Legal Briefs

McDonald v. City of Chicago, November 21, 2009 (PDF, 253 KB)
Last year, in District of Columbia v. Heller, the Supreme Court confirmed what most scholars and a substantial majority of Americans long believed: that the Second Amendment protects an individual right to keep and bear arms. Heller led to the current challenge to Chicago's handgun ban, which raises the question of whether the Fourteenth Amendment protects that right against infringement by state and local governments. The Seventh Circuit answered the question in the negative, finding itself foreclosed by 19th-century Supreme Court decisions. The Supreme Court has agreed to review the case and specifically consider whether the Fourteenth Amendment's Due Process Clause or its Privileges or Immunities Clause is the proper provision for incorporating the Second Amendment right to keep and bear arms as against the states. Cato, joined by the Pacific Legal Foundation, has filed a brief supporting those challenging the handgun ban—who are represented by Alan Gura, who successfully argued Heller—and calling for an overruling of the Slaughter-House Cases, which eviscerated the Privileges or Immunities Clause in 1873. Slaughter-House narrowly circumscribed the rights protected by the Privileges or Immunities Clause, contrary to the intentions of the Amendment's framers and in direct contradiction to the developments in legal theory that underlay its adoption. We also argue that in addition to ignoring the history surrounding the Fourteenth Amendment, the Slaughter-House majority violated basic rules of constitutional interpretation. Finally, restoring the Privileges or Immunities Clause would not result in the demise of substantive due process because the idea at the core of that doctrine—that the Due Process Clause imposes something more than mere procedural limits on government power—was widely accepted when the Fourteenth Amendment was enacted and its authors rightly believed that the Due Process and the Privileges or Immunities Clauses would provide separate but overlapping protections for individual rights.

Palmer v. Waxahachie Independent School District, November 5, 2009 (PDF, 131 KB)
School officials denied student Pete Palmer the right to wear a shirt supporting John Edwards's presidential campaign at his Dallas-area high school. They cited the district's dress code, which prohibited messages on student clothing except for those that supported school activities or district-approved organizations, clubs or teams. The Fifth Circuit agreed with the school district that this was a reasonable "time, place and manner" speech restriction. Applying the test from United States v. O'Brien, the court found that the dress code was content- and viewpoint-neutral, and served an important governmental purpose. Palmer now seeks Supreme Court review, citing seemingly contradictory precedents from the Second and Third Circuits and arguing that the regulation here flies in the face of the protection afforded to student speech by the famous case of Tinker v. Des Moines Independent Community School District. Cato, joined by the Institute for Justice, the Becket Fund for Religious Liberty, the Christian Legal Society, and the National Association of Evangelicals, filed an amicus brief supporting Palmer's petition and urging the continued use of Tinker. We argue that the Court should clarify its jurisprudence in this area to stop schools from applying broad restrictions in an attempt to avoid controversy and debate—and thereby threaten the very political and religious speech at the First Amendment's core. To prevent the chilling of student speech, the Court should solidify Tinker's central tenet, reaffirming that so long as speech doesn't "materially and substantially disrupt" the educational process, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

United States v. Comstock, November 4, 2009 (PDF, 155 KB)
In 2006, Congress passed the Adam Walsh Child Protection and Safety Act, one provision of which authorizes the federal government to civilly commit anyone in the custody of the Bureau of Prisons whom the Attorney General certifies to be "sexually dangerous." The effect of such an action is to continue the certified person's confinement after the expiration of his prison term, without proof of a new criminal violation. Six days before the scheduled release of Graydon Comstock—who had been sentenced to 37 months in jail for receiving child pornography—the Attorney General certified Comstock as sexually dangerous. Three years later, Comstock thus remains confined in a medium security prison, as do more than 60 other similarly situated men in the Eastern District of North Carolina alone. He and several others challenged their confinements as going beyond Congress's constitutional authority and won in both the district and appellate courts. The United States successfully petitioned the Supreme Court to review the case. Cato, joined by Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a brief opposing the government. We argue that the use of federal power here is unconstitutional because it is not tied to any of Congress's limited and enumerated powers. The government's reliance on the Necessary and Proper Clause of Article I, Section 8, is misplaced because that clause grants no independent power but merely "carries into execution" the powers enumerated elsewhere in that section. The commitment of prisoners after their terms simply is not one of the enumerated powers. While the government justifies its actions by invoking its implied power "to establish a federal penal system"—itself a necessary and proper auxiliary to certain enumerated powers—civil commitment is unrelated to creating or maintaining a penal system (let alone any enumerated power). Nor can the law at issue fall under the Commerce Clause, because civil commitment involves non-economic intrastate activity. As the Supreme Court recognized almost 150 years ago in Ex Parte Milligan, "[n]o graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole," than the government's unconstitutional assertion of power against its own citizens. In this spirit, the Court should affirm the Fourth Circuit's rejection of this blatant government overreach.

Indiana State Police Pension Trust v. Chrysler LLC, October 6, 2009 (PDF, 200 KB)
In January 2009, Chrysler stood on the brink of insolvency. Purporting to act under the Emergency Economic Stabilization Act, the Treasury extended Chrysler a $4 billion loan using funds from the Troubled Asset Relief Program (TARP). Still in a bad financial situation, Chrysler initially proposed an out-of-court reorganization plan that would fully repay all of Chrysler's secured debt. The Treasury rejected this proposal and instead insisted on a plan that would completely eradicate Chrysler's secured debt, hinging billions of dollars in additional TARP funding on Chrysler's acquiescence. When Chrysler's first lien lenders refused to waive their secured rights without full payment, the Treasury devised a scheme by which Chrysler, instead of reorganizing under a chapter 11 plan, would sell its assets free of all secured interests to a shell company, the New Chrysler. Chrysler was thus able to avoid the "absolute priority rule," which provides that a court should not approve a bankruptcy plan unless it is "fair and equitable" to all classes of creditors. Cato joined the Washington Legal Foundation, the Allied Educational Foundation, and George Mason law professor Todd Zywicki on a brief supporting the creditors' petition asking the Supreme Court to review the transaction's validity. We argue that the forced reorganization amounted to the Treasury redistributing value from senior, secured creditors to debtors and junior, unsecured creditors. The government should not be allowed, through its own self-dealing, to hand-pick certain creditors for favorable treatment at the expense of others who would otherwise enjoy first lien priority. Further, a lack of predictability and consistency with regard to creditors' expectations in bankruptcy will result in a destabilization of existing and future credit markets.

Independence Institute v. Buescher, October 5, 2009 (PDF, 139 KB)
Article XXVIII of the Colorado Constitution requires any group supporting or opposing a ballot initiative to register as an "issue committee" and comply with many regulations, such as disclosing the identity of anyone who has donated more than $20. Or, should the state find that a group of citizens has as its major purpose supporting or opposing such a ballot issue, state law imposes registration and compliance requirements, including contribution limits. In 2005, political opponents filed a complaint against the Independence Institute for not complying with such regulations when it spoke against a ballot initiative. Although the think tank eventually beat back this challenge, the litigation proved expensive and time-consuming—so the Institute decided to challenge the law as an unconstitutional abridgement of its free speech rights. The Colorado courts rejected those claims, and the Independence Institute, represented by the Institute for Justice, now wants the U.S. Supreme Court to review those decisions. Cato has joined the Wyoming Liberty Group, the Center for Competitive Politics, the Sam Adams Alliance, the Montana Policy Institute, and the Goldwater Institute on a brief supporting the Independence Institute. We argue that Colorado's ballot campaign regulations run roughshod over constitutional protections for political speech and association, which lie at the very heart of the First Amendment—particularly for think tanks and other organizations that regularly comment on public policy matters. Loss of these First Amendment protections will chill think tanks' future attempts to educate the public about issues that are the subject of ballot campaigns. The Court should thus review this case and ensure that citizens maintain their associational rights—including the right to remain anonymous when donating to non-profits—and associations their freedom of expression.

Pottawattamie County v. McGhee, September 18, 2009 (PDF, 4 MB)
In 1977, county attorney David Richter and assistant county attorney Joseph Hrvol worked side by side with police to investigate and "solve" the notorious murder of a former police officer in Pottawattamie County, Iowa. The prosecutors fabricated evidence and used it to charge and convict Curtis McGhee and Terry Harrington, sending them to prison for 25 years. After the convictions were overturned for prosecutorial misconduct, McGhee and Harrington sued the county and prosecutors. The defendants in that civil suit invoked the absolute immunity generally afforded prosecutors to try to escape liability. After the Eighth Circuit ruled against them, the Supreme Court agreed to review the case. Cato joined the National Association of Criminal Defense Lawyers and the ACLU on a brief supporting the men unjustly imprisoned. We argue that prosecutors should be responsible for their role in manufacturing a false "case," just as police officers would be under the same circumstances. As the Court has held, prosecutors enjoy absolute immunity only during the prosecutorial phase of a case, not its investigatory phase. Were prosecutors to receive absolute immunity here, citizens would have no protection from or recourse against prosecutors who frame the innocent by fabricating evidence and then using that evidence to convict them.

