Tag: Constitution

Trump’s Executive Orders on Crime

Yesterday, President Trump’s pick for Attorney General, Jeff Sessions, was sworn into his office. Trump used the occasion to sign three executive orders relating to crime.  In this post, I want to briefly scrutinize these orders and explain what impact they may have on our criminal justice system.

One order calls for the creation of a task force on crime reduction.  The new Attorney General will appoint people to the task force and they will meet and discuss ideas and make recommendations for Trump. A second order is titled “Preventing Violence Against Federal, State, Tribal, and Local Law Enforcement Officers.” This order is also about exploring new ideas and strategies to “enhance the protection and safety” of law enforcement officers.  The third order concerns enforcing federal law against transnational criminal organizations that employ violence and derive revenue “through widespread illegal conduct.”  Working groups will be established to discuss ideas and make recommendations to Attorney General Sessions and President Trump.

Neil Gorsuch Will Make a Fine Justice

My first choice from the president’s fabulous list of terrific judges – they’re all winners, believe me (no really, solid list) – was probably the judiciary’s twitter laureate, Texas Supreme Court Justice Don Willett, but Judge Neil Gorsuch of the Tenth Circuit was right up there. As you can see by my statement to CNN, I’m pleased as punch with the selection. 

There’ll be time enough to analyze Judge Gorsuch’s work, but after reading a stack of his opinions over the weekend, the most salient parts of his judicial record are as follows:

  1. A keen appreciation for constitutional structure as a guarantor of our rights and liberties.
  2. A real devotion to originalism – probably more than the self-described “faint-hearted originalist” Antonin Scalia – and textualism.
  3. Strong support for the freedom of speech and religion, and the First Amendment more broadly.
  4. Skepticism of the administrative state.
  5. Like Scalia, he construes criminal statutes narrowly, so people aren’t convicted and punished without the government’s meeting its evidentiary burden or establishing that it didn’t violate constitutional rights in arresting and prosecuting defendants.
  6. Really, really good writing, which even Justice Elena Kagan has praised.

Gorsuch also maintains a good relationship with Cato and has published a Policy Analysis with us. In short, Donald Trump has managed to pick a nominee who should please everyone other than progressives: social conservatives, libertarians, legal elites, and I imagine the populists who trust him to pick “the best judges.” Left-wing activists are already talking about how Gorsuch is extreme and is anti-women, workers, yada yada – they have to raise money somehow – but I find it hard to see how Senate Democrats will muster 40 votes to sustain a filibuster against someone who was unanimously confirmed in 2006, particularly with a tough 2018 map.

For more analysis, see my short piece in the New York Post, plus Andrew Grossman and David Rivkin in the Wall Street Journal, as well as these excellent essays by Ramesh Ponnuru and Ed Whelan.

Coming to Mr. Trump’s Aid in the Matter of Judicial Selection

An article cited in the Cato Clips late yesterday caught my eye: “Libertarian Judicial Activism Isn’t What the Courts Need.” Written by Texas attorney Mark Pulliam, a sometime contributor to such libertarian publications as Reason and The Freeman, among others, it was posted at a site called “Southeastern Texas Record” and a day earlier at “American Greatness” (I leave it to the reader to discern what that site is about). The title speaks for itself. As the first named target of the piece, I’m given to respond, briefly.  Others, in order of appearance, are Randy Barnett, Clark Neily, Ilya Shapiro, Kermit Roosevelt III, Dick Carpenter, Anthony Sanders, and, by implication (their book, The Dirty Dozen, is cited), Bob Levy and Chip Mellor—a veritable rogues gallery of libertarian legal scholars.

Could we all be wrong? Apparently so. We’ve “devised a novel theory that the Constitution, properly understood, protects a person’s ‘right to do those acts which do not harm others,’” Pulliam argues, “enforceable against the federal government and the states,” and “it is only judges who get to decide whether a particular law is justified constitutionally.” What’s worse, we’re urging President-elect Trump to appoint adherents of this “fanciful theory” to the Court.

Don’t Disparage the First Amendment

When Simon Tam formed an all Asian-American rock band, he knew it needed a name that would capture the band’s identity and ethnic pride. He chose “The Slants” to, in his own words, “take on these stereotypes that people have about us, like the slanted eyes, and own them.” The Slants knew they might have some critics, but they weren’t expecting that one would be the U.S. Patent and Trademark Office (PTO), which punished them for their naming choice by denying their trademark application.

The PTO acted under a provision of the Lanham Act (the federal trademark statute) that bars the registration of any trademark “which may disparage … persons, living or dead, institutions, beliefs, or national symbols.” After a three-judge panel of the U.S. Court of Appeals for the Federal Circuit upheld this denial, the full court reheard the case and reversed, striking down the disparagement clause as violating the First Amendment. The case is now before the Supreme Court.

