Topic: Law and Civil Liberties

Second Amendment Rights for Me But Not for Thee

The Fourteenth Amendment guarantees that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Among lawyers, the buzzword we looking for in an equal protection case is “strict scrutiny,” because chances are that once the court has said that standard applies, the government will lose. Nevertheless, there are plenty of cases—including last term’s Obergefell decision on gay marriage—in which a government action has transgressed even less rigorous levels of scrutiny.

After all, the Constitution doesn’t guarantee the “equal protection of the laws” only to people who fit within certain categories. Instead, it guarantees that governments – federal or state – will not make arbitrary distinctions among the people subject to their laws. For instance, the Supreme Court has said that the government cannot refuse food stamps to people living in a household where not everyone is related (U.S. Dep’t of Agr. v. Moreno). Nor may the government require a special-use permit for the operation of a group home for mentally disabled people (City of Cleburne, TX v. Cleburne Living Center, Inc.). Nor may a state restrict access to its public schools to legal residents, thereby preventing illegal-immigrant children from receiving an education (Plyler v. Doe).

Now there’s a new lawsuit in federal court in California, Garcia v. Harris, that challenges the way that state has structured its Gun-Free School Zones Act. Until last year, state law contained an exemption for people who had obtained a California license to carry a concealed weapon (“CCW”). Due to pressure from the anti-gun lobby, however, the state legislature removed that exemption, nevertheless leaving in place the exemption for “an honorably retired peace officer authorized to carry a concealed or loaded firearm.”

Administrative Law Judges Are Unconstitutional

The administrative state has ballooned in size and power—essentially having become its own branch of government—and Cato has now filed an amicus brief saying enough is enough.

The Securities and Exchange Commission, no longer content with just regulating securities, has accused a company called Timbervest of fraudulently taking undisclosed real-estate commissions. Timbervest was found liable by an SEC administrative law judge (“ALJ”), but even without getting into the merits of the allegations, there are several problems with this prosecution inquisition.

First, ALJs are executive-branch officers who nonetheless are insulated from removal by the president. Yet Article II of the Constitution, to ensure democratic accountability, vests the president with power over the executive branch—including over quasi-judicial officers like territorial judges—and requires that he “take care that the laws be faithfully executed.” The relevant statute here prevents the president from doing just that by having three levels of officials between the president and the SEC’s ALJs, each of whom can only be removed for cause.

Second, the SEC picked the ALJ who heard this case, even though the Supreme Court has held that there is a reasonable fear of bias when “a man chooses the judge in his own cause.” This problem has become so systemic that a former SEC ALJ felt compelled to speak publicly about how ALJs were pressured to rule in the agency’s favor.

Third, there is a real problem with this matter being in an administrative forum at all. After all, this is real-estate fraud case, of a sort that courts—real courts—have heard since the Founding. Congress can assign new statutory rights that didn’t previously exist for adjudication in an administrative forum (for example, Social Security disability claims), but it can’t take away long-held freedoms without the due process that that only the judiciary can provide. Here the SEC permanently banned Timbervest’s owners from associating with any investment advisers. The Supreme Court has recognized the right of association for the advancement of ideas as a protected First Amendment right, which is not something that can be taken away without at least a jury trial. If the SEC wants to try this case, it needs to do it in a proper Article III judicial proceeding.

Accountability, impartiality, and the right to a day in court before constitutional rights are taken away: is that too much to ask? We hope that the U.S. Court of Appeals for the D.C. Circuit, the court charged with reviewing most administrative-agency actions, agrees that it’s not.

Thanks to legal intern Devin Watkins for his help with Cato’s brief, and this blogpost.

Feinstein-Burr: The Bill That Bans Your Browser

Last week, I criticized the confused rhetorical framework that the Feinstein-Burr encryption backdoor proposal tries to impose on the ongoing Crypto Wars 2.0 debate.  In this post, I want to try to explain why technical experts have so overwhelmingly and vehemently condemned the substance of the proposal.