Graham v. Florida; Sullivan v. Florida, September 18, 2009 (PDF, 209 KB)
These two cases involve an Eighth Amendment challenge to juvenile sentences of life without parole. Taking no position on the constitutionality (or wisdom) of this type of sentence, Cato joined the Solidarity Center for Law and Justice, the Sovereignty Network, and 10 other groups to urge the Supreme Court not to consider non-binding provisions of international human rights treaties and customary international law in its analysis. Our brief argues that the Court should leave to the political branches the decision of whether to transform international norms into domestic law and only allow duly ratified international agreements to override domestic law -- in the way the Court has set out in cases such as Medellin v. Texas. It further contends that if the Court believes this is one of the rare cases where international norms are relevant, it should follow the test it laid out in Sosa v. Alvarez Machain, which addressed the (unrelated) Alien Tort Statute: The relevant norm must be widely accepted by the civilized world and as clearly defined as the historic "law of nations" norms regarding safe conduct permits, ambassadorial rights, and piracy on the high seas. The brief also cautions that reliance on non-binding and indefinite international norms will undermine the democratic process and rule of law, casting considerable uncertainty over many U.S. laws.

Jones v. Harris Associates, September 4, 2009 (PDF, 136 KB)
The Investment Company Act of 1940 places on investment advisers a fiduciary duty with respect to the compensation they receive for the services they provide their clients. In this case, shareholders in various mutual funds contend that their adviser's fees were excessive and violated the ICA. The Seventh Circuit affirmed the judgment of the district court that the fees were not excessive but also expressly disapproved of the Second Circuit's methodology for evaluating such claims. Judge Frank Easterbrook's opinion explains that the ICA creates a fiduciary duty but does not act as a rate regulator, and that judicial price-setting does not accompany fiduciary duties. Judge Richard Posner, writing for five judges, dissented from the denial of an en banc rehearing. The Supreme Court agreed to review case to settle the circuit split. Cato filed an amicus brief in support of the investment adviser. Our brief makes three arguments: 1) All persons have a fundamental human right to whatever compensation their contracting partners freely and honestly choose to pay them; 2) courts have no power to second-guess the reasonableness of any salary or compensation agreement honestly and freely signed by both contracting parties; and 3) the ICA's fiduciary duty requires only fair dealing, not any particular outcome.

Perdue v. Kenny A., August 31, 2009 (PDF, 137 KB)
In order to enforce civil rights guarantees, Congress had two choices: either to expand the Department of Justice to cover all civil rights cases, or privatize the system and allow free market principles to encourage private attorneys to prosecute violations. Congress chose the latter, creating a system of market incentives to encourage private attorneys to enforce civil rights and hold elected representatives responsible for the waste of taxpayer dollars lost in the defense of legitimate civil rights violations and repayment of "reasonable" attorney fees. Here a group of attorneys won an important case for foster children in Georgia, and the court awarded them $6 million in fees based on prevailing hourly rates — the "lodestar" method — and an additional $4.5 million enhancement for the exceptional quality of work and results achieved. At Georgia's request, the U.S. Supreme Court decided to review the case and determine whether quality of work and results are appropriately considered components of a reasonable fee. Cato, joining six other public interest legal organizations, filed an amicus brief supporting the attorneys. We argue that the enhancement in this case is necessary to preserve incentives in the privatized market. Not only does it encourage attorneys to pursue civil rights abuses, but it provides a powerful disincentive for governments to draw out litigation in the hopes that attorneys will no longer be able to afford pursue it. In addition, quality of performance and attained results are rightly considered as part of the attorney fee calculus. The enhancement here helps to promote the free market of privatized civil rights prosecutions and encourages governments to resolve civil rights cases quickly.

Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, August 19, 2009 (PDF, 153 KB)
Seeking to restore beaches damaged by hurricanes, the Florida Department of Environmental Protection began dredging sand from the Gulf of Mexico ocean floor and transporting it to Florida's gulf coast. The expanded area of the beach became state property, depriving beachfront landowners of their littoral rights. In reviewing the landowners' lawsuit against the state, the Florida Supreme Court departed from long-established state law principles protecting littoral property rights and held that littoral rights are an ancillary concept subsumed by the right of access. In so doing, the court discarded 100 years of property law and rewrote the definition of property. The U.S. Supreme Court agreed to review the case. The Court has never formally addressed whether state court rulings eliminating formerly established property rights can effect a taking, or violate an owner's due process rights, under the Fifth and Fourteenth Amendments to the U.S. Constitution. Cato joined the National Federation of Independent Business Small Business Legal Center and the Pacific Legal Foundation on a brief supporting the landowners. We argue that the realities of modern property law, including the authority of state courts to define background principles of property law, necessitate that property owners be protected, via the judicial takings doctrine, against state court decisions that abrogate constitutional rights. Without such protection, states are free to effect takings of private property without compensation by having their judiciaries redefine property rights and thus bypass long-established constitutional protections.

Alvarez v. Smith, August 4, 2009 (PDF, 182 KB)
The State of Illinois, like most states and the federal government, authorizes police officers to seize property involved in certain drug crimes. Illinois' forfeiture law allows the State to wait as long as six months before having to prove the legitimacy of the seizure, which proceeding may then be delayed indefinitely for "good cause." The six plaintiffs in this case — three of whom were never charged with a crime — had their cars or money seized without a warrant for months or years without any judicial hearing, and sued the state and city authorities for violating their rights to due process. The Seventh Circuit found the Illinois law to be unconstitutional because of the delay between the seizure and the forfeiture proceeding and ruled that the plaintiffs must be afforded an informal hearing to determine whether there is probable cause to detain the property. The Supreme Court agreed to review the case at the request of the Cook County State Attorney. Cato, joined by the Goldwater Institute and Reason Foundation, filed a brief supporting the individuals whose property was seized. Written by David B. Smith, who previously supervised all forfeiture litigation for the Department of Justice and is now the nation's leading authority on civil and criminal forfeiture, the brief makes three arguments: 1) Because the Illinois law, unlike the federal Civil Asset Forfeiture Reform Act of 2000, is stacked in favor of law enforcement agencies and lacks protections for innocent property owners, the Court should apply the due process analysis from Mathews v. Eldridge, rather than the more lenient test the State proposes; 2) What has become known as a Krimstock hearing has proven to be an effective and not overly burdensome means of preventing government delay and a meaningful opportunity to contest seizure; and 3) the State's comparison of the time limits in CAFRA with those in its own law is misleading.

Free Enterprise Fund v. PCAOB, August 4, 2009 (PDF, 186 KB)
Passed with scant deliberation amid a stock market panic, the Sarbanes-Oxley Act of 2002 vastly expanded the federal government's role in regulating corporate governance and the accounting industry. As part of that effort, Congress created a new agency to "audit the auditors." Known as the Public Company Accounting Oversight Board, the agency has broad rulemaking and enforcement powers to set accounting standards, investigate accounting firms, punish criminal violations, and make whatever rules "may be necessary or appropriate in the public interest or for the protection of investors." Remarkably, the PCAOB (pronounced "peek-a-boo") also has the power to fund its own budget by levying taxes on publicly traded companies. Despite giving the PCAOB all this power, however, Congress insulated it entirely from presidential oversight. Unlike with an ordinary "independent agency," the president has no power whatsoever to appoint or remove PCAOB officials. Those officials may be removed only "for cause" by the SEC, not the president; and SEC officials may themselves be removed only for cause. The Free Enterprise Fund challenged the constitutionality of the PCAOB and appealed to the Supreme Court. Cato's supporting brief focuses on the PCAOB's practical policy consequences, illustrating how the PCAOB's unconstitutional structure has created incentives for out-of-control spending, agency aggrandizement, and lack of coordination between regulators. Our brief also highlights the PCAOB's efforts to impose American accounting standards abroad, which has caused confusion and invited retaliation from foreign regulators.

Citizens United v. Federal Election Commission, July 31, 2009 (PDF, 155 KB)
At the March 24 argument in Citizens United v. Federal Election Commission, the U.S. government argued that Section 203 of the Bipartisan Campaign Reform Act of 2002 (otherwise known as McCain-Feingold) permits the FEC to ban corporations, including ideological nonprofits like Citizens United, from making independent expenditures on films, books, or even "a sign held up in Lafayette Park." The jurisprudential justification for this extraordinary and shockingly expansive view of the government's power to suppress political speech traces to the Supreme Court's 1990 decision in Austin v. Michigan Chamber of Commerce. In Austin, the Court held that Michigan had a compelling state interest in banning political speech funded with wealth accumulated using the corporate form. Though the Court contended that such speech, because it bears little correlation to public support for the political ideas expressed, constituted a "different type of corruption," in reality it upheld Michigan's statute as a "counterbalance" to the "distorting" and "unfair" influence corporate funds could have on the outcome of elections. This relative-equality rationale — suppressing disfavored speakers to enhance the voice of other government-favored speakers — is antithetical to core First Amendment protections and elsewhere has been expressly rejected by the Court (in Buckley v. Valeo and, more recently, in Davis v. FEC). Accordingly, to decide Citizens United's appeal, the Court ordered rebriefing and reargument on Austin's continuing validity. Cato's brief, the second it has filed in the case, argues that Austin, and the part of McConnell v. FEC that upheld Section 203's facial validity, are not entitled to stare decisis deference and should thus be overturned. These relatively recent decisions are poorly reasoned, have engendered no reliance interests (no one relies on less freedom of speech), and have spawned an unworkable and irrational campaign finance system in which the government rations different levels of permissible political speech to otherwise equally situated speakers. The case will be reargued September 9.

