Topic: Law and Civil Liberties

Happy Human Rights Day

Today is Human Rights Day, a time we should celebrate great advances in human freedom through history—the rise of the rule of law, the abolition of slavery, the spread of religious liberty, the secular decline of violence, respect for free speech, etc.—as well as honor those groups and individuals working to promote or safeguard human rights in the many parts of the world they are currently being violated or threatened.

At Cato, we have been honored to host and work with human rights champions from around the globe, all of whom have suffered persecution for speaking truth to power. The list includes renowned Soviet dissident Vladimir Bukovsky, independent Cuban blogger and journalist Yoani Sanchez, Malaysian politician and former deputy prime minister Anwar Ibrahim, Venezuelan opposition leader Maria Corina Machado, Russian liberty advocate Garry Kasparov, Chinese activist  Chen Guangcheng (sometimes known as the blind, “barefoot lawyer”) and many more.

Because we believe in the inherent dignity of individuals, human freedom is worth defending. For that reason, and because freedom plays a central role in human progress, it is also worth gaining a better measure and understanding of the spread of,  and limitations on, freedom around the world. That’s why we created the Human Freedom Index in conjunction with the Fraser Institute and the Liberales Institute. The index is the most comprehensive global measure of civil, personal and economic freedom so far devised. And although Human Rights Day technically commemorates the Universal Declaration of Human Rights, we think the Human Freedom Index and its definition of freedom—the absence of coercive constraint—can help us think more carefully about the state of freedom around the world.

You may view the index here, see how countries and regions of the world rank, examine how income and democracy relate to freedom, get a sense of how various freedoms relate to one another, and otherwise gauge how the world is doing on 76 distinct indicators.

Other Cato activities and publication that may be of interest on Human Rights Day include:

Recent events

“The Deteriorating State of Human Rights in China”

“Property Rights Are Human Rights: Why and How Land Titles Matter to Indigenous People”

“Islam, Identity, and the Future of Liberty in Muslim Countries”

“Magna Carta and the Rule of Law around the World”

“The Moral Arc: How Science and Reason Lead Humanity toward Truth, Justice and Freedom”

Publications

The Tyranny of Silence by Flemming Rose

The Power of Freedom: Uniting Human Rights and Development by Jean-Pierre Chauffour

Realizing Freedom by Tom Palmer

“Islam and the Spread of Individual Freedoms: The Case of Morocco” by Ahmed Benchemsi

“Capitalism’s Assault on the Indian Caste System,” by Swami Aiyar

“Magna Carta’s Importance for America,” by Roger Pilon

Excessive Fines Are Unconstitutional

Fool me once, shame on you; fool me twice, shame on me. In this case, the Palmetto State, following the lead of other state and federal regulators, has added a new twist to that old saying: fool no one, pay $124 million to the treasury.

Ortho-McNeil-Janssen (“Janssen”) is a pharmaceutical company that distributes a popular antipsychotic drug known as Risperdal. In the 1990s and early 2000s, Risperdal was in fierce competition for market dominance and made some questionable claims about the drug’s side effects. The FDA investigated and compelled the company to correct some defective warning labels.

South Carolina regulators, however, despite the FDA’s settlement of the matter, commenced state action against Janssen under the state’s Unfair Trade Practices Act. That action worked its way up to the state supreme court, which ultimately confirmed a $124 million penalty against the company. That massive fine was sustained on the theory that each labeling violation was its own violation of the statute, worth up to $5,000 each, rather than the overall labeling violation counting as one singular misdeed.

Such a large penalty, disproportionate to the actual harm caused (none) runs afoul of the Eight Amendment requirement that “excessive fines [not be] imposed.” Cato has filed an amicus brief calling for the U.S. Supreme Court to reverse the decisions below and clarify the scope of the Excessive Fines Clause.

South Carolina’s statute, like many similar state laws, is poorly worded and fails to define whether each individual manifestation of a regulatory violation is cognizable as an offense. Taking advantage of that lack of specificity, South Carolina converted a potential $5,000 fine into a $124 million one. Because of the huge numbers that can be achieved by multiplying even modest per-violation fines, state and federal regulators are often able to secure grandiose settlements and thereby insulate their fines from judicial review.

Moreover, the state supreme court here accepted this theory in the face of no evidence of harm resulting from the allegedly improper statements. The U.S. Supreme Court has said that under the Excessive Fines clause, the monetary penalty imposed shall not be “grossly disproportional to the gravity of the defendant’s offense.” United States v. Bajakajian (1998). A finding of no harmful effect attached to 9- or 10-figure penalties blows any notion of proportionality out of the water.

And South Carolina is not the only state where this is occurring. For example, an Arkansas court imposed a $1.2 billion penalty for purported misstatements about the same drug at issue here, on the theory that the Arkansas Medicaid Fraud False Claims Act was violated each time the drug was prescribed or re-filled. Other cases have revealed penalties as high as 20 or 46 times the harm suffered by consumers.

