Topic: Law and Civil Liberties

On Presidential Legacies, “History” Has Lousy Judgment

It’s legacy-polishing season for the Obama administration, with the president making himself available for “articles that will allow [him] to showcase his major achievements,” the New York Times reports. Over at Time.com, I have a piece on what I think will turn out to be Obama’s lasting legacy: the evisceration of virtually any remaining legal limits on the president’s power to wage war abroad.

As I note in the column, it’s unlikely that “history” will judge our 44th president harshly because of that. After all, “when it comes to presidential legacies, ‘history’ has lousy judgment.”

More specifically, the academics charged with evaluating presidential legacies have lousy judgment. A look at the presidential rankings reveals that the scholars who fill out the scorecards hardly subscribe to the historian-as-“hanging-judge” theory. Bill Kauffman’s arch description of the rankings is more accurate: “polls by which court historians reward warmarkers and punish the peaceful.” The odious Woodrow Wilson is a perennial top 10 favorite, while his normalcy-securing successor, Warren Harding, is nearly always dead last. Say what you will about Wilson’s brutality and contempt for civil liberties at home, his senseless waste of life abroad–at least the man dreamed big! Teapot Dome, however? Unforgivable. 

Set Fixed Judicial Terms for Supreme Court Justices

Contrary to the judiciary’s reputation as the least dangerous branch, judges exercise almost every executive and legislative power other than going to war. This is why the battle over Antonin Scalia’s successor is so bitter.

That wasn’t the Constitution’s original plan. The courts were important but were not to supplant the other branches. Rather, judges were expected to constrain the executive and legislative branches.

Alexander Hamilton expected the judiciary to play a “peculiarly essential” role to safeguard liberties and act as an “excellent barrier to the encroachments and oppressions of the representative body.” Judges were to “guard the Constitution and the rights of individuals” from “the people themselves.”

James Madison, intimately involved in drafting the Constitution, explained that: “independent tribunals of justice will consider themselves in a peculiar manner the guardians of [Bill of Rights guarantees]; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they are will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.”

Drones Are a Must For Trump’s Nativist Police State

Yesterday my colleague Alex Nowrasteh wrote an extensive list of reasons why Donald Trump, the presumptive Republican Party presidential nominee, is the nativist dream candidate. The list leaves little doubt that if Trump makes it to the White House he will seek to violate the Constitution, create a police state, put citizens’ privacy at risk, and build a border wall (despite its estimated $25 billion price tag) all in the name of reducing legal and illegal immigration to the United States.

Trump’s immigration plan ought to worry civil libertarians because, as Alex points out, he supports mandatory E-Verify, the ineffective employment eligibility verification program that puts privacy at risk. Trump’s disregard for effective policy and privacy rights can be seen not only in his views on E-Verify but also his support for 24/7 border drones.

Last month Trump told Syracuse.com that he would order the 24/7 surveillance of the U.S. borders, adding, “I want surveillance for our borders, and the drone has great capabilities for surveillance.”

What Trump might not know is that drones on the U.S. border don’t have a great track record. At the end of 2014 the Department of Homeland Security’s Inspector General released an audit of the Customs and Border Protection’s Unmanned Aircraft System Program. The program includes MQ -9 Predator B drones (also called “Reapers”), perhaps best known for its combat missions abroad, as well as the Guardian, the Predator B’s maritime variant. The program’s audit was unambiguous:

The program has also not achieved the expected results. Specifically, the unmanned aircraft are not meeting flight hour goals. Although CBP anticipated increased apprehensions of illegal border crossers, a reduction in border surveillance costs, and improvement in the U.S. Border Patrol’s efficiency, we found little or no evidence that CBP met those program expectations.

Unsurprisingly, cartels at the southern border are taking part in an arms race with CBP, using jamming devices on patrol drones. Almost a year after the inspector general’s audit Timothy Bennett, a science-and-technology program manager at the Department of Homeland Security, explained how the cartels hinder CBP operations:

DHS was unable to say just how often smugglers tried to jam or spoof border-watching UAVs. But Bennett said the attacks are hindering law enforcement abilities to map drug routes. “You’re out there looking, trying to find out this path [they’re] going through with drugs, and we can’t get good coordinate systems on it because we’re getting spoofed. That screws up the whole thing. We got to fix that problem,” he said.

