Nothing in section 7 [of the National Labor Relations Act]—which grants employees the rights “to self-organization” and “to bargain collectively through representatives of their own choosing”—limits these rights to workplaces where a majority of employees choose one union. Moreover, nothing in section 9 (which provides a mechanism for choosing a union that enjoys the power of exclusive representation) limits the ability of a group to bargain on a members-only basis. The law currently allows members-only representation.

Welcome news from the Environmental Protection Agency: Administrator Scott Pruitt is curbing often-collusive deals (“sue and settle”) by which the agency, sued by outside groups, agrees to adopt new policies or enact new regulations. (It also usually agrees to pay the outside groups handsomely in legal fees.) As The Hill puts it, the new policy (full EPA release here) focuses especially on transparency:

“We will no longer go behind closed doors and use consent decrees and settlement agreements to resolve lawsuits filed against the agency by special interest groups where doing so would circumvent the regulatory process set forth by Congress,” Pruitt said, adding that he is also cracking down on attorneys’ fees paid to litigants.

Under Pruitt’s new directive, the agency will post all lawsuits online, reach out to affected states and industries and seek their input on any potential settlements.

The EPA is pledging to avoid settlements that would make for a rushed regulatory process, or that obligate the agency to take actions that the federal courts do not have the authority to force.

Cato adjunct scholar Andrew Grossman discussed the issue in 2015 Senate and 2017 House testimony, noting that “The EPA alone entered into more than sixty such settlements between 2009 and 2012, committing it to publish more than one hundred new regulations, at a cost to the economy of tens of billions of dollars.” He observed that judicially enforceable consent decrees create “artificial urgency” for bulldozing through new regulations quickly, give favored outside organizations an added channel of influence not available to many of those directly regulated, and tie the hands of later administrations. And as I pointed out in this space a few years back, the issue is by no means confined to the EPA or environmental regulation, but serves as a way to expand government agency power while seeming to constrain it in education, social services, and many other areas.

But the next administration’s EPA chief could reverse Pruitt’s directive with the stroke of a pen. That’s one reason the U.S. Department of Justice — which has been doing its own welcome housecleaning of settlement practices lately — should continue to monitor and regularize litigation practices of this sort, and why Congress should proceed to consider legislation to curb sweetheart pacts on a more lasting basis. 

Should judges consider evidence that’s inadmissible at trial when deciding whether to certify a class for class-action litigation? Particularly given the serious consequences of certification—most defendants settle class actions to avoid greater liability, and non-certified cases are often not worth pursuing—due process should require that evidence presented at the class-certification stage meet the same standards as that presented at trial.

One case out of California illustrates how allowing inadmissible evidence in any part of a legal proceeding not only violates the due-process rights of defendants and absent class members, but contradicts recent Supreme Court rulings and the Federal Rules of Civil Procedure. Maria del Carmen Pena is the lead plaintiff of a group of agricultural employees alleging that they were denied breaks due them under the governing law. Pena tried to gain class certification by presenting a spreadsheet summarizing work hours, but this evidence was inadmissible for trial purposes because it was created by her attorney.

Nevertheless, the district court certified the class and the U.S. Court of Appeals for the Ninth Circuit affirmed. Cato has now filed a brief supporting the employer’s cert. petition, urging the Supreme Court to address just that evidentiary issue.

If, as the Supreme Court recently said in Walmart Stores, Inc. v. Dukes (2011), “mere allegations” are insufficient to support certification, then it is also wrong to allow otherwise inadmissible evidence to provide the foundation for certification. Because the Court insisted in Dukes that “certification is proper only if the trial court is satisfied, after rigorous analysis, that the prerequisites of Rule 23(a) [laying out the requirements for class certification] have been satisfied,” lower courts should consider examinations of both fact and legal merits when determining if certification is appropriate.

Adhering to the 1974 decision of Eisen v. Carlisle, in which the Court held that, “for purposes of determining certification, allegations made in the complaint are taken as true and the merits of the claim are not considered,” many lower courts avoid considering any issue at the certification stage that may overlap with a question on the merits—and thus have avoided requiring that evidence used to certify a class meet the normal standards for admissibility.

But Dukes established that due process demands a rigorous inquiry (which sometimes may go beyond the bare pleadings) before certification. When courts accept inadmissible evidence to support class certification, the basic requirements of due process are compromised. Once certified, expenses and risks often compel settlements divorced from merit considerations; certification is, as the Eleventh Circuit has explained, “the whole ball game.”

