Topic: Law and Civil Liberties

The Fourth Amendment Protects Your Cell-Location Data

When the federal district court in D.C. ordered a seizure of Alonzo Marlow’s cell service location information (CSLI) held by his cell provider, it held that the federal government didn’t need a warrant to obtain CSLI data from a person’s phone provider. The Stored Communications Act of 1986 (SCA) governs the searching of such data, and under § 2703(d) of that act, federal investigators need not demonstrate probable cause in order to search—but merely to show “specific and articulable facts” that there is criminal wrongdoing. Thus, the Fourth Amendment requirement that “no warrants shall issue, but upon probable cause” is effectively removed.

Incarcerating US

Would you like a break from the presidential campaign and be interested in catching a movie?  The pickings are pretty slim–unless you can’t get enough of the Obamas.  Here’s a tip: Check out the new documentary film, Incarcerating US, which is coming to theaters next month. 

Sneak preview:

For more information about the film, go here.

For related Cato work, go here here, and here.

The Government Shouldn’t Get to Do Unconstitutional Things by Only Doing Them for Short Periods of Time

When people want to join together to spend money in an election campaign, federal law requires them to form a “political action committee” or PAC. Most PACs are allowed to donate up to $5,000 to any candidate in an election. If a PAC has been registered for less than six months, however, this maximum donation is inexplicably lowered to $2,700 per candidate.

Since the 1974 case of Buckley v. Valeo, the Supreme Court has consistently held that limitations on campaign contributions “implicate fundamental First Amendment interests.” And only two years ago, in McCutcheon v. FEC, the Court reiterated that such limits could only be justified if they reduce quid pro quo corruption (or its appearance). By that standard, the $2,700 limit on new PACs is clearly unconstitutional: If a $5,000 donation from a seven-month-old PAC does not run the risk of corruption, it’s hard to see how a $2,701 donation from a five-month-old PAC does. Making just this argument, a new PAC – the colorfully titled Stop Reckless Economic Instability Caused by Democrats (Stop REID) – sued the Federal Election Commission.

There was just one problem: Although this plaintiff PAC was less than six months old when the case was filed, it was more than six months old when the district court ruled. For that reason, the U.S. Court of Appeals for the Fourth Circuit held that it could not rule on the constitutionality of the $2,700 limit because the question had become “moot”; the limit no longer applied to the particular PAC that had brought the case.

Reconciling mootness doctrine with the realities of our lengthy judicial process is not a new problem. Courts have long recognized that some laws would be impossible to challenge under the normally strict rules of mootness, because the harm caused by the law happens faster than it takes a case to wend its way through the legal system. That’s why courts developed the sensible “capable of repetition, yet evading review” exception to mootness: If a law is likely to repeatedly affect people, but always for short periods at a time, then courts will decide the merits of a challenge to that law no matter how long the litigation takes.

In Marijuana Policy, States Lead the Way

This November’s election could be a decisive turning point in the struggle to end U.S. marijuana prohibition. ​It’s been a long time coming.

As recently as the 90s, every major political faction was squarely in favor of prohibition. Only drug-addled hippies and libertarians thought otherwise. With just a few honorable exceptions, every significant public intellectual supported prohibition too. We libertarians walked a lonely road, patiently pointing out prohibition’s high costs and doubtful benefits. In some ways we’re still alone, because we certainly wouldn’t stop with marijuana. But let’s consider what progress we’ve made.

In November’s election, five states – Arizona, California, Maine, Massachusetts, and Nevada – may each legalize recreational marijuana for adults. State-level opinion polling is notoriously unreliable, but so far it’s favorable in Maine and Nevada​, and overwhelmingly favorable in California. It’s unfavorable in Arizona and Massachusetts, though the Massachusetts poll only asked a generic marijuana legalization question and did not reference the specific initiative. If recent history is any guide, things look good for this November: Of the seven legalization initiatives offered to voters since 2012, five have passed, in Alaska, Colorado, Oregon, Washington, and Washington DC.

