Topic: Law and Civil Liberties

Cult of the Vice Presidency

If you read the papers, “all of them,” like Sarah Palin, you may have seen this, but today’s New York Times features questions for the aspiring veeps. My contribution:

The claim by Dick Cheney that he was exempt from certain disclosure requirements because the vice president was a “legislative officer” has been greeted with outrage. But the main power the Constitution grants the vice president is a legislative one — breaking a tie vote in the Senate.

So, Governor Palin, Senator Biden, doesn’t Mr. Cheney have a point?

But, then, if the vice president is a legislative officer, how can he wield the vast executive powers that Mr. Cheney has exercised, including orchestrating and supervising a warrantless wiretapping program?

Can the vice president shift between branches at his convenience? If not, what, in your view, is the constitutional status of the vice presidency?

— GENE HEALY, the author of “The Cult of the Presidency: America’s Dangerous Devotion to Executive Power

Giving credit where it’s due, I should mention this smart, short law review article by Glenn Reynolds, “Is Dick Cheney Unconstitutional?”

Friend and former Cato colleague Radley Balko has a good one for Joe Biden:

Senator Biden, you’ve been one of the Senate’s most ardent drug warriors. You helped create the office of “drug czar”; backed our failed eradication efforts in South America; encouraged the government to seize the assets of people merely suspected of drug crimes; pushed for the expanded use of racketeering and conspiracy laws against drug offenders; advocated the use of the military to fight the drug war; and sponsored a bill that holds venue owners and promoters criminally liable for drug use by people attending concerts and events.

Today, illicit drugs are as cheap and abundant as they were decades ago. Would you agree that the anti-drug policies you’ve championed have failed? If not, how have they succeeded?

— RADLEY BALKO, a senior editor at Reason magazine

Bloomberg’s Banana Republic

Michael Bloomberg has decided to run for an additional term as mayor of New York. He will do so despite a law limiting mayors to two terms in New York.

Here’s some history. The voters twice endorsed the term limits law in 1993 and 1996. In 1993, the law passed by a margin of 59 percent to 41 percent. In 1996, the City Council tried to change the law to extend term from 8 to 12 years. The initiative making that change lost.

Of course, elected officials predicted disaster. Some agreed then but not now. John Mollenkopf, a well-known political scientist at the City University of New York said: “My initial reaction to the term limits was negative, but the experience of how they have worked has changed my mind. On balance, I think this feature of government does create openings for fresh thinking and new leadership.”

Bloomberg does not plan to put the change in term limits before the voters. Instead, he will try to get the City Council to extend his term. A New York Times survey of City Council members in early September found that a majority might support changing the term limits law. Perhaps that’s not surprising: two thirds of the City Council will be turned out of office in 2009 under the current law. If the mayor’s term can be extended, it will be easier to change the law for City Council members.

New Yorkers are not rolling over for Bloomberg. Gene Russianoff, a spokesman for the New York Public Interest Research Group, said of Bloomberg’s power grab: “Sadly, the move is worthy of ‘democracy’ in a banana republic.” Susan Lerner, executive director of Common Cause/NY, called the mayor’s stance “profoundly undemocratic and deeply disquieting.” Even Establishment types are opposing him, according to the New York Times.

Before his ambition got the best of him, Bloomberg himself “called for the need for restraints on elected leaders, dismissed the notion that anyone is indispensable, and once called an effort to revise the limits ‘disgusting.’”

Let’s see if New Yorkers agree with the mayor.

A Constitutional Law Lesson From the Bailout Debate

The Framers of the Constitution knew that jealousies among the branches of the federal government would slow the federal decision-making process, redounding to the benefit of the people and their liberty. As important as the Bill of Rights is, the structure of government is just as important for its bias against hasty government action.

Put aside what you think of the substance of the bailout issue as you see an example of the constitutional structure at work:

Harvey Silverglate’s Libertarian Ire

Cato’s new adjunct scholar, Harvey Silverglate, is in the news again for combating political correctness on campus.  From the New York Times:  “Silverglate’s column described events at Harvard Law School, where a sexual harassment speech code was adopted after a student parody of a woman law professor sparked a huge outcry. The code prohibits speech that creates ‘an intimidating, demeaning, degrading, hostile or otherwise seriously offensive working or educational environment.’ In other words, parodists beware!”

For a related Cato work, check out David Bernstein’s book, You Can’t Say That!

Only When Necessary

In his speech on the financial crisis, President Bush remarked:

Our system of free enterprise rests on the conviction that the federal government should interfere in the marketplace only when necessary.

Hmm.  I wonder what happens if I substitute other words for “free enterprise” and “in the marketplace.”

Our system of free speech rests on the conviction that the federal government should interfere in the marketplace of ideas only when necessary.

