Topic: Law and Civil Liberties

The Constitutional Dimension of Your Morning Commute

Over the last few years, D.C.-area drivers may have noticed the continual increases in toll fares on the Dulles Toll Road, the highway going through the Northern Virginia suburbs past Dulles Airport.  Indeed, since 2005, the toll for the typical round-trip commuter has more than quadrupled from $1.50 to $7.00, with more increases coming. These extra toll dollars haven’t been going for upkeep or expansion of the highway, however, but instead have been funding the over-budget and under-performing construction of the Metro’s Silver Line extension.

While originally slated to fund only 25% of that cost, commuters are now looking at paying more than half of the $5.6 billion (and counting) total cost, with years of construction still to come. The entity in charge of the construction project (and of gouging the toll road’s commuters) is the Metropolitan Washington Airports Authority, a public body established to govern Dulles and Reagan National airports at the behest of the Department of Transportation. But who’s actually in charge of the MWAA, and to whom can beleaguered commuters turn for relief? Although created by an interstate compact between D.C. and Virginia, the MWAA was granted all of its authority by an act of Congress, and the highways and airports that it oversees are federal property.

In many ways, the MWAA acts like a federal agency—in nearly all ways, in fact, except one important aspect: oversight. If federal assets and lawmaking power are being delegated to the MWAA, then there must be a means for the executive branch to “take care that the laws be faithfully executed.” The MWAA, however, is governed by a board of individuals whom the president has no meaningful ability to appoint, oversee, or control. This means that the MWAA has no political accountability for its decisions.

Having no other meaningful recourse, a group of Dulles Toll Road users sued the MWAA, arguing that its decrees violate the separation of powers. (Full disclosure: my wife and I just bought a house in Falls Church and will likely be using the road every now and again, though not on my commute to Cato.) The federal district and appeals courts—two of them, in an unusual development whereby the Federal Circuit transferred the case to the Fourth Circuit—decided that the MWAA’s nature as a state-created entity required the case to be dismissed. Moreover—get this—because the MWAA has no meaningful executive-branch control, there is no separation-of-powers issue. (This despite the federal government’s appearance as an amicus to argue that the MWAA exercises federal power and is subject to separation-of-powers scrutiny.)

Undeterred, the plaintiffs have petitioned the Supreme Court to hear their case. Cato has joined the American Highway Users Alliance and the Recreation Vehicle Industry Association on a brief supporting their petition. We argue that the Court should take the case because (1) there is a critical violation of the separation of powers, (2) there are already manifest harms resulting precisely from that violation, and (3) the federal government sees and treats the MWAA as a federal agency—but one without any meaningful accountability whatsoever.

It isn’t every day that a separation-of-powers case is as squarely presented as it is here, where commuters are being railroaded, so to speak, by a runaway agency whose conductor is absent. The executive branch has to take the blame not only for the MWAA’s policies, but its corruption, incompetence, and mismanagement.

The Supreme Court will decide whether to take Corr v. Metro. Washington Airports Authority later this fall.

War Powers in the Bush-Obama Era

Over at the National Interest, I have a piece examining President Obama’s claim, in his nationally televised address Wednesday night, that “I have the authority to address the threat from ISI[S].” 

Just where he’s supposed to get that authority isn’t clear—even to the Obama administration itself. In the last week, Obama officials have invoked (1) the War Powers Resolution, (2) the 2002 Authorization of Military Force (AUMF) against Iraq, and (3) the AUMF that Congress passed three days after 9/11. Any AUMF in a storm, it seems. 

As I explain in the article, not one of those claims survives a good-faith reading of the relevant legislative text. The WPR specifically forecloses any interpretation that it grants the president a “free pass” for elective bombing. And invoking the 2001 or 2002 AUMF for a new war against a new enemy over a decade later is the sort of statute-stretching that makes using TARP to bail out car companies look timid by comparison. 

You could describe the president’s approach as “three bad arguments in search of a theme.” Near as I can discern it, that theme is, “I’m not George W. Bush.” 

Apparently, it’s very important to Barack Obama to make clear that he doesn’t subscribe to the Congress-be-damned, I’m the “Decider” approach of his predecessor. Justifying war on a pure presidential power theory is for bad people like Dick Cheney and John Yoo, the legal architect of the Bush-Cheney “Terror Presidency.” (Though, of course, Bush went to Congress for authorization in Iraq and Afghanistan, even while denying he needed it).

Obama’s nothing like that, he’ll have you know. He’s the guy who told us on the campaign trail that “The separation of powers works. Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers,” and affirmed that the president lacks the power to launch military attacks absent an “actual or imminent threat to the nation.”  (His eventual veep, Joe Biden, went further, promising to “impeach [Bush] if he takes the nation to war against Iran without congressional approval.”)

