “giving” Congress a chance to “weigh in” on matters of fundamental law? This headline should be as jarring as one reading, “Obama plans to give Supreme Court a say in fate of NSA program.” It isn’t up to the president. The legislative branch is empowered by the Constitution to make law, and the judicial branch is empowered to strike down legislative and executive actions not authorized by the Constitution. The president’s job is to “take Care that the Laws be faithfully executed.”

Arthur Schlesinger Jr. wrote that the rise of presidential power ‘‘was as much a matter of congressional acquiescence as of presidential usurpation.’’ It’s time for Congress to stop acquiescing. And for journalists to remind readers of the powers granted to presidents in the Constitution.

What the DEA and Drug Traffickers Have in Common

In today’s WaPo, the DEA’s Chief of Operations James L. Capra claims that: 

the movement to decriminalize the sale of pot in the United States will have severe consequences. … Every part of the world where this has been tried, it has failed time and time again.

Capra’s assertion is so ignorant of the facts that it merits little comment; instead, read Glenn Greenwald’s Cato study on decriminalization in Portugal, which shows just the opposite of Capra’s claim.

Capra’s statement about “severe consequences” is not entirely wrong, however; legalization will put thousands of DEA and other law enforcement officials out of work! Perhaps, therefore, the government should outlaw food, clothing, and shelter; then we could emply billions in the attempt to enforce those laws.

An interesting side note is that, like law enforcement officials, drug traffickers also fear legalization. See minute 4:00 of this video.

 

Unanimous SCOTUS Decides Two Civil Procedure Cases

This morning the U.S. Supreme Court handed down two unanimous cases correcting appeals courts on issues of civil procedure. In Mississippi ex rel. Hood v. AU Optronics, it reversed a Fifth Circuit ruling that a consumer lawsuit by the state of Mississippi was enough like a class action that it should be heard in federal rather than state court under the procedures specified by the Class Action Fairness Act. In Daimler AG v. Bauman et al, it reversed a Ninth Circuit ruling that because worldwide auto giant Daimler has operations in California, it can properly be sued in that state over alleged misconduct in Argentina that has nothing in particular to do with its California operations. 

Neither result is even remotely surprising (and Cato did not file amicus briefs in either case). In the AU Optronics case, CAFA’s plain language supported the state of Mississippi’s position, and arguments that removal was more consistent with the law’s spirit added up to a plea for the business community (which identifies with the defendant side here) to get a better deal than it managed to get during the negotiations that led to the law’s passage. In the Daimler case, the Court again confirmed, as in the Kiobel v. Royal Dutch Petroleum case discussed at length by Kenneth Anderson in the latest Cato Supreme Court Review, that it is deeply out of sympathy with “universal jurisdiction” notions beloved in some parts of legal academia and the world of activist NGOs (non-governmental organizations), under which labeling something a “human rights” matter should open the way for suit to be brought over it in more or less any court anyplace.

The cases remind us that despite the various attacks on the Court as result-oriented and ideology-driven, much of its work consists simply of trying to keep the law on a logically coherent and predictable course. Anti-business activists couldn’t win a single vote for their supposed human rights claims in Daimler, just as their more radical claims had unanimously flopped in Kiobel.  By the same token the organized business community couldn’t win a single Justice in AU Optronics, though it put a real effort into defending its Fifth Circuit victory. It’s long past time for Sen. Elizabeth Warren (D-Mass.) to apologize for her demagogic portrayal of the Court as headed toward a condition as “wholly owned subsidiary of Big Business”.

 

 

Would Anti-Marijuana Activists Also Try to Keep Alcohol Illegal?

After I read the latest of Mitchell S. Rosenthal’s tirades against drug legalization in the Wall Street Journal, I must have fallen asleep and dreamed of a world in which marijuana is legal and alcohol is illegal. Not one of Coleridge’s opium-induced dreams, alas, so I didn’t wake up to write a classic poem. But I did wonder what op-ed the Journal might publish in such a world if people began to agitate for the freedom to drink alcohol. With the help of Matthew LaCorte, I discovered you wouldn’t have to change many words. I imagine it might go something like this: 

Let’s Not Kid Ourselves About Alcohol

By Rose Ethel Mitchell

Booze is always good for a giggle, and that makes it hard to take alcohol seriously. The news and entertainment media couldn’t resist puns on “LAX new rules” when California started the year with legal sales of alcohol for recreational purposes. TV stations across the country featured chuckling coverage of long lines outside the state’s new state-licensed liquor shops.