The Supreme Court should take this opportunity to reaffirm that the Eighth Amendment’s Excessive Fines Clause imposes a judicially enforceable limit on grossly disproportional fines. It will consider next month whether to take up Ortho-McNeil-Janssen Pharmaceuticals, Inc. v. South Carolina.

Arab and Muslim Americans: The New “Others”

Over the last month, GOP presidential hopeful Donald Trump’s counterterrorism policy prescriptions have included creating a database of Arab and Muslim Americans, and more recently, a call for a ban on all Arab/Muslim immigration to the United States. While he has yet to call for the creation of WW II-style ethnic/religious concentration camps for our Arab/Muslim American neighbors, at this point nothing seems beyond the pale for Trump. Unfortunately, as I have noted before, when it comes to stigmatizing–if not de facto demonizing–Arab/Muslim Americans, he’s getting some help from DHS, DoJ, and the legislative branch.

Indeed, in the ongoing legislative battle to pass dubious cybersecurity legislation, House Homeland Security Chairman Mike McCaul (R-TX) is being wooed to support the revised cyber information sharing bill with a new carrot: the inclusion of his “countering violent extremism” (CVE) bill in the FY16 omnibus spending bill–a measure condemned earlier this year by civil society groups from across the political spectrum.

To date, McCaul has been opposed to the Senate’s approach to cybersecurity issues in the form of the Cybersecurity Information Sharing Act (CISA), and, keeping that in mind, House and Senate supporters have largely excluded him from their negotiations over a final cyber bill. By dangling the inclusion of his CVE legislation in the omnibus is a clear effort to get McCaul to drop his opposition to CISA by giving him one of his priorities: Passage of CVE legislation would create yet another bureaucracy in DHS to essentially monitor the Arab/Muslim American population for signs of extremism. 

The fact that a similar CVE effort in the U.K. failed miserably has not deterred Congressional boosters like McCaul from pursuing that same discredited approach at the expense of the civil and constitutional liberties of a vulnerable minority population. Additionally, the expense of American taxpayers is likely to be at least an additional $10 million per year for the proposed DHS CVE office. 

As former NBC Nightly News anchor Tom Brokaw reminded us this week, Arab and Muslim Americans have died for the United States in Iraq and Afghanistan. They have paid for our freedom with their blood and their lives. Proposals that would strip them of their rights and attempt to turn them into political and societal lepers should be repudiated–vocally and forcefully. Those who propose such un-American and unconstitutional discrimination are the ones who should be shunned and permanently confined to the unhinged fringes of American political and social life.

How Far Will Justice Kennedy Go?

Coming out of oral argument in Fisher v. UT-Austin, I have a frustrating sense of déjà vu all over again. Not simply because this is the second iteration of Abigail Fisher’s plea not to be judged by skin color, but because every time the Supreme Court takes up affirmative action both sides talk past each other and the issue is (not) resolved by a mushy baby-splitter like Justices Lewis Powell or Sandra O’Connor. Regardless of what the particular legal issues may be, one side pushes racial preferences forever (for whatever reason, currently “diversity”) and the other says never (because the way to stop racial discrimination is to stop discriminating on race). The ultimate ruling inevitably rejects the specific use of race at issue but keeps the door open for future uses – chasing some Goldilocks ideal of “race consciousness” but not too much.

Fisher II is no different. I’ll let others provide detailed exegeses of the justices’ repartee, but the bottom line is that there aren’t any surprises here. With Justice Elana Kagan recused, there’s a reduced three-justice liberal bloc staunchly in favor of UT-Austin’s holistic review (which Cato’s brief assails as being a black box that can’t pass the smell test, let alone strict scrutiny). Conversely, I heard nothing from Chief Justice Roberts or Justices Scalia/Thomas/Alito that would support the university. For that matter, Justice Kennedy – who dissented in the University of Michigan case of Grutter v. Bollinger (2003) that was Fisher’s precursor – didn’t say anything to indicate he would approve UT’s admissions program either, though at one point suggested that a remand for fact-finding might be appropriate (Later, he all but rejected that idea).

So we wait to see how broadly Kennedy wants to go. Will he merely vote to strike down the use of race in the admissions decisions complementing UT’s Top 10 program, or will he cast doubt on the use of race in educational administration altogether? Will he tighten the judicial standard of review that the Court set in Fisher I – making it essentially impossible to meet – or will he throw bones to both sides in a way that again avoids changing the status quo?

At some point, the Supreme Court has to realize that the hallowed “diversity” interest is both pretext and ephemera, and that an admissions program that uses race in a constitutional manner is a self-contradicting proposition. I don’t know if that day will come next June when Fisher is decided, but my fervent hope is that Justice Kennedy pushes his own jurisprudence further in that direction.

Congress’s Diminishing Power of the Purse

One of the most important aspects of the separation of powers is the commitment of the power of the purse to the legislative branch. It constrains the executive and the judiciary from engaging in unilateral action without congressional approval. If there’s no approval, there will be no money to pay for the executive action, as the rule would have it. Unsurprisingly, with the advent of the administrative state and an aggressive executive, this power has been significantly diminished in modern times

Indeed, Article I, Section 8 of the Constitution provides expressly that “[t]he Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts,” to the exclusion of any other branch’s exercise of those powers. The upshot: the separation of powers, especially Congress’ power over appropriation priorities, is eroded as executive agencies and executive allies have access to funds not appropriated by Congress.

