Topic: Law and Civil Liberties

Obama Hits “Overload” on Executive Power

Remember that so-called “reset” button that then-Secretary of State Hillary Clinton gave her opposite Russian number back in 2009, to symbolize the Obama administration’s hopelessly naive fresh approach to relations with the Kremlin? You know, the one that actually said “overload” or “power surge,” depending on your preferred translation of peregruzka? Rather than a hilarious snafu, maybe the mistranslation was actually a Freudian slip, indicating the agreement between the presidents of two federal republics about the true scope of executive power. Not that President Obama has invaded a sovereign nation out of historical revanchism or thrown his political enemies in jail (or worse) – though the IRS scandal is the same kind of abuse, on a lesser degree – but the contempt that White House’s current occupant has shown to federalism, the separation of powers, and other aspects of the rule of law is breathtaking and unprecedented in the American context.

It’s thus no surprise that my most popular op-eds during my time at Cato have been the two examinations of Obama’s high rate of unanimous Supreme Court losses – one for the Wall Street Journal in 2012, the other for Bloomberg last year – plus the two “top 10 constitutional violations” pieces I’ve done, one for the Daily Caller in 2011, the other for Forbes last year.

Well, apparently I’ve been lazy. Comes now the junior senator from Texas, Ted Cruz, with a report called “The Obama Administration’s Abuse of Power” that lists no fewer than 76 charges. They’re divided into the following categories:

  • Governing by Executive Fiat (9 items)
  • National Security (5 items)
  • Obamacare (10 items)
  • Economy (6 items)
  • Executive Nominees and Personnel (4 items)
  • Free Speech and Privacy (7 items)
  • Other Lawless Acts (9 items)
  • Other Abuses of Power (26 items)

To be fair, not all of these are unconstitutional actions, or even illegal ones. (For example: “Increased the national debt more in one term than President Bush did in two terms.”) Others are a bit inside-baseball. (“Reneged on a campaign promise to wait five days before signing any non-emergency bill (at least 10 times during first 3 months in office),” citing my colleague Jim Harper writing at this blog.) A few bad ones can’t really be attributed to the president’s actions or policy preferences. (“As of 2011, 311,566 federal employees or retirees owed $3.5 billion in taxes.”)

Still, it’s quite an indictment, one that’s broad in scope, varied in types of abuses, and diligently footnoted.

Not surprisingly, the report raised the hackles of Washington Post columnist Dana Milbank, who found that the report “reveals less about the lawlessness of the accused than about the recklessness of the accuser.” Milbank called the 76-item list a “recitation of policy grievances … interspersed with some whoppers that the senator, a former Texas solicitor general, couldn’t have researched thoroughly.”

The biggest “whopper” – or at least the one worth mentioning first – is that the president “[b]acked the release of the Lockerbie bomber.” While Milbank is correct that the the article Cruz cites says that “the U.S. wanted Megrahi to remain imprisoned in view of the nature of the crime,” the thrust of the piece, titled “White House Backed Release of Lockerbie Bomber Abdel Baset al-Megrahi,” is that the administration worked to secure the bomber’s “compassionate release” back to Libya (see also here).

Milbank’s on surer footing in criticizing the allegation that Obama wrongly “extended federal marriage benefits by recognizing, under federal law, same-sex marriages . . . even if the couple is living in a state that doesn’t recognize same-sex marriage.” The practical effect of the Supreme Court’s ruling in United States v. Windsor – striking down the part of the Defense of Marriage Act regarding federal benefits – was precisely to require the federal government to treat people who were lawfully married the same regardless of sexual orientation. Yes, that presents cases of Schrodinger’s marriage for same-sex couples who, say, move to Texas after having gotten hitched in New York – married for federal but not state purposes – but such is the current lay of the legal land.

And Milbank is right that some of the items are there to score political points rather than as an example of a high crime or misdemenor. (“Canceled all White House tours after sequestration . . . even though President Obama had spent more than $1 million in tax money to golf with Tiger Woods.”) (Though I would argue that this item, like putting up barricades around national monuments during the sequester, is very much an abuse of political power, if not quite rising to the level of all the Obamacare and IRS stuff.)

