Topic: Law and Civil Liberties

Happy Repeal Day

Today is the 75th anniversary of the repeal of alcohol prohibition. We are, alas, living in a time when way too many people think that the way to solve problems and improve the human condition is to enact more laws. Let’s remember that repealing certain laws can actually help to create a more free and prosperous society! 

Cato is celebrating today’s anniversary with an event this afternoon entitled “Free to Booze.” 

More thoughts on Repeal Day from Radley Balko and our friends at MPP. For Cato scholarship, go here, here, and here.

Originalism vs. Class Action Reform

David Boaz once suggested that the Class Action Fairness Act—an important statute that federalizes lots of abusive lawsuits traditionally confined to states—gives federal courts power they shouldn’t have.  In this article, I marshal new evidence of the Constitution’s original meaning that supports David.

In a nutshell:  the evidence confirms an interpretation of the Constitution’s text advanced by (gasp!) Public Citizen’s litigation director Brian Wolfman.  CAFA pins federal jurisdiction over state-filed class actions on the fact that many classes include members who are citizens of different states than the defendant.  Congress, in turn, assumed these suits fall within federal courts’ jurisdiction over “controversies between citizens of different states.” 

However, in congressional testimony on CAFA, Wolfman argued that proposed members of a class are not parties to a constitutional “controversy.”   For reasons too technical to go into here, if Wolfman’s right that would punch a big gaping hole in CAFA, allowing plaintiffs’ lawyers to easily evade federal jurisdiction in lots of cases. 

My evidence suggests Wolfman is correct—although Congress has the power to rewrite CAFA in a way that would make it constitutional.  Unfortunately, as the article explains, a “fix” for CAFA is probably not politically feasible, at least in the forseeable future.

For more on the argument, which involves some pretty technical points of federal jurisdiction and class action law, see the abstract, posted here, and a longer excerpt from the article posted by Professor Larry Solum on his Legal Theory Blog here.

The bottom line:  Tort reformers who are faithful to the original meaning of the Constitution must confront the uncomfortable fact that the Constitution takes key provisions of CAFA, the tort reform movement’s greatest legislative achievement, off the table.

David Kopel on the Plaxico Burress Prosecution

Cato’s associate policy analyst, David Kopel, comes to the defense of New York Giants wide receiver Plaxico Burress in today’s Wall Street Journal.  The WSJ law blog is hosting a discussion

The restrictive permitting system in New York allows for the rich and celebrities such as Robert DeNiro, Donald Trump, Howard Stern, and Harvey Keitel to carry a concealed weapon.  Average, law-abiding citizens and non-residents are given no consideration. 

This news comes hot on the heels of Brian Doherty’s book, Gun Control on Trial: Inside the Supreme Court Battle over the Second Amendment, and our book forum (archived in video and podcast form).

Mexico’s Drug Violence Spreads to Guatemala

At least 17 people were killed this weekend in Guatemala in gun battles between rival Guatemalan and Mexican drug gangs. This is the latest piece of evidence that Mexican drug violence is spreading down to Central America, where governments lack the institutional strength to fight these powerful cartels. A few months ago the Guatemalan army even stated that there are parts of the country’s territory that are not under its control.

The influence of Mexican cartels extends all the way to Argentina where a suspected Paraguayan drug trafficker was recently arrested for possibly supplying ephedrine (key ingredient of methamphetamine) to Mexican drug lords.

The next U.S. administration should pay more attention to this dangerous situation. It’s time for Washington to consider the cost of this war on drugs on the region’s stability.

Fairness Doctrine Post-Mortem

You may have noticed a recent decline in chatter about reinstating the Fairness Doctrine, and some Democrats backing away from earlier pronouncements of support.  Marin Cogan claims that this was all a straw man anyway, the result of right-wing fear-mongering and a “manufactured controversy.”  Blake Dvorak responds by pointing to the words of Congressional leaders that really did call for a reinstatement of the Fairness Doctrine. 

Why backtrack now?  It could be that the economy, wars abroad, and serial bailout votes are crowding the Fairness Doctrine out of the agenda.  It may also be that proponents of the Fairness Doctrine took a closer look and decided that they would lose a constitutional challenge. 

