Topic: Law and Civil Liberties

Grass-Roots Tobacco Bans? Not Quite

When the small town of Westminster in central Massachusetts announced plans to ban the sale of tobacco entirely – not just in certain types of stores, or to younger buyers – townspeople came out loudly and in force to oppose the plan. That has thrown advocates back a bit [New York TimesMassLiveearlier]:

“They’re just taking away everyday freedoms, little by little,” said Nate Johnson, 32, an egg farmer who also works in an auto body shop, as he stood outside the store last week. “This isn’t about tobacco, it’s about control,” he said.

Right he is. And despite the Times reporter’s lifted eyebrow at the notion that “outside groups” are encouraging town officials to go forward with the ban, it’s worth asking how Westminster, Mass., population 7,400, came to have its very own “tobacco control officer.” Do you imagine the townspeople decided to create such a position with local tax funds? If so, read on.

WestminsterSealFor well over a decade the Massachusetts Municipal Association has run something called the Tobacco Control Technical Assistance Program, assisted by grant money from the state Department of Public Health. It does things like campaign for town-by-town hikes in the tobacco purchase age to 21, and town-by-town bans on tobacco sales in drug stores. It will surprise few that it has been in the thick of the Westminster situation.

This article, written for a friendly audience of public health advocates, frankly describes how the MMA project, with assistance from nonprofit and university groups as well as the Commonwealth of Massachusetts, worked to break down the reluctance of town health boards to venture into restrictions on tobacco sales (scroll to “Roles of the Massachusetts Tobacco Control Program, Local Boards of Health, and Tobacco Control Advocates”):

Local boards were enticed into hiring tobacco control staff by the DPH’s tobacco control grants. As a participant in the process explained, “[L]ocal boards of health looked at it as ‘oh, it’s a grant. Let’s apply for this grant. So now, what do we have to do, now that we’ve got it?’” … The grants dictated that local boards use those community members they had hired as their staff to assist them in enacting and enforcing tobacco control regulations…

The staff paid with money from outside the town seem to have seen their job as, in part, lobbying the local officials: “We’ve had to work on each individual board [of health] member to get them to come around,” said one.

The account continues with many revealing details of how the outside advisers managed to orchestrate public hearings to minimize critics’ voice, deflect challenges with “we’ll take that under advisement” rather than actual answers, and in the case of particularly intense opposition, “back off for a couple of months” before returning. “Grant-funded regulatory advocates were able to counter all of [opponents’] arguments and tactics.”

In other words, an extra reason for the townspeople of Westminster to be angry is that they have been paying to lobby themselves. And it’s worth knowing exactly how the game plan works, because similar ones have been rolled out to localities in various states not only on “tobacco control” but on “food policy,” environmental bans and other topics. Grass roots? If so, most carefully cultivated in high places.

[cross-posted and slightly adapted from Overlawyered]

Strange Bedfoes against NSA Reform Bill

The push to rein in the authorities of the National Security Agency—covertly expanded by a secret court to permit indiscriminate bulk collection of Americans’ communications  and financial records—has become a truly bipartisan affair. In a way, this is nothing new: Liberals who recall the abuses of the Hoover era have long teamed with conservatives skeptical of government power in efforts to check excessive surveillance.  With a Senate vote looming to move forward with the USA FREEDOM Act, however, a still stranger mix of opponents is seeking to block what has emerged as the primary vehicle for intelligence reform in the post-Snowden era.