In order to keep their power of the purse intact, Congress originally enacted the Miscellaneous Receipts Statute in 1849. That law is now codified today in Title 31 of the U.S. Code. It requires all government officials in receipt of funds, such as settlements from civil or criminal enforcement, to deposit that money with the Treasury. As a structural point, the law effectively aims at stopping executive agencies from self-funding through enforcement or other receipts of money. It maintains their dependence on Congress for their annual appropriation.

However, the Justice Department has found a way around this law to fund political allies on the left or executive priorities without congressional approval: settlement agreements. As Wall Street Journal columnist Kimberley Strassel recently reported, “[i]t works like this: The Justice Department prosecutes cases against supposed corporate bad actors. Those companies agree to settlements that include financial penalties. Then Justice mandates that at least some of that penalty money be paid in the form of “donations” to nonprofits that supposedly aid consumers and bolster neighborhoods.”

The trick here is that Justice never “receives” the funds within the meaning of the Miscellaneous Receipts Statute, and thus has no requirement to deposit the funds it exacts from defendants with the Treasury—the donations are made directly without money ever being received into Justice’s hands.

Despite the fact that Justice Guidance discourages the practice because “it can create actual or perceived conflicts of interest and/or other ethical issues”—and, indeed, it was almost banned in 2008 due to perceptions of abuse—Justice continues to push this method of funding political allies and favored priorities of the executive. In fact, “[i]n 2011 Republicans eliminated the Housing Department’s $88 million for ‘housing counseling’ programs,” Strassel reports, “which spread around money to groups like La Raza. Congress subsequently restored only $45 million, and has maintained that level. . . [B]ank settlements pour some $30 million into housing counseling groups, thereby essentially restoring all the funding.”

Definition of “One Person, One Vote” Hinges on Two Votes

I was at the Supreme Court for oral argument in Evenwel v. Abbott, the case asking whether states have to draw legislative districts that equalize voters or people. (For more background, see here and Cato’s brief, and the argument transcript.)

I don’t have much to add to the excellent analysis of our own Andrew Grossman, other than to highlight that it looks like the ruling will come down to the votes of Chief Justice John Roberts and Justice Anthony Kennedy. Justice Samuel Alito seems to be the only safe vote for the challengers, though one can infer from their pasts that Justices Clarence Thomas – who dissented 15 years ago from the Court’s decision not to take a previous case raising this issue but maintained his characteristic silence – and Antonin Scalia – who was (very) uncharacteristically silent – are also on that side. The four members of the so-called liberal bloc, meanwhile, were unflinching in their attack on the challengers’ position as threatening representational interests and also being impractical.

Justice Kennedy seemed to want to have it both ways, asking Texas Solicitor General Scott Keller (a friend of mine), “Why can’t you use both [population equality and voter equality]?” That approach may well appeal to the chief justice, who could, in the alternative, simply defer to the states (which is Texas’s position, while the United States insists that total population must be the measure used).

Indeed, it’s possible that we end up with a 3-2-4 split, in which case the Kennedy/Roberts position would set the controlling precedent and we would still see a change in how at least some states draw district lines without affecting the more significant nationwide standard that the challengers request.

Such a split-the-baby decision, while perhaps emblematic of the Roberts Court, would be constitutionally unsatisfying. As I write in my new USA Today oped:

The Supreme Court must thus intervene again, to maintain voter equality by specifying that “one person, one vote” demands an equalization of voters rather than population.

Otherwise, you end up with the scenario we see in Texas. Depending on where you live in the Lone Star State, you might be one of 383,000 people who choose a state senator, or one of 611,000. Indeed, the legislature could’ve drawn 31 districts of equal population where 30 have one voter each and the 31st all the other voters.

That can’t be right. If “one person, one vote” means anything, it’s that we can’t weigh some people’s votes more than others’.

Police Misconduct — The Worst Case in November

Over at Cato’s Police Misconduct web site, we have identified the worst case for the month of November.  It involved several officers with the San Antonio Police Department (SAPD).

Here’s what reportedly happened.  SAPD police were hunting for a suspect on drugs and weapons charges.  In a case of mistaken identity, officers swarmed on poor Roger Carlos.  Mr. Carlos had done nothing wrong.  He was apparently just standing in the wrong place at the wrong time.  And even though Mr. Carlos complied with the police commands, to get on the ground and to not resist arrest, they just kept hitting him over and over again.

Mr. Carlos’s wife, Ronnie, still can’t believe what has happened to her husband.  The couple has three boys under the age of ten–but their father is now paralyzed from the chest down.  Doctors are also concerned that Mr. Carlos may have difficulty breathing down the road.  The medical bills for multiple surgeries are enormous.

After reviewing the case, a police discipline board recommended 15-day suspensions for three officers involved.  The Police Chief, William McManus, thought that recommendation was wrong.  He shortened each of the suspensions to five days.

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