Topic: Law and Civil Liberties

Supreme Court Grants Cert In Wartime Suspension of Limitations Act Case

Should courts allow the federal government to ignore time deadlines for filing suit on the grounds that there’s a war on, even though it’s been 70 years since the end of the war on which such a delay was premised? On Tuesday the U.S. Supreme Court granted certiorari in a case raising that question, Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter. I wrote about the issue last year; an excerpt:

War is the health of the state,” wrote Randolph Bourne a century ago—from the special war taxes that can linger for a century, to the mohair subsidy program from Korean War days, to New York City’s wartime emergency rent controls, to the many incursions on civil liberties that don’t get rolled back afterward. War, it now turns out, can even give a boost to the lawyers who represent the federal government in civil litigation, magically transmuting losing cases into winners….

In 1942, not long after the Japanese attacked Pearl Harbor, Congress passed the Wartime Suspension of Limitations Act (WSLA), providing that the statute of limitations would be suspended (or “tolled”) on claims of defrauding the federal government until hostilities had ended. When the Japanese surrendered three years later, Congress left WSLA on the books, where nearly everyone forgot about it. …

A few years ago the U.S. Department of Justice decided that the old law entitled it to file various civil fraud lawsuits for which the ordinary statute of limitations had passed, because we were after all at war in Iraq and Afghanistan – even though the original statute applied on its face to criminal rather than civil cases, although the newer wars unlike World War II do not call for all-consuming national focus that might pre-empt the ordinary course of business, and although the subject matter of most of the cases has nothing whatever to do with national defense or war or Afghanistan or Iraq. A couple of appeals courts have agreed with DoJ’s excuse, which has emboldened the government to roll out the theory to many other cases. That leaves business lawyers to fret, as I wrote last year, about “when, if at all, they can safely advise clients that a potential dispute is too old to worry about. If truth is the first casualty of war, perhaps the fairness of dispute resolution is the next.”

The Supreme Court now offers them a ray of hope – and in a more sensible world Congress would do so as well, by agreeing to revisit WSLA.

Hobby Lobby’s Aftermath—and Its Implications for Freedom

Not to be missed, the Wall Street Journal offers us two house editorials this morning plus the always colorful online thoughts of James Taranto, all on the Left’s hysterical reaction to Monday’s Supreme Court decision in the Hobby Lobby case. With his usual wit, Taranto presents a rich catalog of the “aggressively ignorant commentary” while the first of the editorial board’s offerings is a clear-eyed statement of the raw politics behind this “ignorance.” It starts with White House press secretary Josh Earnest’s initial remarks—conveniently ignoring that the decision rested not on the Constitution but on a statute that Congress passed all but unanimously—then continuing to Hillary Clinton’s remarkable outburst—likening the result that flows from the statute her husband promoted as president to the treatment of women that we see in the worst Middle Eastern despotisms.

But it’s in its second offering, “The Political Ginsburg,” that the Journal takes off the gloves. The justice’s “hyperbolic dissent is a political call to arms unworthy of a junior judge, much less the nation’s highest Court,” the editors write. Indeed,

The excess begins with her first sentence: “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations … can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” She goes on to say that the Court’s “radical purpose” may unleash “havoc,” among other flourishes that distort the opinion to the point of intellectual dishonesty.

Summing up its assessment:

Justice Ginsburg’s dissent is so far removed from the legal reality that it doesn’t qualify as a judicial opinion. It is a political opinion whose purpose seems to be to mobilize opposition to the Court and perhaps even motivate Democrats to turn out at the polls. Justice Antonin Scalia sometimes unleashes his rhetorical ferocity on decisions he dislikes, but his dissents are rooted in the law. Justice Ginsburg’s is a flight from the law.

And yet, for all her gross distortion of Justice Alito’s narrow, statutory opinion for the Court, Justice Ginsburg has pointed, doubtless unwittingly, to how far we’ve strayed from our first principle, freedom—something to reflect on as we prepare to celebrate our independence. As I wrote in this space a while back, after oral argument in Hobby Lobby, religious liberty is treated today as an “exception” to the general power of government to rule—captured, indeed, in the very title of the statute on which the Hobby Lobby decision rests: The Religious Freedom Restoration Act. That Congress had to act to try to restore religious freedom—to carve out a space for it in a world of ubiquitous, omnipresent government—speaks volumes. So completely have we come to assume that it’s government first—supplying us with all manner of goods and services—liberty second, that Justice Alito himself was at pains to stress how narrow his opinion was (properly, from a consideration of the scope of judicial authority).