United States v. Stevens, July 28, 2009 (PDF, 175 KB)
Although many states have passed laws outlawing acts of animal cruelty, Congress in 1999 for the first time made it a federal crime simply to depict those acts. Under that statute, the government convicted Robert Stevens of selling documentary films containing footage of dog fighting—even though Stevens, a pit bull enthusiast, was opposed to dog fighting and had not engaged in it himself. Seeking to preserve its conviction against a First Amendment challenge, the government took a broad view in the Supreme Court of its power to suppress speech. The government maintained that the "strict scrutiny" test usually applied to content-based speech prohibitions need not apply where speech can be characterized as "unprotected." And although some narrow categories of speech have long been recognized as "unprotected" by the First Amendment (e.g., fighting words, incitement, defamation, obscenity), the government proposed a balancing test that would allow new categories of speech to be carved out from First Amendment protection any time the "societal costs" of the speech are deemed to outweigh its "value." Cato filed a brief supporting Stevens, arguing that the government's position was a dangerous and unprecedented encroachment on the freedom of speech. Our brief canvasses the Court's doctrine to show how inventing a new category of previously unrecognized "unprotected" speech would entail a radical shift in the Court's jurisprudence. Our brief also illustrates how the absence of a limiting principle in the government's proposed balancing test could be used in future cases to impose a host of new speech restrictions—from laws prohibiting "defamation" of religion and hate speech to laws prohibiting the depiction of drug use.

IMS Health v. Sorrell, July 14, 2009 (PDF, 234 KB)
Vermont passed a law prohibiting the exchange of a variety of socially important information. Most notably, the law outlaws the transfer of doctors' prescription history to facilitate drug companies' one-on-one marketing — a practice known as "detailing" — because it believes detailing drives up brand-name drug sales and, in turn, health care costs. The state knew that the First Amendment prevented it from banning detailing itself, so it made the practice more difficult indirectly. Yet data collection and transfer is protected speech — think academic research, or the phone book — and government efforts to regulate this type of speech also runs afoul of the First Amendment. See, e.g., Solveig Singleton, "Privacy as Censorship: A Skeptical View of Proposals to Regulate Privacy in the Private Sector". The First Circuit had earlier upheld a similar New Hampshire law, somehow finding that the statute regulates conduct rather than speech and that, in any event, the judiciary should defer to the legislative branch's judgment. When the Supreme Court declined to review that case (which cert petition Cato supported), Cato joined Pacific Legal Foundation, the Progress & Freedom Foundation, and two trade associations on a brief asking the Second Circuit to split with its First Circuit brethren and reject this dangerous narrowing of protection for free expression. Our brief argues that the Second Circuit should strike the Vermont law for three reasons: 1) the law regulates speech, not conduct, and thus is worthy of First Amendment protection; 2) the law abridges a range of expression that is not "commercial" speech — which, by Supreme Court precedent, is not fully protected; and 3) even if the law regulates "commercial" speech, that speech merits protection under the Court's Central Hudson test.

National Rifle Association v. City of Chicago; McDonald v. City of Chicago, July 6, 2009 (PDF, 135 KB)
Last summer, in District of Columbia v. Heller, the Supreme Court confirmed what the Framers, most scholars, and a substantial majority of Americans believe: that the Second Amendment protects an individual right to keep and bear arms. Heller led to lawsuits raising the question of whether the Fourteenth Amendment protects that right against infringement by state and local governments. In a consolidated case involving a challenge to Chicago's handgun ban, the Seventh Circuit answered that question in the negative, finding itself foreclosed by 19th-century Supreme Court decisions. Cato, joining with the Institute for Justice, filed an amicus brief supporting requests for the Supreme Court to review that line of precedent. We argue that the Court's initial encounters with the Fourteenth Amendment yielded a profound misreading of its Privileges or Immunities Clause that has haunted the Court's rights jurisprudence ever since. The Chicago petitions present the Court with an unprecedented opportunity to reach back to the very source of that misreading, the 1873 Slaughter-House Cases, and there are three compelling reasons why the Court should do so: 1) the only disagreement among circuit courts in the wake of Heller is whether they are bound by the Court's decisions refusing to apply the right to keep and bear arms against the states; 2) case law and scholarly commentary together form a kind of constitutional conversation, which has arrived at a clear consensus about Slaughter-House that merits the Court's consideration; and 3) the Constitution is not merely a blueprint for government, but a charter of liberty. Accurately placing the Fourteenth Amendment within that tradition would be a virtue in itself and would sharpen the national dialogue regarding the source, nature, and limits of our rights.

Boy Scouts of America v. Barnes-Wallace, May 5, 2009 (PDF, 135 KB)
The City of San Diego leases portions of Balboa Park and Fiesta Island to the San Diego Boy Scouts, which use the land to operate a camp and aquatic center. The Boy Scouts use the leased areas for their own events but otherwise keep them open to the general public — and have spent millions of dollars to improve and maintain facilities on the properties, eliminating the need for taxpayer funding. While the Boy Scouts' membership policies exclude homosexuals and agnostics, the Scouts have not erected any religious symbols and do not discriminate in any way in administering the leased parklands. Nevertheless, a lesbian couple with a son and an agnostic couple with a daughter challenged the leases under the establishment clauses of the U.S. and California Constitutions. Although none of the plaintiffs have ever tried to use the parklands or otherwise had any contact with the Boy Scouts, the Ninth Circuit found they had standing to proceed with their lawsuit because they were offended at the idea of having to contact Boy Scout representatives to gain access to the facilities. The court denied en banc review over a scathing dissent by Judge Diarmuid O'Scannlain. The Boy Scouts have asked the Supreme Court to review the case — whose outcome conflicts with other federal courts of appeal — and Cato joined the Individual Rights Foundation in filing a brief supporting that petition. Cato's brief argues that the Ninth Circuit's decision dangerously confers standing on anybody wishing to challenge the internal policies of expressive associations having any business with local government; chills public/private partnerships of all kinds for reasons disconnected from the beneficial services civic organizations provide the public; and generally represents a radical extension of standing jurisprudence — opening the courthouse doors to anyone claiming to be subjectively offended by any action and manufacturing litigation out of political debates.

IMS Health v. Ayotte, April 28, 2009 (PDF, 115 KB)
New Hampshire passed a law prohibiting the transfer of doctors' prescription history to facilitate drug companies' one-on-one marketing — a practice known as "detailing" — because it believes detailing drives up brand-name drug sales and, in turn, health care costs. The state knew that the First Amendment prevented it from banning detailing itself, so it made the practice more difficult indirectly. Yet data collection and transfer is protected speech — think academic research, or the phone book — and government efforts to regulate this type of speech also runs afoul of the First Amendment. See, e.g., Solveig Singleton, "Privacy as Censorship: A Skeptical View of Proposals to Regulate Privacy in the Private Sector" (Cato Institute Policy Analysis No. 295). New Hampshire also engages in gross viewpoint discrimination: it exempts insurers' efforts to persuade doctors to use generic drugs, and runs an "academic detailing" program to discourage brand-name drug use. Remarkably, the First Circuit reversed a district court ruling that had invalidated the statute as unconstitutional, somehow finding that the statute regulates conduct rather than speech and that, in any event, the judiciary should defer to the legislative branch's judgment. Two companies that collect and sell health information and analysis filed a petition asking the Supreme Court to review the case. Cato, joining Washington Legal Foundation, Reason Foundation, and a group of current and former state officials, has filed a brief supporting that petition. Our brief argues that the Supreme Court should grant review because: 1) the speech at issue is worthy of First Amendment protection; 2) this case is a good vehicle for examining First Amendment issues attending state attempts to control health care costs (other states have passed similar laws); and 3) the lower court's holding that a state may restrict speech to "level the playing field" conflicts with the Court's precedent regarding both commercial speech and campaign finance regulation.

Safford Unified School District No.1 v. Redding, April 2, 2009 (PDF, 2 MB)
A middle-school student who was caught red-handed with prescription-strength ibuprofen (in violation of the school's drug policy) implicated another 13-year-old girl, Savana Redding. On the sole basis of this accusation, school officials searched Savana's backpack, finding no evidence of drug use, drug possession, or any other illegal or improper conduct. They then took the girl to the nurse's office and ordered her to undress. Not finding any pills in Savana's pants or shirt, the officials ordered the girl to pull out her bra and panties and move them to the side. The observation of Savana's genital area and breasts also failed to reveal any contraband. Savana's mother, whom Savana had not been permitted to call before or during the strip search, sued the school district and officials for violating her daughter's Fourth Amendment rights to be protected from unreasonable search and seizure. The trial court and a panel of the Ninth Circuit ruled against her, but the en banc Ninth Circuit reversed, finding the search unjustified and unreasonable in scope, and therefore unconstitutional. The Supreme Court granted the school district's petition for review. Cato, joined by the Rutherford Institute and Goldwater Institute, filed a brief supporting the Reddings' suit, arguing that strip searches, particularly of students, are subject to a higher level of scrutiny than other kinds of searches. Such searches are reasonable only when school officials have highly credible evidence showing that (1) the student is in possession of objects posing a significant danger to the school and (2) the student has secreted the objects in a place only a strip search will uncover. In this case, there was insufficient factual basis for the strip search and the search was not reasonably related and disproportionate to the school officials' investigation. The Supreme Court should thus affirm the Ninth Circuit and establish that such searches may be undertaken only when compelling evidence suggests a strip search is necessary to preserve school safety and health.