And yet, it’s hard to escape the echoes of Obama’s predecessor in Wednesday night’s speech, from his case for preventive war against an enemy that “if left unchecked… could pose a growing threat beyond that region—including to the United States,” to his promise to “support Iraq’s efforts to stand up National Guard Units” (When they stand up, we will stand down). As John Yoo himself said last week: “Obama has adopted the same view of war powers as the Bush administration.”

Tortured, bad-faith constructions of authorization passed by past Congresses for different wars can’t hide that underlying reality. Obama may not be George W. Bush, but he’s doing a pretty decent imitation.

Clinton and Bush Introduce Leadership Program

Yesterday Bill Clinton and George W. Bush reportedly gushed “about each other’s leadership and acute decision-making skills.”  The two former presidents were launching a “joint program to train young leaders.”

According to the New York Times story, the audience was “packed with Bush and Clinton White House alumni.”  Oh, that explains all the laughter and backslapping.  The former presidents were confident that no one would ask them serious questions about their actions in office.  Here are a few questions that young leaders might consider asking the gentlemen before applying for their program:

Thank You, Mrs. Klose

Thank you for standing up for your right, and that of other Americans, not to be coerced: 

Lillian Gobitis Klose, who as a school-age member of the Jehovah’s Witnesses refused to salute the U.S. flag with her classmates, a controversial act of conscience that set off a legal tug of war in the 1930s and ’40s that ultimately bolstered the First Amendment right to religious expression, died Aug. 22 in Fayetteville, Ga. She was 90.

School officials in Minersville, Pa., where her parents ran a grocery store, expelled the young Ms. Gobitis for this act of defiance. But convinced that her Jehovah’s Witness faith forbade a public display of allegiance to a national symbol, she took the case all the way to the U.S. Supreme Court in 1940 – and lost, 8-1, with Justice Felix Frankfurter writing, sententiously, that “National unity is the basis of national security.”

Hers wasn’t a comfortable stand to take, especially with war looming, as the Washington Post’s obituary notes:

“It was a very scary time,” Mrs. Klose told the Atlanta Journal-Constitution. On one occasion, the Gobitis family was in a car when a mob attempted to flip it over. Another time, she told the Philadelphia Inquirer, the police chief parked his car outside her family’s grocery store to protect it from a threatened attack.

Especially with homeschooling rights virtually unrecognized at the time, Jehovah’s Witness youngsters were at risk of being sent to state reformatories, and their parents were at risk of prosecution for contributing to delinquency.  But by yielding no ground, Lillian Gobitis prepared the way for a victory just three years later, when in a case with similar facts, West Virginia State Board of Education v. Barnette, the high court reversed itself and in a 6-3 ruling upheld the right not to salute the flag or say the pledge. Justice Robert Jackson’s ringing pronouncement was to enter the constitutional canon: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”  

It always did seem a bit hopeful for Jackson to pronounce that principle a “fixed star”; after all, the Court was reversing a contrary ruling from just three years previous. But the phrase was more accurate as prediction: the principle was to become a fixed star in constitutional jurisprudence, to the immense benefit of Americans and our liberty. Even in an era in which, ominously, some elected officials seek to roll back other First Amendment protections, there is little if any movement to reverse the flag and pledge decisions.

Well done, Lillian Gobitis Klose.

 

 

Police Misconduct — The Worst Case in August

Over at Cato’s Police Misconduct web site, we have identified the ‘worst case’ for August.

As you may have already guessed, it was the Ferguson Police Department. As the events in Ferguson played out during August, the police department there put on a clinic on how not to police a community.  From the withholding of Darren Wilson’s name (he was the officer who shot Michael Brown six times), to brandishing weapons of war against a community expressing its anger and mourning through protest, and blatantly targeting journalists for arrest and assault, the events in Ferguson have shown just how disastrous poor policing can be to a community.  If there is any silver lining to the situation, it is that people across the country have been presented with a good look at the consequences of when police misconduct goes unchecked and bad policies, like militarizing local police forces, are allowed to continue.  Things were bad enough in Ferguson for them to collectively qualify as the worst police misconduct of August, but the situation will be much worse if the lessons of Ferguson are not learned and the mistakes not corrected in the future—and not just in Ferguson, but in similar towns around the country.

This week, Cato will be hosting two events related to Ferguson.  More info on those here and here.

____________________________________________________________________

Finally, a not-so-’honorable mention’ goes to the Denver police officer who tried to get out of his DUI arrest by telling the arresting officer “Bro, I’m a cop.” That he would even attempt such a ploy tells us something about the police subculture–where too many law enforcement officers come to believe that they are above the law.  They aren’t, and the arresting officer did the right thing by getting a dangerous drunk driver off the streets—cop or not.