Yet that was not enough for his critics, who have so distorted his opinion. Although most don’t say it, their real beef is with the Act itself. They pit a woman’s “right” to “free” contraceptives, including the abortifacients at issue in this case, against the claim of an employer that he has a right not to provide those (in principle, on religious or on any other grounds). And they add that employers have no right to “interfere” with a woman’s reproductive choices—as if that’s what employers are doing. It’s “reasoning” like that that has undermined our freedoms. And no one has employed it more often than the man now in the White House, who repeatedly tells us that “We’re all in this together.” If we are, then it’s far more than religious liberty that needs restoring.

The Right to Own Includes the Right to Rent Out

Since 2005, the city of Winona, MN will not grant rental licenses to property owners if more than 30 percent of the lots on their block already have rental licenses (the 30% “rule”). The rule contains a “grandfather clause,” however, that allows property owners who had licenses prior to the rule to continue renting even if their block has already reached the 30 percent threshold. Therefore, many blocks in the city violate the rule, which the Minnesota Supreme Court is now reviewing.

Cato has filed an amicus brief, joined by the Minnesota Free Market Institute at the Center of the American Experiment, supporting the property owners challenging the rule. We argue that the rule is an arbitrary, inefficient, and unconstitutional restraint on an essential and fundamental property right because it strips property owners of their right to manage and enjoy their property at the result of actions of their neighbors. The rule also damages communities by reducing property values and creating inefficiencies in the local economy and housing market without a substantial government interest.

First, the rule is a significant intrusion into the fundamental rights of residential property owners because it denies the right to rent—one of the three principal ways to use a property—and significantly limits the right to sell. In addition, since the rule restricts fundamental rights, it needs to be tailored to achieve a legitimate government interest to be held valid—but the rule is both over-inclusive and under-inclusive.

Second, the right to rent is too important to restrict with an arbitrary limit on rental licenses. The rule isn’t an effective way to protect “community character”—its purpose according to the city—especially given the fact that the law has many exceptions and is applied arbitrarily. For example, the rule favors currently licensed property owners and encourages them to add rental properties to their lots, thereby defeating the asserted goal of avoiding rental clustering. Finally, the rule harms communities by artificially depressing property values and increasing the probability of vacancy. It further fails to rationally address the city’s other concerns. For example, one of the rule’s ostensible purposes is to reduce student-housing-related nuisance complaints, but it still allows large groups of students to live together in “theme houses.”

For these reasons, the Minnesota high court should reverse the lower courts’ ruling and protect the full constitutional rights of Minnesota property owners.

(Full disclosure: My condo building established a similar rule a few years ago because, due to federal regulation, it’s hard to get lenders to approve mortgages to finance purchases in buildings with a high rental quotient. Because I’m one of the original owners in my 7-year-old building, my unit is grandfathered in—except the condo board is now trying to apply the rental cap even to owners who predate the rule. It hasn’t come to litigation yet and the issue here is contractual rather than constitutional or statutory—and I don’t plan to rent out my place any time soon—but this episode just reinforced for me the practical importance of the high-fallutin’ principles Cato defends.)

Cato Went 10-1 at Supreme Court This Term

And so another term has come and gone at the marble palace at One First Street NE. Like last year, Cato did swimmingly, compiling a 10–1 record in cases where we filed an amicus brief. Notably, we again vastly outperformed the solicitor general’s office, which went 11–9 on the year. Perhaps the government would be better served following our lead on constitutional interpretation, advocating positions that reinforce our founding document’s role in securing and protecting individual liberty.

Cato was also the only group in the country to file on the winning side of this term’s three highest-profile 5-4 cases: McCutcheon v. FEC (campaign finance), Harris v. Quinn (workers’ rights), and Burwell v. Hobby Lobby (HHS mandate). This again matches our performance last year, when we were the only ones to file on the winning side of Fisher v. UT-Austin (racial preferences), Shelby County v. Holder (voting rights), and United States v. Windsor (DOMA). There’s an obvious reason why it’s become a “best practice” among elite Supreme Court advocates to solicit an amicus brief from Cato; while our denial rate is lower than the Supreme Court’s, it’s been growing steadily given increasing requests without a commensurate growth in manpower.

For the record, here’s a record of cases in which we filed this term (in order of argument):

Winning side (10): McCutcheon v. FEC; Schuette v. Coalition to Defend Affirmative Action; Bond v. United States; Noel Canning v. NLRB; Brandt v. United States; McCullen v. Coakley; Harris v. Quinn; Burwell v. Hobby Lobby; SBA List v. Driehaus; Riley v. California

Losing side (1): Kaley v. United States

To learn more about all these cases and the views of Cato-friendly scholars and practitioners, register for our 13th Annual Constitution Day Symposium, which will be held September 17 to review the term just past and look ahead to the next one. (This year’s conference features P.J. O’Rourke, Miguel Estrada, and Judge Diane Sykes, among others.) That’s also when we’ll be releasing the latest volume of the Cato Supreme Court Review. Speaking of which, I’d better get editing…

The Republic of Gilead Is Not Nigh

If you were judging only from the outraged reaction  online, you could be forgiven for thinking that the Supreme Court’s ruling in Burwell v. Hobby Lobby had just mandated the adoption of Margaret Atwood’s The Handmaid’s Tale as the blueprint for American society.  Yet as my colleague Ilya Shapiro notes, there’s a profound disconnect between all the rhetoric about “denial of access” to contraception and the substance of the ruling.

