Topic: Law and Civil Liberties

Land Use and Local Government: The Facts On the Ground Are Libertarian

Prof. Kenneth Stahl, who directs the Environmental Land Use and Real Estate Law Program at Chapman University School of Law, has a post at Concurring Opinions asking why libertarians aren’t more numerous among academic specialists in local government and land use law. Stahl describes his own views as siding with “leftists rather than libertarians,” that is to say, those who “have some confidence in the ability of government to solve social problems”: 

Nevertheless, were you to pick up a randomly selected piece of left-leaning land use or local government scholarship (including my own) you would likely witness a searing indictment of the way local governments operate. You would read that the land use decisionmaking process is usually a conflict between deep-pocketed developers who use campaign contributions to elect pro-growth politicians and affluent homeowners who use their ample resources to resist change that might negatively affect their property values. Land use “planning”—never a great success to begin with—has largely been displaced by the “fiscalization” of land use, in which land use decisions are based primarily on a proposed land use’s anticipated contribution to (or drain upon) a municipality’s revenues. Public schools in suburban areas have essentially been privatized due to exclusionary zoning practices, and thus placed off limits to the urban poor, whereas public schools in cities have been plundered by ravenous teachers’ unions.

… It hardly paints a pretty picture of local government. Yet, most leftists’ prescription is more government. 

To put it differently, libertarian analysis better explains what actually goes on in local government than does the standard progressive faith in the competence of government to correct supposed market failure. The post (read it in full!) goes on to discuss specifics such as annexation, incorporation, and economic stratification-by-jurisdiction; the relative success of lightly governed Houston in achieving low housing costs and attracting newcomers and economic growth; and the transference of progressives’ unmet hopes to regionalization, so memorably summed up by Jane Jacobs years ago: “A region is an area safely larger than the last one to whose problem we found no solution.”

Stahl: 

So why would left-leaning scholars, who have seen so clearly the failures of local government, place so much faith in a largely untested restructuring of governmental institutions, rather than looking to less government as the solution?

Great question.

Eric Holder’s Tenure

Eric Holder’s tenure marked one of the most divisive and partisan eras of the Justice Department.  From his involvement in the bizarre guns-to-gangs operation (“Fast & Furious”), for which he has been cited for contempt by the House and referred to a federal prosecutor (which referral went nowhere due to invocations of executive privilege), to his refusal to recognize the separation of powers—enabling President Obama’s executive abuses—he politicized an already overly political Justice Department.

 One thing that differentiates Holder from other notorious attorneys general, like John Mitchell under Richard Nixon, is that Holder hasn’t gone to jail (yet; the DOJ Inspector General better lock down computer systems lest Holder’s electronic files “disappear”).

Holder’s damage to race relations may be even worse than his contempt for Congress, however, as his management of the Justice Department and use of its powers betray a desire to use the law to advance a dubious view of social justice. For example, he sued fire and police departments to enforce hiring quotas and inflamed social tensions with his pronouncements on Stand Your Ground laws. He blamed banks for not lending enough to members of racial minority groups and other banks for “predatory lending” that led to disproportionate bankruptcies among those same groups. Ironically, he’s even challenged school choice programs, which overwhelmingly help poor black kids acquire better educations.

Still, it must be said that Holder was a “uniter not a divider” on one front: under his reign, the Justice Department has suffered a record number of unanimous losses at the Supreme Court. In the last three terms alone, the  government has suffered 13 such defeats – a rate double President Clinton’s and triple President Bush’s – in areas of law ranging from criminal procedure to property rights to securities regulation to religious freedom. By not just pushing but breaking through the envelope of plausible legal argument, Attorney General Holder has done his all to expand federal (especially executive) power and contract individual liberty beyond any constitutional recognition.

Eric Holder will not be missed by those who support the rule of law.

Joe McNamara, RIP

Joe McNamara was a former police chief and scholar at the Hoover Institution.  He was an outspoken critic of the drug war and devoted much of his time to converting people within the law enforcement community. 

Here is a talk that he gave at Cato’s 1999 conference, Beyond Prohibition:
https://www.dropbox.com/s/ucftsgfrtshr7jk/McNamara.m4v?dl=0

Here is an article he prepared for Regulation Magazine in the wake of the 9/11 terrorist attacks, “The Defensive Front Line.”

Joe McNamara, RIP

Federal Prosecutorial Ethics

Arkansas businessman, John Stacks, is about to stand trial in federal court.  Mr. Stacks is attacking the charges and the conduct of the government agents.  Prosecutors don’t like what he’s been saying and asked a judge to squelch their target’s ‘false allegations.’

