Cato Batted .500 at the Supreme Court, Still Besting the Government

It was an odd and sad year at the Supreme Court. Most years, reporters and pundits devise a “theme” that’s mostly an artificial construct driven by the vagaries of the docket: “The Court moved left/right/minimalist/unanimous …” But this year there actually is a real theme: the loss of Justice Antonin Scalia. Justice Scalia’s passing “deflated” what would otherwise have been yet another blockbuster term in many ways, defusing several high-profile cases as well as removing the most quotable pen on Earth from media coverage these last weeks of June.

In practical terms, however, Scalia’s absence was felt in ways different than most people assume. For example, of the major cases, only Friedrichs (worker rights) came out the other way, affirming the lower court by a 4-4 vote that would’ve been a 5-4 reversal with Scalia. United States v. Texas (immigration) would’ve been a 5-4 affirmance of the lower-court injunction instead of a 4-4 affirmance. Fisher II (affirmative action) would’ve been a 4-4 affirm instead of 4-3. Zubik (contraceptive mandate) would’ve been 5-4 reversal instead of a weird 8-0 decision to vacate that effectively forces a compromise that the challengers can accept. Whole Women’s Health (abortion) would’ve been a 5-4 reversal instead of a 5-3. To be sure, there would’ve been interesting nuances from the opinions in Scalia’s presence – which may have set precedents for, say, future executive actions – but the direct results wouldn’t have really changed except in Friedrichs (which was a big deal, don’t get me wrong) and a handful of lower-profile cases.

Also, this was a term of very few surprises; the conventional wisdom was borne out in every case that I followed except Fisher II. I still can’t figure out what Justice Kennedy was doing there, reversing himself from Fisher I regarding deference to administrators and voting to uphold a use of racial preferences for the first time ever. Maybe he was just tired of the case. Indeed, both Fisher and Whole Women’s Health, while making national news due to their fraught subject matter, are minimalistic and sui generis, dealing with very specific government policies.

But regardless of the good, bad, and ugly, when the dust cleared, there was one aspect of continuity that’s particularly gratifying to me: Cato continued its successful streak in cases in which we filed amicus briefs. While not as dominating as two terms ago, we still managed to pull off a 4-4 (or 3-3-2, as I’ll explain shortly) record.

Daily Polling Round-Up

Here are links to the latest polls and public opinion studies:
 
CBS/YOUGOV
June 26, 2016
  • CBS polls of likely voters show Clinton narrowly leading Trump across a number of key states of Florida (44 to 41 percent); Colorado (40 to 39 percent); Wisconsin (41 to 36 percent) and North Carolina (44 to 42 percent). North Carolina has flipped back and forth between the parties in the last two elections.

ABC/Washington Post
June 26, 2016
In new poll, support for Trump has plunged, giving Clinton a double-digit lead

  • Two-thirds of Americans see Trump as biased against groups such as women, minorities, or Muslims. Sixty-four percent of respondents say Trump is unqualified to serve as president, a new high, and 34 percent say he is qualified. 

Wall Street Journal/NBC
June 26, 2016
Hillary Clinton Holds 5-Point Lead Over Donald Trump, Latest Poll Finds

  • Half of registered voters (50 percent) said they were concerned the government would go “too far” in curtailing the people’s right to own guns while 47 percent said they worry the government would not do enough to regulate the ability to get guns. Forty-two percent of those polled had a positive image of the NRA, while 36 percent viewed the group negatively. 

McDonnell Ruling Is a Victory for Constitutional Due Process

Today, the Supreme Court issued a unanimous ruling on the closely watched corruption case concerning former Virginia governor, Robert McDonnell. McDonnell and his wife were charged with a Hobbs Act violation and honest services fraud. The McDonnells had accepted $175,000 in loans and gifts from the CEO of Star Scientific, a nutritional supplement developer. Merely accepting gifts is not a crime, however. Under the honest services statutes and the Hobbs Act, a government official must have exchanged “official acts” for those gifts. The crux of the case boiled down to what, exactly, constitutes an “official act”.

The prosecution argued that McDonnell made five official acts, all in furtherance of getting Star Scientific’s new supplement, Anatabloc, tested by Virginia’s public universities, which would greatly assist the FDA-approval process. The acts included sending aides to view and take notes at meetings between the CEO and others, hosting events where he encouraged state universities to conduct studies on Anatabloc, contacted other officials within the governor’s office to encourage the same studies, allowing the CEO to invite business partners to events at the governor’s mansion, and suggesting that Anatabloc be a part of the state healthcare plan.

