Topic: Law and Civil Liberties

Marijuana’s Moment

Very good, front page story in yesterday’s Washington Post entitled, “Marijuana’s Moment?

The highlight is a quote from former drug czar, General Barry McCaffrey: “The momentum to treat marijuana as a legal drug is irreversible.”  Wow.  The last time I was on a panel with him was about two years ago and it was quite evident then that the tide was turning, but I expected him to keep fighting.  According to the Post story, the former drug czar no longer accepts invitations to appear on television.  That will save me some time fact-checking him.

Here’s another excerpt from the Post story:

America has been at the edge of marijuana legalization several times during the past half-century, but never as close to mass acceptance of the drug as the nation is today.

Since the 1960s, the United States has traveled on a herky-jerky trip from hippies and head shops to grass-roots backlash by suburban parents, from enthusiastic funding of the war on drugs to a gathering consensus that the war had little effect on marijuana use. Now, for the first time, marijuana legalization is winning majority support in public opinion polls and a drug used by about 6 percent of Americans — and one-third of the nation’s high school seniors — is starting to shake off its counterculture reputation. It is winning acceptance even from some police, prosecutors and politicians.

But is this time really different? Why is the current campaign for legalization resonating when previous ones did not? Today’s leap toward legality is entwined with the financial desperation of cash-strapped states, an Internet-driven revolution in how Americans learn about marijuana and its medicinal uses, and a rising libertarian sensibility in which many liberals and conservatives alike have grown skeptical of government’s role in telling citizens how to medicate themselves.

The momentum is now obvious and it is great to see the drug warriors in retreat, but marijuana is still considered contraband in 48 states and under federal law.  There is still much work to do.  It costs money to start and win initiative campaigns, for example.  It used to be hard to raise money because donors thought it was a hopeless cause.  Now potential donors are making the mistake that legalization is “inevitable.”  The shift in public opinion helps, but it does not assure political action.  To complete the job, friends of legalization need to step up their efforts.  The next state to consider marijuana legalization–by initiative–will be Alaska this summer.

For more info on Cato’s work, go here.

A Tough Day in Court for the EPA’s Greenhouse Gas Regulations

The Obama Administration appeared prepared to abandon a major portion of its initial greenhouse gas regulatory scheme in oral argument before the Supreme Court today. Solicitor General Donald Verrilli, defending a series of EPA rules, sought to preserve regulations reaching large industrial sources by offering up a more aggressive gambit by the agency that could potentially reach millions of smaller businesses, apartment buildings, and schools.

The problem, as EPA itself has conceded, is that EPA’s regulatory approach renders the Clean Air Act’s Prevention of Significant Deterioration program “unrecognizable” to the Congress that enacted it. That’s because GHGs are emitted in far greater quantities than traditional pollutants and PSD requirements are based on the quantities of emissions, with facilities emitting more than either 100 or 250 tons per year of any applicable pollutant being subject to an expensive pollution-control regime. For GHGs, those tonnage triggers would transform the PSD program from one aimed at only the nation’s largest sources of emissions. For that reason, after deciding to use PSD to regulate GHGs, EPA then issued a “tailoring rule” to avoid the absurd result by discarding the numerical thresholds that are specified in the law and adopting new ones thousands of times larger.

That decision was under heavy scrutiny at oral argument. Businesses challenging the rule, represented by Peter Keisler, argued that the PSD program is structured to address local air quality concerns and therefore does not extend to emissions of carbon dioxide. PSD’s triggers, monitoring requirements, requirement for local air-quality analysis, and administration by 90 separate state and local permitting authorities all demonstrate that Congress did not intend the statute to address anything like GHG, Keisler argued. So while the statute does apply to “any air pollutant,” that term cannot be interpreted to reach pollutants that cause these other statutory requirements to fail

Understanding the Protests in Ukraine and Venezuela

“All happy families are alike; each unhappy family is unhappy in its own way.” If one believes Tolstoy’s famous dictum, then the protest movements in Ukraine and Venezuela should not have much in common. However, there are several striking parallels between the events unfolding in the two countries—as well as some important differences:

1. It’s the economy, stupid!

Although the popular unrest in Ukraine was triggered by the government’s decision to cancel the agreed free trade agreement with the European Union, the popular discontent has deeper roots. After years of kleptocratic governance, which derailed the country’s transition toward a market economy, ordinary Ukrainians are desperate for change. In 1990, Ukraine’s GDP per capita was $8,200, which was roughly identical to Poland’s. Today, Poland’s GDP is $18,300 and Ukraine’s has gone down to $6,400. Unlike its post-communist neighbors to the West, Ukraine did not pursue deep institutional reforms and its economy was seized by a narrow group of oligarchs, with close connections to political power and to the Kremlin. The son of the President Viktor Yanukovych, Oleksandr, has become one of the richest men in the country during his father’s time in the office, while incomes of most Ukrainians stagnated.

