Topic: Law and Civil Liberties

Police Misconduct — The Worst Case in June

Over at Cato’s Police Misconduct web site, we have identified the worst case for the month of June.  Police officer Ronald Harris tried to rob a woman at the Memphis International Airport.  This was an extraordinary theft.  Harris was trying to steal a bag from an employee of St. Jude Children’s Hospital who was, in turn, delivering the bag to a family. The bag was a gift from the Make-A-Wish Foundation—the organization that grants wishes to terminally ill children.  The bag held several St. Jude t-shirts and a $1500 credit card for the family to use for travel.  Harris followed the St. Jude employee into the airport and then struck a member of the family who tried to stop him from stealing their wish away.  Harris has been suspended pending an investigation and faces a long list of charges. Police misconduct is never good, but plotting to steal the wish from a terminally ill child and their family is just really low.

Full story here.

New York Caps Uber “Surge” Pricing

Yesterday the New York attorney general reached a deal with the company Uber to cap its “surge” pricing during emergencies. The company, which uses an app to summon cars via a user’s smartphone, uses an algorithm that increases prices during periods of high demand, including emergencies and bad weather, to encourage more of its drivers to work. The agreement was reached in accordance with the City of New York’s law against price gouging, passed in 1979.  

Was the agreement a good idea?  In the cover story of the Spring 2011 issue of Regulation, Texas Tech researcher Michael Giberson examines the role of high prices and the resistance to them during emergencies.

Many people object to high prices during emergencies. The use of high prices by Uber after Hurricane Sandy prompted a Time writer to describe Uber’s pricing as “economically sound, ethically dubious.”  Michael Sandel, professor of government at Harvard, is quoted in the Regulation article saying “A society in which people exploit their neighbors for financial gain in times of crisis is not a good society… . By punishing greedy behavior rather than rewarding it, society affirms the civic virtue of shared sacrifice for the common good.”

In response, Giberson argues “If it is admitted that giving merchants the freedom to pick their own prices does a better job than alternative ways of getting goods and services to where they are needed, then interference with that pricing freedom … harms precisely those persons who have been already harmed by the disaster, a result that suggests neither shared sacrifice nor promotion of a common good.”  In addition, he argues it is unfair to “place a particularized obligation to sacrifice on a discrete segment of society, namely merchants. Addressing the particular hardships faced by the poor during emergencies is a task better left to government agencies or charities.” 

Price gouging laws are an attempt to deny the economic realities of emergency situations. Price gouging laws reduce the incentives to provide needed goods and services in areas affected by emergencies and disasters. The cap on Uber’s surge pricing may make its customers happy now, but they may not be so happy when they wait hours for an Uber during the next blizzard, thunder storm, or other disaster. The writer concluded that “Price gouging might, at least in theory, help shrink lines and reduce shortages. But I think most people would rather wait in line than have someone make a windfall profit off their desperation.”  With this agreement we will conduct the experiment to test his theory.

For more on Uber, see the recent blog posts by Cato’s Matthew Feeney and this article from the Summer 2013 issue of Regulation. 

Tax Notes Praises Law-Review Article that Got Halbig Cases Rolling

A panel of the U.S. Court of Appeals for the D.C. Circuit, which is often referred to as the second-highest court in the land, is expected to rule any day now on Halbig v. Burwell, a legal challenge that “may actually crush,” “kill,” and “wreck” the Patient Protection and Affordable Care Act, a.k.a. Obamacare.

The tax-law journal Tax Notes has chosen the law-journal article that got Halbig and similar cases rolling – Jonathan H. Adler and Michael F. Cannon, Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA, Health Matrix: Journal of Law-Medicine 23, No. 1 (2013): 119-195 – as one of “the 10 law most noteworthy law review articles on employee benefits and executive compensation issues published in 2013 that a broad audience of employee benefits professionals would find relevant and worthy of attention.” Tax Notes calls the Adler-Cannon article “innovative and thought provoking” and one that “practitioners should have read” in 2013.

To read the Adler-Cannon Health Matrix article, click here. For more on the Halbig cases, click here.

The End of Forced Union Dues?

Defenders of the status quo in education have long used lawsuits to protect themselves from competition and force state legislatures to increase funding. Lately, rather than merely play legal defense, some education reformers have turned to the courts to push reform. In some cases, the long-term prospects of positive reform through litigation are slim, even when the court’s ruling is favorable.

