Topic: Law and Civil Liberties

Blogging from the Supreme Court - NAMUDNO v. Holder

I write this from the Bar Members’ line waiting to be let into the Supreme Court courtroom for the final argument of the term.

Today the Court hears Northwest Austin Municipal Utility District No.1 (“NAMUDNO”) v. Holder. This is a challenge to the controversial Section 5 of the Voting Rights Act, which requires, among other things, any change in election administration in certain states and counties to be “precleared” by the Department of Justice in Washington. This is, of course, a remnant of the Jim Crow era, and southern states’ massive resistance to attempts to enforce the 15th Amendment.

In 1965, Congress included Section 5 – which would otherwise be an unconstitutional infringement on peoples’ right to run their own elections locally – as a temporary remedy to an emergency situation. The section has been amended and extended several times (e.g., to add linguistic minorities, Pacific Islanders, etc.), most recently in 2006. But in this last renewal, Congress, despite introducing more than 15,000 pages into the record, failed to even allege the existence of the type of systemic voting discrimination as existed in the 1960s – because, of course, it doesn’t exist any more, and other parts of the VRA exist to cover specific discriminatory incidents.

Accordingly, a small utility district in Austin, Texas, contests Section 5’s continuing validity (if it cannot escape the section’s clutches via a confusing and little-used “bailout” provision). Specifically, NAMUDNO wants to change the location of its polling station to a public garage (from a less convenient location) – a move that obviously lacks discriminatory intent, and showcases the minutiae that the DOJ now has to micromanage.

Cato legal scholars support NAMUDNO’s challenge because, barring the widespread systemic unconstitutional actions of the Civil Rights Era, Section 5 violates our most basic principles of self-government and federalism, and is emblematic of governmental overreach.

In Defense of “Libertarian Crusades”

We in the public interest legal community – especially on the libertarian or conservative side – are used to taking slings and arrows from all quarters.  The media doesn’t understand our quaint obsession with following the text of the Constitution.  The so-called progressives seethe at our evil defense of property rights and the freedom of contract.  Even the business community blanches at our refusal to leave their sacred regulatory protections untouched in our attack on statism.

But what we don’t expect is to see federal judges openly and wantonly question our motives – least of all in an actual opinion.  Yet this is precisely what Judge Jacques “Jack” Wiener did last Thursday in dissenting from a Fourth Amendment seizure/Fifth Amendment takings case.  The case, Severance v. Patterson, involves a challenge to a Texas law that caused the seizure of beachfront property after Hurricane Rita pushed the vegetation line landward.  The purpose of the law, the Open Beaches Act, is to ensure public access to the beach regardless of erosion and other natural land migrations (a.k.a. a “rolling easement”).  The Fifth Circuit panel ended up affirming the dismissal of part of the claims and asking the Texas Supreme Court for a ruling on state-law issues implicated in others.

But the legal details aren’t important.  What I want to highlight is Wiener’s dissent, which begins with the following “Context” (a section title not commonly found in judicial opinions; see pages 22-23 here):

Although undoubtedly unintentionally, the panel majority today aids and abets the quixotic adventure of a California resident who is here represented by counsel furnished gratis by the Pacific Legal Foundation. (That non-profit’s published mission statement declares that its raison d’être includes “defend[ing] the fundamental human right of private property,” noting that such defense is part of each generation’s obligation to guard “against government encroachment.”) The real alignment between Severance and the Pacific Legal Foundation is not discernable from the record on appeal, but the real object of these Californians’ Cervantian tilting at Texas’s Open Beaches Act (“OBA”) is clearly not to obtain reasonable compensation for a taking of properties either actually or nominally purchased by Severance, but is to eviscerate the OBA, precisely the kind of legislation that, by its own declaration, the Foundation targets. And it matters not whether Ms. Severance’s role in this litigation is genuinely that of the fair Dulcinea whose distress the Foundation cum knight errant would alleviate or, instead, is truly that of squire Sancho Panza assisting the Foundation cum Don Quixote to achieve its goal: Either way, the panel majority’s reversal of the district court (whose rulings against Severance I would affirm) has the unintentional effect of enlisting the federal courts and, via certification, the Supreme Court of Texas, as unwitting foot-soldiers in this thinly veiled Libertarian crusade. It is within this framework that I shall seek to demonstrate how the panel majority misses the mark and why Severance’s action should be dismissed, once and for all, for her lack of standing to assert either a Fifth Amendment takings claim for reasonable compensation (because Severance has had nothing taken by the State) or a Fourth Amendment unreasonable seizure claim (because that which was putatively seized did not belong to Severance at the time; and even if it had, there was nothing unreasonable about the purported seizure).