First, and least surprising, there’s the “More Catholic than the Pope” contingent—boosters of the intelligence community who seem convinced that the bill will somehow put Americans at risk, despite the insistence of Director of National Intelligence James Clapper that the proposed safeguards would not hinder intelligence operations. This stance is exemplified by a stunningly misleading Wall Street Journal op-ed penned by former Attorney General Michael Mukasey and forrmer NSA head Michael Hayden. Since the terrorist Islamic State group, or ISIS, is currently in the headlines, naturally it is invoked to tar the bill as “a reform that only ISIS could love.”  Never explained: Why, precisely, we should expect an authority to indiscriminately sweep up domestic telephone records to be a critical tool for monitoring a group that seems primarily concerned with consolidating its power overseas, not fielding operatives in the United States.  After all, even when it comes to domestic investigations—where one might have expected the NSA’s mass database to show its value—two independent review groups with full access to classified records have concluded that the program had little or none.  Incoming Senate majority leader Mitch McConnell has described the reforms as “tying our hands behind our back”—but a hand is a useful appendage.  On the public record, “tying our hair back” might a be more apt description—the bulk database has obscured the FBI’s by flooding the Bureau with dead-end “tips,” while any truly pertinent information it provided was invariably duplicative of records that agents had already obtained using traditional, targeted authorities.

Yet the USA FREEDOM framework actually preserves the core capabilities of this ineffective program: It creates a new mechanism for the government to do “connection chaining” by quickly and continuously obtaining, from multiple phone carriers, the records of suspected terror affiliates and their contacts. Mukasey and Hayden falsely decribe the new process as requiring a “warrant”—which it does not, on the consensus legal understanding that a “warrant” is a particularized authority based on the Fourth Amendment’s relatively high evidentiary standard of “probable cause.”  They also, somewhat comically, describe it as requiring the government go “scurrying” to telecomunications providers to “comb through” records, presumably by consulting a card catalogue.  Yet the point of the new framework, with a mandate that carriers provide “technical assistance” to NSA, is precisely to ensure that carriers can rapidly search their files to provide information about numbers once the secret FISA court has signed off (or, indeed, in advance of the court’s approval in an emergency).  Nor, indeed, do Mukasey and Haden so much as mention “National Security Letters,” a separate tool that can be used to obtain certain types of communications records without any judicial involvement. Unfortunately, the USA FREEDOM Act does not implement the recommendation of the President’s Surveillance Review group that these, too, require court authorization. Nor, conspicuously, does their tendentious discussion of the various safeguards currently in place mention the numerous massive and systemic violations of the rules imposed by the FISA court—violations that easily passed undetected for years precisely because NSA itself maintained the database rather than making particularized requests to carriers through the FISA court.

In short, the bill doesn’t really affect the government’s capabilities, only the way they’re implemented.  First, phone numbers to be searched will have to be specifically approved by the FISA Court—as Congress expected would be the case when it approved these authorities, and as has already been required since Februrary under a presidential directive.  Second, NSA will quickly obtain particular records, corresponding to “specific selectors” like phone numbers or other account identifiers, by passing its search queries to the carriers who already maintain those rather than compiling its own massive database, overwhelmingly consisting of irrelevant data about innocent people. This ought to be a pure win: A privacy protective re-architecting that reduces the potential for abuse without meaningfully interfering with the government’s ability to obtain the information in which it has a legitimate interest.   Which, of course, is why current intelligence officials have characterized the reforms as reasonable. Retired officials—the ones who implemented the bulk program and insisted its vast invasiveness was absolutely necessary—may be reluctant to admit they’ve been proven wrong, but their stubbornness does not amount to much of an argument.

Executive Decisions, Eric Holder, and Marijuana Re-Scheduling

Christopher Ingraham at The Washington Post’s Wonkblog has a terrific piece up today on Eric Holder’s refusal to use executive branch authority under the Controlled Substances Act to reclassify marijuana as a less harmful substance. The crucial portion is here:  

The crowning inconsistency of the federal drug control system has always been the classification of marijuana as a Schedule 1 substance under federal law, which makes it among the Worst of the Worst drugs as far as the DEA is concerned – literally as bad as heroin, and worse than cocaine! Drug reform advocates have pushed the DEA to change its position for years, citing decades of research on the relative harmlessness of weed compared to other drugs – including alcohol – but the agency hasn’t budged, even as public opinion has rapidly evolved.

The Controlled Substances Act, which set up the drug schedules in the early 1970s, explicitly places drug scheduling authority in the hands of the attorney general, and even instructs him or her to “remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule.”