However, one lawsuit currently making its way through the court system has the potential to remove a major obstacle to reform: compulsory union dues. In 19 states, would-be government school teachers are forced either to join the teachers union or to remain a non-member but pays dues anyway—sometimes more than $1,000 per year.

The unions contend that these compulsory dues are necessary to overcome the free rider problem (non-union members may benefit from the collectively-bargained wages and benefits without contributing to the union), but plaintiffs in Friedrichs v. California Teachers Association point out that numerous organizations engage in activities (e.g. – lobbying) that benefit members and non-members alike without giving such organizations the right to coerce non-members to pay. That’s especially true when the individuals who supposedly benefit actually disagree with the position of the organization. Indeed, the plaintiffs argue that the compulsory dues violate their First Amendment rights because collective bargaining is inherently political:

Current federal law allows union workers to opt out of the political portion of union dues — for California teachers that usually amounts to between 30 and 40 percent of the total dues automatically taken from their salaries each year — but in closed-shop states such as California, workers cannot opt out of the rest of the dues, predominantly designated for collective bargaining. However, the plaintiffs argue that collective bargaining is inherently political, involving such debated issues as school vouchers and teacher tenure.

“Since my first years of teaching, I’ve been bothered by the fact that a large portion of my mandatory dues goes to pay for political endeavors of a union whose political positions have nothing to do with my job and have nothing to do with improving education for me, for my students, or for their parents,” Friedrichs tells me. “In fact, often these policies have negative effects.” 

The legal justification for compulsory union dues rests primarily on a 1977 U.S. Supreme Court decision, Abood v. Detroit Board of Education. But as Andy Smarick noted last week, the recent majority opinion in Harris v. Quinn displayed a willingness to revisit and perhaps overturn Abood:

The Abood Court’s analysis is questionable on several grounds. Some of these were noted or apparent at or before the time of the decision, but several have become more evident and troubling in the years since then. 

For example:

Abood failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector. In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector. 

Justice Alito also wrote that “preventing nonmembers from freeriding on the union’s efforts” is a rationale “generally insufficient to overcome First Amendment objections.”

The Friedrichs case, resting as it does on a First Amendment objection based on the premise the collective bargaining in the public sector is inherently political, appears to match perfectly the majority’s objections to Abood in Harris. It very well may spell the end of compulsory public sector union dues.

Is There a Libertarian Center at the Supreme Court?

There’s been a lot of talk lately about “The Supreme Court’s Libertarian Moment,” perhaps mostly though not entirely from Ilya Shapiro. A detailed analysis of the 2013-14 Supreme Court term in the Washington Post provides some evidence for that, if you read to the very end. In an article on the rising number of unanimous decisions this term, Robert Barnes notes at the end:

Criminal cases are often ones where the lines between the court’s liberal and conservative wings are blurred.

“There’s been a lot of talk in progressive circles about how you want to avoid taking cases to this particular Supreme Court,” said Elizabeth Wydra, chief counsel with the liberal Constitutional Accountability Center. “One of the areas we’ve seen the Roberts court taking what might be called liberal positions are areas where there are a liberal-libertarian alliance.” [A point that two of her colleagues had made at length in the Post a few days earlier.]

Noel Francisco, a Washington lawyer and former Scalia clerk who represented challengers in the recess appointments case, said there is the same gravitation on the right.

“I think one of the most interesting phenomenon we’ve seen on the court over the last 30 or 40 years is what I would call the evolution of the conservative instinct,” Francisco said. It no longer means “a thumb on the scale for the government.”

Roger Pilon explored the revival of libertarian legal thought in the Chapman Law Review last year.

Supreme Court Grants Cert In Wartime Suspension of Limitations Act Case

Should courts allow the federal government to ignore time deadlines for filing suit on the grounds that there’s a war on, even though it’s been 70 years since the end of the war on which such a delay was premised? On Tuesday the U.S. Supreme Court granted certiorari in a case raising that question, Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter. I wrote about the issue last year; an excerpt:

War is the health of the state,” wrote Randolph Bourne a century ago—from the special war taxes that can linger for a century, to the mohair subsidy program from Korean War days, to New York City’s wartime emergency rent controls, to the many incursions on civil liberties that don’t get rolled back afterward. War, it now turns out, can even give a boost to the lawyers who represent the federal government in civil litigation, magically transmuting losing cases into winners….