McClung v. City of Sumner, April 1, 2009 (PDF, 179 KB)
When Daniel and Andrea McClung applied for a permit to build a small business on their property, the City of Sumner, Washington, charged them nearly $50,000 to pay for improvements to the City's entire storm drainage system. The McClungs sued the City under the Fifth Amendment to the Constitution, whose Takings Clause prohibits the government from "taking" private property for public use without just compensation. They argue that the City cannot force them to pay fees for off-site pipes absent proof that their development would have a specific detrimental effect on the existing drainage system—and without any evidence that the impact was worth $50,000. The Ninth Circuit ruled in favor of the City, reasoning that money is not property (so there could be no unconstitutional taking) and that because the fees were imposed by ordinance (so the City's determination that the pipes needed upgrading was justification enough for the fees). The McClungs have now asked the Supreme Court to review their case. Cato, joined by the Pacific Legal Foundation and the Building Industry Association of Washington, argues that this case is a perfect vehicle for the Court to revisit the scope of Fifth Amendment protections. Our brief highlights the deep divisions among state and federal courts over several important issues, such as whether the Takings Clause applies to legislative (as opposed to bureaucratic) exactions and whether it applies to monetary exactions (not just burdens on land use). The Court should take this case to ensure that the standard for reviewing development conditions is uniform across the country and make clear that property right protections do not depend on ill-defined distinctions such as the form of property demanded by the government or the manner in which a condition is imposed.

Empress Casino v. Giannoulias, February 27, 2009 (PDF, 151 KB)
In Empress Casino v. Giannoulias, the Illinois Supreme Court upheld a statute transferring money from private riverboat casinos to private horseracing tracks, finding that the Fifth Amendment's Takings Clause does not apply to exactions of money from private entities. The casinos are seeking review of that decision in the U.S. Supreme Court. Cato's brief argues that the Court should grant certiorari for yet another reason: The Illinois statute (which coincidentally appeared in the transcript of the Blagojevich sting) is in clear violation of the Takings Clause's "public use" requirement, impermissibly eroding protections for private property even under Kelo v. New London's (flawed) standard. The statute does nothing more than rob Peter to pay Paul, a result that cannot be squared with the Fifth Amendment, which permits government takings only for public use, and then only if just compensation is paid. It is instead a naked transfer of the casinos' revenues to the racetracks, with no meaningful restriction on how the racetracks use those funds — and does not remotely resemble any public use approved by the Supreme Court. Permitting such a statute to stand will only encourage federal, state, and local governments to exact funds from one private actor for the exclusive benefit of another, transgressing the property rights and economic liberties at the core of the Fifth Amendment.

Ricci v. DeStefano, February 25, 2009 (PDF, 80 KB)
In Ricci v. DeStefano, the City of New Haven, Connecticut developed an exam for firefighters seeking promotion to command positions. The City went out of its way to ensure that the exam was race-neutral and tested only relevant skills and abilities. When the exam results came down, however, white candidates had done better than their African-American and Hispanic peers. Given the few command positions available and the City's rule that the highest scorers on an exam be promoted first, few minority firefighters would thus have been eligible for promotion. After a series of meetings and political machinations, the City refused to certify the results of the exam and promote anyone. Several of the firefighters who would have been eligible for promotion filed a lawsuit, claiming racial discrimination under Title VII. The district court, affirmed by the court of appeals, granted summary judgment for the defendants, holding that the City's alleged fear of an adverse impact claim (a different type of racial discrimination claim under Title VII) -- based merely on the fact that the exam results yielded a racial disparity -- was a legitimate reason for its decision not to certify the exams. Cato's brief, joined by Reason Foundation and the Individual Rights Foundation, points out the absurd incentives at play: if the lower court's ruling stands, employers will throw out the results of exams (or other criteria) that produce racial disparity, even if those exams are race-neutral, entirely valid, and extremely important to the employer and (as in this case) the public.

Al-Marri v. Spagone, January 29, 2009 (PDF, 175 KB)
This case presents an important question concerning the scope of presidential or executive power. The Bush administration claims that once the president is satisfied that a person is a terrorist or is helping terrorists, the president can then issue an "enemy combatant" order to the Secretary of Defense�whereupon the suspect can then be seized and imprisoned in a military prison. The prisoner can then be held indefinitely without any trial in civilian court and denied access to family. Mr. Bush's lawyers have made it clear that these executive powers can be used against Americans and lawful permanent residents. This brief argues that the president may not use such military powers against citizens and lawful permanent residents in the United States. If the president comes to the conclusion that Americans are engaged in a terrorist plot, he should have them arrested and present the incriminating evidence to a civilian court.

Citizens United v. Federal Election Commission, January 14, 2009 (PDF, 207 KB)
Testing the bounds of the Supreme Court's landmark decision in Wisconsin Right to Life II (WRTL II), the Federal Election Commission recently sought to apply certain prohibitions and disclosure requirements of the Bipartisan Campaign Reform Act of 2002 to advocacy group Citizens United's political documentary, Hillary: The Movie, and to the group's broadcast advertisements for the film. Though the FEC conceded that the ads, at least, are not the functional equivalent of express campaign advocacy, as defined in WRTL II, it nevertheless determined that Citizens United must disclose the identities of its contributors. Cato's brief argues that BCRA violates the First Amendment freedom of association belonging to those contributors, which freedom includes the right to associate anonymously and to control the group's character and message free from government intervention. For groups engaging in political speech, compelled disclosure of contributors' identities infringes their freedom of private expressive association, a burden often no less severe than direct restraint of the group's speech. This type of government action must be subject to strict constitutional scrutiny—a level of scrutiny that in practice is almost always fatal. The district court failed to afford sufficient value to associational rights and so failed to scrutinize appropriately the BCRA disclosure provisions' unjustified infringement on those rights.

Hawaii v. Office of Hawaiian Affairs, December 11, 2008 (PDF, 232 KB)
In the 2000 case of Rice v. Cayetano, the Supreme Court held that a race-based scheme allowing only statutorily defined "Hawaiians" to vote for the Office of Hawaiian Affairs's trustees was unconstitutional. Despite Rice, and despite Justice John Marshall Harlan's dissenting statement in Plessy v. Ferguson 112 years ago that "[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens," the OHA continues to view Hawaiian citizens through racial lenses. This practice has spawned numerous lawsuits, including the present legal crisis in which the state's sovereign authority to manage its land for the good of all of its citizens has been replaced with a court-imposed duty to hold the land for the benefit of one racial class. Specifically, the Hawaii Supreme Court blocked the sale of certain state lands based on a mistaken (and race-based) interpretation of a joint resolution that Congress passed in 1993 to apologize to Hawaiian people for the overthrow of the Kingdom of Hawaii�which was itself based on a slanted view of history. Cato's brief, joining with the Pacific Legal Foundation and the Center for Equal Opportunity, argues that race-based government is impermissible under the Fourteenth Amendment's Equal Protection Clause, that the Constitution's Indian Commerce Clause does not provide a basis for laws that grant preferences to "Native Hawaiians," and that the Apology Resolution neither amended nor rescinded the federal laws that gave the state of Hawaii full control over the disputed land.

Baylor v. United States, June 11, 2008 (PDF, 114 KB)
The Hobbs Act is an anti-racketeering law Congress passed in 1946 to allow federal prosecution of extortion and robbery that impedes the flow of commerce across state lines. Today, the Act is used to prosecute local robberies having no more than a de minimis effect on interstate commerce. In this case, for example, the defendant robbed a Cleveland-area pizzeria of $538. The Sixth Circuit held that the Commerce Clause permitted this prosecution because the pizzeria obtained its flour, sauce, and cheese from various states outside Ohio. Cato's brief, joined by the Center for Constitutional Jurisprudence and the Goldwater Institute, argues that it is unconstitutional to federally prosecute robberies with such an attenuated effect on interstate commerce. Doing so destroys the line between the States' power to punish violent crime and Congress's power to regulate interstate markets. In addition, this sweeping application of the Hobbs Act is inconsistent with congressional intent and contrary to constitutional clear-statement rules designed to protect federalism and avoid unnecessary constitutional adjudication.

Dupuy v. McEwen, March 11, 2008 (PDF, 150 KB)
For more than a decade, the Illinois Department of Child and Family Services has investigated parents based on anonymous tips of abuse or neglect, and deemed them "indicated" after a cursory investigation by state officials who have no effective check on their unilateral authority. Unlike actual child abuse cases, in which the State removes children from abusive situations with judicial approval, the State takes a different route with "indicated" parents � threatening them with what it calls a "Safety Plan." In so doing, the State demands that parents abandon their homes and families pending an investigation of unlimited duration. Frequently State officials will threaten to remove children immediately into foster care if the parents do not "consent" to the plans without counsel and without negotiation. According to the Seventh Circuit, parents are not allowed to challenge the plans in a judicial or administrative forum if they "consent" to the State's demands, even if they do so only after being threatened with the loss of their children. Cato's brief, which supports a class of parents petitioning the Supreme Court for review of these practices, argues that these "Safety Plans" violate the Due Process Clause because they infringe on fundamental family rights without affording any opportunity to challenge state action. They also vest unfettered discretion in state officials to infringe on parents' fundamental rights. Finally, they represent an unconstitutional condition that forces parents to make an agonizing choice between abandoning their children in the hope that the State's vague concerns would be mollified by subsequent investigation, or taking the risk that the State would make good on its threat to remove their children into foster care without a hearing.

Davis v. Federal Election Commission, February 27, 2008 (PDF, 223 KB)
The "Millionaires' Amendment," section 319 of the Bipartisan Campaign Finance Reform Act of 2002 ("BCRA," commonly known as McCain-Feingold), attempts to discourage candidates for election to Congress from spending more than $350,000 from their own personal funds. It effectively penalizes expenditures above that threshold by enhancing the political speech of the self-financing candidate's opponent through increased contribution limits and unlimited coordinated party expenditures. Cato's brief argues that this penalty unconstitutionally chills a self-financing candidate from engaging in protected political speech beyond that personal funds ceiling, and does so without serving any governmental interest recognized as compelling by the Supreme Court's campaign finance precedent. The penalty does not prevent actual or apparent corruption because there is no threat of a quid pro quo from a candidate's expenditure of her own funds. And the Supreme Court has expressly rejected the district court's rationale for upholding Section 319 � "leveling the playing field" of financial resources � as an interest sufficient to justify infringement of First Amendment rights.