Absent class members also suffer because it is the act of certification that determines whether they are bound by a settlement or adverse judgment that wipes out their individual claims. Unfortunately, confusion over the decades-old holding in Eisen lingers; a refusal to view it in light of the Court’s more recent decisions has resulted in an inconsistent application of evidentiary standards.

The Court should take up Taylor Farms v. Pena, dispel confusion among lower courts, and protect due-process rights by clarifying that evidence submitted at the class-certification stage must meet the same time-tested standards as evidence submitted at trial.

As any child of five can tell you, taking a toy away in exchange for the promise of some future benefit does not change the fact that the toy was taken in the first place. This is also true of real property: A token gift of potential unknown value in no way changes the character of the initial taking. Under Supreme Court precedent, when all value of real property is regulated away, a taking has occurred and just compensation is due.

Gordon and Molly Beyer found themselves in just such a situation when they were informed that the nine-acre island in the Florida Keys they bought in 1970 for $70,000, intending to build a retirement home, had been reclassified as a bird rookery, requiring them to leave it in its natural state. Their island was zoned for general use at the time of purchase, but various regulatory actions restricted use over the years until the Beyers were informed that their property rights had quite literally gone to the birds. In exchange for the loss, they were awarded 16 nonmonetary, rate of growth ordinance (ROGO) points that might be sold to another property owner who wished to develop their land.

The Beyers pursued administrative review and inverse-condemnation proceedings, where a state court ultimately determined that no uses other than primitive camping and picnicking were allowed on the property, but that no taking had occurred. This was because the Beyers had no reasonable, investment-backed expectations for use of their property and because the award of ROGO points satisfied any expectations they had (if this is confusing to you, you’re not alone).

A series of fruitless appeals followed until finally in 2016, the Florida Supreme Court declined to hear the case. The Beyers―through their estate’s representative; the litigation dragged on so long that they’ve both passed away―are now requesting that the Supreme Court take their case. Cato has filed an amicus brief* supporting their petition and urging the Court to provide desperately needed clarity to regulatory-takings jurisprudence.

We argue that the Beyers were subject to a total taking and deserve just compensation for that loss. Giving them ROGO points does not change that analysis. Additionally, when engaging in an ad hoc, factual inquiry, courts must follow the Supreme Court’s instructions to consider three factors—economic impact, interference with investment-backed expectations, and the nature of the government action—rather than inappropriately focusing on just one of the three. Courts must consider how and when property owners form “reasonable” investment-backed expectations rather than assuming that property restrictions (or lack thereof) at the time of purchase play no role in shaping expectations.

Regulatory-takings jurisprudence is a quagmire that Florida courts further contort to ensure that state authorities can regulate without the constitutional responsibility to provide just compensation for burdened property. If the Court fails to take this case, it is not just property owners who will suffer. Allowing the state-court ruling to stand—blessing theft of property without compensation—may work directly against the purpose of the regulations; rather than providing effective conservation, lack of compensation may create a race to develop.

Consider the Beyers’ situation: if they had known in 1970 that they would not be able to build their retirement home one day, their best course of action would have been to develop the island to its highest allowable limit. Refusing compensation in cases that clearly fall under the Supreme Court’s total-deprivation-of-use rule will merely provide incentives to investors who want to avoid the risk of total loss to develop as much as possible, as quickly as possible.

The Court will decide whether to take the case of Ganson v. City of Marathon later this fall.

*This is the first brief that Cato research fellow Trevor Burrus has officially signed. He’s contributed to more than 100 over the years, but only recently became a member of the bar. Now he can get the public credit he richly deserves.

Yesterday, the President tweeted:

He then followed up with this:

It is true that the U.S. Supreme Court has long upheld the awarding or withholding of broadcasting licenses by the Federal Communications Commission (FCC). In 1968, Richard Nixon thought the networks were hostile to his bid for the presidency. After his narrow victory, the Nixon administration contrived a plan to indirectly sanction the speech of the networks, as I noted in my Cato Policy Analysis on the Fairness Doctrine:

In December, after the [1968] election, Clay T. Whitehead, the head of the White House Office of Telecommunications Policy, delivered a speech in Indianapolis proposing changes in the Communications Act of 1934. When their licenses were up for renewal, local stations would be required to demonstrate that they were “substantially attuned to the needs and interests of the community” and had offered a reasonable opportunity for the “presentation of conflicting views on controversial issues.” Local station managers and network officials would be held responsible for “all programming, including the programs that come from the network.” Those who did not correct imbalances or bias in network political coverage would be “held fully accountable at license renewal time.” The policy would have bite. If a station could not demonstrate meaningful service to all elements of its community, the license should be taken away by the FCC. Along with that threat came two offers: the license period for stations would be extended, and challenges to license renewal would become harder to sustain.