A legal challenge to the new Fairness Doctrine would succeed for three reasons.  First, the legal rationale that justified it in the first place has been overcome by technology.  Second, the effect of a new Fairness Doctrine would be to restrict speech, not increase the volume and quality of discourse.  Third, the Supreme Court, as currently constituted, will overturn a new Fairness Doctrine.  

Technology

The Fairness Doctrine existed from 1949 to 1987 in FCC policies and regulations, requiring coverage and balanced discussion of social issues.  The end of the Fairness Doctrine came as a change in FCC policy, not from a defeat in court.  In fact, it survived Supreme Court review in the 1969 case Red Lion Broadcasting Co. v. FCC.  The lack of bandwidth in the early days of radio and the scarcity of broadcast licenses meant that commercial broadcast license-holders had to provide opposing views when covering controversial issues. 

Print editors fared better.  In 1974, the Court invalidated a state statute that mandated free space in newspapers for political candidates to reply to criticism and attacks in Miami Herald Publishing Co. v. Tornillo.  Minus the scarcity rationale, a free press cannot be forced to share its pages with opponents.  As technology advanced, the policy was not applied to all media.  The FCC later exempted “subscription television” (cable TV) from political access requirements in its 1978 Policy Statement. 

In 1984 the Court noted that technology had advanced in FCC v. League of Women Voters of California.  In a footnote, the Court acknowledged that the policy had come under criticism with the advent of cable and satellite TV, but declined to overturn the Fairness Doctrine without a signal from Congress or the FCC that scarcity was no longer a valid rationale for its imposition. 

Reconstitution of the Fairness Doctrine under a scarcity rationale is laughable today.  The advent of HD Radio, satellite radio, Wi-Fi radio in cars, streaming radio on cell phones, cable television (now in a majority of American households), satellite television, the internet, and streaming internet radio stations undermine any case for scarcity. 

Reducing Speech, Not Enhancing It

The Supreme Court said from the outset in Red Lion that if the Fairness Doctrine ends up improperly blocking speech from public discussion, then it would be unconstitutional.  Proponents of the Fairness Doctrine are pretty clearly gunning for conservative talk radio, which appears to be the only format of media that doesn’t lean left. 

The enforcement of the new Fairness Doctrine would likely be the same as standards for indecency or profanity.  Aggrieved listeners would file a complaint with the FCC, and the inevitable result is a deterrent against any opinion without a counterpoint commentator.  Prof. Jack Balkin provides a detailed description of how broadcasters complied without increasing the quality of their broadcasts.  Broad discretion as to which issues are covered and the advantage of picking your opposition make compliance easy but do not guarantee meaningful debate.  In short, a radio version Hannity & Colmes would pass muster, but did Colmes ever win one of those exchanges? 

The Fairness Doctrine ends up inhibiting a lively discussion of social issues.  Prof. Balkin believes that the Fairness Doctrine does pass constitutional muster but remains poor public policy, and recently commented that the Fairness Doctrine is not coming back, and certainly not to the internet.  Professors Eugene Volokh and Cass Sunstein agree that the Fairness Doctrine makes for bad policy in this video.  Prof. Volokh has also asked Fairness Doctrine supporters how media outlets would accommodate multiple viewpoints beyond the traditional left-right divide.  

Simply put, this is a measure that will restrict speech, and no amount of civic education window-dressing can hide that. 

Supreme Court Composition

Under the current composition of the Court, the Fairness Doctrine is unlikely to survive. 

This can only be fleshed out in an article of its own, but the bottom line is that the Court has recently held unconstitutional campaign finance reform measures that were far narrower than the Fairness Doctrine.  In FEC v. Wisconsin Right to Life, the Court invalidated part of the McCain-Feingold Bipartisan Campaign Reform Act of 2002 with respect to issue advocacy.  In Davis v. FEC, the Court invalidated the “millionaire’s amendment” of the same act, a provision giving fundraising advantages to political candidates facing wealthy opponents. 