 
Apparently in Judge Wiener’s world, it is beyond the pale for an organization to provide pro bono legal services that also advance some larger ideological mission.  Somebody tell the NAACP or ACLU – or the Supreme Court for that matter, which invites amicus briefs from just the kinds of groups Wiener excoriates.  Cato itself routinely files such briefs, of course, and on several occasions has joined with PLF.

Chief Judge Jones pithily dispatches her colleague’s grandiloquence in the majority’s first footnote (see bottom of page 2 here):

Notwithstanding the hyperbolic and unsupported assertions in Part I of the dissent (“Context”), the judges of the court endeavor not to decide appeals based on who the litigants are, who their lawyers are, or what we may believe their motives to be. Whether that rule is observed in light of Part I of the dissent, however, the reader must determine.

And I won’t even get into Wiener’s mixed metaphors and schoolboy Latin – he meant qua, not cum – other than to say “hit the road, Jack.”

(Full disclosure: I clerked on the Fifth Circuit and am familiar with Wiener’s squishy, unreliable jurisprudence; he’s very nice in person, but something happens in chambers – left-wing clerks? – that detracts from his effectiveness.  One caveat: Wiener is a great friend of the taxpayer; the IRS does not win in his courtroom.)

For commentary from the Volokh Conspiracy, see here.  For PLF’s press release, see here.  Hat tip: Cato adjunct scholar Tim Sandefur (whose day job is with PLF, though he did not work on this case).

The Government Shouldn’t Tilt The Speech Playing Field in Its Own Favor

New Hampshire passed a law prohibiting the transfer of doctors’ prescription history to facilitate drug companies’ one-on-one marketing — a practice known as “detailing” — because it believes detailing drives up brand-name drug sales and, in turn, health care costs.  The state knew that the First Amendment prevented it from banning detailing itself, so it made the practice more difficult indirectly. 

Yet data collection and transfer is protected speech — think academic research, or the phone book — and government efforts to regulate this type of speech also runs afoul of the First Amendment.  See, e.g., Solveig Singleton, “Privacy as Censorship: A Skeptical View of Proposals to Regulate Privacy in the Private Sector” (Cato Institute Policy Analysis No. 295).  New Hampshire also engages in gross viewpoint discrimination: it exempts insurers’ efforts to persuade doctors to use generic drugs, and runs an “academic detailing” program to discourage brand-name drug use.

Remarkably, the First Circuit reversed a district court ruling that had invalidated the statute as unconstitutional, somehow finding that the statute regulates conduct rather than speech and that, in any event, the judiciary should defer to the legislative branch’s judgment.  Two companies that collect and sell health information and analysis filed a petition asking the Supreme Court to review the case.  Cato, joining Washington Legal Foundation, Reason Foundation, and a group of current and former state officials, has filed a brief supporting that petition.

Our brief argues that the Supreme Court should grant review because: 1) the speech at issue is worthy of First Amendment protection; 2) this case is a good vehicle for examining First Amendment issues attending state attempts to control health care costs (other states have passed similar laws); and 3) the lower court’s holding that a state may restrict speech to “level the playing field” conflicts with the Court’s precedent regarding both commercial speech and campaign finance regulation.