Another “official act” was an email saying “pls see me about Anatabloc issues at VCU and UVA.”

Jonnie Williams, the CEO, failed in his attempts to get state universities to conduct his studies, but according to the prosecution, it was the intention to influence the process which triggers the corruption charges.

The situation does look suspicious on its face, but a problem stems from the fact that if the government construes the term “official acts” this broadly, it could criminalize many actions which officials take in order to make government function more smoothly for any and all of its constituents. If the prosecution succeeded in its argument (and it had succeeded in two lower courts before making its way to SCOTUS), it could punish any official who sends or forwards an email to a slow-moving bureaucracy urging them to remedy the problems of an aggrieved citizen. It could punish any official who invites business leaders to an event. It could punish any official who attends an event which is promoted by business leaders. And it could punish an official who asks any of his subordinates to take notes at any of these meetings. During oral arguments, Justice Breyer said, “For better or for worse, it puts at risk behavior that is common.”

Costs Skyrocket for Air and Space

Smithsonian leaders have revealed that renovating the Air and Space museum in Washington, D.C. will cost almost $1 billion. That’s the equivalent of an army of 10,000 workers earning $100,000 each for a year to fix it up. Geez, government projects are expensive!

My letter in the Washington Post today proposes that rather than hitting taxpayers, museum visitors should pay for the renovation:

Regarding the June 23 Style article “Estimate for Air and Space facelift closes in on $1 billion”:

About $250 million of the ballooning makeover costs for the National Air and Space Museum will come from private donations, leaving a $750 million bill for taxpayers.

But rather than burdening taxpayers, how about charging visitors? The Post noted that the museum gets 7 million visitors a year, so a modest $5 fee would raise $35 million a year and pay back the makeover costs over 21 years.

Aside from the greater fairness of charging users rather than taxpayers, fees would limit demand and thus improve the visitor experience at the overcrowded institution. User fees for Air and Space — and other Smithsonian museums — would also help level the playing field with private D.C. museums, such as the International Spy Museum.

There is one more advantage of user pays. The Post notes that the estimated cost of the renovation has already skyrocketed from earlier figures of $250 million and $600 million (a common pattern). If the museum were required to fully cover renovation costs through voluntary donations and user fees, Smithsonian executives would have a strong incentive to find design savings and control construction costs.  

The Complicated Clinton Organization

Where did Hillary Clinton’s campaign get the “I’m with her” slogan that Donald Trump criticized last week? I saw this in the Washington Post:

Ida Woldemichael, a designer who came up with “I’m with Her” for the Clinton campaign,…is a graphic designer who worked for the Clinton Foundation before joining the campaign about a year ago.

Not that the Clinton Foundation is any kind of tax-exempt, dictator-supported, $2 billion advance team for the Clinton campaign.

TransCanada Pushes Ahead with Its NAFTA Complaint

Back in January, I blogged about TransCanada taking legal action under NAFTA-related to the rejection of its Keystone XL pipeline permit application. It is now being reported that TransCanada has taken the next step in the process. This is from Canada’s Financial Post:

TransCanada Corp. made good late Friday on its threat to challenge President Barack Obama’s rejection of the Keystone XL pipeline, filing a request for arbitration under the North American Free Trade Agreement (NAFTA) to recoup US$15 billion in damages from the U.S. government.

In the 42-page document, TransCanada claims the U.S. government “ultimately denied Keystone’s application, not because of any concerns over the merits of the pipeline, but because President Obama wanted to prove his administration’s environmental credentials to a vocal activist constituency that asserted that the pipeline would lead to increased production and consumption of crude oil and, therefore, significantly increased greenhouse gas (“GHG”) emissions.”

TransCanada further claims that the U.S. administration knew “those assertions were false” and that in fact, “the State Department had issued five environmental impact statements between 2008 and 2015, all of which concluded that the Keystone XL Pipeline would not result in a significant increase in GHG emissions.  The State Department reiterated that conclusion for a sixth time when it denied Keystone’s second application in November 2015.”