Some may contend that I’m erring in making a connection between campaign finance and broadcast restrictions that inevitably come with a federal license.  But it’s hard to argue that these restrictions on political expression, which impact some advocacy groups and some political candidates, would be invalidated while a 24/7 restriction on a whole medium of communication on all controversial social issues would be upheld as constitutional.  Even harder when you take away any argument under a scarcity rationale and face the fact that implementation of the policy will inevitably reduce political discussion instead of enhancing it. 

The facts above lead me to believe that Barack Obama, a former constitutional law professor, omitted the Fairness Doctrine from his platform for a reason.  As Jesse Walker points out, there are many other levers the president and FCC can pull that influence public debate without inviting a constitutional challenge.

Cops … or Criminals?

Still more criminals are pretending to be cops conducting violent raids on homes.  Since the police do smash in doors with little or no warning, point their weapons at residents until they lay prostrate on the floor, and deny people the opportunity to read search warrants, the lines have been badly blurred.  Kathryn Johnson was killed after she shot at intruders who turned out to be cops.  This DC resident might have been killed by cops who turned out to be criminals.  Fortunately for her, relatives just happened to arrive at her home to upset the criminals’ plans.

For additional background, go here, here, and here.

Is Hillary Clinton Unconstitutional?

So Hillary Clinton is “on track” to be the nation’s top diplomat, huh?  Well, setting aside the wisdom of that decision – forget ideology; does she have both foreign policy expertise and a good working relationship with the President-elect? – it appears that there may be genuine constitutional problems with her expected nomination.  To wit, Article I, section 6, clause 2 reads:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased [sic] during such time…

That is, under this “Emoluments Clause,” members of Congress are expressly forbidden to take any appointed position within the government which was created or whose pay has been increased during their current term in office.  Now, a January 2008 executive order, promulgated in accordance with a statute from the 1990s that addressed cost of living adjustments for certain federal officials, raised the Secretary of State’s salary, thus constitutionally prohibiting any then-serving senator who remains in office from taking charge of Foggy Bottom. (Sen. Clinton’s current term began in January 2007 and expires in January 2013.) 

Not surprisingly, this is not the first time such a conflict has arisen in executive appointments and nominations and, equally not surprisingly, Congress has on several occasions legislated around it:  To enable one of its own to assume executive office, Congress simply decreases the pay of that office to the pre-raise level for the full tenure of that specific appointee.

Although this legerdemain has been around since at least the Taft Administration – and was most recently used when President Clinton picked Sen. Lloyd Bentsen to be his Treasury Secretary – the move is called the “Saxbe Fix” after Sen. William Saxbe, whom President Nixon nominated for Attorney General.

The Saxbe Fix is not uncontroversial.  UCLA law professor Eugene Volokh, for example, cites Steptoe and Johnson partner John O’Connor’s objection that the Saxbe Fix is inadequate for circumventing the Emoluments Clause.  To O’Connor’s thinking, while simply lowering the salary – resulting in no “net” increase – does prevent the nominee from directly benefiting from a vote he or she cast, it would not substantively address the Framers’ intent to limit the size and scope of the federal government. That is, if, contrary to the Emoluments Clause’s terms, Congress can restore its Members’ eligibility for appointment by reducing the office’s salary, the Emoluments Clause ceases to serve its function as providing a constitutional disincentive for regular increases in the salaries of federal offices.

One could also argue that in this specific case, Congress did not act to increase anybody’s salary; it was that long-ago Congress that even gave that option to the president – and only in the form of an aross-the-board COLA, not some shady or opportunistic self-dealing.  But, of course, if we are to follow the text of the Constitution, there is no exception for offices “the Emoluments whereof shall have been encreased” by a non-shady COLA granted via statutorily-enabled executive order.

Whether anyone could challenge Hillary Clinton’s appointment in the courts is another matter.  Perhaps someone denied a passport, or who has had some other adverse action done to them by a Clinton-led State Department, would have standing to sue.  In any event, in this time of constitutionally questionable bailouts, it cannot hurt to be vigilant even about the most obscure text from our nation’s governing document.

Much more on this issue can be found in Eugene’s fascinating post here.