Things look especially good in California, which is poised to be a nationwide gamechanger. ​​California’s Proposition 64 is up by almost a 2:1 margin​, and​ the Los Angeles Times predict​s​ passage as well. If ​Prop 64​ does pass, the statewide implementation of a generous recreational pot regime – in the nation’s most populous state – is sure to have some significant economic and regulatory effects.​ It could hardly do otherwise.​

Some nationwide economic effects of legalization have already been seen. Marijuana prices nationwide have flattened or declined as new large-scale suppliers have come online. Seasonal price fluctuations seem to be disappearing as growers increasingly work in the open. And still-illegal Mexican growers have had to abandon marijuana because they can’t compete with the domestic ​free market, small as it​ still​ is.

And again, California is no ordinary state; already it produces more marijuana than Mexico – and by one estimate it​s medical marijuana regime​ grows nearly half the total legal U.S. production. And​ that’s ​before the near-certain growth of the industry in a recreational regime.

All this suggests that when California goes fully legal, the federal ​government ​will ​have to react somehow. ​The DEA has​ been reluctant to reschedule cannabis so far, but already many activists are dismissing the DEA’s Schedule I classification as irrelevant. Rob Kampia of the Marijuana Policy Project writes:

State and federal laws are simply two coexistent systems. But 99 percent of all marijuana arrests are made under state and local laws, not federal law. There simply aren’t enough DEA agents and other federal enforcers to wage an inclusive war on marijuana users, and the federal government cannot require states to enforce federal law on behalf of the federal government…

So we don’t really care whether marijuana is in Schedule I or II. In fact, my organization and other advocates of marijuana legalization don’t desire rescheduling, but rather the removal of federal penalties for marijuana and, furthermore, an explicit recognition that states should be able to determine their own policies without federal interference.

As more and more states legalize, that Schedule I classification looks more and more ridiculous.​ Soon the federal government may have to decide whether to follow the states – and the will of the people – or whether to crack down on legalization. But as time goes on, cracking down looks more and more illegitimate, and inaction looks more and more like a joke. Something’s got to give.

MetLife v. Financial Stability Oversight Council

Under Dodd-Frank, the new Financial Stability Oversight Council (FSOC) has the authority to designate companies as “systemically important financial institutions” or “SIFIs.” By identifying and branding these companies as systemically important, we’ve been told, the government will end “too big to fail.” Dodd-Frank’s supporters claim bailouts like the one we saw in 2008 are a thing of the past, in part because of the heightened oversight of SIFIs. Except FSOC hasn’t fully thought through the whole SIFI designation concept. In March, a court found that FSOC’s designation of insurance giant MetLife failed to consider the impact the designation would have on MetLife and the U.S. financial system as a whole and therefore was “arbitrary and capricious,” that is, unlawful.

FSOC was created by Dodd-Frank and, as an agency of the federal government, it exists to “further some public interest or policy which [Congress] has embodied in law.” This interest, Dodd-Frank tells us, is to “promote the financial stability of the United States…to end too big to fail, [and] to protect the American taxpayer by ending bailouts[.]” Whether FSOC  is capable of any of these things and whether the legislation that created it will ultimately promote anything like stability is not the point (although our vote on these questions is “no”). The point is that, in exercising this delegated authority, FSOC must always act to forward the goal of promoting the financial stability of the United States.

It is surprising, then, that in determining whether MetLife should be designated as a SIFI, FSOC not only failed but flat out refused to consider whether the cost of compliance with this increased burden might actually weaken the company. If FSOC designates a company as a SIFI it means that FSOC has determined that “material financial distress” at the company “could pose a threat to the financial stability of the United States.” That is, that anything that weakens it would undermine the express goal of Dodd-Frank. It seems clear that FSOC should at least ask the question: would complying with these new rules make the company stronger or weaker?

And yet FSOC claimed that this question, which goes to the very heart of its authorizing statute, is not one it has to ask. Following its loss in the district court, FSOC appealed the case to the D.C. Circuit Court. On Monday, Cato filed an amicus brief arguing that it was unreasonable for FSOC to fail to consider whether its action in designating MetLife as a SIFI promoted or instead frustrated the goal of Dodd-Frank in promoting financial stability in the U.S. Cato also argued that, far from reducing the risk of bailout, designating MetLife as a SIFI could in fact increase the likelihood of taxpayer-funded rescue.

Ultimately the question is whether an agency must grapple with the possible negative effects of its actions, or whether it may simply wave these costs away, saying “that’s not our concern.” We hope the court decides that federal agencies, like everyone else, must consider the costs of their actions.

