Of Course Government Can’t Violate Religious Liberty for No Good Reason

Hobby Lobby is a much simpler and less important case than it’s been made out to be, for reasons the Court clearly spelled out today. Obamacare’s contraceptive mandate had to fall under the Religious Freedom Restoration Act (without even getting to the First Amendment) because it didn’t show – couldn’t show – that there’s no other way of achieving its goal without violating religious beliefs. Moreover, the fact that a for-profit corporation is asserting the statute’s protections is of no moment because neither the corporate form nor the profit motive undermines RFRA’s solicitude for the rights of humans – including owners, officers, and shareholders. In short, the mandate fell because it was a rights-busting government compulsion that lacked sufficient justification. Nobody has been denied access to contraceptives and there’s now more freedom for all Americans to live their lives how they want, without checking their freedom at the office door. 

For more on how the “corporate rights” issue in the case was really a misnomer – because the free exercise of individual humans is at issue regardless of how you style the legalese – see Cato’s amicus brief

Harris v. Quinn: A Win for Workers’ First Amendment Rights

Enough is enough, the Supreme Court ruled today in Harris v. Quinn regarding the power of government to force public employees to associate with a labor union and pay for its speech. Although the Court did not overturn its 1977 precedent, Abood v. Detroit Board of Education, allowing states to make their workers contribute to labor unions, it declined to extend that principle to reach recipients of state subsidies—in this case, home-care workers who receive modest stipends from the state of Illinois’ Medicaid program but are not properly considered “employees” of the state.

The Court is right that Abood is “something of an anomaly” because it sacrifices public workers’ First Amendment rights of speech and association to avoid their “free-riding” on the dues of workers who’ve chosen to join a union, the kind of thing that rarely if ever is sufficient to overcome First Amendment objections. But Abood treated that issue as already decided by prior cases, which the Harris Court recognizes it was not–a point discussed at length in Cato’s amicus brief. Abood was a serious mistake, the Harris Court concludes, because public-sector union speech on “core issues such as wages, pensions, and benefits are important political issues” and cannot be distinguished from other political speech, which is due the First Amendment’s strongest protection. A ruling along those lines would spell the end of compulsory support of public-sector unions, a major source of funds and their clout. 

It was enough, however, in Harris for the Court to decline Illinois’ invitation “to approve a very substantial expansion of Abood’s reach.” Illinois claimed that home-care workers were public employees for one purpose only: collective bargaining. But these workers were not hired or fired by the state, supervised by the state, given benefits by the state, or otherwise treated as state workers. And for that reason, Abood’s purposes, which relate only to actual “public employees,” simply do not apply. Were the law otherwise, the Court observed, “a host of workers who receive payments from a governmental entity for some sort of service would be candidates for inclusion within Abood’s reach.”

While Harris is not a watershed opinion that remakes labor law consistent with First Amendment principles, it does put an end to the forced unionization of home-based workers, a practice that has spread to nearly a dozen states and had provided a substantial number of new workers to the labor movement in recent years. Harris also lays the groundwork for a challenge to what it calls “Abood’s questionable foundations.” If recent Roberts Court precedents like Shelby County and Citizens United are any guide, Harris is a warning shot that the Abood regime is not long for this world and that the next case will be the one to vindicate all public workers’ First Amendment rights. 

Immigration Enforcement Aids Smugglers – Unaccompanied Children Edition

The increase of human smugglers transporting unauthorized immigrants to the United States is likely a consequence of more effective border enforcement.  Although the Obama administration has de-emphasized internal immigration enforcement after 2011, his administration has ramped up enforcement along the border – focusing on increasing the legal and economic costs imposed on unlawful immigrants apprehended while trying to enter the United States.  Since border and internal enforcement are substitutes, the shift in resources and increase in penalties for unlawful crossers does not represent a decrease in total enforcement.  Matt Graham from the Bipartisan Policy Center wrote an excellent breakdown of the reprioritization of immigration enforcement, the increase in penalties, and how it has deterred unauthorized immigration.

The price of smuggling is an indication of the effectiveness of immigration enforcement along the border.  The first effect of increased enforcement is to decrease the supply of human smugglers.  As the supply of human smugglers decreases, the price that remaining human smugglers can charge increases.  Before border enforcement tightened in the early 1990s, migrants typically paid about $725 (2014 dollars).  Currently, unauthorized migrants from Central America are paying around $7500.  

The Coming School Choice Tidal Wave

Last week I reviewed the latest survey on education policy from the Friedman Foundation but I missed something that should warm the cockles of the hearts of everyone who supports greater choice in education: each generation is progressively more favorable and less opposed to educational choice. 

Scholarship tax credits (STCs) remain the most popular form of educational choice. Even among the 55+ cohort, there is a 20 point spread in favor of choice, 53 percent to 33 percent. Support increases in each cohort by 8 to 13 points. Meanwhile, opposition falls precipitously from 33 percent to only 14 percent. The 35-54 cohort has a 39 point spread in favor of educational choice and the 18-34 cohort has a whopping 60 point spread, 74 percent to 14 percent.

Friedman Foundation survey: popularity of scholarship tax credits

Vouchers are the second most popular of the three reforms. While the oldest cohort is slightly more pro-voucher than pro-STC, opposition is 7 points higher at 33 percent, for a spread of 16 points. The margin widens considerably to 32 points for the middle cohort (65 percent support to 33 percent opposition) and 44 points for the youngest cohort (69 percent support to 25 percent opposition), which is 16 points narrower than the spread for STCs.