In 1942, not long after the Japanese attacked Pearl Harbor, Congress passed the Wartime Suspension of Limitations Act (WSLA), providing that the statute of limitations would be suspended (or “tolled”) on claims of defrauding the federal government until hostilities had ended. When the Japanese surrendered three years later, Congress left WSLA on the books, where nearly everyone forgot about it. …

A few years ago the U.S. Department of Justice decided that the old law entitled it to file various civil fraud lawsuits for which the ordinary statute of limitations had passed, because we were after all at war in Iraq and Afghanistan – even though the original statute applied on its face to criminal rather than civil cases, although the newer wars unlike World War II do not call for all-consuming national focus that might pre-empt the ordinary course of business, and although the subject matter of most of the cases has nothing whatever to do with national defense or war or Afghanistan or Iraq. A couple of appeals courts have agreed with DoJ’s excuse, which has emboldened the government to roll out the theory to many other cases. That leaves business lawyers to fret, as I wrote last year, about “when, if at all, they can safely advise clients that a potential dispute is too old to worry about. If truth is the first casualty of war, perhaps the fairness of dispute resolution is the next.”

The Supreme Court now offers them a ray of hope – and in a more sensible world Congress would do so as well, by agreeing to revisit WSLA.

Hobby Lobby’s Aftermath—and Its Implications for Freedom

Not to be missed, the Wall Street Journal offers us two house editorials this morning plus the always colorful online thoughts of James Taranto, all on the Left’s hysterical reaction to Monday’s Supreme Court decision in the Hobby Lobby case. With his usual wit, Taranto presents a rich catalog of the “aggressively ignorant commentary” while the first of the editorial board’s offerings is a clear-eyed statement of the raw politics behind this “ignorance.” It starts with White House press secretary Josh Earnest’s initial remarks—conveniently ignoring that the decision rested not on the Constitution but on a statute that Congress passed all but unanimously—then continuing to Hillary Clinton’s remarkable outburst—likening the result that flows from the statute her husband promoted as president to the treatment of women that we see in the worst Middle Eastern despotisms.

But it’s in its second offering, “The Political Ginsburg,” that the Journal takes off the gloves. The justice’s “hyperbolic dissent is a political call to arms unworthy of a junior judge, much less the nation’s highest Court,” the editors write. Indeed,

The excess begins with her first sentence: “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations … can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” She goes on to say that the Court’s “radical purpose” may unleash “havoc,” among other flourishes that distort the opinion to the point of intellectual dishonesty.

Summing up its assessment:

Justice Ginsburg’s dissent is so far removed from the legal reality that it doesn’t qualify as a judicial opinion. It is a political opinion whose purpose seems to be to mobilize opposition to the Court and perhaps even motivate Democrats to turn out at the polls. Justice Antonin Scalia sometimes unleashes his rhetorical ferocity on decisions he dislikes, but his dissents are rooted in the law. Justice Ginsburg’s is a flight from the law.

And yet, for all her gross distortion of Justice Alito’s narrow, statutory opinion for the Court, Justice Ginsburg has pointed, doubtless unwittingly, to how far we’ve strayed from our first principle, freedom—something to reflect on as we prepare to celebrate our independence. As I wrote in this space a while back, after oral argument in Hobby Lobby, religious liberty is treated today as an “exception” to the general power of government to rule—captured, indeed, in the very title of the statute on which the Hobby Lobby decision rests: The Religious Freedom Restoration Act. That Congress had to act to try to restore religious freedom—to carve out a space for it in a world of ubiquitous, omnipresent government—speaks volumes. So completely have we come to assume that it’s government first—supplying us with all manner of goods and services—liberty second, that Justice Alito himself was at pains to stress how narrow his opinion was (properly, from a consideration of the scope of judicial authority).

Yet that was not enough for his critics, who have so distorted his opinion. Although most don’t say it, their real beef is with the Act itself. They pit a woman’s “right” to “free” contraceptives, including the abortifacients at issue in this case, against the claim of an employer that he has a right not to provide those (in principle, on religious or on any other grounds). And they add that employers have no right to “interfere” with a woman’s reproductive choices—as if that’s what employers are doing. It’s “reasoning” like that that has undermined our freedoms. And no one has employed it more often than the man now in the White House, who repeatedly tells us that “We’re all in this together.” If we are, then it’s far more than religious liberty that needs restoring.