Nevertheless, Milbank’s complaint – and this is common to all critics of critiques of Obama’s abuses, as I’ve witnessed first-hand in debating the subject around the country – boils down to the conclusion that what’s really at issue is a difference of policy preference.

Well, there is some truth to that: some people believe that the government’s range of policy options is limited by the Constitution’s structural limits on federal power, while others don’t. But you’d be hard-pressed to argue that any attack on Barack Obama’s abuse of executive power or expansion of federal power is mere political sour grapes. (And I should add that Cato calls out presidents of both parties when they stray.) As the Cruz report’s preamble states:

In the more than two centuries of our nation’s history, there is simply no precedent for the White House wantonly ignoring federal law and asking others to do the same.

For all those who are silent now: What would they think of a Republican president who announced that he was going to ignore the law, or unilaterally change the law? Imagine a future president setting aside environmental laws, or tax laws, or labor laws, or tort laws with which he or she disagreed.

That would be wrong—and it is the Obama precedent that is opening the door for future lawlessness. As Montesquieu knew, an imperial presidency threatens the liberty of every citizen. Because when a president can pick and choose which laws to follow and which to ignore, he is no longer a president.

For more on these sorts of issues, please join us for a policy forum May 21 called “Suspending the Law: The Obama Administration’s Approach to Extending Executive Power and Evading Judicial Review.”

Cops Walk In Philly Bodega-Robbery Scandal

It was hardly the first police-misconduct story I’d written about, but the 2009 disclosures of what Philadelphia cops had been doing to bodega owners still were enough to shock me

The Philadelphia officers’ excuse for their raid on Jose Duran’s bodega was the same as their excuse for other bodega raids: he was selling grocery zip-lock bags, and Pennsylvania law makes it unlawful to sell containers that a seller reasonably knew or should have known will be used to store drugs. The cops methodically snipped the wires to seven or eight security cameras around the store, and Duran said nearly $10,000 in cash, cigarettes, batteries and other goods then mysteriously vanished from the store.

The story shocked others, too, especially given corroborative accounts from other bodega owners who reported that police had begun the raids by taking care to disable cameras, in one case allegedly by smashing them with metal rods or hammers, in another case destroying a computer that had retained images of the raid. Money, cigarettes, and other property typically vanished during the raid without account, and some owners were brutalized as well. The Philadelphia Daily News investigated extensively and found that because one surveillance camera had a concealed backup hard drive, it retained video of an invading officer actually reaching up to cut its wires.

John Walters on Cato and Drug Legalization

On her radio show earlier today, Laura Ingraham discussed drug legalization with John Walters, the White House “Drug Czar” under George W. Bush.

Walters had nothing good to say about Cato, George Soros, legalizers in general, or me in particular.  Walters’ view comes down to three claims:

1. Legalization will cause drug use to soar; 

2. Increased drug use is bad; 

3. The negatives of prohibition are more acceptable than negatives of greater use.

On point 1:  No existing evidence suggests major increases in use from legalization.  Some increase may occur, since drug prices will likely decline.  But most drugs are already cheap enough that price is not a major deterrent.

On point 2: Drugs can indeed cause harm, but so can alcohol, tobacco, double-black diamond ski slopes, Ben & Jerry’s ice cream, and driving on the highway. Many current harms (e.g., accidental overdoses), result from prohibition, which makes it harder for users to determine quality.  Walters view that all drug use leads to irresponsible intoxication is utterly inconsistent with the evidence.

And, many people derive a benefit from drugs.  Walters thinks people take drugs only because they are addicted; an alternate view is that people choose to use drugs, whether to alleviate pain, aid relaxation, or become intoxicated. Under the second view, increased use is a benefit of legalization, not a cost. And in a free society, individuals, not government, get to make that determination.

On point 3: Drug prohibition generates violence and corruption; reduces quality control and spreads HIV; diminishes civil liberties; restricts medicinal uses of drugs; foments insurrection in source countries; foregoes tens of billions each year in tax revenue; and requires tens of billions more on police, prosecutors, and prisons.

John Walters may believe that all this is preferable to a modest increase in drug use (some of which benefits users); he is entitled to his view.

But I disagree.