The first thing to note is how extraordinarily sweeping the bill is in scope.  Its mandate applies to:

device manufacturers, software manufacturers, electronic communication services, remote communication services, providers of wire or electronic communication services, providers of remote communication services, or any person who provides a product or method to facilitate a communication or to process or store data.  [emphasis added]

Any of these  “covered entities,” upon reciept of a court order, must be able to either provide the government with the unencrypted “plaintext” of any data encrypted by their product or service, or provide “technical assistance” sufficient to allow the government to retrieve that plaintext or otherwise accomplish the purpose of the court order.  Penalties aren’t specified, leaving judges with the implicit discretion to slap non-compliant providers and developers with contempt of court.  Moreover, “distributors of software licenses”—app stores and other software repositories—are obligated to ensure that all the software they host is capable of complying with such orders.

When Should Courts Defer to White-Collar Prosecution Settlements?

Deferred prosecution agreements and their close relatives non-prosecution agreements (DPAs/NPAs) have become a major tool of white-collar prosecution in recent years. Typically, a business defendant in exchange for escape from the costs and perils of trial agrees to some combination of cash payment, non-monetary steps such as a shakeup of its board or manager training, and submission to future oversight by DoJ or other monitors. Not unlike plea bargains in more conventional criminal prosecution, these deals dispense with the high cost of a trial; they also dispense with the need for the government to prove its allegations in the first place. DPAs may also pledge a defendant to future behavior that a court would never have ordered, or conversely fail to include remedies that a court would probably have ordered. And they may be drawn up with the aim of shielding from harm — or, in some other cases, undermining — the interests of third parties, such as customers, employees, or business associates of the targeted defendant, or foreign governments.

So there was a flurry of interest last year when federal district judge Richard Leon in Washington, D.C., declined to approve a waiver, necessary under the Speedy Trial Act, for a DPA settling charges that Fokker Services, a Dutch aerospace company, sold U.S.-origin aircraft systems to foreign governments on the U.S. sanctions list, including Iran, Sudan, and Burma. While acknowledging that under principles of prosecutorial discretion the Department of Justice did not have to charge Fokker at all, Judge Leon said given that it had, the judiciary could appropriately scrutinize whether the penalties were too low.

What’s In a Name? Uproar Over Renaming the Antonin Scalia Law School at George Mason University

The left must be in disarray over at George Mason University. It took the faculty senate almost a month to adopt a resolution expressing “deep concern” over the university’s decision to rename the law school after the late Justice Antonin Scalia, following grants of $10 million from the Charles Koch Foundation and $20 million from an anonymous donor. That’s slow by today’s academic standards, especially in this year of protests across the country.

What’s worse, the National Law Journal reports today that fewer than 140 faculty members have thus far signed a letter opposing the renaming. Their concerns, however, will surprise no one. It seems that Justice Scalia was less than solicitous of identity politics. Moreover, the resolution claims, he “was a significant contributor to the polarized climate in this country that runs counter to the values of a university that celebrates civil discourse.” And perhaps of greatest concern, this decision reinforces “the external branding of the university as a conservative institution rather than an unaligned body that is a comfortable home for individuals with a variety of viewpoints.” Oh the horror, at intercollegiate colloquia, to have GMU on one’s name tag.

Notice the apposition in that last concern: “a conservative institution rather than an unaligned body that is a comfortable home for individuals with a variety of viewpoints.” We’re invited to believe, first, that the average American university is an “unaligned body”—like Princeton, for example, where in the 2012 presidential election, 157 faculty and staff donated to Barack Obama’s campaign, 2 to Mitt Romney’s—a visiting engineering professor and a janitor. For a broad picture of the ideological complexion of American law schools, see the splendid article by Northwestern University Law School’s Jim Lindgren in the current Harvard Journal of Law & Public Policy. GMU’s law school is anomalous only in having a fairly broad ideological distribution of faculty members, where any student can find any number of sympathetic professors.