In Venezuela the economic situation has deteriorated sharply since the death of Hugo Chávez last year. The country has the highest inflation rate in the world (officially 56 percent in 2013, although according to Steve Hanke’s Trouble Currency Project, the implied annual inflation rate is actually 305 percent). After years of nationalizations, expropriations, and currency and price controls—all under the name of “21st Century Socialism”—the private sector has been decimated. Hour-long lines in supermarkets are a daily occurrence and shortages of basic food staples and medicines are widespread. And just like in Ukraine, corruption is rampant as the ruling elite rake in the profits from oil revenues. This has resulted in the rise of a new privileged class called the “Boligarchs.” so-named because they’ve prospered tremendously under the so-called Bolivarian revolution. Moreover, Venezuela is now one of the most dangerous nations in the world, with almost 25,000 murders committed last year. A large segment of the population, mostly middle class, is simply fed up as the country quickly becomes unlivable.

About Those “Creeping Sharia” Fears

If you’ve wondered about charges of “creeping sharia” in American law, you really should read this week’s series of blog posts by Eugene Volokh based on an Oklahoma Law Review article. (Oklahoma is the state whose legislators passed a law banning the use of Islamic sharia and other religious law in courts, struck down by the Tenth Circuit as unconstitutional because of its specific proscription of the law of one religion as against others.) Included are installments on the courts’ enforcement of contracts, wills, and similar instruments that would call on courts to interpret Islamic law or that are motivated by desire to conform to such law; instances where American courts use foreign law that itself incorporates religious law; instances where devout Muslims claim broadly available religious exemptions from generally applicable laws or work rules; and provision in government services of accommodations that benefit devoutly Muslim customers, employees, students, or clients. Summary passage, footnotes omitted:

In many of the instances that critics see as improper “creeping sharia,” I will argue, it is longstanding American law that calls for recognizing or implementing an individual’s religious principles, including Islamic principles. American law provides for freedom of contract and disposition of property at death. Muslims (like Christians, Jews, and the irreligious) can therefore write contracts and wills to implement their understanding of their religious obligations. American law provides for arbitration with parties’ consent. Muslims can use this to route their disputes to Muslim tribunals, just like Christians, Jews and the irreligious often route their disputes to private arbitrators of their choice.

American law provides for religious exemptions from generally applicable laws and from employer regulations. Muslims, as well as Christians, Jews, and others, may claim such exemptions. American law provides for the use of foreign law in certain cases stemming from foreign occurrences (marriages, divorces, injuries and the like). Sometimes this calls for the use of foreign religious law, whether Islamic law, Jewish law, or the decisions of Christian tribunals.

Of course, American law also imposes limiting principles on these doctrines. Some contracts and foreign judgments are unenforceable. Many religious exemption requests are denied. But these limiting principles, I argue below, already adequately prevent improper recognition of Islamic law and allow recognition of such law when recognition is proper. There is no need for new law here.

…[My approach] urges courts to continue following well-established American legal traditions rather than distorting those traditions either in favor of Islam or against.

Last month, Prof. Volokh published a series of posts, likewise based on a law review article, on the closely related issue of the reception of foreign law generally in American courts.

What Both Sides Miss in the Immigration Debate

That’s the title of my latest Forbes column, which begins:

As chances for immigration reform fade ahead of this year’s congressional elections, the main sticking point seems to be the “pathway to citizenship” for those who are in the country illegally.

Reform opponents don’t want to reward those who break our laws, while activists on the other side refuse to consider a deal that doesn’t naturalize this entire population. Fixing our broken immigration system thus seems to turn on the question of what to do with the estimated 11-12 million illegal aliens living in our midst. (I’m reminded of John Candy’s final movie, Canadian Bacon, where a propaganda bit ominously decries: “Canadians: They walk among us.”)

But both sides are wrong to focus on citizenship and should instead target permanent resident status—otherwise known as green cards.

Read the whole thing, which includes a bit about the naturalization process that I’m now experiencing.

Spying on Trade Lawyers

The latest NSA spying revelations involve international trade issues, in particular an Indonesian complaint brought at the WTO in response to a U.S. ban on clove cigarette.  (The trade problem was that the U.S. banned clove cigarettes, which are mostly made in Indonesia, but did not ban menthol cigarettes, a competing U.S.-made product). According to the New York Times, the Australian government monitored communications between the Indonesian government and its DC-based trade lawyers, possibly in relation to this case, and passed the information along to the NSA.  (Note that law prof Orin Kerr is skeptical about the way the story is presented in the Times.)

Let me offer the following thoughts:

1. It’s hard to imagine that any information gathered by the Australians had much impact on the WTO case. I suppose it could be a slight advantage to get an early look at your opponents’ arguments, and see how they are thinking about the issues. But I can also imagine that all this additional information would be a distraction, with too much time being spent on marginal points.  It’s worth noting that, in spite of any information U.S. government trade lawyers may or may not have received, the U.S. lost the case. Thus, like most NSA spying, any spying here was probably of limited value.

2. Regardless of its value, this kind of spying is likely to be pretty offensive to our trading partners. The WTO has detailed rules of procedure for its disputes, one of which says the parties must act in good faith (“all Members will engage in these procedures in good faith in an effort to resolve the dispute”). It’s hard to see how receiving confidential information about your opponents’ arguments, if that happened, satisfies this requirement. It will be interesting to see if this gets discussed in upcoming WTO meetings.

3. I wonder whether all of these revelations about spying will accelerate proposals being made by foreign governments to develop non-U.S.-based communications networks: “German Chancellor Angela Merkel said on Saturday she would talk to French President Francois Hollande about building up a European communication network to avoid emails and other data passing through the United States.”