District of Columbia v. Heller, February 13, 2008 (PDF, 141 KB)
The District of Columbia has the nation�s strictest gun-control laws. The D.C. Circuit held in 2007 that they violated the Second Amendment, and the Supreme Court is considering�for the first time�whether the Amendment secures an individual right, not dependent on militia service. Critical to the Amendment�s original meaning is the English right to arms before the Founding. Many claim that it was negligible or is irrelevant. Cato�s brief, joined by History Professor Joyce Lee Malcolm, demolishes such claims and shows that the English in the 1700s had a broadly applicable and robust individual right. The core was the right of ordinary people to �keep� firearms to defend their homes and families�precisely what the District tramples. The common law merely regulated the misuse and public carrying of arms. The brief also demonstrates the early consensus that the Second Amendment at least secured the right inherited from England. C. Kevin Marshall of Jones Day authored the brief. While an official in the Justice Department�s Office of Legal Counsel, he co-authored its landmark 2004 memorandum setting out the Executive Branch�s interpretation of the Amendment as securing an individual right.

Chamber of Commerce v. Brown, January 16, 2008 (PDF, 140 KB)
After intense lobbying by the AFL-CIO, California enacted a statute prohibiting employers receiving either a state grant or over $10,000 from a state program from using those funds to �assist, promote, or deter union organizing.� This prohibition even applies to the payment of salaries, speaking about unions to employees working on state contracts, and meeting with employees on state property to discuss union-related issues. The only significant exceptions all relate to employer speech favoring union activity. The law also imposes burdens on employers who wish to use funds not originating from state programs to continue speaking on union-related issues, such as the need to maintain segregated accounting and salary-payment systems. After several re-hearings, the Ninth Circuit upheld the statute on both labor law and constitutional grounds. Cato�s brief argues that 1) this case should be decided on labor law grounds because the National Labor Relations Act clearly prohibits state regulations of this kind; but 2) if the Supreme Court reaches the First Amendment issue, the statute should be struck down because it imposes an unconstitutional condition on the receipt of state funds and burdens private speech in an area unrelated to the programs for which the funds are given.

Boumediene v. Bush, August 29, 2007 (PDF, 139 KB)
This brief argues that the Military Commission Act, which purports to withdraw the jurisdiction of federal courts over certain habeas corpus petitions, is unconstitutional. By way of background, the Bush administration has argued that if it decides to house prisoners in facilities that are not on U.S. soil, such as the prison at Guantanamo Bay, Cuba, federal courts will lack jurisdiction to consider claims of wrongful imprisonment. This brief urges the Supreme Court to reject that argument. The habeas writ cannot be abrogated in the absence of a "rebellion" or "invasion." Since Congress has not invoked either of those exceptions to the general rule, the Military Commission Act is unconstitutional insofar as it attempts to revoke federal court jurisdiction over petitions for writs of habeas corpus.

Faith Center Church Evangelistic Ministries v. Glover, August 8, 2007 (PDF, 56 KB)
For decades the Supreme Court has repeatedly held that religious speech is, like other types of speech, protected by the Free Speech Clause; accordingly, the Court has also consistently held that the government may not silence such speech simply because it expresses a religious viewpoint. Despite this well-settled law, local officials in Contra Costa County, California, specifically barred religious speech from a forum that the county had opened broadly for expressive activities: while the county opened library meeting rooms for every manner of educational, cultural, or community-related meetings or programs, it expressly excluded from those forums any speech that amounted to a "religious service." Cato's brief, authored by a team of lawyers from Gibson, Dunn & Crutcher LLP, urges the Supreme Court to review a decision of the Ninth Circuit ratifying this blatant viewpoint discrimination. Cato's brief also highlights the need for the Supreme Court to clarify its public-forum doctrine, a doctrine that, although fundamental in a large swath of free-speech cases, has led to widespread confusion among the Courts of Appeals as to the amount of protection the Free Speech Clause provides when speech occurs on public property.

New York State Board of Elections v. Torres, May 7, 2007 (PDF, 198 KB)
In this misconceived case pitting political-party populists against political-party centralists, both seeking to have the government impose their preferred candidate-selection method (primary elections versus nominating conventions) on the party as a whole, Cato filed a brief in support of neither party, emphasizing that the private function of political parties selecting and endorsing their standard-bearers for political office should be disentangled from the public function of a state in regulating access to the ballot to bring order to the election process. The brief, written by frequent Cato amicus-brief writer Erik Jaffe, and joined by Reason Foundation and the Center for Competitive Politics, argued that the New York law compelling parties to use nominating conventions to select certain judicial candidates and the lower-court injunction striking that law and requiring the parties to hold primaries instead, both abridged the First Amendment right of freedom of association of the political parties as a whole as well as of their dissident members who preferred primaries. Although the political parties, through their leadership, preferred to hold conventions as required by the New York law, and the brief supported the parties' right to make such a choice for themselves, Cato opposed any government imposition of a specific nominating method upon the parties because the parties should be free to make such choices themselves, and should be accountable for the choices so made. Allowing the parties to hide behind a state compulsion to use conventions � even if they agreed with the state choice of method � insulates them from ordinary internal political responsibility for that choice and blocks other factions within the parties from seeking to change that choice internally. Freedom of association, however, requires that parties be both free and accountable to their members for their choices, without the state placing a thumb on the scale or providing political cover for one or another faction within a political party.

Federal Election Commission v. Wisconsin Right to Life, March 23, 2007 (PDF, 263 KB)
Returning for Round II of Wisconsin Right to Life�s defense of its First Amendment freedom to engage in grass-roots lobbying, Cato joined forces with the Center for Competitive Politics, the Institute for Justice, the Reason Foundation, and the Individual Rights Foundation to remind the Supreme Court of the core First Amendment quality of such grass-roots lobbying and to dissuade the Court from straying farther than it already has from fundamental First Amendment principles. Our brief in this second round at the Court, again written by Cato friend (and former Justice Thomas clerk) Erik Jaffe, emphasizes how federal restrictions on grass-roots lobbying that asks citizens to raise important issues with their elected representatives in Congress severely burdens free speech, freedom of association, and the right to petition the government, and acts in combination with other federal and state restrictions on political speech to choke off one of the few remaining avenues of effective political speech, particularly during the run-up to federal elections. The brief emphasizes that the government�s purported interest in preventing �circumvention� of other restrictions on political speech and association is nothing more than the embodiment of the slippery slope of regulation, repackaged as a faux �interest� that has no stopping point short of the complete suppression of political speech that might � perish the thought � influence citizens or politicians.

Davenport v. Washington Education Association, November 13, 2006 (PDF, 76 KB)
In the State of Washington, unions may negotiate an "agency shop" agreement with an employer, allowing union officials to collect agency fees from employees who aren't members of the union. Washington law permits the union to spend excess money collected on political activities that have nothing to do with the collective bargaining process. Until recently, the law placed the burden on nonmembers to object to this use of their money. Recognizing the unfairness of this arrangement, Washington voters adopted an initiative that forbids the union from using non-members' fees for political purposes without the nonmembers' affirmative consent. Perversely, unions sued, alleging this provision impinged on the union's First Amendment rights to "free association." In this brief, authored by former Thomas clerk and First Amendment expert Erik Jaffe, we argue that the unions have it exactly backwards: the real First Amendment rights at stake are those of persons who haven't joined a union and don't want to contribute to the union's political activities. Those persons have a clear constitutional right to remain silent and unassociated with union political activities, and the Washington initiative protects that right. By contrast, unions have no constitutional right whatsoever to assume, based on a fictitious "association" with nonmembers, that persons unaffiliated with the union automatically "consent" to the use of their hard earned money to promote union politicking. The Cato Institute is joined by the Reason Foundation and the Center for Individual Freedom.

Massachusetts v. Environmental Protection Agency, October 24, 2006 (PDF, 125 KB)
In 2003, the Environmental Protection Agency rejected a petition filed by a number of states, cities, and environmental groups, which asked the EPA to regulate vehicular emissions of greenhouse gases under the Clean Air Act. In Massachusetts v. EPA, the Supreme Court must decide whether the EPA properly denied this petition. Cato�s amicus brief, authored by law professor Jonathan Adler and joined by professors James L. Huffman and Andrew P. Morriss, makes two arguments on the EPA�s behalf: First, it argues that the states� and environmental groups� claims must be dismissed for lack of standing. Second, the brief demonstrates that, even if the Court were to adopt the plaintiffs� creative standing theories, the Clean Air Act simply doesn�t give the EPA any authority to regulate greenhouse gas emissions.