Voter ID Laws and Rights of Convicted Felons

Nothing in the Constitution requires voter ID laws. Nor does any provision bar voter ID laws, except: (1) the 14th Amendment forecloses state denial of equal protection of the laws to any person, and (2) the 15th Amendment forecloses discrimination by race in determining who can vote.

Accordingly, a voter ID law would be unconstitutional if it discriminated by race without a compelling state justification.  Put differently, to justify a discriminatory voter ID law, a state would have to show: (a) there’s significant voter fraud, (b) the law would fix the problem; and (c) there’s no other way to accomplish the same ends without discriminating.

The convicted felon problem is more complicated.  Rand Paul argues that 180,000 convicted felons in Kentucky should be allowed to vote. Does the constitution support that view?  Of course, prisoners can be denied the right to vote while in prison.  By committing a felony, they forfeit certain rights, which can even include the most fundamental right – the right to liberty.  But after a felon completes his sentence, his voting rights should (in my view) be restored.

Indeed, if the law denying his voting rights were passed after his commission of the felony, that law would be unconstitutional because it’s ex post facto.  If the law were passed prior to his commission of the felony, it would still be subject to the test noted above.  That is, government would have to show a compelling need for the discriminatory law, its effectiveness at satisfying that need, and no less discriminatory means of accomplishing the same ends.  Frankly, I doubt that many, if any, states can make that showing.

Mad Magazine vs. Hollywood

Side-by-side obituaries in the Washington Post on Sunday were an interesting juxtaposition.

One obituary was for Efrem Zimbalist, Jr., a fine actor known for playing an agent in the television series “The F.B.I.,” which ran from 1965 to 1974. I never saw this show, but it sounds like many shows over the decades that have portrayed government agencies as super-efficient, laser-focused on the public interest, and always getting the bad guys.

By the end of each episode, “Mr. Zimbalist’s character, Inspector Erskine, and his fellow G-men had captured that week’s mobsters, subversives, bank robbers, or spies.” That surely helped to burnish the FBI’s image, as did the “stunning good looks” of Zimbalist.

The Washington Post notes: “Perceiving that the series could provide the real FBI with an important P.R. boost, [J. Edgar] Hoover opened the bureau’s files to the show’s producers and even allowed background shots to be filmed in real FBI offices.” Hmm, I wonder whether that influenced the show’s portrayal of the agency?

The other obituary was for Al Feldstein, a pioneering editor of Mad magazine, which had a circulation of 2.8 million by the 1970s and “shaped” many young minds. I had one of those young minds, and was influenced by the magazine’s “mockery of adult hypocrises.”

Feldstein saw his magazine “as a form of civic education” for young people. He said “it was their pipeline into the truth about what was happening in the country.” It “taught them skepticism,” which was certainly true for me.

While “The F.B.I.” was apparently portraying the FBI as beyond reproach, Mad magazine was busy “puncturing pomposity.” And here is where the two obituaries collide. Mad “asked readers to write FBI Director J. Edgar Hoover to request an ‘Official Draft Dodger Card,’” and many did. One would think that the agency would have been too busy catching mobsters to pay attention to such a prank. But no: “In a predictably bizarre encounter, FBI agents paid a visit to Mad’s offices in New York, dropping hints that Hoover didn’t take kindly to such shenanigans.”

Later on, America found out that it was Hoover who was committing the real shenanigans. In 1971 a group of skeptical young people “broke into a Bureau branch office outside of Philadelphia, seeking evidence for what they’d long suspected: that Hoover’s FBI was engaged in a secret, illegal campaign of surveillance and harassment of American citizens. The documents they found revealed massive abuses of power and helped lead to new legal checks on domestic surveillance.”

They probably didn’t find any files on Mad in that Philadelphia office, but apparently FBI HQ had accumulated 36 of them over the years.

The Washington Post says that Mad “warped the sensibilities of America’s youth” and exerted a “subversive” influence. But there is nothing warped about teaching skepticism. The real warping comes from all the Hollywood portrayals of government as a benevolent force led by technocratic experts who can solve all our problems.   

