Tag: Supreme Court

Friedrichs Decision Is a Blow Against Educational Excellence

Today, an evenly divided Supreme Court affirmed a lower court’s decision in Friedrichs v. California Teachers Association to permit unions to continue charging nonmembers “agency fees” to cover collective-bargaining activities that the union supposedly engages in on their behalf. About half the states require agency fees from public-sector workers who choose not to join a union.

Not only do agency fees violate the First Amendment rights of workers by forcing them to financially support inherently political activities with which they may disagree (as my colleague Ilya Shapiro and Jayme Weber explained), but the unions often negotiate contracts that work against the best interests of the workers whose money they’re taking. For example, union-supported “last-in, first-out” rules and seniority pay (as opposed to merit pay) work against talented, young teachers. Moreover, a teacher might prefer higher pay to tenure protections, or greater flexibility over rigid scheduling rules meant to “protect” them from supposedly capricious principals.

Supreme Court Rejects Nebraska & Oklahoma Marijuana Suit against Colorado

This morning the Supreme Court declined to take up a lawsuit by the states of Nebraska and Oklahoma challenging Colorado’s Amendment 64 measure that legalized the sale and use of marijuana. Not just medical marijuana, but recreational use as well.

We detailed the arguments involved in the case last year:

The Nebraska/Oklahoma argument: because the federal government, through the Controlled Substances Act, has banned marijuana, states are not allowed to contradict that ban by creating a regulatory framework for legalization.  Further, Colorado’s official regulation of recreational marijuana imposes a nuisance burden on surrounding states due to an alleged increase in drug trafficking.  While Nebraska and Oklahoma disclaim any intent to force Colorado to “re-criminalize” marijuana, the suit argues that Colorado’s official efforts to regulate the legal marijuana industry bring the state into conflict with federal and international drug laws.

Colorado’s response: there is no conflict.  Federal marijuana prohibition is still in effect, and the decision not to prioritize enforcement in states that legalize marijuana came from the federal government, not Colorado.  If Nebraska and Oklahoma object to the manner in which the federal government is discharging its law enforcement duties in Colorado, they should be suing the federal government.  Colorado’s regulation of the marijuana industry is within its prerogatives under the CSA. As to the nuisance claim, Colorado argues that mere policy differences between states that don’t directly injure the sovereignty of other states are not actionable nuisances.

The legal basis for the lawsuit has been questionable from the beginning, with legal commentators both challenging its merits and pointing out the irony in two of America’s “reddest” states taking a legal posture that overruns state sovereignty in favor of federal power.

And, of course, if prohibition states are concerned with the costs, they could always legalize and regulate marijuana themselves and spare their justice systems the immense costs of prohibition.  

Today’s result is not surprising, especially after the Obama Administration urged the court to decline the case, and the outcome fits with our analysis of the case’s prospects in 2014:

Will the Supreme Court accept this case for review? That’s impossible to predict. However, the constitutional argument being advanced by Nebraska and Oklahoma is weak and so would likely fail. Just because the federal government enacts a law against marijuana, it does not follow that all the states have to enact laws against marijuana. And just because the federal police (FBI and DEA) have grown accustomed to having state and local police conduct marijuana raids and arrests, it does not follow that the local authorities can’t stop doing that. So long as the local police are not arresting or threatening to arrest federal agents for trying to enforce the federal law, there is no “conflict.” Thus, the Supremacy Clause does not come into play.

Today’s action at the Supreme Court amounts to a big boost to the marijuana legalization movement, which continues to gather strength and momentum.

For those interested in a deep dive into the legal issues, check out the Cato Policy Analysis by Robert A. Mikos, On the Limits of Federal Supremacy: When States Relax (or Abandon) Marijuana Bans.