From the Arkansas Democrat-Gazette [Sept. 4]:

Prosecutors sought an order preventing Stacks, his attorneys or any witnesses on his behalf from airing the “false and/or misleading” allegations in front of jurors. They cited a video “re-enactment” he posted online of agents executing a search warrant at his business, along with allegations he has aired in a lawsuit over the raid. “At the time that the lawsuit was filed, Stacks knew that a grand jury investigation was under way,” the government’s motion notes….

In July, [Judge] Holmes ordered prosecutors to supply a “bill of particulars” providing more detail about the criminal accusations against Stacks than what was stated in the indictment. This was in response to Stacks’ claim that he couldn’t figure out exactly what he was accused of doing wrong, and that when he asked for details, prosecutors handed over 80,000 un-navigable pages of documents.

The Constitution guarantees free speech.  It also says the accused has the right to be informed of the nature and cause of the accusation against him.  Two constitutional violations and the trial has not even started yet.

I have hosted two policy forums about federal prosecutorial abuses the past few months.  We may need to host such events even more regularly.  

School Choice Safe in Florida…for Now

Earlier this year, Florida’s largest teachers union filed a legal challenge to prevent the expansion of school choice. As I explained then:

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.

Today a circuit court judge dismissed the lawsuit, ruling that the plaintiffs lacked standing to sue because they could not show how they were harmed by the law. Last month, the New Hampshire Supreme Court unanimously ruled that plaintiffs lacked standing to challenge the Granite State’s scholarship tax credit law because they also could not demonstrate that they suffered any harm.

Targeting the Constitution

[Cross-posted from The Volokh Conspiracy]

It is now well known that the IRS targeted tea party organizations. What is less well known, but perhaps even more scandalous, is that the IRS also targeted those who would educate their fellow citizens about the United States Constitution.

According to the inspector general’s report (pp. 30 & 38), this particular IRS targeting commenced on Jan. 25, 2012 — the beginning of the election year for President Obama’s second campaign. On that date: “the BOLO [‘be on the lookout’] criteria were again updated.” The revised criteria included “political action type organizations involved in … educating on the Constitution and Bill of Rights.”

Grass-roots organizations around the country, such as the Linchpins of Liberty (Tennessee), the Spirit of Freedom Institute (Wyoming), and the Constitutional Organization of Liberty (Pennsylvania), allege that they were singled out for special scrutiny at least in part for their work in constitutional education. There may have been many more.

The tea party is viewed with general suspicion in some quarters, and it is not difficult, alas, to imagine the mindset of the officials who decided to target tea party organizations for special scrutiny. But federal officers swear an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” It is chilling to think that these same officials who are suspicious of the tea party are equally suspicious of the Constitution itself.

What is most corrosive about this IRS tripwire is that it is triggered by a particular point of view; it is not, as First Amendment scholars say, viewpoint-neutral. It does not include obfuscating or denigrating the Constitution; only those “involved in … educating on the Constitution” are captured by this criterion. This viewpoint targeting potentially skews every national debate about politics or government. And the skew in not strictly liberal; indeed, it should trouble liberals as much as conservatives. The ultimate checks on executive power are to be found in the United States Constitution. Insidiously, then, suppressing those “involved in … educating on the Constitution” actually skews national debate in favor of unchecked executive power.

The Great Debate Over Hobby Lobby

The Supreme Court’s 5-4 ruling granting certain for-profit companies religious exemptions from Obamacare’s contraceptive mandate has of course generated a flurry of debates between conservatives and liberals (with libertarians siding with the right not to be forced by the government to violate your conscience). But what about within the camp that supported the decision in Hobby Lobby? Was there some conservative vs. libertarian split?

Well, as it happens, one of the icons of the libertarian legal movement, my former professor Richard Epstein, contributed an article to the most recent volume of the Cato Supreme Court Review. He concluded that Justice Samuel Alito’s majority opinion reached the right result for the wrong reason, that the Court should’ve rejected the mandate because the government didn’t have a compelling interest to advance not because it didn’t use the least-restrictive means to advance it. 

Epstein wasn’t able to attend our Constitution Day symposium, however, so Ed Whelan – president of the conservative Ethics & Public Policy Center and noted legal contributor to National Review Online – took Epstein’s place in discussing Hobby Lobby. Whelan took issue with Epstein’s approach; during the panel [see starting at 35:00] his comments about the Review article were akin to Justice Antonin Scalia’s “blistering concurrences” this term, agreeing with little other than the final judgment.

So this sounds ripe for the libertarian-versus-conservative trope, right? Maybe Epstein focused on liberty and Whelan on religion? Actually not really; (most of) their dispute is more about principle with pragmatism.