Topic: Law and Civil Liberties

Tuesday Podcast: “Labor Relations, Collective Choice and ‘Card Check”’

Congress introduced the “Employee Free Choice Act” last week, which would end the secret ballot system currently in place for workers who vote on whether to start a union.

The bill could have disastrous effects on companies and would throw another wrench in U.S. labor relations, says University of Chicago law Professor and Cato Adjunct Scholar Richard A. Epstein in Tuesday’s Cato Daily Podcast:

It would be a major transformation of the American labor force, all for the worse as far as I’m concerned. Because it would mean that the monopoly model of the labor statutes that were intro under the Wagner Act would now become gov policy to the extent that a card check could allow a union essentially to contain partial ownership rights over the management and prerogatives of the firm.

A worse piece of legislation I cannot imagine, with respect to this field.

Epstein offers a more detailed look at the card-check legislation in the Spring issue of Cato’s magazine Regulation, which will be released March 26.

Monday Podcast: ‘Challenging Domestic Military Detentions’

410px-ali_saleh_kahlah_al_marriAli Saleh Kahlah al-Marri, the exchange student from Qatar who was detained by the FBI with alleged ties to al-Qaeda, sat for years in a military brig in South Carolina as the only domestically detained enemy combatant.

The Bush Administration used al-Marri to test a legal theory aimed at keeping suspected terrorists in military prisons indefinitely.

President Obama has reversed that ruling, and has moved al-Marri into civilian courts. The Supreme Court is no longer hearing al-Marri’s appeal.

In Monday’s Cato Daily Podcast, Legal Policy Analyst David Rittgers says that there’s nothing that will stop future administrations from again reversing the policy.

This is creating this legal cul-de-sac where we can have military detention domestically…and the reason that they picked Al-Marri is, just as you would pick a sympathetic plaintiff to sue to overturn a law, if you want to keep a law…you would look for an unsympathetic defendant, and Al-Marri is as unsympathetic as you can get.

…He is the test case to keep this policy open.

The Cato Institute co-authored an amicus brief (PDF) at the Supreme Court supporting al-Marri’s challenge to the military detention.

Event This Week at Cato

Tuesday, March 16

The Politics and Science of Medical Marijuana

12:00 PM (Luncheon to Follow)

In the political realm, the debate over the legal status of medical marijuana continues to rage.

Since 1996, 12 states have legalized marijuana for medical use. What have medical scientists learned about marijuana over the past 10 years? And how have the politics on this contentious issue shifted at the federal and state level?

Join us for a lively discussion of the science and politics of medical marijuana.

Featuring Donald Abrams, M.D., Director of Clinical Programs, Osher Center for Integrative Medicine, University of California; Robert DuPont, M.D., President, Institute for Behavior and Health; Rob Kampia, Executive Director, Marijuana Policy Project; Moderated by Tim Lynch, Director, Project on Criminal Justice, Cato Institute.

The event will be simulcast live online.

Threats to a Free Society, Small and Large

Limited government and individual liberty are under such a sustained attack today that it’s easy to miss some of the small but truly nefarious assaults on the most basic freedom to be left alone.  After all, when the federal government seems determined to socialize much of the economy and control the rest of it, who cares about some local nanny-state restrictions?

Yet the willingness to override individual liberty in seemingly “small” matters reflects the same statist philosophy behind large assaults on the free society.  It’s important to fight the battles, both small and large.

One of the latest political fads is setting public dress standards.  Writes Greg Beato for Reason online:

What else is the law but a metaphorical belt designed to uphold proprietary and keep us from exposing our inherent baseness to each other? This, at least, is what an epidemic of legislative tailors seem to believe: Each month brings news of the latest effort to crack down on saggy pants. In December, the Jasper County Council in South Carolina passed an ordinance making it illegal to wear your britches three inches below your hips and expose your underwear—or worse—to innocent bystanders. In January, South Carolina State Senator Robert Ford introduced a bill that would make saggy pants a crime throughout the entire state. Earlier this month, Joe Towns, Jr., a state representative from Tennessee, took up the call against the surprisingly long-lived fashion crime, which started in the early 1990s and continues to be popular despite—or perhaps because of—repeated efforts to criminalize it over the years.

Sag-bashers object to the style on more than just aesthetic grounds. A hallmark of hip-hop culture, saggy pants are considered an homage to prison garb, where belts aren’t allowed because of their potential utility as noose or weapon. To wear saggy pants, critics maintain, is to reject authority, embrace criminality, and visually assault the world with the garish plaids and bold patterns of fashion boxers. Also, critics assert, saggy pants make it easy to conceal knives and guns within their droopy, voluminous folds.

The ascension of President Obama may be one reason for the surge of anti-sagging evangelism in recent months. “You know, some people might not want to see your underwear—I’m one of them,” he exclaimed during a November 2008 interview with MTV. But while Obama made it clear he wasn’t interested in trying to criminalize the style, calling laws against pants-sagging as “a waste of time,” politicians like Robert Ford and Joe Towns, Jr., apparently don’t watch much MTV; the former even presented his anti-sagging legislation as a kind of tribute to the new president. “You’ve got an African-American president,” he told the Associated Press. “You don’t have to emulate prisoners no more. You can emulate somebody like Barack Obama.”