At the heart of the majority’s opinion is this: The Department of Health and Human Services has already developed a way to exempt religious non-profit corporations—such as churches, charities, and hospitals—from the legal mandate to pay for employees’ contraception coverage.  In what amounts to an accounting trick, they permit those corporations to purchase plans without such coverage, and then require that insurance companies themselves independently provide it to the uncovered employees.  Because pregnancy is quite a bit more expensive than contraception, this apparently ends up not imposing any additional net cost on the insurers.  The result is that employees of religious non-profits end up with no-copay contraception coverage, exactly as if the employer were required to provide it directly, but the employers are satisfied by this ledger shuffling that they aren’t being compelled to violate their most deeply held moral convictions.  Which, one would think, is a win-win.

Against this background, the Court simply held that since HHS has already found a way to achieve the government’s aim of ensuring employees have access to free contraception without compelling non-profit employers to act against their profound religious convictions, they must do the same in the case of for-profit employers, at least where the for-profit corporation is “closely held.”  The majority quite explicitly denied this ruling has any implications for cases where there might not be such a happy win-win means of achieving the government’s ends, at no additional cost, without forcing employers to violate their convictions. As Justice Alito’s opinion emphasizes:

Hobby Lobby, Harris, and Stealing Each Others’ Clothes

Legal issues have a way of changing form over the years in such a way that the liberal and conservative teams, such as they are, each periodically migrate over to occupy the positions the other formerly held. Examples from today’s two big cases: 

  • In 1990, when the Court decided Employment Division v. Smith, the Indian peyote case, it seemed clear that the liberal stand was to sympathize with religious believers seeking exemption from otherwise applicable general laws, while the conservative position – expressed by Justice Scalia in a majority opinion over a dissent by Blackmun, Brennan, and Marshall – was that sorry, but asserting religious scruples doesn’t place you above the law. Congress then proceeded to adopt by way of RFRA, the Religious Freedom Restoration Act, a mechanism using statutory means to achieve much the same ends as the liberals had sought to locate in constitutional law. Two decades later, where are we? The analogy with Hobby Lobby is by no means exact – one might decline to constitutionalize religious conscience rights yet still favor their vigorous statutory application, and the Smith case involved individuals rather than family corporations. But still: by prevailing back then, Scalia and the conservatives shaped a more favorable terrain for what to become the liberal position in Hobby Lobby, while the position embraced by Brennan and Marshall back then, had it prevailed, would have given the religious objectors in Hobby Lobby stronger ground to stand on.
  • Protection for the speech and expression rights of public-sector employees is a specialized area of constitutional law and, under existing Supreme Court precedent, a bit of a balancing act in which the interests of the government-as-employer in maintaining an orderly and efficient workplace often outweigh the expression rights of individual public employees. Not that long ago, it would have been a plausible generalization that liberals on the Court were enthusiastic about guarding and expanding the individual expression rights of public-sector workers, while conservatives tended more to stress management prerogatives. But in today’s Harris v. Quinn, it was the conservative majority that demanded respect for individual employees’ expression rights even where doing so might tend to destabilize an overall public policy, while the dissenting liberals led by Justice Kagan deprecated those same individual expression rights as all very nice in their way but needing to yield to the rights of management. 

Has anyone tried to compile a list of all the various issues in which liberal and conservative blocs have traded positions with each other over living memory? I suspect it would be a long one.

Liberty at the High Court: Not Just (A) Hobby

As someone observed, the pundit world showed deep interest in Harris v. Quinn for about twenty minutes, after which Hobby Lobby was announced and it seemed everyone wanted to talk about that and nothing else. 

My own opinion is that Harris was the more important decision today and Hobby Lobby the less, because constitutional law endures. When Congress sooner or later gets around to amending RFRA, Obamacare, or both, Hobby Lobby, a case of statutory interpretation, will become a footnote of purely historical interest. That doesn’t happen with a First Amendment case, unless of course it is overruled, overturned by Constitutional amendment, etc.

It’s surprising how many commentators are referring to today as a double win for the First Amendment. But Hobby Lobby, while an important case in its way, never reached the First Amendment. Harris did.