Gonzales v. Carhart, August 10, 2006 (PDF, 198 KB)
In Stenberg v. Carhart, the Supreme Court struck down a Nebraska law banning partial-birth abortions because the Nebraska statute lacked an exception in cases where a partial-birth abortion is necessary to the mother's health. Just three years later, Congress passed the Partial-Birth Abortion Ban Act, a law nearly identical to the Nebraska ban. Congress attempted to skirt the Supreme Court's holding in Stenberg by advancing its own factual findings that a health exception is medically unnecessary, based on a legislative determination that partial-birth abortions are never the safest method for performing an abortion. Cato's brief argues that the Supreme Court should not defer to congressional findings of fact because Congress cannot claim any special expertise regarding the regulation of medical judgment, an area that, by tradition and constitutional structure, is left largely to the province of the states. Indeed, if any legislative body deserves deference concerning the need for a health exception, it is state legislatures. By inviting deference to its fact-finding, Congress effectively invites the Court to make an end-run around the principles of separation of powers and federalism.

Philip Morris v. Williams, July 28, 2006 (PDF, 364 KB)
In this brief, co-authored by noted economists Steven Shavell and A. Mitchell Polinksy, Cato weighs in on the due process limits that the Fourteenth Amendment imposes on excessive, bet-the-company punitive damages. While trial lawyers often argue that the logic of deterrence requires large companies to pay more punitive damages than smaller companies, Cato�s brief demonstrates that the size and wealth of a company shouldn�t factor into the size of a punitive damages judgment. Because companies make judgments based on profits, large companies and small companies generally have every incentive to take precautions necessary to avoid harm to others when damages are equal to the harm they cause. Adjusting the damages upward because a company is large or wealthy does little to deter, spawning excessive litigation and creating a tax on corporate success.

Hamdan v. Rumsfeld, January 6, 2006 (PDF, 81 KB)
Salim Hamdan is a prisoner at the U.S. Naval base in Guantanamo Bay, Cuba. He was initially taken into custody by the U.S. military in Afghanistan and then flown to the naval base in June 2002. According to government officials, Hamdan was involved with the Al Qaeda terrorist network, but Hamdan denies that allegation. One year later, in July 2003, President Bush declared his intention to put Hamdan on trial before a military tribunal. Hamdan was then moved from the general inmate population to solitary confinement. The military lawyer that was assigned to defend Hamdan promptly challanged the legality of the military tribunal and that legal challenge reached the Supreme Court for a resolution. President Bush argues that he has the "inherent power" to set up a special military court and try any person that he believes to be involved in terrorism. In this friend-of-the-court brief, Timothy Lynch argues that if the president chooses to try a person for a war crime, an offense that typically carries a death sentence, he cannot deny the accused the benefit to trial by jury. The brief serves as a reminder that the U.S. Constitution is the supreme law of the land, both in times of peace and war.

Randall v. Sorrell, December 14, 2005 (PDF, 235 KB)
This brief, joined by the Center for Competitive Politics, the Goldwater Institute, the Institute for Justice, and the Reason Foundation, addresses Vermont's Act 64, the state's law restricting candidate's campaign expenditures. Vermont justifies the Act as a prop to ensure elected officials are responsive to voters. Without the Act, says Vermont, elected officials will waste time soliciting donations from wealthy organizations, time that could be used to listen to constituents. The argument makes no sense. Vermont's expenditure cap insulates incumbents from tough reelection fights and hence prevents the very ballot box competition necessary to ensure Vermont officials serve the general public.

Rapanos v. United States, December 9, 2005 (PDF, 524 KB)
The Clean Water Act grants the federal government control over toxic discharges into "navigable water." Imagine, then, the suprise of John Rapanos, who stands accused of violating the Clean Water Act because he dumped sand onto his own land. Nevermind that Mr. Rapanos' land has been drained of standing water since the early 1900s. While it is not "navigable" and it is not "water," says the Department of Justice, it is within the reach of federal environmental regulators. Why? Because of a risk that some grains of sand on his property may be carried by rainwater on an epic journey across drains, ditches, and creeks to the Kawkawlin River, a navigable body of water twenty miles away. Cato's brief argues that government's prosecution of Mr. Rapanos exceeds federal authority under both the plain text of the Clean Water Act and under the Commerce Clause.

Raich v. Gonzales, November 30, 2005 (PDF, 79 KB)
In 2005, the Supreme Court decided Gonzales v. Raich, a case that pitted two sick women, who use medical cannabis, against the U.S. Department of Justice. The Justice Department asserted that the Commerce Clause gives federal prosecutors and drug police the power to throw these women in jail, even though their medical choices have nothing to do with interstate commerce. In a defeat for federalism, the Supreme Court's liberal wing, joined by Justices Kennedy and Scalia, agreed with the feds. Now, the Raich case is back before the U.S. Court of Appeals for the Ninth Circuit, ably litigated once again by Cato senior fellow Randy Barnett. Randy argues that the federal government is intruding on these women's fundamental right to control their own medical decisions, a right protected by the Ninth and Fourteenth Amendments. Cato's friend-of-the-court brief, filed in support of Randy's clients and joined by the Reason Foundation, shows that the history surrounding the adoption of the Bill of Rights strongly supports Randy's arguments.

Wisconsin Right To Life v. Federal Election Commission, November 14, 2005 (PDF, 223 KB)
Joining forces with the Center for Competitive Politics, the Goldwater Institute, the Reason Foundation, Institute for Justice, and the Claremont Institute, we filed a pair of briefs in two separate appeals arising out of FEC proceedings against Wisconsin Right to Life, a nonprofit pro-life advocacy brief. In these briefs, written by Cato friend (and former Clarence Thomas law clerk) Erik Jaffe, Cato argues that provisions of the McCain-Feingold campaign finance "reform" act are unconstitutional when applied to non-profit issue advocacy groups. Campaign finance law currently prohibits such groups from publishing ads advocating a position within 60 days of an election, whenever the ads mention elected officials. The provision flagrantly flouts the First Amendment (which was written, after all, to secure the right to peacefully call for government action). Jaffe's briefs highlights just how far we have travelled from the unqualifed "freedom" of speech the Framers wrote the First Amendment to protect.

Rumsfeld v. Forum for Academic and Institutional Rights, September 1, 2005 (PDF, 206 KB)
In an effort to signal their disapproval over the military's controversial "don't ask, don't tell" policy barring homosexuals from service, many universities have prohibited military representatives from recruiting on campus. In response, Congress passed the Solomon Amendment, which denies federal funding to universities that refuse military recruiters equal access to students. Arguing in favor of the group of law schools challenging the constitutionality of the Solomon Amendment, this brief asserts that the law exacts an inappropriate penalty on protected speech and associational rights, including the right of private associations to bar persons from their property when doing so advances their ability to contribute to the marketplace of ideas. Enforcement of the Solomon Amendment would not only abridge the expressive speech of universities but require them to subsidize speakers with whom they disagree.

Hudson v. State of Michigan, August 1, 2005 (PDF, 131 KB)
This brief, joined by the National Association of Criminal Defense Lawyers, examines the extent to which the exclusionary rule, requiring suppression of evidence collected unconstitutionally, applies when police enter a home, recover incriminating evidence, without first announcing themselves. The Supreme Court has required police officers to knock and announce their presence before entering a home, absent a special risk of danger. This "knock-and-announce" rule is essential to protecting the sanctity of the home and the safety of innocent homeowners: In dozens of documented cases, bad information has led to an unannounced late-night raid on the wrong residence, forcing startled homeowners to decide whether armed intruders are criminals worth resisting or police officers to whom they should submit. Even so, in Hudson, the state of Michigan contends that evidence seized in violation of the knock-and-announce rule can be admitted in court so long as police possess a warrant. As Cato's brief underscores, that permissive rule would eliminate police incentives to announce themselves before entry, and unravel the Fourth Amendment's protections against dangerous unannounced home invasions by law enforcement.

Gonzales v. Oregon, July 1, 2005 (PDF, 102 KB)
In 1994, Oregon voters passed a ballot initiative establishing the "Death with Dignity Act," a controversial measure that legalized physician-assisted suicide through the administration of lethal doses of medication to patients within six months of dying from a terminal illness. In 2001, Attorney General John Ashcroft filed a directive declaring that any physician administering a lethal dose of medication under the Death with Dignity Act would be in violation of the Federal Controlled Substance Act. Oregon challenged this directive. Arguing in support of the state of Oregon, this Cato brief stresses that regulating physician-assisted suicide within individual states is beyond the scope of the federal government's powers. Ashcroft's intervention in this situation undermines the Tenth Amendment's specific command that powers not delegated to the federal government be reserved to the states. Constitutional principles and precedents favoring state and local laws suggest that Ashcroft's directive should be invalidated.

Lingle v. Chevron, January 1, 2005 (PDF, 2 MB)
Chevron, the largest oil refiner and marketer in Hawaii, controlled 60% of the commercial and 30% of the wholesale market for gasoline products in 1997. That year, in attempt to control oligopolies, the Hawaii state legislature passed a law restricting the amount of rent that an oil company can charge its dealer-lessee to 15% of the dealer's gross profits from sales, plus an additional 15% of gross sales of other products. Chevron sued, claiming that this law constituted an illegal regulatory taking, in violation of the Fifth and Fourteenth Amendments. This Cato Institute brief supports Chevron's position, arguing that the law fails to serve any conceivable public interest. Because the law gives tenants rather than owners the right to profit from any increases in the value of the property, it constitutes an unjustifiable wealth transfer that violates the Takings and Due Process clauses.

Kelo v. City of New London, December 3, 2004 (PDF, 270 KB)
The city of New London, Connecticut, authorized the New London Development Corporation to acquire the property of several landowners by eminent domain for development in support of a project by Pfizer. In 1998, the NLDC instituted condemnation proceedings to take the property of several homeowners, including that of Susette Kelo. NLDC claimed that the plan would create jobs and increase tax revenues. The Connecticut Supreme Court held that the legislature and the NLDC were entitled to a broad level of deference in their factual findings concerning the validity of this taking. Cato's brief, supporting the homeowners, argues that this is unacceptable in light of the Fifth Amendment's Takings Clause. The taking of private property from individuals for the benefit of a corporation, in the name of unsubstantiated increased tax revenues and employment does not constitute a "public use."

