Legal Briefs
- 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. Commander Daniel Spagone, U.S.N., Consolidated Naval Brig, 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, Inc. (Wisconsin Right to Life II), 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.
- Gary 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.
- Alberto R. Gonzales v. Leroy 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 USA v. Mayola 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.
- Salim Ahmed Hamdan v. Donald H. 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.
- Neil Randall, et al., Petitioners, v. William H. Sorrell, et al., Respondents., 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.
- John 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.
- Angel McClary Raich, et al. v. Alberto Gonzales, Attorney General, et al., 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, Inc., Appellants v. Federal Election Commission, Appellees (Wisconsin Right to Life I), 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.
- Donald H. 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.
- Booker T. Hudson, Jr. 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.
- Alberto Gonzales, Attorney General, et al. v. State of Oregon, et al., July 1, 2005 (PDF, 102 KB)
Addressing limits imposed by the Commerce Clause on federal power to undermine or preempt the Death with Dignity Act, Oregon's physician-assisted suicide law.
- Linda Lingle, Governor of the State of Hawaii, et al. v. Chevron USA, Inc., January 1, 2005 (PDF, 2 MB)
Addressing, in a commercial rent control context, whether the Fifth Amendment's Just Compensation Clause authorizes a court to invalidate state economic legislation when the legislation does not substantially advance a legitimate state interest.
- Susette Kelo, et al. v. City of New London, Connecticut, et al., Brief of Amicus Curiae, December 3, 2004 (PDF, 270 KB)
Addressing the Fifth Amendment's limits on the power of government to take private property for "public use."
- Kim Powers, et al. v. Joe Harris, et al., December 1, 2004 (PDF, 154 KB)
Addressing whether intrastate economic protectionism constitutes a legitimate state interest.
- John Ashcroft v. Angel McClary Raich, et al., Brief of Amicus Curiae, October 13, 2004 (PDF, 974 KB)
Addressing the limits imposed by the Commerce Clause on the federal government’s power to regulate intrastate, medicinal use of marijuana.
- Donald H. Rumsfeld v. Jose Padilla and Donna R. Newman, as Next Friend of Jose Padilla, Brief of Amicus Curiae, June 1, 2004 (PDF, 112 KB)
Addressing the scope of the president's power to designate citizens as "enemy combatants" and hold them in solitary confinement, without access to an attorney, and without access to the civilian court system.
- Yaser Esam Hamdi and Esam Fouad Hamdi, as next friend of Yaser Esam Hamdi, v. Donald Rumsfeld, et al., Brief of Amicus Curiae, June 1, 2004 (PDF, 91 KB)
Addressing the scope of the president's power to designate citizens as "enemy combatants," and hold them in solitary confinement, without access to an attorney, and without access to the civilian court system.
- Larry D. Hiibel v. Sixth Judicial District Court Of Nevada, Humboldt County, et al., Brief of Amicus Curiae, June 1, 2004 (PDF, 125 KB)
Addressing the power of the police to demand identification from individuals who wish to remain silent
- Basim O. Sabri v. United States, Brief of Amicus Curiae, May 1, 2004 (PDF, 132 KB)
Addressing the scope of the Necessary and Proper Clause.
- Rancho Viejo, LLC v. Gale A. Norton, April 1, 2004 (PDF, 162 KB)
Addressing whether the Endangered Species Act's regulation of noneconomic activity is authorized under the Commerce Clause.
- Shelly Parker, Dick Anthony Heller, Tom G. Palmer, Gillian St. Lawrence, Tracey Ambeau and George Lyon v. District of Columbia and Anthony Williams, March 1, 2004 (PDF, 48 KB)
Addressing firearms restrictions in the District of Columbia.
- Gary Locke, Marcus S. Gaspard, Bob Craves, and John Klacik v. Joshua Davey, February 1, 2004 (PDF, 204 KB)
Addressing Washington State's Blaine Amendment, which denies scholarship funding to students pursuing a theology major.
- Mitch McConnell, et al., Appellants v. Federal Election Commission, et al., Appellees, December 1, 2003 (PDF, 246 KB)
Addressing the Bipartisan Campaign Reform Act of 2002, before the U.S. Supreme Court.
- Eric Eldred v. John D. Ashcroft, Brief of Amicus Curiae, June 1, 2003 (PDF, 64 KB)
Addressing the extension of intellectual property patents by Congress.
- John Geddes Lawrence and Tyron Garner v. The State of Texas, Brief of Amicus Curiae, June 1, 2003 (PDF, 443 KB)
Addressing sodomy laws in the state of Texas.
- Barbara Grutter v. Lee Bollinger, Jeffrey Lehman, Dennis Shields, and the Board of Regents of the University of Michigan, et al., Brief of Amicus Curiae, June 1, 2003 (PDF, 329 KB)
Addressing race-based preferences in the University of Michigan's admissions process.
- Senator Mitch McConnell v. Federal Election Commission, Brief of Amicus Curiae, May 1, 2003 (PDF, 245 KB)
Addressing the Bipartisan Campaign Reform Act of 2002, before the U.S. District Court.
- Board Of Education Of Ind. School Dist., No. 92 of Pottawatomie County, et al. v. Lindsay Earls, et al., Brief of Amicus Curiae, June 1, 2002 (PDF, 84 KB)
Addressing suspicionless drug testing of non-athlete students.
- William Joseph Harris v. The United States of America, Brief of Amicus Curiae, June 1, 2002 (PDF, 78 KB)
Addressing the increased mandatory minimum sentence for the "brandishing" of a firearm.
- Zelman v. Simmons-Harris, Brief of Amicus Curiae, June 1, 2002 (PDF, 171 KB)
Addressing the school voucher program in Cleveland, Ohio.
- A.D. Bedell Wholesale Co., Inc., and Triangle Candy & Tobacco Co. v. Philip Morris, Inc., R.J. Reynolds Tobacco Co., Inc., and Brown & Williamson Tobacco Corp., July 1, 2001 (PDF, 87 KB)
Addressing the constitutionality of the multi-state tobacco settlement.
- Gail Atwater v. The City of Lago Vista, Brief of Amicus Curiae, April 1, 2001 (PDF, 469 KB)
Addressing the warrantless arrests for minor offenses (in the case at hand, failing to use a seat belt).
- Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, Brief of Amicus Curiae, January 1, 2001 (PDF, 158 KB)
Addressing the limits of the federal interstate commerce power.
- Steve A. Harrison v. The United States of America, Brief of Amicus Curiae, October 1, 2000 (PDF, 65 KB)
Addressing the "petty offense" exception to the right to a trial by jury.
- Carol M. Browner, Administrator Of The Environmental Protection Agency v. American Trucking Association, Brief of Amicus Curiae, October 1, 2000 (PDF, 301 KB)
Addressing the Clean Air Act's regulation on non-threshold pollutants.
- Boy Scouts of America and Monmouth Council, Boy Scouts of America v. James Dale, June 1, 2000 (PDF, 223 KB)
Addressing the Boy Scouts and the freedom of association for private organizations.
- Antonio J. Morrison v. United States of America, Brief of Amicus Curiae, May 1, 2000 (PDF, 899 KB)
Addressing the Violence Against Women Act and the federal commerce power.
- Dewey J. Jones v. United States of America, Brief of Amicus Curiae, May 1, 2000 (PDF, 92 KB)
Addressing a federal arson law and the federal commerce power.
- Rita Gluzman v. United States of America, Brief of Amicus Curiae, March 1, 1999 (PDF, 44 KB)
Addressing whether or not the federal commerce clause extends to domestic abuse.