Topic: Law and Civil Liberties

Fifth Circuit Disobeyed Supreme Court in Allowing Racial Preferences at UT-Austin

Last year, in Fisher v. University of Texas at Austin, the Supreme Court delivered a blow to the use of racial preferences in university admissions by reversing a Fifth Circuit panel opinion that had allows the use of race in UT-Austin’s admissions policy. That wasn’t the end of the story, however; after holding that the university bears the burden of proving that its use of racial preferences is necessary and narrowly tailored—a point on which university administrators are due no deference—the Court remanded the case back to the Fifth Circuit to determine whether UT had offered evidence sufficient to prove that its use of race was “narrowly tailored to achieving the educational benefits” of diversity. 

Recall that UT-Austin’s admissions program fills most of its spots through a race-neutral Top Ten Percent Plan—which offers admission to high school graduates in the top ten percent of their class—then fills the remaining seats with a “holistic” rating that takes into account various factors typical to admissions programs (including race for certain preferred minorities).

Well, on remand, the Fifth Circuit panel split 2-1 but once again sided with the university, holding that even if the Top Ten Percent Plan already provided a “critical mass” of minority students, the use of racial preferences was necessary to achieve some other special kind of diversity.  The dissenting opinion by Judge Emilio Garza points out how the majority has deferred, once again, to the university’s hand-waving claim that its use of racial preferences is narrowly tailored to an actual, appropriate interest, without having actually proven anything approaching what is constitutionally required. 

Abigail Fisher, the white former applicant suing UT-Austin, has asked the full Fifth Circuit to rehear the case. Cato has filed a brief supporting that petition. 

In our brief, we argue that the Fifth Circuit panel failed to apply actual, deference-free strict scrutiny, failed to require the university to define the “critical mass” its race-based policy is intended to achieve, and failed to require the university to explain with particularity why race-blind measures wouldn’t be able to achieve its interests. Rather than require that UT-Austin even roughly define what quanta of black and Hispanic students is necessary to further its diversity goals–a particularly meaningful task given the significant black and Hispanic presence on campus resulting from the Top Ten plan–the university was allowed to skate on vacuous platitudes about “critical masses,” “tipping points,” “upper bands,” and the like. But if interests so vacuous they read like a parody of a Thomas Friedman column were all that strict scrutiny required, why would the Supreme Court have even bothered taking up the Fisher case?

The constitutional laziness and deference the panel majority showed is striking.  The Fifth Circuit should hear this case en banc and correct the errors made by the panel majority, which contradict circuit precedent in various ways.

Further background and Cato’s previous filings in the case are available here.

#Escape2010

In response to my “Twitter fight!” blog post from Wednesday, Harvard Law Professor Lawrence Lessig charges me (in a post entitled “#Escapethe1990s”) with living in the campaign finance debates of the 1990s. There’s a better knock on me: I live in the 1790s, when the Bill of Rights was adopted, like some kinda freak!

Lessig really wants me to rely on modern Supreme Court precedents to argue that public funding of electioneering is unconstitutional: “And I challenge Harper to offer one bit of actual authority to counter that statement beyond his ‘this is the way I wish the Constitution were interpreted’ mode of argument,” he says, in “I-really-mean-it” bold.

I’ve had similar challenges to my starry-eyed and—I’ll confess—ideologically driven view of the Constitution. (I’m biased in favor of liberty.) For about a year, supporters of NSA spying bandied Smith v. Maryland “Supreme Court law,” saying that a person has no Fourth Amendment interest in phone calling data—until Judge Leon undercut them. Needless to say, the Court got its rationale wrong in Smith. Applying Smith to NSA spying is wrong. To the extent precedents might allow public funding of electioneering, they are wrong, too.

Professor Lessig devotes a good deal of time to the compromise he and others have made with conservative opponents since the ’90s. Perhaps because I’m not a conservative, but a libertarian, I don’t feel as though I owe it to them to come their way. To Lessig’s credit, he is not doubling-down on a bad idea, as others are, by seeking a constitutional amendment to allow government regulation of political speech. (The bill at the link was introduced Tuesday.)

What is most interesting is his utter certainty that an intricate scheme to mask government subsidy for political speech is good enough to slide over the First Amendment’s bar on “abridging the freedom of speech.” I thought I did a pretty good job on the subsidy question the first time, but I’ll do it again: Under Lessig’s plan, if you give money to a politician, you pay less in taxes. If you don’t give money to a politician, you pay more in taxes. Government tax policy would funnel money to politicians for their campaigns. That’s subsidy.

Florida Parents Fight for Educational Choice

On what would have been the 102nd birthday of Milton Friedman—the godfather of educational choice—six families with children that have special needs are fighting back against Florida’s largest teachers union, which is seeking to kill the Sunshine State’s newest educational choice program.

Milton Friedman on educational choice.

The Florida Education Association is suing the state of Florida to eliminate the new Personal Learning Scholarship Account (PLSA) program, among other recent education reforms, including an expansion of the state’s scholarship tax credit law. Modeled after Arizona’s popular education savings account (ESA), the PLSA would provide ESAs to families of students with special needs, which they could use to pay for a wide variety of educational expenses, such as tuition, tutoring, textbooks, online learning, and educational therapy. Six families with special-needs children who would have qualified for the program are seeking to intervene as defendants in the lawsuit, represented by the Goldwater Institute’s Clint Bolick.

The union’s lawsuit argues that the legislation creating the PLSA, Florida’s Senate Bill 850, violated the state constitution’s “one subject rule” because it contained a variety of education reforms.

