Topic: Law and Civil Liberties

The Constitution? Not That Old Thing!

ConstitutionOver at Flypaper, Andy Smarick can’t figure out what the Obama administration thinks is the proper federal role in education.

A couple of weeks ago, commenting on a speech by U.S. Secretary of Education Arne Duncan, Smarick couldn’t tell whether Duncan was advocating that the feds be friendly Helpy Helpertons, no-excuses disciplinarians, or something in between. Yesterday, Smarick revisited the whither-the-feds theme, pointing out the frustrating contradiction when Duncan both praises local and state education control and blasts states for doing stuff he doesn’t like.

But Duncan isn’t alone in his fuzziness, according to Smarick, who says he’s “yet to come across anyone with a comprehensive, water-tight argument for what the feds should and should not do.”

I’m sure this is not the case, but from reading that you’d think Smarick had never run across a little thing called “the Constitution,” which furnishes just the “water-tight argument for what the feds should and should not do” that he seeks.  It also appears that he’s never encountered numerous things that I’ve written pointing this out. For instance, in Feds in the Classroom I wrote:

Because two of the sundry words that do not appear among the few legitimate federal functions enumerated in the Constitution are “education” and “school,” the federal government may have no role in schooling.

Ah, but what of the “general welfare” clause that comes before the enumerated powers in the Constitution’s Article I, Section 8? Doesn’t that give the feds authority to do anything that is in the nation’s best interest? At the very least, doesn’t it break the water-tight seal against federal education intervention?

Nope. I give you James Madison on the general welfare clause in Federalist no. 41:

For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.

The general welfare clause confers no authority on the federal government, it just introduces the specific, enumerated powers that follow it. Among them, you’ll find not a peep about education.

Many educationists will think me hopelessly retrograde for bringing up the Constitution, although Duncan at least mentioned the dusty old document in his recent federalism speech. Unfortunately, he engaged it with all the courage and gusto of Sir Robin. But at least he acknowledged its existence – too many policymakers and wonks ignore the Constitution completely because it forbids Washington from doing the sundry things they want it to do.

But why shouldn’t the Constitution be treated like an ancient grandfather, a nice old guy whose utterances, in a half-hearted effort to be respectful, we acknowledge in the same tone we’d use with a toddler and then promptly ignore?

Because it is the Constitution that clearly establishes the bounds of what the federal government can and cannot do, that’s why! And because when we ignore the Constitution we get exactly the sort of government that is confounding Smarick: government that is capricious, often incoherent, and is ultimately an existential threat to freedom because government officials can claim power without bounds. See TARPcampaign finance, and executive pay for just a few examples of this last threat coming to fruition.

Which leaves all of the people who want Washington to have some role in education, but are frustrated by not knowing what else the feds might do, with only one choice. They can either continue to face inscrutable and ultimately unlimited federal power in hopes of getting what they want, or they can acknowledge what they keep choosing to ignore: That the Constitution is the supreme law of the land, and it gives the federal government no authority to govern American education.

“VIPR” Stands for “Visible Intermodal Prevention and Response” …

… and it’s sinking its fangs into Americans’ civil liberties.

Here’s a story about a “VIPR” team performing a “sting” operation on innocent Americans at a bus terminal in Florida, searching their persons and bags and discovering their petty crimes.

It’s almost a certainty that whoever named this sub-unit of the Department of Homeland Security thought it was a clever way to convey machismo and give a sense of mission to members of VIPR teams. But it also illustrates how the 9/11 terrorist attacks have caused the United States to lose its grip and behave like a cornered snake rather than a strong, free country.

The natural illogic of VIPR stings is that terrorism can strike anywhere, so VIPR teams should search anywhere. It’s the undoing of the Fourth Amendment, and it’s unwarranted counterterrorism because it expends resources on things that won’t catch or deter terrorists. Indeed, VIPR “stings” may encourage terrorism because they show that terrorism successfully undermines the American way of life.

Defending Civil Rights and Suing Rogue Prosecutors Is Left-Wing Lawyering?

The National Law Journal and the Wall Street Journal Law Blog note an apparent legal curiosity: Paul Clement, superstar head of King & Spaulding’s appellate group and Bush-administration solicitor general, now “flirts with liberalism” and has “embrace[d] left-leaning causes” to grow his practice.  Is this another case of a conservative lawyer “growing” in office or “drifting” to the left, seduced by the cocktail parties and press attention of the Washington elite?

Hardly.  The two cases that prompted this gnashing of teeth (or cautious optimism, depending on where the commentator resides on the political spectrum) are Perdue v. Kenny A. and Pottowattamie County v. McGhee.  In Kenny A., Clement represented a group of public interest attorneys who won a big case on behalf of mistreated foster children and argued that they should be entitled to the enhanced fees the trial court awarded them for exceptional performance.  In McGhee, Clement’s clients are two men who were framed by overzealous prosecutors and served 25 years in prison for crimes they didn’t commit – the convictions for which were based on the prosecutors’ fabricated evidence.