As I noted in January, these cases take a long time:

Keep in mind, also, that these investment cases are not quick. We’ll have a new president long before the NAFTA case is completed. If the new president is a Republican, he/she will likely approve Keystone (if TransCanada files a new application). That should end the NAFTA lawsuit (although TransCanada could still claim damages from the delay). If it’s President Clinton/Sanders, though, who both oppose Keystone, we could see a ruling in the case.

Let me amend one aspect of this, however, to take into account Donald Trump. Trump says he would approve Keystone, but only under some absurd conditions:

Donald Trump’s vow to resuscitate the Keystone XL oil pipeline in exchange for a share of its profits has a glaring problem: It risks running afoul of laws against government takings of private property. And even supporters of the project warn that it risks hurting relations with Canada, the nation’s No. 1 oil supplier.

The presumptive Republican nominee has repeatedly pledged to revive the Canada-to-Texas pipeline, a long-standing cause for Republicans in Congress, but Trump has brought a twist. He wants U.S. taxpayers to get a slice of the project’s revenue.

“I want it built, but I want a piece of the profits,” Trump said May 26 before delivering an energy speech to an oil-industry audience in North Dakota. “That’s how we’re going to make our country rich again.”

Trump’s suggestion of taking “a piece of the profits” would likely mean that TransCanada’s claim will go ahead, but with a slightly different factual and legal basis.

Political Earthquake Hits as British to Exit European Union

The United Kingdom will exit the European Union. The shock waves first hit Scotland. The secession-minded government plans to hold another independence vote. Next time a majority of Scots may see no reason to stay.

Both the Conservative and Labour Parties face bitter, internecine strife. Calls already have been made for the resignation of opposition leader Jeremy Corbyn. Prime Minister David Cameron announced his intention to resign and the rest of his government is likely to be swept away as well.

The UK and EU must plan a process never before undertaken. Most important will be early negotiations over London’s future economic and political association with the rest of Europe.

However, some Eurocrats, who dominate Brussels, have threatened to retaliate against the British vote by making the UK’s departure as difficult as possible. For no obvious reason President Barack Obama took a similar position, telling the British people that they would end up at “the back of the queue” for free trade negotiations with Washington. Yet turning post-Brexit negotiations into a punitive expedition would harm everyone involved.

The impact of the vote will radiate across the continent. Some Eurocrats imagine that dissatisfaction with the EU is a uniquely English phenomenon. It actually is much more.

Observed Raoul Ruparel and Stephen Booth of London-based Open Europe: “a number of other states attempted to piggy-back on the UK’s reforms, but this was resisted by others for fear of ‘reform contagion’.” Reform may be harder to resist in the future, however.

Cato’s Marian Tupy pointed out that “the EU is undemocratic not by accident but by design.” Thus, the British are not the only Europeans desiring to escape from the EU’s smothering embrace.

A majority of French and Italians and plurality of Danes and Swedes told pollsters that they want a similar vote. And strong pluralities in most states polled favor returning more powers to national governments.

Moreover, populist and nationalist parties are likely to make EU membership an issue in upcoming elections. France, Germany, and Italy will hold elections within the next two years. Recently the hard nationalist right barely missed winning the presidency in Austria. Economic hardship also has elevated Euroskeptics of varying degrees on the left.

Although there will be no mass exodus from the EU, the departure of even a couple more nations would further diminish the reality of the “European Union.” Moreover, other governments are likely to push to regain authority or at least resist any further accretions of power to Brussels. The continent is fracturing, not uniting.

Some European leaders remain oblivious. There was strong resistance in Brussels to Cameron’s reform proposals as well as other nations’ attempts to win similar concessions. Yet ever fewer Europeans appear to desire the existing union.

In contrast, Donald Tusk, who heads the European Council, admitted that “ordinary people, the citizens of Europe, do not share our Euro-enthusiasm.” France’s ambassador to America, Gerard Araud, argued: “Reform or die!”

What the EU desperately needs is a true “reform contagion.” Painful as it would be to Brussels in light of Brexit, the EU should move “in a ‘British’ direction,” argued Vernon Bogdanor of King’s College London. At least the organization could allow multiple levels of integration, with different requirements for different states.

Most important, I argue on Forbes online: “instead of attempting to circumvent the public, Eurocrats should make their case for change and abide by the voters’ decisions.” For today “the specter of a breakup is haunting Europe,” warned Tusk.

Once again the British have lived up to their reputation. Average folks rejected expert opinion and economic special pleading in order to better govern themselves. Just as America’s forefathers did against the British Empire so many years ago.