Powers v. Harris, December 1, 2004 (PDF, 154 KB)
Cato's brief, joined by the Pacific Legal foundation, examines the question of whether the protection of specific interest groups against economic competition, in the absence of any public health or safety concerns, constitutes a legitimate state interest. While states have the right to regulate economic activity whose outcome is "rationally related to a legitimate government interest," defining a "legitimate government interest" remains a point of contention. The brief argues that the Court has an opportunity to resolve a conflict among the Fourth, Sixth, Ninth, and Tenth Circuits on this issue. Indeed, the "right to earn a living" is fundamental and thus protected by the Due Process Clause.

Ashcroft v. Raich, October 13, 2004 (PDF, 974 KB)
In 1996, California voters passed Proposition 215, legalizing the medical use of marijuana. This law directly violated the federal Controlled Substances Act and, consequently, state and federal DEA officials raided several homes, confiscating and destroying medical marijuana plants. Angel Raich and others sued, claiming this enforcement of the CSA violated the Commerce and Due Process clauses as well as the Tenth Amendment and the doctrine of medical necessity. Cato's brief supporting Raich asserts that healthcare issues have traditionally been the territory of state regulation and that the "Compassionate Use Act" legalizing medical marijuana falls within that purview. Additionally, the cultivation of marijuana plants at home for personal consumption does not constitute commerce and thus federal intervention is unconstitutional.

Rumsfeld v. Padilla, June 1, 2004 (PDF, 112 KB)
Jose Padilla is an American citizen currently being confined in a military brig. The Government claims he is an "enemy combatant" associated with al Qaeda. For almost two years, the Government denied Padilla access to counsel, claiming that the Executive has the power to identify "enemy combatants" and to hold them indefinitely — which Padilla alleges is a violation of his Fourth, Fifth, and Sixth Amendment rights. Cato's brief argues that Padilla should be permitted to meet with his attorney and is entitled to an evidentiary hearing concerning his status as an "enemy combatant."

Hamdi v. Rumsfeld, June 1, 2004 (PDF, 91 KB)
This brief argues supports the grant of habeas corpus to the prisoner Yaser Esam Hamdi, who was labeled an "enemy combatant" and held indefinitely on a military brig without access to an attorney. Further, habeas corpus has not been suspended during the "War on Terror" and the executive cannot choose when and if he will comply with the Fourth and Sixth Amendments.

Hiibel v. Sixth Judicial District Court Of Nevada, June 1, 2004 (PDF, 125 KB)
In May, 2000, Larry Hiibel was stopped by the police following information from the sheriff's department that a man with a car matching his had committed an assault. The officer attempted to confirm Hiibel's identity in accordance with Nevada's "stop and identify" law, which allows officers to stop persons "under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime," and detain that person in order to "ascertain his identity and the suspicious circumstances surrounding his presence abroad." Hiibel refused to comply and was subsequently arrested and convicted of "willfully resisting, delaying, or obstructing a public officer in discharging or attempting to discharge any legal duty of his office." Hiibel appealed this conviction, arguing that the Nevada law violated his Fourth and Fifth Amendment rights. This Cato brief argues that Hiibel's arrest raises profound questions concerning citizens' basic rights, specifically their right to voluntarily engage, or decline to engage, in conversations with law enforcement. By convicting Hiibel, the court criminalized his right to silence and non-self-incrimination, effectively diluting his constitutional rights.

Sabri v. United States, May 1, 2004 (PDF, 132 KB)
This brief argues that Section 666(a)(2) of Title 18, which attempts to address corruption by punishing anyone who "corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization … in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more" is unconstitutional. Specifically, the brief argues that this law inappropriately extends federal jurisdiction in violation of the "necessary and proper" clause of the Constitution. Conducting a textual and historical analysis of the words "necessary" and "proper," the authors conclude that the Eighth Circuit's ruling that the law need only be rationally related to a constitutionally permissible goal was incorrect.

Rancho Viejo v. Norton, April 1, 2004 (PDF, 162 KB)
This case concerns a proposed housing development whose construction was blocked by the Interior Department due to claims that the development would disrupt the habitat of the Arroyo Southwestern toad, an amphibian protected by the Endangered Species Act. The developers challenged this government intervention, claiming that the government's actions constituted an unlawful "taking." Cato's brief, filed jointly with the Pacific Legal Foundation, argues that the ESA, as applied to non-commercial species, lacks a substantial relation to interstate commerce. Throughout its history, the Court has never upheld a Commerce Clause regulation of an activity that was not substantially economic in nature, so the federal government action was an illegitimate intervention into intrastate, noncommercial activities. Indeed, because of these questionable federal interventions, the brief disputes the constitutionality of the ESA itself.

Parker v. District of Columbia, March 1, 2004 (PDF, 48 KB)
The plaintiffs, one of whom is Cato senior fellow Tom Palmer, having been refused permits for handguns, filed this complaint, alleging that the District of Columbia violated their Second Amendment rights. The Second Amendment, at a minimum, guarantees a fundamental right to possess a personal firearm within the home. Under current law, plaintiffs would be subject to criminal prosecution if they acquired personal firearms for self-protection.

Locke v. Davey, February 1, 2004 (PDF, 204 KB)
The state of Washington denied Joshua Davey a publicly funded scholarship because he had chosen to pursue a pastoral studies major at a religious college. Had he chosen to study theology at a public or a private secular university, he would have received the scholarship. Davey thus claims that Washington, under its Blaine Amendment, has limited the choice of an individual to pursue a religious vocation, in violation of the First Amendment Free Exercise Clause. Cato's brief, joined by the Institute for Justice, the Center for Educational Reform, Citizens for Educational Freedom, and the Goldwater Institute, argues that Washington's Blaine Amendment cannot be divorced from its antecedents in religious bigotry and that the state's efforts to control and channel individuals' free and independent choices about religion violate the Constitution.

McConnell v. Federal Election Commission, December 1, 2003 (PDF, 246 KB)
Government regulation of election-related political speech has long been guided by the decision in Buckley v. Valeo. However, this decision characterizes the basic elements of representative democracy as "corrupt" and creates unprincipled exceptions to the First Amendment protection of core political speech and association. This brief by Cato and the Institute for Justice argues that Buckley should be overturned, for several reasons: Politicians' responsiveness to those who support them is not corruption. If the public misperceives this aspect of democracy, the answer should be to have more speech to explain the Constitution, not a judicial abandonment of it. Campaign contributions are a form of expressive association and are protected by the Constitution. A return to First Amendment principles requires reversal of Buckley's willingness to force disclosure of the identities of private citizens making expenditures for political speech.

Eldred v. Ashcroft, June 1, 2003 (PDF, 64 KB)
This case involves the role of amici curiae and their impact on justice. The D.C. Circuit refused to consider additional arguments presented by amici in support of petitioners, thus eliminating any role for amici solely because those arguments had not been made or adopted by the parties — in violation Federal Rule of Appellate Procedure 29. The decision is in the minority of a 6-4 circuit split regarding the role of amici. In this brief, the Eagle Forum Education & Legal Defense Fund joined Cato to argue that resolving the circuit split regarding the role of amici is important to the proper administration of the judicial system and to the Federal Rules of Appellate Procedure.

Lawrence v. Texas, June 1, 2003 (PDF, 443 KB)
Texas's Homosexual Conduct Law makes homosexual (and only homosexual) sodomy illegal. In this brief, Cato argues that the law is unconstitutional because the Fourteenth Amendment requires that state criminal laws clearly notify citizens of their coverage, that they not discriminate arbitrarily against classes of persons, and that they respect fundamental liberties. It traces the history of sodomy statutes, which have historically focused on predatory and public activities, not private and consensual ones. It further argues that the Texas law violates the Due Process, Equal Protection, and Privileges or Immunities Clauses of the Fourteenth Amendment.

Grutter v. Bollinger, June 1, 2003 (PDF, 329 KB)
In the name of "educational diversity," the University of Michigan School of Law relied upon a preferential admissions process that ensured that a "critical mass" of minority applicants would be admitted. The "critical mass" was allegedly intended to provide adequate representation of favored minority groups so that their members would feel supported in expressing their opinions. This admissions practice resulted in odds of being admitted that were tens to hundreds of times higher for members of preferred ethnic groups than those for similarly-situated members of non-preferred groups. Cato's brief argues that the use of racial preferences to achieve a "critical mass" of minority students exceeds the limited privilege, recognized in Regents of the University of California v. Bakke, permitting the consideration of race as a factor in an individualized determination of an applicant's merits. Further, the pursuit of educational diversity is not a compelling justification for the use of racial preferences under the Equal Protection Clause.

McConnell v. Federal Election Commission, May 1, 2003 (PDF, 245 KB)
This case called into question the constitutionality of the Bipartisan Campaign Reform Act of 2002, often referred to as the McCain-Feingold Act. Campaign finance reform has long been a contentious political issue, with supporters claiming that the reform is necessary for the continued function of our democratic process and detractors instead arguing that the proposed reforms constitute a violation of First Amendment rights. This brief, joined by the Institute for Justice, takes a strong stand against McCain-Feingold, arguing that the current system of campaign finance regulations is neither coherent nor predictable, and that it infringes on core First Amendment activities. The foundational case of Buckley v. Valeo failed to provide applicable guidelines for determining the legality of campaign contributions and instead created a complex network of criteria that have been applied inconsistently. This brief advocates that Buckley be overruled and replaced with a more speech-protective regime, which, by protecting First Amendment rights, would resolve the majority of the conflicts related to McCain-Feingold.