A Constitutional Amendment to Re-Empower the States

When the Framers designed our federalist system, they assumed that the federal government would be limited to those powers actually enumerated in the Constitution and that it would exercise those powers only when authorized by statute. Further, to give the states some say in the drafting of these statutes, one half of the federal Congress—the Senate—was elected by the state legislatures themselves and designed to reflect the interests of the state governments.

Today, none of these elements of our original design remain. The Supreme Court has allowed the federal government to control nearly limitless activities, supposedly as an exercise of its power to regulate interstate commerce. The executive branch acts as its own de facto legislative branch, “interpreting” statutes through executive actions and agency rulemaking to unilaterally give itself the powers it wishes to exercise. And after the passage of the Seventeenth Amendment, senators are now elected by popular vote, meaning there is no longer any direct link between the state and federal governments. The result of these three changes is that states have less power than ever – and there’s not much they can do about it.

To solve that problem, Representatives Rob Bishop (R-UT) and Cathy McMorris Rodgers (R-WA) recently introduced the “Re-Empowerment of the States Amendment,” a proposal that would allow two thirds of the state legislatures to repeal any “Presidential Executive order, rule, regulation, other regulatory action, or administrative ruling issued by a department, agency, or instrumentality of the United States.”

Importantly, this amendment would not allow states to repeal the text of statutes that have duly passed both houses of Congress. This isn’t an amendment to change the system of bicameralism that the Framers designed; instead, it’s an amendment to restore the checks on the executive branch that existed before the massive expansion of the administrative state. As the amendment’s creator David Hemingway has explained, “The practical result would be to enhance the power of Congress since it would encourage the president to work with Congress rather than govern by issuing executive orders.”

Constitution Day

Tomorrow, September 17, is Constitution Day in America, celebrating the day 229 years ago when the Framers of the Constitution finished their work in Philadelphia over that long hot summer and then sent the document they’d just completed out to the states for ratification. Reflecting a vision of liberty through limited government that the Founders had first set forth 11 years earlier in the Declaration of Independence, “We the People,” through that compact, sought “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”

The political and legal history that has followed has been far from perfect, of course. Has any nation’s been otherwise? But in the great sweep of human affairs, we’ve done pretty well living under this, the world’s oldest written constitution still in effect. Much that has happened to and under the Constitution during the ensuing years has been good, such as the ratification of the Civil War Amendments, which incorporated at last the grand principles of the Declaration of Independence; much has not been so good, such as the major reinterpretations of the document, without amendment, that took place during the New Deal, giving us the modern executive state that undermines the Founders’ idea of liberty through limited government.

Here at the Cato Institute we’ve long celebrated this day as we did yesterday with our 15th annual Constitution Day symposium. Those who missed the event, which concluded with Arizona Supreme Court Justice Clint Bolick’s B. Kenneth Simon Lecture in Constitutional Thought, will be able to see it in a couple of days at Cato’s events archives. At the symposium, as we do every year, we released our 15th annual Cato Supreme Court Review, which is already online, along with the volumes from previous years. As the Founders and Framers understood, liberty under constitutionally limited government will endure only as long as it remains alive in the hearts and minds of the people. That’s why we mark this day each year.

The Supreme Court Misread Constitutional History Regarding “One Person, One Vote”

Two months ago, the Supreme Court ruled that states have leeway in determining how to draw their legislative districts, more specifically that they don’t have to equalize the number of voters per district to satisfy the constitutional principle of “one person, one vote.” The decision was really a “punt,” not resolving the tensions between “representational equality” and “voter equality”; it’ll take some future case after the next census to force the justices to face the issues left unresolved. 

Former Cato intern (and future legal associate) Tommy Berry and I have now published an essay in the Federalist Society Review explaining how the Court “shanked” that punt by misreading constitutional structure and application. Here’s a sample (footnotes omitted):

In Evenwel, the Court decided that it is acceptable for a state to ignore the distinction between voters and nonvoters when drawing legislative district lines. According to the Court, a state may declare that equality is simply providing representatives to equal groups of people, without distinction as to how many of those people will actually choose the representative. A state may use this constituent-focused view of equality because “[b]y ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation.”

But ignoring the distinction between voters and nonvoters achieves a false picture of equality at the expense of producing far more serious inequalities. Rather than placing nonvoters and voters on anything approaching an equal political footing, it instead gives greater power to those voters who happen to live near more nonvoters, and less power to those who do not.

As we argued before the decision came down, the framers of the Fourteenth Amendment recognized that granting such extra voting power runs the risk of harming the very nonvoters to whom it ostensibly grants representation. This recognition manifested itself in the enactment of the Fourteenth Amendment’s Penalty Clause. In both ignoring that clause and oversimplifying the debates over the Fourteenth Amendment, the Court’s opinion paints an incomplete picture of constitutional history.

Read the whole thing. For more, see Tommy’s blogpost on our article, as well as our earlier criticism of Justice Ginsburg’s majority opinion for misreading the Federalist Papers.

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