Congress Can Deny Barack Obama the Power to Replace Justice Scalia

Senate Majority Leader Mitch McConnell (R-KY) responded to the sudden death of Supreme Court Justice Antonin Scalia with a press release saying, “this vacancy should not be filled until we have a new President.” Republican presidential candidates Ben Carson, Sen. Ted Cruz (TX), and Sen. Marco Rubio (FL) agree. Hillary Clinton spoke for many Democrats: “The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia’s seat to remain vacant dishonor the Constitution. The Senate has a constitutional responsibly here that it cannot abdicate for partisan political reasons.” Conor Friedersdorf says the no-vote stratagem is “illegitimate” because “the Senate does have an obligation to fulfill its ‘advice and consent’ obligation….A preemptive rejection of any possible Supreme Court appointment is self-evidently in conflict with that obligation.” Clinton and Friedersdorf are wrong. Senators have every right to advocate not holding a vote on an Obama appointment, and not to hold a vote.

Clinton and Friedersdorf are overlooking the “consent” part of “advice and consent.” Consent means the Senate is under no obligation whatsoever even to hold a vote on any presidential appointment. The Senate’s obligation is to do what the Senate wants, and only what the Senate wants. Those are the rules. To try to hold senators to a different rule is to try to change the rules on them–and people tend to resent that. Everyone is free to disagree with the positions individual senators or the Senate as a whole take on individual nominations or prospective nominations. But there is no question that senators individually or collectively can deny their consent to any actual or prospective nomination for any reason–just as the American people can vote for whomever they want, for whatever reason they want.

Indeed, President Obama isn’t even entitled to nominate a replacement for Justice Scalia–or at least, Congress can deny him that right. The Constitution gives Congress the power to decide how many seats there are on the Supreme Court. In 1789, there were only six. Given sufficient congressional support (i.e., veto-proof majorities in both chambers), Congress could reduce the number of Supreme Court justices from the current nine to eight. McConnell, Cruz, and Rubio could propose doing so right now. It seems strange to criticize senators who are merely expressing in what circumstances they will withhold their consent when Congress has the power to deny the president the ability to fill this vacancy entirely by itself eliminating this vacancy.

At the same time Democrats turn a blind eye to President Obama repeatedly ignoring constitutional limits on his power, they claim Republicans would dishonor the Constitution if they use powers the Constitution clearly grants them. That is unlikely to dissuade Senate Republicans from delaying a vote on Scalia’s successor until 2017. Nor should it. For more on this topic, please read this by my colleague Ilya Shapiro at Forbes.

Scalia’s untimely passing was a gut punch. I didn’t agree with him all the time. But I agree with Trevor Burrus about him. RIP.

RIP: Was Justice Scalia the Last Great Supreme Court Justice?

Justice Antonin Scalia died today. It is a profound loss to the Court, the nation, and to the study of law. Everyone should mourn his loss, no matter which side of the political spectrum they are on.

Yet, due to Scalia’s divisiveness, there will no doubt be many uncouth tweets, posts, and op-eds in the coming days from those who disagreed with him more often than not. While there are other justices on the “conservative” side of the Court, Scalia’s pugnacious and often vituperative opinions have a way of either getting under your skin (if you disagree) or making you triumphantly raise your fist in the air (if you agree). In my opinion, Scalia was not only finest writer ever to sit on the Court, he was one of the best rhetoricians in history.

In the coming days, we will see many reactions from across the political spectrum. I predict, and hope, that many of Scalia’s ideological opponents will give the man the respect he deserved. And perhaps that, more than anything, will be the testament to his enduring legacy. By any objective measure, Scalia is among the greatest justices in our history. With his penetrating logic and his colorful wit, Scalia was the most forceful and visible advocate for originalism, a theory of constitutional interpretation that was derided when he ascended to the bench and is now, for both liberals and conservatives, mainstream.

During law school, many of my classmates would comment on their intense dislike for Scalia. I always responded by pointing out how many opinions he had published in our textbooks. Those opinions weren’t just in there because they were comparatively fun to read, which is true, but because a Scalia opinion has a way of clarifying the legal questions at issue. They are perfect pedagogical devices. 