The ineffectiveness of drones on the border is not the only concern. CBP drones also pose privacy concerns. Predator B drones carrying out combat missions abroad have been outfitted with Gorgon Stare, a wide-area surveillance technology that allows users to track objects within an area at least 10 square kilometers in size. Almost two years ago it was reported that once incorporated with Autonomous Real-Time Ground Ubiquitous Surveillance Imaging System (ARGUS-IS), another wide-area surveillance tool, Gorgon Stare can monitor 100 square kilometers. A video outlining ARGUS-IS’ capabilities is below.

Academic Freedom Under Assault—By the Academy

It’s increasingly clear that attacks on academic freedom from within the academy are only growing. I was recently invited to give two major speeches on the subject, one on academic freedom as such, the other more broadly on tolerance in a free society. And just a week ago I blogged here on the breaking news about the uproar at George Mason University over the GMU administration’s decision to rename its law school after the late Justice Antonin Scalia.

Just yesterday the Manhattan Institute and Wall Street Journal’s Jason Riley recounted in the Journal his recent “disinvitation” to speak at Virginia Tech. It seems that faculty members were “concerned” that Riley’s writings on race in the Journal “would spark protests.” On today’s campus, we can’t have those—unless, of course, they’re politically correct protests, as at GMU. There, the protest only grows, with a lengthy report about it in today’s Washington Post and a sharp op-ed against the uproar in today’s Journal by GMU law professor Lloyd Cohen.

As Prof. Cohen outlines developments there, they arose from the university’s announcement in late March of a $10 million gift from the Charles Koch Foundation to expand law-school scholarships and $20 million from an anonymous donor to rename the law school in honor of Justice Scalia. In response, “a vocal group of professors, none of whom teaches at the law school itself, is now attempting to convince the university administration and the State Council of Higher Education for Virginia to reject the grant and abandon the school’s new name.” In late April the faculty senate passed a condemnation resolution. And just yesterday it voted in favor of a nonbinding resolution to delay any changes in the law school’s name.

In opposing the resolution, Prof. Cohen took the gloves off at the meeting—where, he reports, “several of my faculty colleagues interrupted me by calling for me to be prevented from speaking, a sad commentary on their tolerance for open debate and intellectual inquiry.” It’s worth citing in full the portion of his remarks that the Post highlights:

Consider the irony of this body’s proposed resolution: In purporting to take a stand in favor of academic freedom this body would adopt a statement that constitutes one of the most egregious attacks on academic freedom not only in the history of this university but in higher education in this country.

This body is prepared to accuse the faculty and administration of the school of law of selling out its integrity, independence, and academic values for a pottage — all while hiding under the gutless guise of expressing “concerns” about public perceptions and other weasel words designed to disguise what this really is — an unprecedented assault on the academic freedom of one unit of this university by a mob of faculty from the rest of the university.

Police Misconduct — The Worst Case in April

Over at Cato’s Police Misconduct web site, we have selected the worst case for the month of April.  It was the case involving a Michigan man by the name of James King.

King was minding his own business when he was confronted by two menacing men.   King didn’t know these men and he wanted to get away from them, but they chased him down and beat him up.

Turns out the men were police officers working on a fugitive task force.  They thought King was one of their fugitives, but they were mistaken about that.  They were out of uniform when they confronted King and, according to King’s lawsuit, they did not identify themselves as police officers.  Worried about his own safety, King ran away from them.

One of the officers put King in a chokehold till he lost consciousness.  When King came to, he again feared for his own safety, thinking that these men were criminal attackers, so he bit the arm of one of the officers in a gambit to get away from them.  The bite infuriated the officer, who then unleashed a torrent of punches on King’s face and head.

Bystanders were alarmed by what they were witnessing and they called 911.  The responding officer, for his part, told the witnesses to delete their cell phone videos of the incident.  He was worried about the safety of the officers, who had undercover jobs.  He said they shouldn’t be recorded.

When things settled down, and the police realized their mistake, they decided to arrest King anyway.  He fought back during his arrest–that’s a crime.

Prosecutors evidently agreed that King needed to be punished–so they charged him with three felonies.

King declined to plea bargain and insisted on a jury trial.  After hearing all the arguments and evidence, the jury acquitted him of all charges.

A civil lawsuit is now pending.  There’s no indication of any discipline for the officers involved.  They’re apparently still out there policing.

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.