D.C. Circuit Rules that Obamacare Is a “Tax” but Not a “Bill for Raising Revenue”

The D.C. Circuit Court of Appeals today tossed out the latest constitutional challenge to Obamacare, which argues that if the individual mandate is a “tax,” as the Supreme Court said it is, it’s still unconstitutional because it did not originate in the House of Representatives, as the Constitution requires. I argued the case on behalf of entrepreneur Matt Sissel in May.

Today’s decision, written by Judge Judith Rogers and joined by Judges Cornelia Pillard and Robert Wilkins, holds that while the mandate may be a “tax,” it isn’t a “bill for raising revenue,” and is therefore exempt from the Origination Clause.

What’s the difference between a tax and a bill for raising revenue? Some court decisions have held that there are things that may appear to be taxes but are actually only penalties designed to enforce other kinds of laws. For example, in a 1943 case called Rodgers v. United States, the court of appeals said that a tax that was imposed on people for growing more wheat than the government allowed (that’s the same wheat law that was at issue in the infamous Wickard v. Filburn) wasn’t really a tax, but just an enforcement penalty or a fine. Such penalties aren’t “bills for raising revenue,” so they don’t have to start in the House.

The problem with that line of argument is that in NFIB v. Sebelius, the Supreme Court said that the individual mandate, whatever else it might be, is not a penalty or a fine. That’s just why Chief Justice Roberts concluded that it was a tax! And that means that no such exemption should apply.

Biden: “I Should Have Had One Republican Kid To Go Out And Make Money”

The Washington Free Beacon reports that Vice President Joseph Biden made his audience “burst into laughter” at the Urban League gathering in Cincinnati when he cracked “I should have had one Republican kid to go out and make money,” noting that instead he has a daughter who went into social work. 

And well should they have burst into laughter. It was a joke, folks! In real life, Biden’s son Beau has worked as an asbestos plaintiff’s lawyer, which is much more of a moneymaking venture than most “Republican kids” ever get near. Both he and another Biden son have been closely associated with one of the biggest such law firms in the nation. This fits a pattern noted by David Boaz a few weeks back, in which reporters keep acting surprised when Democratic politicians are found to be pals with zillionaires and attending fundraisers at mansions. 

Although Vice President Biden has not always been entirely forthcoming about his family’s longstanding ties to plaintiff’s law work, especially considering his own role as a guardian of trial lawyer causes while in the Senate, you might have seen them mentioned in places like the L.A. Times and USA Today a few years back. The L.A. Times story begins: 

When Joe Biden’s brother and son wanted to buy a hedge fund company two years ago, they turned for financing to a law firm that had lobbied the Delaware senator’s office on an important piece of business in Congress – and in fact had recently benefited from his vote. The firm promised James and Hunter Biden that it would invest $2 million, and quickly delivered half of it.

They wanted to buy a hedge fund? At least it presumably wasn’t a Republican hedge fund. 

 

 

 

 

Gray Lady Calls on Feds to Repeal Marijuana Prohibition

Yesterday, the New York Times ran a lengthy editorial, entitled “Let States Decide on Marijuana.”  Here is an excerpt:

Allowing states to make their own decisions on marijuana — just as they did with alcohol after the end of Prohibition in 1933 — requires unambiguous federal action. The most comprehensive plan to do so is a bill introduced last year by Representative Jared Polis, Democrat of Colorado, known as the Ending Federal Marijuana Prohibition Act. It would eliminate marijuana from the Controlled Substances Act, require a federal permit for growing and distributing it, and have it regulated (just as alcohol is now) by the Food and Drug Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives. An alternative bill, which would not be as effective, was introduced by Representative Dana Rohrabacher, Republican of California, as the Respect State Marijuana Laws Act. It would not remove marijuana from Schedule I but would eliminate enforcement of the Controlled Substances Act against anyone acting in compliance with a state marijuana law….

Congress is clearly not ready to pass either bill, but there are signs that sentiments are changing. A promising alliance is growing on the subject between liberal Democrats and libertarian Republicans. In a surprise move in May, the House voted 219 to 189 to prohibit the Drug Enforcement Administration from prosecuting people who use medical marijuana, if a state has made it legal. It was the first time the House had voted to liberalize a marijuana law; similar measures had repeatedly failed in previous years. The measure’s fate is uncertain in the Senate….

For too long, politicians have seen the high cost — in dollars and lives locked behind bars — of their pointless war on marijuana and chosen to do nothing. But many states have had enough, and it’s time for Washington to get out of their way.

Support for marijuana prohibition is collapsing.  And now that the Gray Lady has turned, many more people will conclude that it is now okay to join the cause (or at least stop opposing the cause).

For Cato scholarship on drug policy, go here.

Another DC Handgun Ban Ruled Unconstitutional

The DC government ignored the Supreme Court’s ruling in the Heller case, so we had to take them back to court.  We won again.  The idea that they can simply ban the exercise of a fundamental and enumerated constitutional right is absurd. If the constitutional approach of the DC government were applied to the First Amendment, they would interpret the power to regulate the time, place, and manner of its exercise to include banning all churches, mosques, temples, and synagogues in the District.  That cannot be right and the court has set them straight on that matter.

Alan Gura, our lawyer, is a hero for his work on behalf of the rule of law.  I and the other plaintiffs are grateful to him and to the Second Amendment Foundation for this resounding victory.

Read the decision here.