Board of Education of Indep. School Dist. No. 92 of Pottawatomie County v. Earls, June 1, 2002 (PDF, 84 KB)
The Tecumseh, Oklahoma School District made participation in all extracurricular activities for middle and high school students conditional on their testing drug-free in a urinalysis test, in accordance with their Student Activities Drug Testing Policy. High school students and their parents challenged this policy, claiming that it violated their Fourth Amendment right against unreasonable searches and seizures. This brief, in which Cato was joined by the National Association of Criminal Defense Lawyers, the National Organization for the Reform of Marijuana Laws, and Common Sense for Drug Policy, supports the students' claim, arguing that suspicionless urine testing of non-athlete students "does not fit within the closely guarded category of constitutionally permissible suspicionless searches" and is a blatant violation of the right to privacy. The test is not narrowly drawn to satisfy any governmental interest and that it unreasonably singles out students for testing, who, because of their participation in extracurricular activities, are in fact less likely to abuse drugs than their peers.

Harris v. United States, June 1, 2002 (PDF, 78 KB)
William Harris, a drug dealer who carried an unconcealed semiautomatic pistol, was convicted for violating 18 USC § 924(c)(1)(A), which states that anyone who "uses or carries" a firearm in relation to a drug trafficking crime "shall, in addition to the punishment for such crime … if the firearm is brandished, be sentenced to … not less than seven years." Harris contested this conviction, claiming that brandishing a firearm constituted a separate statutory offense, of which he had neither been indicted nor convicted. Cato's brief, joined by the National Association of Criminal Defense Lawyers, argues that legal history and textual analysis indicate that brandishing is indeed considered a separate (here unproven) crime and so Harris should be re-sentenced under a different statutory provision.

Zelman v. Simmons-Harris, June 1, 2002 (PDF, 171 KB)
In response to the failure of many public schools in its poor urban center, the city of Cleveland, Ohio, established the Pilot Project Scholarship Program. In this program, students chosen by lottery were provided with tuition vouchers of up to $2,250 per year to use at participating public and private schools. As a result of this program, 96% of participating students enrolled in religiously affiliated schools, and the program was subsequently challenged as violating the Establishment Clause of the First Amendment. Cato's brief, joined by the Center for Individual Freedom, the Goldwater Institute, and the Milton and Rose Friedman Foundation, argues that if genuine choice exists between secular and religiously affiliated institutions within a school voucher program, there is no Establishment Clause violation. Here, given the existence of viable alternatives, including public schools with additional tutoring, magnet schools, and community schools, parents were fully able to make genuine choices uninhibited by government influence. Indeed, the program's criteria were facially neutral and served a valid goal of enhancing educational options and increasing the return on government funding.

A.D. Bedell Wholesale Co. v. Philip Morris, July 1, 2001 (PDF, 87 KB)
Cato's brief, joined by the Competitive Enterprise Institute and the National Smokers Alliance, argues that the settlement made by the major tobacco companies, outlined in the Master Settlement Agreement (MSA), constitutes a massive conspiracy in restraint of trade in violation of the Sherman Antitrust Act. Neither Parker nor Noerr-Pennington immunity immunize private parties engaging in state action that itself is illegal and beyond the state's sovereign powers. Moreover, the scope of the MSA exceeds the federal government's ability to regulate interstate commerce.

Atwater v. City of Lago Vista, April 1, 2001 (PDF, 469 KB)
Gail Atwater was pulled over for failing to wear a seatbelt and failing to ensure that her two children were also wearing seatbelts. According to Texas law, not wearing a seatbelt constitutes a misdemeanor crime, then punishable by a fine of $50. After being pulled over, however, Atwater was unable to produce her driver's license and proof of insurance, claiming that both had been stolen days earlier. Atwater was handcuffed and taken to a police station, where she was placed in a jail cell for an hour before being released. Atwater and her husband filed a lawsuit, claiming that her Fourth Amendment rights against unreasonable searches and seizures was violated. Cato's brief supports Atwater's claim, arguing that the Court should rely on the common law principles central to the Fourth Amendment, namely recognizing the prohibition on warrantless arrests for minor offenses not involving a breach of peace.

Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, January 1, 2001 (PDF, 158 KB)
A garbage disposal agency wanted to build a solid waste disposal site in an abandoned sand and gravel pit that contained ponds used by migratory birds. To complete the project, these habitats would have had to be drained and the water discharged. The agency was thus required to obtain a permit from the Army Corps of Engineers, which regulates the discharge of materials into "navigable waters" — including interstate waters whose damage could affect interstate commerce. The Corps denied the permit. Cato's brief, joined by the Institute for Justice, argues that the Corps' assertion of jurisdiction here exceeds the limits on the federal interstate commerce power. Our Constitution creates a federal government of specific, enumerated powers, and this power does not reach activities that are not commerce or activities where the commerce is not interstate, such as is the case here.

Harrison v. United States, October 1, 2000 (PDF, 65 KB)
Cato's brief contests the "petty offense" exception to the Sixth Amendment right to trial by jury, claiming that it has led to gross miscarriages of justice. The "petty offense" exception is incompatible with Article III's guarantee of a trial by jury for "all crimes" and the Sixth Amendment's provision of an "impartial jury" for "all criminal prosecutions." The Framers saw this right as absolute, so an exception for "petty" crimes is a constitutional perversion.

Browner v. American Trucking Association, October 1, 2000 (PDF, 301 KB)
Cato's brief, joined by the Institute for Justice, argues that Section 109(b)(1) of the Clean Air Act is unconstitutional when applied to non-threshold pollutants, because the Act does not supply the Environmental Protection Agency with a method by which to determine if these pollutants are allowable according to its Ambient Air Quality Standards. Specifically, the brief asserts that Congress violated the non-delegation doctrine here, thereby jeopardizing the separation of powers that the Framers believed was essential to the protection of individual liberty. By failing to provide clear guidelines concerning non-threshold pollutants, Congress failed to set forth an intelligible principle with which to guide the EPA's actions. Because of the non-delegation doctrine, in this case the EPA does not have the power to set these thresholds itself.

Boy Scouts of America v. Dale, June 1, 2000 (PDF, 223 KB)
James Dale served as an Assistant Scoutmaster until Boy Scouts officials learned that Dale had given an interview to a New Jersey newspaper supporting gay rights and admitting his homosexuality. Boy Scouts of America considers homosexuality to be at odds with its core values, and thus, upon learning of Dale's sexual orientation, it expelled him. Dale filed a lawsuit claiming that he had experienced discrimination based on his sexual orientation, in violation of a state statue prohibiting discrimination in places of public accommodation. Cato's brief, joined by the Eagle Forum Education & Legal Defense Fund, the Texas Justice Foundation, the Southeastern Legal Foundation, the Association of American Physicians & Surgeons, the Independent Women's Forum, and the Center for Individual Rights, argues that the New Jersey Supreme Court adopted an overbroad definition of "public accommodations," compromising the Boy Scouts' First Amendment rights. The Boy Scouts is not a "public" entity, but a private organization whose First Amendment right of freedom of association trumps any interest the New Jersey may have in preventing private discrimination.

Morrison v. United States, May 1, 2000 (PDF, 899 KB)
In the fall of 1994, Virginia Tech student Christy Brzonkala claimed that two of the school's football players, Antonio Morrison and James Crawford, repeatedly raped and assaulted her. After a state grand jury failed to find sufficient evidence with which to charge either Morrison or Crawford with the crime, Brzonkala filed suit under the federal Violence Against Women Act. Her suit concerned a provision ensuring a federal civil remedy for victims of violence even in the absence of criminal charges. Cato's brief, joined by the Institute for Justice, stresses that the limited scope of Congress's power, as constrained by the Commerce Clause, denies Congress the power to pass VAWA. Moreover, the Fourteenth Amendment authorizes the courts and Congress to take measures against civil rights violations by states, not by private individuals or institutions, so the actions of Morrison and Crawford do not justify federal intervention.

Jones v. United States, May 1, 2000 (PDF, 92 KB)
Dewey Jones threw a Molotov cocktail into the living room of his cousin's home, causing fire damage. Jones was convicted in federal court of one count of arson, one count of making an illegal destructive device, and one count of using a destructive device in relation to a crime of violence punishable as a federal offense (arson). He appealed his 35-year sentence as excessive and far larger than any sentence he would have received under state law. This Cato brief, joined by Professor Ronald D. Rotunda of the University of Illinois College of Law, argues that Jones's act of arson was in no way connected to interstate commerce and thus the case was properly within state, not federal, jurisdiction. The brief further stresses that the Constitution establishes a government of specifically enumerated, limited powers, and that this case is a prime example of the federal government improperly using the Commerce Clause to expand its power to regulate.

Gluzman v. United States, March 1, 1999 (PDF, 44 KB)
This brief cites Lopez v. United States to argue that only commercial activities are subject to federal authority under the Commerce Clause, and thus federal laws dealing with domestic abuse violate the Constitution. Furthermore, the Domestic Violence Clause permit the federal government to address violence within a state only if the state has claimed it is endangered and has been petitioned for federal assistance. Thus, what we consider today to be "domestic violence," a wholly non-commercial activity, should be addressed at the state level.

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