To say that these are left-wing positions is to consider the Left to be the only possible champion of justice and constitutional rights, and to paint the non-Left as standing for limitless, unaccountable governmental power.  Neither of these positions is accurate, to say the least.  If anything, Clement’s positions are solidly libertarian.

Indeed, Cato filed briefs in both cases, and I signed both of them.  You can read our brief in Kenny A. here and in McGhee here – Clement actually called me to make sure Cato got involved in this one – and you can read my blog posts about the cases here and here, respectively.

In short, if Paul Clement has gone red, well then so have I – and trust me, there won’t be any kumbaya confabs at my place any time soon.  My car’s new vanity plate does say FED 51, however – short for Federalist 51 – so feel free to call me out for flirtations with Madisonian political theory.

H/T: Manny Klausner

Fact-checking Drug Czar Barry McCaffrey

I appeared on the CNN program Lou Dobbs Tonight last Thursday (Oct. 22) to discuss the medical marijuana issue and the drug war in general.  There were two other guests: Peter Moskos from John Jay College and the organization Law Enforcement Against Prohibition (LEAP) and Barry McCaffrey, retired General of the U.S. Army and former “Drug Czar” under President Bill Clinton.

I was really astonished by the doubletalk coming from McCaffrey.  Watch the clip below and then I’ll explain two of the worst examples so you can come to your own conclusions about this guy.

Doubletalk: Example One:

Tim Lynch: “Some states have changed their marijuana laws to allow patients who are suffering from cancer and AIDS–people who want to use marijuana for medical reasons–they’re exempt from the law. But there’s a clash between the laws of the state governments and the federal government. The federal government has come in and said, ‘We’re going to threaten people with federal prosecution, bring them into federal court.’ And what the [new memo from the Obama Justice Department] does this week is change federal policy. Basically, Attorney General Eric Holder is saying, ‘Look, for people, genuine patients–people suffering from cancer, people suffering from AIDS–these people are now off limits to federal prosecutors.’ It’s a very small step in the direction of reform.”

Now comes Barry McCaffrey: “There is zero truth to the fact that the Drug Enforcement Administration or any other federal law enforcement ever threatened care-givers or individual patients. That’s fantasy!”

Zero truth? Fantasy?  This report from USA Today tells the story of several patients who were harassed and threatened by federal agents. Excerpt:  ”In August 2002, federal agents seized six plants from [Diane] Monson’s home and destroyed them.”

This report from the San Francisco Chronicle tells the story of Bryan Epis and Ed Rosenthal.  Both men, in separate incidents, were raided, arrested, and prosecuted by federal officials.  The feds called them “drug dealers.”  When the cases came to trial, both men were eager to inform their juries about the actual circumstances surrounding their cases–but they were not allowed to convey those circumstances to jurors.  Federal prosecutors insisted that information concerning the medical aspect of marijuana was “irrelevant.”   Both men were convicted and jailed.

This report from the New York Times tells readers about the death of Peter McWilliams.  The feds said he was a “drug dealer.”  McWilliams also wanted to tell his story to a jury, but pled guilty when the judge told him he would not be allowed to inform the jury of his medical condition.  Excerpt:  “At his death, Mr. McWilliams was waiting to be sentenced in federal court after being convicted of having conspired to possess, manufacture and sell marijuana…. They pleaded guilty to the charge last year after United States District Judge George H. King ruled that they could not use California’s medical marijuana initiative, Proposition 215, as a defense, or even tell the jury of the initiative’s existence and their own medical conditions.”  The late William F. Buckley wrote about McWilliams’ case here.

Imagine what Diane Monson, Bryan Epis, Ed Rosenthal, and Peter McWilliams (and others) would have thought had they seen a former top official claim that federal officials never threatened patients or caregivers?!

Doubletalk: Example Two:

Tim Lynch: “After California changed its laws to allow the medical use of marijuana, [General Barry McCaffrey] was the Drug Czar at the time and he came in taking a very hard line. The Clinton administration’s position was that they were going to threaten doctors simply for discussing the pros and cons of using marijuana with their patients. That policy was fought over in the courts and [the Clinton/McCaffrey] policy was later declared illegal and unconstitutional for violating the free speech of doctors and for interfering with the doctor-patient relationship. This was the ruling by the Ninth Circuit Court of Appeals in a case called Conant – “C-O-N-A-N-T.”

Lou Dobbs: “The ruling stood in the Ninth Circuit?”

Tim Lynch: “Yes, it did.”

Now comes Barry McCaffrey: “That’s all nonsense!”

Nonsense?  Really?

Go here to read the New York Times story about McCaffrey’s hard-line policy.

The Conant ruling can be found here.  The name of the case was initially Conant v. McCaffrey, but as the months passed and the case worked its way up to the appeals court, the case was renamed Conant v. Walters because Bush entered the White House and he appointed his own drug czar, John Walters, who maintained the hard line policy initiated by Clinton and McCaffrey.