Uh Oh: The North Koreans are Mad and Won’t Take it Any More!

It’s hard being dictator of North Korea.  You’re a god, or the nearest human thing to it, but you aren’t allowed any time to yourself.  The rest of the world privately admires you and publicly envies you. 

Some of them even mock you. 

In 2002 Pierce Brosnan played a hero in fighting against the Korean people in the James Bond movie “Die Another Day.”  Worse, two years later the great and wonderful “Dear Leader” Kim Jong-il was mercilessly insulted by the movie “Team America:  World Police.”  Unable to stop him from impoverishing his desperate people to build nuclear weapons, the U.S. government turned loose the most fearsome of weapons against the movie-loving Kim:  Hollywood.

Of course, the Dear Leader was a convenient target, with his bouffant hairdo and platform shoes.  As I point out in my article at American Spectator online:  “The great and wonderful man-god was too busy traveling the country giving guidance to farmers and workers whose farms and workplaces were no longer operating to take time off to retool his appearance to satisfy international critics.  But he persevered, drowning his many sorrows in Hennessy cognac while comforting the beautiful young virgin girls who flocked to his side.”

Now “Great Successor” Kim Jong-un has taken over the sacred mission of his grandfather and father:  to reinvigorate monarchy in Asia.  He has shown the way to the next century by dancing with Mickey Mouse and partying with Dennis Rodman.

Naturally, Washington has rejected Kim’s friendly demands for tribute to remedy the economic injustices created by the unfair success of market economics compared to Stalinesque central planning.  Now the common criminals who run Washington—at least there is one thing Americans and North Koreans can agree upon—have turned again to their secret agents in the movie industry. 

Nixon and the IRS

With the Internal Revenue Service currently in the news, it’s worth a quick look back on President Richard Nixon’s relationship with that agency. Here are some of the interesting bits from a Washington Post obituary today of former IRS chief Johnnie Walters:

In a recorded conversation in the Oval Office on May 13, 1971, Richard M. Nixon laid out for his aides the job qualifications for the next commissioner of the Internal Revenue Service. “I want to be sure he is a ruthless son of a bitch, that he will do what he’s told, that every income tax return I want to see I see, that he will go after our enemies and not go after our friends,” the president told H.R. Haldeman and John D. Ehrlichman, according to a transcript published years later in The Washington Post. “Now it’s as simple as that. If he isn’t, he doesn’t get the job.”

The man who got the job was Johnnie Walters, a fellow Republican then serving as assistant attorney general in charge of the Justice Department’s tax division.

Mr. Walters said he did not know of the president’s demands when he became commissioner on Aug. 6, 1971. Once in office, by all accounts, he refused to participate in the administration’s attempts to use the tax agency for political purposes—most notably, to intimidate through audits or threatened audits the individuals on the Nixon “enemies list…”

The president bitterly recalled being audited during the Democratic administration of President John F. Kennedy, who had defeated him in the 1960 election. In the run-up to Nixon’s 1972 reelection campaign, White House counsel John W. Dean III furnished Mr. Walters with the administration’s “enemies list,” naming hundreds of individuals to be targeted for tax investigations…

“Johnnie has been a disappointment,” Dean said in a Sept. 15, 1972, conversation in the Oval Office. “Well, he’s going to be out,” Nixon replied. “He’s finished.”

In due course, Americans would find out who the real ruthless SOB was, and it wasn’t Walters.

Court Tosses D.C. Tour Guide Licensing Scheme

Since there isn’t any other legal news this or next week, the U.S. Court of Appeals for the D.C. Circuit today decided to strike down D.C.’s absurd licensing regulations regarding Uber food trucks raw milk guns campaign finance tour guides. Believe it or not, until today District law required people to pay the government $200 and pass a 100-question test on 14 subjects, covering material from no less than eight different publications, before they can give city tours—all for the purpose of “protecting” tourists from misinformation. If you didn’t comply, you faced a fine and 90 days in jail.

I previously wrote about this case when Cato filed a brief last fall, so I’ll just provide some key excerpts from the court opinion (written by Judge Janice Rogers Brown, whom we had the honor to publish in the Cato Supreme Court Review the first year I edited it). Here’s how it starts:

This case is about speech and whether the government’s regulations actually accomplish their intended purpose. Unsurprisingly, the government answers in the affirmative. But when, as occurred here, explaining how the regulations do so renders the government’s counsel literally speechless, we are constrained to disagree.

The court later describes the reason for its disagreement:

The District’s reliance on a Washington Post article dating from 1927 to justify the exam requirement is equally underwhelming. [Citation omitted.] The article merely establishes that, nearly a century ago, the newspaper expressed concern about unscrupulous or fraudulent charitable solicitation and that an unidentified number of persons said self-styled tour guides were overly aggressive in soliciting business. Reliance on decades-old evidence says nothing of the present state of affairs. Current burdens demand contemporary evidence. [Citations of last term’s big voting right case, Shelby County v. Holder, and other cases are omitted.]

Continuing the theme that D.C. failed to justify its speech regulation, the court says:

Even if we indulged the District’s apparently active imagination, the record is equally wanting of evidence the exam regulation actually furthers the District’s interest in preventing the stated harms. Curiously, the District trumpets as a redeeming quality the fact that, once licensed, “[t]our guides may say whatever they wish about any site, or anything else for that matter.” [Citation omitted.] But we are left nonplussed. Exactly how does a tour guide with carte blanche to—Heaven forfend—call the White House the Washington Monument further the District’s interest in ensuring a quality consumer experience? [Footnote omitted.]