Legalizing alcohol isn’t just amusing. It’s increasingly popular with legislators and the public. And why not? No matter how drunk drinkers get, they’re nowhere near as useless in society as lazy pot-heads, right?  Drinkers don’t clear all the munchies off the grocery shelves or grow their hair out like hippies. But studies show that, unlike pot, alcohol leads to violence and aggression, especially with friends or partners.

A recent study found that alcohol is more dangerous than such legal drugs as cannabis and Ecstasy. We should not be raising a glass to the coming acceptance of alcohol use and dependency. Alcohol is far from safe, despite the widespread effort to make it seem benign. Drinking damages the heart, increases the incidence of anxiety, depression and schizophrenia, and can trigger acute psychotic episodes. Many adults appear to be able to use alcohol with relatively little harm, but the same cannot be said of adolescents, who are about twice as likely as adults to become addicted to drinking. The new California law limits alcohol sales to people 21 or older, but making it available for recreational use normalizes it in society. The drug will be made more easily available to those under 21, and how long until the age limit is dropped to 18? Having some bubbly may enhance social interactions, but at what cost?

Adolescents are vulnerable—and not just to booze. That’s how they are programmed. They make rash and risky choices because their brains aren’t fully developed. The part of the brain that censors dumb or dangerous behavior is last to come on line (generally not before the mid-20s). Meanwhile, the brain’s pleasure-seeking structures are up and running strong by puberty. When you link adolescent pleasure-seeking and risk-taking to liquor’s impairment of perception and judgment, it isn’t surprising that a 2004 study of seriously injured drivers in Maryland found half the teens tested positive for booze.

Drinking impairs judgment—no small matter during the adolescent years—and it can do lasting harm to the brain. The National Institute on Alcohol Abuse and Alcoholism has found that alcohol disrupts the brain’s communication pathways and can change mood and behavior, making it harder to think clearly and move with coordination. Long-term drinking can damage the heart, inflame the liver, increase risk of cancer, and weaken the immune system.

Most disturbing is a recent discovery about alcohol from the Center for Addiction and Mental Health which found alcohol is the third leading cause of disease around the world. The lead author wrote, “Alcohol consumption has been found to cause more than 200 different diseases and injuries.” While New Yorkers are sipping their “Long Island iced tea” or vacationers are singing about tequila, the facts show that their bodies don’t think these drinks are going down smooth.

Many experts are troubled by changing teen attitudes about drinking.   Half of adolescents have already tried illegal alcohol. Teen marijuana use and cigarette smoking have declined, and their abuse of prescription painkillers has fallen off sharply, but teen imbibing  continues to increase.  And a shocking 15% exhibit signs of alcoholism even in their teen years. This binge of facts will only worsen with legal alcohol.

No one can say how liquor legalization will play out. A perception of legal alcohol as safe, combined with sophisticated marketing, may well double or triple drinking. Warning of aggressive promotion, alcohol-policy expert Luke Farmer, who studied potential issues of a legal alcohol market for the New York City Council, pointed out last year: “The only way to sell a lot of alcohol is to create a lot of alcoholics.”

As we learn more about the realities of legalizing recreational booze, I suspect it won’t seem so funny anymore. Remember, potheads used to be good for a laugh too. A spaced-out pothead was a staple of Hollywood comedies in the 1960s and ’70s. Smoking cigarettes was considered cool. The reality of wrecked lives and ruined health eventually changed public perceptions of these addictions. Now liquor is becoming more widely regarded as a harmless amusement. That’s not funny, it’s tragic. Drinkers may enjoy a Scotch on the rocks, but the social effects will be rocky for us all.

It’s always hard to imagine a counterfactual. I wrote once about a world in which education was provided on the free market but shoes were produced and distributed by the government, and how people would have trouble imagining how a free market in shoes would work. In this case, however, we did go through an episode of substance prohibition, followed by legalization. And despite all the real problems created by alcohol use, we decided that a liberal system created fewer social problems than Prohibition. Surely we can imagine the same with regard to marijuana.