[Cross-posted from]

New Heterodox Academy Initiative

Over at Heterodox Academy, we have been hearing from students who are concerned that their universities exhibit a rigid ideological orthodoxy, with dissenting faculty members almost nonexistent and dissenting students afraid to speak their minds. We agree that this sort of academic climate is profoundly unhealthy: It tends to stifle the sort of uncensored intellectual inquiry that produces groundbreaking scholarship and robust education. Indeed, the Supreme Court itself has cautioned against a “pall of orthodoxy” in education: “The classroom is peculiarly the marketplace of ideas. The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection.”  Keyishian v. Board of Regents, 385 U. S. 589, 603 (1967) (internal quotations omitted).

Yale University understood this very wellfor a time.  And the University of Chicago understands it now.  But, alas, this basic principle has been forgotten on countless campuses across the country.  Heterodox Academy has, therefore, launched a new initiative to empower students to call for a more heterodox education. In collaboration with several students, we have generated three short resolutions that students may use to reaffirm the central importance of free speech and intellectual diversity on campus.  Students who want an uncensored and heterodox education may propose these resolutions to their student governments, publicize them in student newspapers and use them to press for official policy changes:

[B]e it resolved that [our school] is a Heterodox University

We make the following specific requests to the faculty and administration:

1) Adopt the Chicago Principles on Freedom of Expression

A clear way for the university to show commitment to viewpoint diversity is by adopting the University of Chicago’s Principles on Freedom of Expression, which state in part:

The University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose. Indeed, fostering the ability of members of the University community to engage in such debate and deliberation in an effective and responsible manner is an essential part of the University’s educational mission.

We request that the Faculty Senate endorse the “Chicago Principles” as official university policy.

2) Implement a non-obstruction policy for protests

We support the right of all students to protest against speakers and writers with whom they disagree, but we ask that protests be done in a way that does not deprive other students of their rights to speak and hear. When members of our community shout down a speaker, or take other actions intended to make it more difficult for a speaker to speak or for an audience to hear, they are practicing obstruction, censorship, and sometimes intimidation, not free speech. Such practices have no place in any academic community. We request that the university formulate and enforce a non-obstruction policy. As stated in the Chicago Principles: “The University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.”

3) Improve viewpoint diversity

We request that the university include viewpoint diversity, and particularly political diversity, in its diversity policies and in its efforts to diversify the faculty and the curriculum. We want to encounter a range of viewpoints in the classroom, just as we will after we graduate.

Adoption of these resolutions will mark a school as a “Heterodox University” – a safe space for intellectual diversity and uncensored speech. Heterodox Academy stands ready to help tailor these resolutions to specific universities and to help support students who wish to promote these principles.  For more information, click here.

[Cross-posted from The Volokh Conspiracy]

Case Dismissed in Lawsuit Against Florida School Choice… Again

In yesterday’s update regarding school choice lawsuits, I noted that a judge recently denied a request to fast-track one of the two anti-school-choice lawsuits (Citizens for Strong Schools v. Florida Board of Education). Today, a three-judge panel unanimously dismissed the other lawsuit (McCall v. Scott), in which the state teachers’ union alleged that Florida’s tax-credit scholarship program unconstitutionally supported a “parallel” system of public education and violated the state constitution’s historically anti-Catholic Blaine Amendment, which prohibits publicly funding religious schools. Last year, a trial court judge dismissed the case, holding that the plaintiffs lacked standing to bring the case because the scholarships were privately (not publicly) funded and that they were unable to prove that the scholarship program adversely impacted the district school system. The appellate judges unanimously agreed with the trial court, as Travis Pillow of RedefinED explains:

“[D]espite arguing that public funds have been diverted from the public school system, [the plaintiffs] make no argument whatsoever that public school funding has actually declined,” they wrote. Further, the court called the diversion theory “incorrect as a matter of law.”

The appellate judges held the case centered on political questions about school choice and education funding, and wrote that the ultimate “remedy is at the polls.”

“This is precisely the type of dispute into which the courts must decline to intervene under the separation of powers doctrine,” they wrote.

Earlier this year, thousands of parents and students held a rally calling on the teachers’ union to drop the suit.