Much to the chagrin and outright befuddlement of drug law reformers, however, outgoing attorney general Eric Holder has repeatedly stated that any changes to the scheduling status of marijuana should be made by Congress.

Ingraham then explains that

a bipartisan group of congressmen asked the administration to [re-schedule marijuana] … In essence, the Justice Department and Congress are both begging each other to fix federal marijuana laws, but nobody’s doing anything.

As Ingraham writes, “Welcome to Washington in 2014.” 

Federalism Should Trump the Drug War

Americans are angry with their politicians but nuanced in their political opinions.  Voters in Alaska simultaneously ousted their Democratic Senator and legalized the use of marijuana.  Floridians voted to allow the use of medicinal marijuana and reelected Republican Gov. Rick Scott.

In fact, Milton Friedman and William F. Buckley long argued against drug prohibition.  The electorate appears to be moving their way.

Which makes sense.  If you want to limit government and protect individual liberty, it’s impossible to ignore the ill consequences of arresting and imprisoning millions of people for using illicit substances. 

Drug use is bad.  Arresting people for using drugs is worse. 

But conservatives have another reason to abandon the drug war: federalism.

The Drug War has poisoned almost everything it touches.  The rule of law suffers.  Lawyers speak of the drug exception to the Fourth Amendment, since judges often sacrifice Fourth Amendment protections when drugs are involved. 

Constitutional interpretation is malformed.  In Gonzales v. Raich the Supreme Court held that Uncle Sam could regulate someone who grew marijuana for personal consumption under the interstate Commerce Clause.  The reasoning of conservative jurist Antonin Scalia was used by the legal Left to argue that ObamaCare was constitutional.

Federalism is another victim of the Drug War.  Many conservatives complain about the over-criminalization of life, with Washington encroaching on an area that’s traditionally a matter of state authority.

Supreme Court Should Remove Kafka-esque Burden to Vindicating Property Rights

In order to create better telecom infrastructure, New York state law gives private telecom firms the power to take private property in exchange for just compensation. Verizon used this power to build terminal boxes on thousands of pieces of private property, thus essentially permanently occupying a part of the properties. Verizon is one of a few companies that enjoy this extraordinary, state-granted privilege to build things on other people’s property without their permission.

Those companies, however, must compensate the owners (at least theoretically) for these sorts of takings of property. Kurtz v. Verizon New York, Inc. arises from a putative class action alleging that Verizon failed to compensate 30,000-50,000 property owners for building terminal boxes on their property. Although Verizon is required to give property owners their “full compensation rights,” the plaintiffs argue that the company continuously flouts this requirement “as a matter of corporate policy and practice,” thus violating both the plaintiffs’ rights to procedural due process—for example, by not even notifying them that their property was being taken—and their Fifth Amendment rights to not have their property taken for public use without just compensation.

The U.S. Court of Appeals for the Second Circuit, however, ruled that the plaintiffs couldn’t proceed with their claims because of a case called Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985), in which the Supreme Court ruled that plaintiffs with takings claims have to seek relief from state courts before proceeding with a federal claim. Otherwise, the case will be dismissed for being not “ripe”—not ready for a federal court to hear the case.

Although this may seem like a small hoop-jumping exercise, this procedural requirement creates an unnecessary and burdensome extra step that can prevent many plaintiffs from ever having their takings claims heard in federal court. No other enumerated constitutional right has a similar requirement. Plaintiffs claiming a First Amendment violation, for example, don’t first have to exhaust their case in state courts.

The plaintiffs are now petitioning the Supreme Court to review the continuing relevance of Williamson County. In a brief supporting the petition, Cato, joining the Pacific Legal Foundation, argues that takings claims are ripe when the taking occurs, not after a plaintiff has gone through the state courts. Moreover, we point out that Williamson County, when combined with other rules of civil procedure, has actually prevented many claimants from ever bringing a case.