The Supreme Court will be deciding over the summer whether to grant review, with a decision expected after the “Long Conference,” which precedes the beginning of the new term in October.

Time Magazine Covers Decriminalization in Portugal

This week Time Magazine has an article discussing the new Cato report, “Drug Decriminalization in Portugal” by Glenn Greenwald.  Excerpt:

The question is, does the new policy work? At the time, critics in the poor, socially conservative and largely Catholic nation said decriminalizing drug possession would open the country to “drug tourists” and exacerbate Portugal’s drug problem; the country had some of the highest levels of hard-drug use in Europe. But the recently released results of a report commissioned by the Cato Institute, a libertarian think tank, suggest otherwise.

The paper, published by Cato in April, found that in the five years after personal possession was decriminalized, illegal drug use among teens in Portugal declined and rates of new HIV infections caused by sharing of dirty needles dropped, while the number of people seeking treatment for drug addiction more than doubled.

“Judging by every metric, decriminalization in Portugal has been a resounding success,” says Glenn Greenwald, an attorney, author and fluent Portuguese speaker, who conducted the research. “It has enabled the Portuguese government to manage and control the drug problem far better than virtually every other Western country does.”

According to the Time web site, it is among the most frequently read and emailed articles in the current issue.  If the drug czar wanted to keep Portugal’s decriminalization under wraps, it is safe to say that we foiled that plan!

Glenn Greenwald has more over at Salon.  A Wall Street Journal op-ed mentioned the study over the weekend too.  Watch or listen to the Cato event where Glenn presented his findings.

Update on Roxana Saberi

saberiRoxana Saberi

For readers interested in the ongoing case of Roxana Saberi, an American journalist imprisoned in Iran on highly dubious charges, this sad story will get you up to date.  After having given unofficial indications that she would be released shortly, the Iranian government sentenced Saberi to 8 years in prison on April 18.  She is now apparently 5 days into a hunger strike.  Trita Parsi runs down some informed speculation about the relationship between the upcoming Iranian elections, the U.S.-Iran situation, and Saberi’s arrest here.

Please keep Roxana in your thoughts and prayers.   Evin prison is bad news, and she doesn’t belong there.

Does Transparency Inspire Terrorism?

The debate over the Obama administration’s release of the torture memos took an important turn during the past week, as reflected in discussions on the Sunday morning shows.

The economy was the lead story on Fox News Sunday, but in the second segment Chris Wallace led his questioning of Senator Kit Bond (R-MO) as follows:

The Pentagon now says that it’s going to release hundreds of photos of alleged abuse of detainees by U.S. personnel - this, after, of course, the release of the interrogation memos. Senator Bond, how serious is the threat of a backlash in the Middle East and the recruitment of more terrorists, possibly endangering U.S. soldiers in that part of the world?

Revelation! The idea that abusive practices on the part of the United States would draw people to the side of its enemies.

In the media, most of the debate up to now has centered on the tactical question of whether torture works, and to some degree the moral dimension. (Here’s David Rittgers on the former and Chris Preble on the latter.)

There’s an ineluctable conclusion from understanding that torture drives recruitment which endangers our soldiers: It is strategic error to engage in abusive practices. Abuse on the part of the United States adds heads to the hydra.

But wait. Wallace’s question may imply that it is release of the photos - not commission of the underlying offenses - that risks causing a backlash. This cannot be.

Given the governments they’ve long experienced, people in the Muslim and Arab worlds will generally assume the worst from what they know - and assume that even more than what they know is being hidden. Transparency about U.S. abuses cuts against that narrative and confuses the story that the United States is an abuser akin to the governments Arabs and Muslims have known.

Abusive practices create backlash against the United States. Transparency about abuses after the fact will dispel backlash and muddy the terrorist narrative about the United States and its role in the Middle East.

As the question turns to prosecution of wrongdoing by U.S. officials, such as lawyers who warped the law beyond recognition to justify torture, transparent application of the rule of law in this area would further disrupt a terrorist narrative about the United States.