Antonin Scalia, Revolutionary

Justice Scalia, who was marking his 30th year on the Supreme Court, is indisputably the most influential jurist of my lifetime (and probably longer than that). He reoriented the study and practice of constitutional law towards the meaning of the actual Constitution and the interpretation of statutes toward their actual text. Originalism and textualism simply wouldn’t exist in a way worthy of their names without him.

But that’s not the only way in which he revolutionized the law. His writing style—clear, direct, and with obvious personality—blew fresh air through often staid and technocratic jurisprudence. He knew that he was writing not just for legal experts, but for the ages. There’s a reason that his opinions get reprinted in law school casebooks even when he’s not in the majority.

In coming days, we’ll see plenty of analyses of Scalia’s “greatest hits,” and there were plenty, whether you agree with him or not. I especially appreciate his opinion for the Court in District of Columbia v. Heller (2008), which confirmed that the Second Amendment protects an individual right. (And note that the dissenting justices pushed back on originalist grounds.) I especially regret his concurring opinion in Gonzales v. Raich (2005), where the Supreme Court authorized the federal government’s regulation of (marijuana) plants that people grow in their backyard for their own consumption. But agree with him or not in any particular case, you cannot deny his impact.

Spin Cycle: White House Spins SCOTUS Stay on Climate Plan

The Spin Cycle is a reoccurring feature based upon just how much the latest weather or climate story, policy pronouncement, or simply poo-bah blather spins the truth. Statements are given a rating between 1-5 spin cycles, with less cycles meaning less spin. For a more in-depth description, visit the inaugural edition.

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As one of us has already noted, on Monday evening the Supreme Court voted 5-4 to put President Obama’s Clean Power Plan on ice—where it will remain until the justices get a chance to rule on the regulatory package themselves or until a new President sidelines it. The White House, whistling past a graveyard of unrecyclable solar panels (thanks to all the arsenic in them), blew up the vorticity of its spin cycle into relativistic speeds, calling it a “bump in the road” and a “temporary procedural issue.”

Over in the UK, Lisa Nandy, the shadow energy and climate minister knows why: “There is such strong support within the US for Obama’s efforts on climate change that I think this ruling will prove to be only a very temporary issue.”

Au contraire! According to a Yougov poll late last month, a grand total of 9 per cent of Americans think global warming is the most important issue confronting us. In only one country was there less support:  Saudi Arabia.

All of this ignores some facts on the ground. This is the biggest intervention by the Supremes in ongoing litigation since they stopped the partial Florida recount in December 2000 in the case that became Bush v. Gore. They only do stuff like this when there’s a lot at stake, irreparable harm will be done by not intervening, and at least five justices believe it more likely than not that the challenge will succeed.

King v. Burwell and the Triumph of Selective Contextualism

This Thursday, the Cato Institute will release the 14th edition of the Cato Supreme Court Review, covering the Court’s October 2014 and 2015 terms. The lead article, “King v. Burwell and the Triumph of Selective Contextualism,” is by Jonathan Adler and yours truly. Here’s the abstract:

King v. Burwell presented the question of whether the Patient Protection and Affordable Care Act of 2010 (ACA) authorizes the Internal Revenue Service (IRS) to issue tax credits for the purchase of health insurance through Exchanges established by the federal government. The King plaintiffs alleged an IRS rule purporting to authorize tax credits in federal Exchanges was unlawful because the text of the ACA expressly authorizes tax credits only in Exchanges “established by the State.” The Supreme Court conceded the plain meaning of the operative text, and that Congress defined “State” to exclude the federal government. The Court nevertheless disagreed with the plaintiffs, explaining that “the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” The Court reached its conclusion by disregarding portions of the ACA’s text and considering only selected elements of the ACA’s structure, context, and purpose. The King majority’s selective contextualism embraced an unexpressed congressional “plan” at the expense of the plan Congress actually enacted.

Our article—which is available now at SSRN—quotes Darth Vader more often than any previous Cato Supreme Court Review article. (Probably.)

Adler and I will also discuss the King ruling on a panel at Cato’s 14th Annual Constitution Day Conference this Thursday, September 17, from 10:45am-12pm. Click here to register.