After exhausting their claims in state courts, some plaintiffs find that federal courts will dismiss their case on the ground that the matter has already been decided (what lawyers call res judicata, or “judged matter”). Other times, defendants will ask the judge to move the case from state court to federal court and then, once the case is in federal court, will argue that the plaintiffs did not exhaust their claims in state court (which of course they couldn’t have done because the defendants removed the case).

This Kafka-esque system is not the way to properly vindicate constitutional rights, and it’s certainly not what the Supreme Court imagined when it decided Williamson County. The Court should take this case to remove an unnecessary and harmful barrier to the protection of private property. 

Police Misconduct: The Worst Case in October

Over at Cato’s Police Misconduct website we have identified the worst case for the month of October.

The worst police misconduct of October goes to the officers who shot David Hooks in his own home during a drug raid based on an invalid warrant and the tip of an informant who was allegedly high on meth.  The informant, Rodney Garrett, had just stolen a vehicle from the Hooks’ home when he was either arrested or turned himself into the police (reports vary).  Garrett told police that the 20g bag of meth he had had been stolen from Hooks’ pickup truck.

That same night, the Laurens County Drug Unit pushed through a warrant based primarily on Garrett’s word, and at 10:55 pm, executed a no-knock warrant despite the fact that the warrant did not authorize one–at a home that the police knew had just previously been burglarized two nights earlier. Hooks’ wife Teresa saw armed, hooded figures in black rushing towards the back door and woke her husband, thinking the burglars had returned.  David Hooks got his gun, and when the SWAT team knocked in the back door without announcing their presence, he didn’t even have the opportunity to get a shot off before officers fired between 16 and 18 rounds, killing him.

Some of the rounds were shot blindly through a wall at Hooks, without regard for whom or what they were firing at and killing. As you might expect from a search warrant based almost entirely on the tip of a meth addict who may or may not have been high when giving it, a 44-hour search of the Hooks home produced absolutely no contraband whatsoever.

David Hooks was a successful businessman who ran a construction firm that contracted with the U.S. government.  He had passed numerous security clearances and background checks, but on the word of a thief and meth addict, he was reduced to just another casualty in the war on drugs. Additional background here.

Krugman vs. Krugman on Statutory Interpretation

To follow-up on my colleague Walter Olson’s earlier post on the Paul Krugman piece on King v. Burwell, what struck me was Krugman’s flexible approach to statutory interpretation.

Here he is in today’s piece:

Last week the court shocked many observers by saying that it was willing to hear a case claiming that the wording of one clause in the Affordable Care Act sets drastic limits on subsidies to Americans who buy health insurance. It’s a ridiculous claim; not only is it clear from everything else in the act that there was no intention to set such limits, you can ask the people who drafted the law what they intended, and it wasn’t what the plaintiffs claim. …

 if you look at the specific language authorizing those subsidies, it could be taken — by an incredibly hostile reader — to say that they’re available only to Americans using state-run exchanges, not to those using the federal exchanges.

As I said, everything else in the act makes it clear that this was not the drafters’ intention, and in any case you can ask them directly, and they’ll tell you that this was nothing but sloppy language. …

So, don’t worry so much about the specific language; instead, look at the drafters’ intent and the surrounding context. Got it.

On the other hand, here’s Krugman from January of 2013, writing about the idea of a platinum coin:

Enter the platinum coin. There’s a legal loophole allowing the Treasury to mint platinum coins in any denomination the secretary chooses. Yes, it was intended to allow commemorative collector’s items — but that’s not what the letter of the law says. And by minting a $1 trillion coin, then depositing it at the Fed, the Treasury could acquire enough cash to sidestep the debt ceiling — while doing no economic harm at all.

So in this situation, you should stick to the “letter of the law,” and not worry so much about the drafters’ intent.

Hmm, how to reconcile those two Krugman assertions about the proper approach to statutory interpretation?  That’s a tough one.  Wait, I got it!  We’ll call this the Krugman canon of construction: “Interpret statutes in whatever way makes them consistent with your policy preferences.”