According to the Associated Press, Ford doesn’t believe his bill will pass—apparently he “just wants a spirited discussion” on the taxpayer’s dime. And even in cases where such political theater blossoms into genuine law, it often remains, well, political theater. In Delcambre, Louisiana, for example, saggy pants have been punishable by a fine of up to $500 and six months in jail since June 2007. When I called Delcambre’s mayor, Carol Broussard, to ask him how many people the town has cited for that offense since the ordinance went into effect, he said he didn’t believe any had. “There have been some warnings, though,” he offered.

Even if enforcement is rare, however, the number of places in America where, say, Britney Spears and Paris Hilton might end up with lifetime sentences just for walking down the street is somewhat alarming. Along with Jasper County and Delcambre, Lynnwood, Illinois, Mansfield, Lousiana, and who knows how many other municipalities now have specific ordinances that make it illegal to expose anything more than a three-inch swath of underwear. In addition, as Radley Balko has documented at Reason, zero-tolerance vigilantes like Flint, Michigan police chief David Dicks and Jackson, Mississippi mayor Frank Melton seem more inclined to follow the strong arm tactics of the Queer Eye for the Straight Guy-style bullies than our Founding Fathers when it comes to making over their fellow citizens. “I certainly respect the Constitution, but we have some issues that are much bigger than the Constitution,” the mayor declared, as he announced his intention to issue an executive order against saggy pants even after the Jackson city council voted against such a measure on the grounds that it was unconstitutional.

Yes, some things “are much bigger than the Constitution.”  That’s certainly the conventional wisdom in Washington, D.C.!

I’ll admit that I just don’t understand the style of wearing one’s pants nearly down to one’s thighs, and I’d prefer not to see some young person’s underwear.  It’s an obvious issue for parental dictates as well as social pressure.  But should the government be prepared to prosecute – after all, that’s what the law is all about – people with low-riding pants?  The fact that these measures are considered seriously demonstrates how far we have fallen away from the ideal of a limited government committed to protecting individual liberty.

Sanford Rejects Faustian Bargain

Yesterday, as expected, South Carolina Gov. Mark Sanford became the first governor to reject some of his state’s share of stimulus funds, spurning $700 million (of the about $8 billion headed his way) that he said would harm his state’s residents in the long run.  South Carolina’s General Assembly (controlled by Republicans who have long opposed Sanford’s attempts to cut spending, lower taxes, and generally reform government operations), using a provision of the stimulus bill inserted by Rep. James Clyburn (D-SC), nevertheless plans to seek the funds without the governor’s support.  They cite section 1607 of the American Recovery and Reinvestment Act of 2009, which provides that, notwithstanding a requirement for gubernatorial certification of a request for funds:

If funds provided to any State in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State.

The question arises, setting aside the relative merits of both sides’ positions, whether the governor (or someone else) could challenge this “alternative certification” provision on constitutional grounds.  Here are some initial thoughts:

A state executive (and/or citizens of the given state) could bring colorable claims under the Tenth Amendment (powers not delegated to the federal government are reserved to the States and the people) , state separation of powers (legislature exercising executive power), and the non-delegation doctrine (Congress delegating its legislative authority to non-federal actors). Whether such challenges would be successful is a different matter.

The strongest claim would probably be under a combination of the Tenth Amendment and state law (depending on what the state constitution and statutes says about the federal grant process), especially given that much of the federal money is likely to come with strings/mandates attached – or would otherwise pervert state budgeting processes (as Sanford spelled out in a letter to state legislators). That is, depending on the particular program funds in question, it could well be that the federal government is doing an end-run around the state executive in “commandeering” (a term of art taken from the important Supreme Court case of Printz v. United States) state agencies without the full lawful acquiescence of the state government – i.e., without presentment of a bill for the executive to sign in the normal course of legislative action.

Moreover, I’m not sure how federal legislation could lawfully trump a state constitutional/statutory provision requiring that, say, federal monies only be accepted by state agencies subject to executive certification. If it could, then what’s to stop the federal government from putting in a further alternative provision allowing certification by majority vote of a state supreme court, let alone by town councils, agency heads, or any other imaginable alternatives? No, a conclusion to the contrary seems facially contrary to the separation of powers, disrupting state political structures in a way that the federal government cannot do by simple legislation.

As a caveat, the above analysis hinges on the substance of the relevant state constitution and statutes (and I haven’t yet thoroughly studied South Carolina’s, though I suspect they’re favorable to the points I’m making). The point is, it is not at all clear that Section 1607 should be considered safe from legal challenge – though courts will likely go out of their way to avoid constitutional conflicts or deciding what they may characterize to be “political” questions.

Tax Credits, Courts, and Cabers

As Adam Schaeffer notes on this blog today, education tax credits have won in court, again. This time in Arizona.

I’ve long argued that their superior resistance to court challenge is one of many reasons to favor tax credits over other approaches to school choice. But there’s one court that even credits are likely to run into trouble with: the 9th Circuit Court of Appeals.

The 9th Circuit is the most statist appellate court in the nation, and it has been sitting on an education tax credit case, Winn v. Garriott, for more than a year. For the record, I expect it to rule against the program sometime in 2009. If it does, that ruling will be appealed and almost certainly overturned by the Supreme Court of the United States.

Supporters of educational freedom should both brace themselves for this setback and also put it in perspective. The 9th Circuit is overturned more often than a caber at the Highland games.