I should also mention that Conant was not an obscure case that McCaffrey could have somehow ”missed.”  Here’s a snippet from another New York Times report:  “The Supreme Court, in a silent rebuff on Tuesday to federal policy on medical marijuana, let stand an appeals court ruling that doctors may not be investigated, threatened or punished by federal regulators for recommending marijuana as a medical treatment for their patients.”  The point here is that the case was covered by major media as it unfolded.

When our television segment concluded, Lou Dobbs asked me some follow-up questions and asked me to supply additional info to one of his producers, which I was happy to do.

Whatever one’s view happens to be on drug policy, the historical record is there for any fair-minded person to see – and yet McCaffrey looked right into the camera and denied  past actions by himself and other federal agents.  And he didn’t say, “I think that’s wrong” or “I don’t remember it that way.”  He baldly asserted that my recounting of the facts was “nonsense.”   Now I suppose some will say that falsehoods are spoken on TV fairly often–maybe, I’m not sure–but it is distressing that this character held the posts that he did and that he continues to instruct cadets at West Point!

My fellow panelist, Peter Moskos, has a related blog post here and he had a good piece published in the Washington Post just yesterday.  For more Cato scholarship on drug policy, go here.

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Attending to Business

In today’s Politico Arena, the editors ask:

Is Obama “dithering” on Afghanistan (Cheney) or fulfilling his “solemn responsibility” (Gibbs)?

My response:

President Obama got some adult criticism this week from Dick Cheney, none too soon.  While the risk to American troops in Afghanistan grows, Obama dithers, unable to decide whether to get in or get out — whether to be the one thing the Constitution authorizes him to be, Commander in Chief.  Yet he finds time to fly off to Copenhagen to promote Chicago for the Olympics, to insinuate himself in local political campaigns, to go on “Fox hunts,” yesterday excluding Fox News from the White House pool allowed to interview his executive pay czar, and now, we learn, to slash executive salaries at companies not only partially owned but simply regulated by the government.  Are there no limits to the man’s hubris?

Even the Washington Post this morning, no bastion of free-market fervor, noted that this “represents a signal moment in the history of the American economic experiment,” moving us ever closer to the European model.  But it was Arena contributor Allan Meltzer who yesterday hit the nail on the head:  ”All the noise about pay and pay cuts is part of an effort to divert the public’s attention from the main cause of the mortgage fiasco — the role that Congressman Frank and others had in creating the mortgage crisis by refusing to limit the activities of Fannie Mae and Freddy Mac after 2003.”  That these regulators will be able to calculate the salary that is appropriate to discourage excessive risk-taking is simply comical.

And so we have here a textbook example of modern government:  Obama fails to do or do well what he is authorized to do, yet he strides into matter far beyond his authority — or competence.  He seems not to understand the Constitution he once taught, and more recently promised to uphold.

More Supreme Court Review on the Road

As an update to an earlier post about my speaking schedule this fall, here are my remaining public events through Thanksgiving.  All these events, other than the one on Nov. 3, are sponsored by the Federalist Society (and in some cases co-sponsored by other organizations) and all are open to the public.  As always, if you decide to attend one of the presentations after learning of it from this blog post, please feel free to ishapiro [at] cato.org (drop me a line) beforehand, and do introduce yourself after the event.

Event info after the jump.

Oct. 26 at 12:00pm -  Florida International University Law School (Miami) - Use of Foreign Law in Constitutional Interpretation

Oct. 27 at 12:30pm - University of Miami Law School - Use of Foreign Law in Constitutional Intepretation

Oct. 28 at 12:30pm - University of Dayton Law School - Hillary Clinton and the Emoluments Clause

Oct. 29 at 12:00pm - Northern Kentucky University Chase College of Law - October Term 2009 Overview

Nov. 3 at 12:00pm - Environmental Law Institute (Washington) - Panel on Stop the Beach Renourishment and Judicial Takings

Nov. 4 at 12:00pm - Yeshiva University Cardozo Law School (NYC) - Immigration and the Constitution

Nov. 4 at 3:00pm - Seton Hall University Law School - Debate on the The Chrysler Bankruptcy

Nov. 5 at 12:00pm - Columbia University Law School - Debate on the Use of Foreign Law in Constitutional Interpretation

Nov. 16 at 12:00pm - St. Louis University Law School - Use of Foreign Law in Constitutional Interpretation

Nov. 17 at 12: 00pm - Washington University (St. Louis) Law School - The Looming Danger of Transnational Progressivism

One Nation Under Double Jeopardy

The Senate is about to vote on Defense Department funding with an expanded federal “hate crimes” bill. This well-intentioned piece of legislation threatens to make violations of the fundamental right against Double Jeopardy a routine practice, as federal courts will now have the power to re-prosecute defendants for what are traditionally state crimes.

The House removed language that the Senate put in place to ensure that the “hate crimes” provisions did not stretch to encompass free speech, threatening to attach criminal liability to core rights of free expression.

This expansion of federal jurisdiction guarantees that high profile cases will be retried until a guilty verdict is obtained to satisfy political factions. This politicization of justice will only harm our courts and our freedoms. The Senate should vote down this threat to the fundamental rights of all Americans.

Now for some quick background reading: