In a long (300+ pages!) and divided opinion, the Fifth Circuit Court of Appeals late Tuesday upheld a federal district court ruling that found the Indian Child Welfare Act (ICWA) unconstitutional on a variety of legal grounds. Although the court also overturned important parts of the trial court’s decision, the ruling signals a major victory for Native American children who are denied crucial legal protections thanks to ICWA. We filed several briefs in support of the plaintiffs in the case.

Passed in 1978, ICWA was intended to redress wrongful actions by state and federal agencies that often took Native children away from their families without good reason. But despite these good intentions, ICWA today often stands in the way of Native parents and of state child welfare agencies that are trying to protect Native kids from abuse and neglect. And because ICWA applies to “Indian children”—which it defines based on biology—it violates constitutional rules that prohibit the government from discriminating based on race.

ICWA also intrudes on the authority of states in unconstitutional ways. Unlike other federal Indian laws, ICWA applies to children based on their biological ancestry, regardless of where they live, and even if those kids are not tribal members. And it forces state officials to obey a separate, less protective set of rules even when applying statechild-safety laws. This means “Indian children” must be more abused and for longer before state child protection agencies can come to their aid. And ICWA effectively prohibits the adoption of Indian children by adults of other races, even where birth parents agree to the adoption. ICWA even bars Native parents from taking the steps necessary to protect their own children.

In Tuesday’s decision, in a case called Brackeen, the Fifth Circuit was equally divided on a number of important constitutional issues, resulting in a complex set of decisions that in important respects upheld a 2018 trial court decision that declared ICWA unconstitutional. When such equal divisions happen, the result is a “non-precedential” ruling that upholds the trial court’s decision but doesn’t establish a rule for future cases. Here, the court was equally divided on some issues, but found common ground on others.

First, the bad news. The majority of the court held that Congress had power to adopt ICWA under the Constitution’s “commerce clause,” and that the fact that ICWA is triggered by a child’s biological ancestry does not violate constitutional rules against racial discrimination. In the process of making this ruling, the court expanded the reach of federal Indian laws in some truly astonishing ways, which I’ll discuss more below. It also held that the fact that ICWA allows tribes to write rules that override state law does not violate the “nondelegation doctrine” (a legal theory that bars Congress from giving lawmaking authority to private entities). And it addressed several other important legal issues too complex to get into here.

But the judges were unable to agree on whether two other provisions of ICWA are constitutional. These are rules that require that Indian children be adopted by “other Indian families” instead of adults of other races, and that require Indian children in foster care to be placed in “Indian” foster homes, regardless of tribal differences. Since the judges couldn’t agree on those points, the trial court ruling declaring these parts of ICWA unconstitutional remains in place.

Peyman Pakdel is an engineer in Northeast Ohio who saved up for years to purchase an apartment in San Francisco where he intends to retire. He purchased the apartment in 2009, but did not immediately plan to live there, so he leased it to a tenant. The six units in the complex intend to turn the properties into condominiums, but in 2013 the city passed an ordinance requiring landlords to offer tenants lifetime leases if they want to convert units to condominiums. In other words, Pakdel won’t be able to occupy the property in which he has invested so much.

Ordinances like this are one of the reasons San Francisco has a fundamentally broken housing market. Recently, for example, a laundromat owner spent five years and over a million dollars in legal fees fighting with the city to convert his property to condos. As a result of such policies, housing has become scarce and rents in the town are the highest per square foot in the country. Thankfully, if the Takings Clause is properly interpreted by judges, many silly ordinances would run afoul of the Constitution.

Not being able to live in an apartment you own is clearly a significant infringement on property rights. Pakdel filed suit, arguing that the city’s restrictions violate the Fifth Amendment’s Takings Clause, which prohibits the government from taking private property for public use without just compensation. The Ninth Circuit ruled, however, that because the conditions in San Francisco derive from a legislative ordinance rather than an ad hoc permitting condition, no Fifth Amendment violation occurred. Pakdel has asked the U.S. Supreme Court to set the Ninth Circuit straight by making clear that the Takings Clause prohibits such permitting conditions whether they come from a legislature or a discretionary permitting process.

Cato has filed a brief supporting Pakdel’s petition to the Court. We argue that there is no basis in the Takings Clause for distinguishing between legislative conditions and ad hoc permitting conditions. To the landowner, the effect is the same: the government imposes onerous conditions before allowing them to use their land. Moreover, legislatively imposed conditions are worse because they have broader effects, thus magnifying the unconstitutional harms to property owners. Finally, there is no reason to expect less abuse from the legislature than from permitting officials. Legislatures are prone to being captured by special interests who demand all sort of exactions from and conditions on landowners. Government officials, whether they are legislators or permitting clerks, often see taking property without compensation as a way to get something for nothing. The Supreme Court should take Pakdel’s case to clarify that property rights are not second‐​class rights.

The Constitution requires that significant government decisions be made by principal officers who have been appointed by the president and confirmed by the Senate. In stark and ongoing violation of this constitutional requirement, the Food & Drug Administration has an entrenched process whereby mere employees sign off on major rules.

In 2016, for example, the FDA issued the Deeming Rule, which put the vaping industry under the government’s regulatory thumb. Yet no constitutionally appointed officer took responsibility for this controversial policy. Instead, the Deeming Rule bears the signature of a career civil servant.

A group of mom‐​and‐​pop vaping retailers, represented by the Pacific Legal Foundation, challenged the FDA’s Deeming Rule in a federal district court. They argued that the rule is invalid because it was finalized by someone without the constitutional authority to do so. Their lawsuit clearly had merit—as demonstrated by the FDA’s own actions. About 18 months after the litigation began, the agency had a properly appointed principal officer “ratify” the Deeming Rule, in an effort to “cure” the constitutional defect. The FDA’s cursory ratification took up a single paragraph.

The district court upheld the FDA’s “rubberstamp” ratification, and the D.C. Circuit affirmed. Now, the challengers seek Supreme Court review. Yesterday, the Cato Institute, joined by the Reason Foundation, filed a brief in support of the petitioners. We explain that there is much more at stake than vaping regulations. Due to a variety of factors (including recent Supreme Court decisions and presidential power grabs), a substantial amount of administrative action suffers an apparent defect in constitutional authority. As a result, agencies increasingly are turning to rubberstamp ratifications that deny aggrieved parties any meaningful relief for their constitutional harms. Our brief urges the Court to take the case and provide guidance on this important federal question.

In 1996, Congress passed the Congressional Review Act (CRA) to improve democratic accountability over the administrative state. The CRA creates a streamlined process for lawmakers to veto agency regulations before they take effect. According to its drafters, the CRA is designed to restore the “delicate balance between the appropriate roles of the Congress in enacting laws, and the Executive Branch in implementing those laws.”

There is, however, a big problem. Agencies routinely dodge the CRA by refusing to submit their rules to Congress. And if the rules aren’t transmitted, then lawmakers can’t review them, so agencies escape congressional oversight under the CRA. On average, agencies fail to submit about 12 percent of their rules to Congress for CRA review, according to the Congressional Research Service.

Enough is enough. After the Interior Department failed to transmit an important Endangered Species Act regulation, a coalition of county governments, represented by the Pacific Legal Foundation, filed suit in a federal district court, arguing that the agency violated the plain terms of the CRA by shielding its rule from congressional oversight. The district court dismissed the suit on jurisdictional grounds, and the Tenth Circuit affirmed. Even though it was “undisputed” that the Interior Department had violated the CRA, the court nonetheless closed its doors to the complaint. Now, the challengers seek Supreme Court review.

Yesterday, the Cato Institute filed a brief in support of the petitioners. We argue that the Tenth Circuit, by stripping the judiciary of its power to enforce the CRA, has effectively written agencies a blank check to enforce their ultra vires rules against the citizens of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.

The New York City Council passed landmark legislation last week that will allow citizens to sue police for violations of their Fourth Amendment rights. The bill awaits the signature of Mayor de Blasio, who has indicated support for the measure.

New York is the first city to pass legislation that would allow citizens to sue police officers for excessive force or unlawful searches and seizures without first overcoming the high hurdle of qualified immunity. The NYPD is the largest municipal police force in the United States, underscoring the wide reach of the landmark legislation.

^{Stephen Levin, above, introduced “Int. 2220-A — Ends qualified immunity for police officers”}

Police reform efforts have gathered steam in the United States, with all eyes on the trial for Derek Chauvin, the former police officer accused of killing George Floyd. But criminal prosecutions of police officers for excessive force are exceedingly rare, causing many to conclude that the best way to keep police accountable for unlawful acts is to allow citizens to sue police forces for damages.

Even so, the Supreme Court has stubbornly refused to reconsider its qualified immunity doctrine, which prevents the majority of lawsuits against officers for excessive force from going to trial. And while some members of Congress are working on eliminating the doctrine, many local governments aren’t waiting to see if they succeed. Instead, they’re introducing legislation that creates a path around the qualified immunity roadblock by establishing a local cause of action.

The NYC bill works the same way: it adds a new chapter to the NYC Administrative code, which establishes a local right to be free from excessive force and unreasonable searches and seizures. This right is designed to mirror the Fourth Amendment, and the legislation calls for it to be interpreted the same way. But it also allows citizens to sue police for the deprivation of that right, while explicitly providing that “qualified immunity or any other substantially equivalent immunity” will not shield officers from responsibility.

It’s not just individual police officers who are held accountable, either. The reform measure takes the major step of holding officers and their departments liable for violations of a citizen’s Fourth Amendment rights. Effectively, this creates two layers of accountability. First, police officers are incentivized to avoid misconduct so they don’t find themselves the target of litigation. But police departments also have to be wary of employing cops with poor track records, since they’re ultimately on the hook for any damages those officers cause. The upshot is that it will be increasingly costly for the NYPD—or, more precisely, New York taxpayers—to employ substandard officers who generate a disproportionate number of damages claims though their serial misconduct.

That provision also helps ensure victims of police misconduct have a complete remedy: if the officer isn’t able to pay for the damage caused, aggrieved individuals can also seek compensation from the officer’s employer. The bill also provides that prevailing plaintiffs may seek both attorney’s fees and punitive damages. It’s even possible to sue in equity: thus, if a police officer took a valuable keepsake while searching someone’s house, a person can sue to have the specific item returned instead of just the item’s monetary value.

The final provision of the bill requires the city to keep records that will allow the policy’s success to be measured. As the home of our nation’s largest municipal police force, New York’s new law sets a tremendous example for other cities to follow.

B.L., a high school sophomore at a Pennsylvania public school, didn’t make the varsity cheerleading team. She took to Snapchat to voice her frustrations and posted a picture of herself and a friend holding up their middle fingers, adding a caption with some F‐​bombs. When the picture was brought to the attention of the cheer coaches, B.L. was suspended from the junior varsity cheerleading team for the year.

Through her parents, B.L. sued the school district for violating her First Amendment rights, arguing that the school could not punish her for off‐​campus speech that did not occur in a school‐​sponsored forum or bear any mark of approval or endorsement by the school. Both the district court and the Third Circuit ruled in B.L.’s favor. The school district appealed to the Supreme Court, which granted review.

Cato now joins the Pacific Legal Foundation and satirist P.J. O’Rourke in a merits brief supporting B.L. at the Supreme Court. We argue that the distinction between on‐​campus and off‐​campus speech must not be blurred to expand schools’ power at the expense of students’ First Amendment Rights. B.L. was punished for speech that was created off campus, on the weekend, from her personal phone and social media account. As the Third Circuit correctly explained, allowing such speech to fall under the disciplinary purview of public schools would give school administrators “the power to quash student expression deemed crude or offensive – which far too easily metastasizes into the power to censor valuable speech and legitimate criticism.”

Such an expansion of school authority would not only harm students but also infringe parents’ rights to raise and discipline their children as they see fit. Further, it would displace law enforcement’s responsibility to investigate behavior that poses a threat or otherwise violates the law. Instead, schools should only be permitted to regulate student speech when the speech occurs in a place or time controlled and supervised by school staff, and only when necessary to address objective disruption of the learning environment.

Over 50 years ago in Tinker v. Des Moines, public schools were instructed that students do not shed their constitutional rights at the schoolhouse gate. Likewise, it’s time to remind schools that students do not shed their constitutional rights outside those gates either. Public schools should not be able to monitor students’ speech 24 hours a day, 7 days a week, and suppress student speech merely because they disagree with the message. We urge the Court to reaffirm its long‐​standing protections for First Amendment rights and affirm the Third Circuit.

The Supreme Court will hear arguments in Mahanoy Area School District v. B.L. on April 28.

Does the Fourth Amendment, which protects against “unreasonable searches and seizures,” prohibit warrantless drone surveillance? The Supreme Court has yet to answer that question, but an appeals court in Michigan recently considered the question, and in an opinion written by Judge Kathleen Jansen answered “Yes.” The court’s analysis is particularly noteworthy in that it relied heavily on Fourth Amendment cases besides those dealing specifically with aerial surveillance and may encourage other judges to do likewise when considering the constitutionality of warrantless drone surveillance.

The facts of the case, Long Lake Township v. Todd Maxon, are as follows: officials in Long Lake Township, Michigan alleged that a couple, Todd and Heather Maxon, had violated local zoning ordinances by keeping an excessive number of junk cars and other materials on their property. To support its case against the Maxons, Long Lake Township attached photographs of the Maxon property taken via drone. The Maxons moved to suppress these photos, arguing that Long Lake Township’s warrantless photography of their property from the air constituted a violation of the Fourth Amendment.

Since 1967, the touchstone of Fourth Amendment has been the so‐​called Katz test, codified by Justice Harlan in his solo Katz v. United States concurrence. Under the test, a government official is deemed to have conducted a Fourth Amendment search if two conditions are met: 1) the subject of surveillance has exhibited a subjective expectation of privacy, and 2) that subjective expectation is one society as a whole is prepared to accept as reasonable.

The Supreme Court has considered the constitutionality of aerial surveillance in three cases from the 1980s (California v. Ciraolo, Florida v. Riley, Dow Chemical v. United States) and held in all three that that manned warrantless aerial surveillance does not violate the Fourth Amendment.