But note also and especially the implication that liberals could not be “comfortable” if GMU were, in fact, a conservative institution. Funny how that concern doesn’t seem to go both ways, as many a conservative student at your average liberal institution can attest—the evidence for which has been richly documented by the scrappy Foundation for Individual Rights in Education (FIRE). But that concern is deeply revealing as well, and goes far toward explaining why our college and university faculties are so overwhelmingly of the left: They, indeed, are uncomfortable with opposing views. Witness this very incident. Does anyone believe that such conservatives as there are at GMU would come out of the woodwork in protest if a liberal justice’s name were given to the law school?

Res ipsa loquitur.

Cato Beats Back Attempt to Stop Our Brief from Even Being Filed

It’s quite rare that a counsel denies Cato (or anyone) consent to file an amicus brief. That just forces us to file a perfunctory motion, thereby drawing more court attention to our brief than it otherwise would’ve received. Experienced lawyers know that there’s really no point objecting to these briefs; the court will itself reject any bizarre or disrespectful ones, and judges are free to disregard (or not even read) amicus briefs anyway.

In the case of Harte v. Board of Commissioners, however, counsel representing some (but not all) of the defendants in a civil suit made just such an objection. As you’ll recallHarte is the case where police officers are accused of using excessive force and pursing an unreasonable search for their military-style raid of a private home in Johnson County, Kansas. The evidence that led to the raid was that the Hartes had visited a gardening store and thrown out wet tea leaves that were misidentified as marijuana.

Cato thus moved for permission to file before the U.S. Court of Appeals for the Tenth Circuit, arguing simply that the case implicates the constitutional safeguards that exist to preserve person and property from unnecessary harms. Our brief advances unique and helpful arguments about Fourth Amendment common law and the systemic use of military-style raids by police. Had law enforcement in this case done routine police work, an armed raid need not to have taken place.

Counsel for Johnson County, perhaps seeing an opportunity to bill his clients for more (taxpayer-funded) hours, disagreed. To Lawrence L. Ferree III, our brief is “simply a lame attempt to morph this case into Cato’s libertarian mantra” on a case of “narrow issues.” Credit is due to Mr. Ferree for his rhetorical flare, but his arguments fall flat. 

Ferree tried to argue that our brief would not be helpful to the court because the search of the Harte’s residence wasn’t a “raid,” our brief is “boilerplate,” and that the case does not implicate Fourth Amendment common law. Well, it takes a certain degree of mental gymnastics to argue that a seven-person team armed with AR-15s, trained dogs, and a battering ram isn’t a raid team. It’s also curious that Ferree’s legal argument against our filing contained some of the exact same language he used to oppose the Marijuana Policy Project’s brief – “boilerplate” arguments, indeed.

Economic Perspectives on the Criminal Justice System

President Obama’s Council of Economic Advisers (CEA) has just released a new report, “Economic Perspectives on Incarceration and the Criminal Justice System.”  I attended a briefing on the report this morning at the White House led by Jason Furman, who chairs the CEA.  A panel discussion followed and C-SPAN covered the proceeding.

In this post, I want to excerpt some of the most interesting aspects of the report based on my quick perusal and offer some comments.  Instead of asking the Attorney General and the director of the bureau of prisons to examine the criminal system, Obama asked for an economic analysis.  That was an interesting choice.  From the report:

From an economic perspective, the goal of an efficient criminal justice system is to maximize the safety of citizens and minimize criminal activity while also limiting the direct and indirect costs of criminal justice policies to individuals, communities and the economy. Broadly, debates about the criminal justice system can be framed as a comparison of the system’s societal benefits in terms of reduced crime and its societal costs in terms of direct government spending and collateral consequences for individuals, families and communities. Likewise, any reform should offer an improvement to current practice, through increasing safety, rebuilding communities, improving economic opportunity, or reducing expenditures or other social costs.

One of the panelists, Douglas Holtz-Eakin, joked that many in the room may think that economists may be heartless because of their number crunching ways, but he said cost-benefit analyses can be a very useful framework to organize our thinking.