Eeew.  I don’t like the sound of that.  But I guess it’s consistent with the Bush administration’s policy of paying columnists for sympathetic opeds.  Let’s venture on.

Our system of a free press rests on the conviction that the federal government should interfere in the media only when necessary.

Well … The New York Times might object … but I guess if George W. Bush says it’s necessary …

Our system of freedom of religion rests on the conviction that the federal government should interfere in your church only when necessary.

Holy smokes.

Our system of freedom from unreasonable search rests on the conviction that the federal government should interfere in your phone calls only when necessary.

It isn’t interfering if they’re just listening in … is it?

Of course, I’m being snarky and completely unfair to the president.  After all, economic freedom – the right to control what you produce – isn’t nearly as important as the rights to think, write, or worship.  (Or so say those who want to control what you produce, without being told what to think, write, or worship.)

Don’t Read the Whole Thing - Just the “Repeal” Part

You know how blogs link to something and tell you to “read the whole thing?” That’s more reading than I ever care to do. Well, here’s one where you don’t need to read the whole thing.

This week, the Center for Democracy and Technology submitted comments to the American Association of Motor Vehicle Administrators regarding the structure of data systems that would implement the REAL ID Act, our national ID law.

Here’s some material from the first paragraph: “… CDT has consistently questioned the wisdom of the REAL ID Act and supports its repeal or significant amendment.” ‘Nuff said. No need to read any further.

Here’s where to find letters that CDT signed on to earlier this year, saying, “The REAL ID Act was a poorly-conceived law that can never be made to work in any fair or reasonable manner.”

Big Victory for Economic Liberty

Amid a financial crisis that has pundits playing the game of who can come up with the most nationalization and re-regulation—and a presidential campaign where neither candidate seems to have much coherent to say about the economy—one bright ray of light shone through.

And it came from San Francisco, no less.

On September 16, the U.S. Court of Appeals for the Ninth Circuit delivered a blow against unfair economic regulation in the case of Merrifield v. Lockyer. Pacific Legal Foundation lawyer and Cato adjunct scholar Tim Sandefur argued on behalf of Alan Merrifield, a businessman prevented from building structures to keep out pests by a bizarre licensing regulation. The California law in question required people who do not use pesticides to undergo years of training and take an examination testing their knowledge of chemicals and insects before they can use pest control techniques that involve neither chemicals nor insects.The law only applies to pigeons, rats, and mice, however, so putting spikes on a building to keep seagulls off it does not require a license. But the same activity aimed at deterring pigeons does. Moreover, the record showed that the rule was designed for the sole purpose of protecting people who have licenses from having to compete in the marketplace against upstart businesses like the one operated by Merrifield.

Circuit Judge Diarmuid O’Scannlain, writing for the panel majority, succinctly explained the problem with California’s rationale:

The possibility that non-pesticide-using pest controllers might interact with pesticides or will need the skill to suggest pesticide use when it would be more effective is the very rationale that government’s counsel proffered, and we relied upon, in upholding the requirement that Merrifield obtain a license under due process grounds. We cannot simultaneously uphold the licensing requirement under due process based on one rationale and then uphold Merrifield’s exclusion from the exemption based on a completely contradictory rationale. Needless to say, while a government need not provide a perfectly logically solution to regulatory problems, it cannot hope to survive rational basis review by resorting to irrationality.” (Emphasis in original)

That is, “economic protectionism for its own sake, regardless of its relation to the common good, cannot be said to be in the furtherance of a legitimate governmental interest.”

This decision is thus a tremendous blow against the various licensing advantages granted by legislatures to the few at the expense of the many. As Sandefur put it in PLF’s press release, “This is a victory for free enterprise and for the Constitution’s safeguards for entrepreneurship.”

The battle for economic rights remains an uphill struggle, however, because the invalidation of California’s pernicious legislation rested not on the basic right to earn an honest living but on the state’s “irrational singling out of three types of vertebrate pests” to the economic benefit of some exterminators as against others.The case necessarily turned on an “equal protection” violation, instead of constitutional protection of any substantive rights. Without that arbitrary listing of pigeons, rats, and mice, the pesticide/insect requirements would have withstood Merrifield’s challenge. Judge O’Scannlain implicitly recognized that reaching the correct result in this manner was intellectually unsatisfying, but that his hands were tied by the Supreme Court’s 1873 Slaughterhouse Cases (which eviscerated the Fourteenth Amendment’s Privileges or Immunities Clause). So long as the Supreme Court shies from revisiting the twisted logic of that precedent, the Constitution will offer precious little defense against legislation that restricts the ability of individuals to freely exchange goods and services.

Nevertheless, in establishing the legal principle that mere protectionism is not a legitimate state interest, the Merrifield case is a major victory for economic liberty—and the first time the Ninth Circuit has taken up this issue.

Congratulations to Tim and to Pacific Legal!