Venezuela Arrests Human Rights Activist, Cato University Alum

Last night Venezuela’s Bolivarian Intelligence Service (SEBIN) arrested Rodrigo Diamanti, president of “Un Mundo sin Mordaza” (A World Without Gag), an NGO that promotes human rights and freedom of expression in that country. Diamanti is also a good friend of the Cato Institute and attended the Cato University that we co-hosted in Venezuela in 2009.

No charges have been filed, although reportedly he had an arrest warrant against him. Two weeks ago, while visiting Caracas to run another Cato University and speak at a conference of the pro-liberty think tank Cedice, my colleague Ian Vásquez and I got to talk to Rodrigo and other Venezuelan friends who were part of the student movement that defeated Hugo Chávez in a referendum in 2007. They told us how the government was increasingly harassing NGOs. Sadly, we noticed that many of the guys that attended that Cato University in 2009 have left Venezuela. Those who stayed and continue to fight against the increasingly authoritarian government face the consequences.

Also, early this morning the Bolivarian National Guard violently took over two camps in downtown Caracas where students had been staging a permanent protest against the government. The authorities claim they arrested 243 people. I visited both camps and met several of the students there. One of them, Maria Alejandra, 23, told me she had an arrest warrant against her and woke up every day not knowing whether she would be free –or even alive—by the end of the day. I haven’t been able to contact her today and I’m afraid she’s among those detained during today’s raid.

The crackdown comes at a time that the government is holding phony dialogue meetings with a sector of the opposition. Yesterday a poll by Datanálisis found that 78% of Venezuelans are pessimistic about the situation of the country and 59% thinks that president Nicolás Maduro is doing a bad job. The trend is clear: As the popularity of the regime dwindles, its authoritarianism increases.

FERC’s Prosecutorial Tactics

Joseph Rago of the Wall Street Journal reports on an outrageous enforcement action by the Federal Energy Regulatory Commission against brothers, Rich and Kevin Gates.  Excerpt:

[FERC] began demanding information and taking depositions in fall 2010. At first, the Gates brothers tried to adhere to the insider playbook and hired an attorney from White & Case, a D.C.-based law firm that does frequent business in front of FERC. The insular Washington energy bar trafficks in political connections, but those aren’t so useful for clients who maintain their innocence.

Things started to turn for Kevin Gates, he recalls, during his second full-day deposition with the lead FERC enforcement lawyers on the Powhatan matter, Steven Tabackman and Thomas Olson. “I would suggest that it was intimidation tactics, aggressive behavior, which I guess is natural for a federal prosecutor, maybe what you would expect,” he says. “But there were also a lot of questions asked and behavior that suggested to me that we were seeing the world very differently and—I would suggest—they didn’t know what they were talking about.”

Mr. Gates was asked to leave the room and sat in the hallway while his lawyer conferred with the feds. The lawyer emerged to relate what the FERC enforcement team had proposed: “Kevin’s a businessman, isn’t he? He knows that it’s cheaper to settle than it is to fight this investigation.” Right then, Mr. Gates says, “I realized that we had a big problem on our hands. This was unlike anything we’d ever seen before at a regulatory agency.”

The Gates brothers fired the white-shoe practice and brought on Bill McSwain of Drinker Biddle, a Philadelphia-area lawyer who “didn’t interface much with FERC. He also used to be a Marine sniper, so he had a different approach to the world.” Mr. McSwain introduced himself to FERC by calling their conduct contrary to “established law, as well as common sense,” and that was one of his subtler letters…

[FERC’s regulators] have specialized in retroactive punishments for conduct that was legal at the time. Most of these cases never go to court and end with settlements against politically disfavored defendants like J.P. Morgan (that one, like Powhatan, was led by Mr. Olson). Most companies roll over because their future business interests depend on preserving good regulatory graces and favorable FERC rulings. The Gates brothers are unusual in that their livelihoods are elsewhere, but the illogic, intimidation tactics and erosion of due process in their investigation are typical. [Emphasis added].

Read the whole thing.  As the article notes, most business people surrender to the bullying tactics of regulators.  By taking their case public and fighting back, the Gates brothers may not only win their case, but might establish some favorable legal precedents that will help others in the future.  And for that, they deserve our thanks.

For related Cato work on the erosion of due process, go here, here, here, and here.