The Nixon administration argued that the government should make the network news monopoly offer various viewpoints. They invoked that now defunct Fairness Doctrine, which required a balance of views on public issues from broadcast license-holders. The media struck back:

A Washington Post editorial captures the spirit of the harsh response that met Whitehead’s speech: “the administration is endangering not simply the independence of network news organizations, but the fundamental liberties of the citizens of this country as well.”…Robert G. Fichtenberg, chairman of the freedom of information committee of the American Society of Newspaper Editors, called the proposed licensing standards “one of the most ominous attacks yet on the people’s right to a free flow of information and views.”

The Nixon administration began to back off. In March 1973, they introduced legislation that would extend the term of a broadcasting license from three to five years. The other proposals mentioned at the start of Nixon’s first term “were not included in the proposed legislation nor were they mentioned again by the administration.”

More recently, in 2004, seventeen U.S. Senators bullied the Sinclair Broadcasting Group out of showing a documentary harshly critical of presidential candidate John Kerry. In this case, the media lost: Sinclair backed down for fear of its affiliates losing their licenses. The Kerry documentary went unseen.

President Trump’s tweets promise unconstitutional attacks on freedom of speech and of the press. Not for the first time, the tweets show illiberal passions dominating a man whose job demands rationality, discipline, and a respect for fundamental law. Absent those, President Trump might consider Richard Nixon’s failure to bring the press to heel. Perhaps prudence might serve as a substitute for absent virtues. 

In Sunday’s episode of “Reality-Show Presidency,” we found out what happens when the president and the chairman of the Senate Foreign Relations Committee “stop being polite… and start getting real.” After President Trump blasted him in a series of tweets early Sunday, Sen. Bob Corker (R‑TN) shot back:

Senator Corker is hardly the only highly placed Republican to express grave doubts about Trump’s stability and competence. Daniel Drezner has assembled a list—now at 115 items and counting—of news stories in which the president’s own aides or political allies talk about him as if he’s a “toddler.” But since Corker’s not running for reelection, he felt free to go on the record: Trump “concerns me,” Corker said in an interview later that day, “he would have to concern anyone who cares about our nation.” His recklessness and lack of emotional discipline could, Corker said, put us “on the path to World War III.”

In Corker’s account, it’s an open secret that our 45th president is a walking constitutional crisis. Is there a constitutional remedy?

The conventional wisdom says no: we have impeachment if the president turns out to be a crook, and the 25th Amendment if he falls into a coma—but for anything in between “felon” and “vegetable,” tough luck. When he introduced his article of impeachment against President Trump this summer, Rep. Brad Sherman (D‑CA) explained that he’d focused on obstruction of justice because, sadly, “the Constitution does not provide for the removal of a President for impulsive, ignorant incompetence.” 

But when it comes to “the most powerful office in the world,” impulsive, ignorant incompetence can be as damaging as willful criminality. Did the Framers really leave us defenseless against it?

Actually, no: impeachment’s structure, purpose, and history suggest a remedy broad enough to protect the body politic from federal officers whose lack of stability and competence might cause serious harm. Contrary to the conventional wisdom, there’s no constitutional barrier to impeaching a president whose public conduct makes reasonable people worry about his access to nuclear weapons.

We tend to think of presidential impeachments in terms of the paradigmatic case: a corrupt, criminal president who abuses his power. Richard Nixon quit before he was actually impeached, but his case rightfully looms large in the public understanding of what the mechanism is for. As Cass Sunstein writes in his forthcoming book Impeachment: A Citizen’s Guide, “If a president uses the apparatus of government in an unlawful way, to compromise democratic processes and invade constitutional rights, we come to the heart of what the impeachment provision is all about.”

But that’s not all impeachment is about. During the Philadelphia Convention’s most extensive period of debate on the remedy’s purpose, James Madison declared it “indispensable that some provision should be made for defending the community against the incapacity, negligence, or perfidy of the Chief Magistrate.” Those faults might be survivable when they afflict individual legislators, Madison argued, because “the soundness of the remaining members would maintain the integrity and fidelity” of the branch as a whole. But “the Executive magistracy… was to be administered by a single man,” and “loss of capacity” there “might be fatal to the Republic.”

In practice, impeachment has never been limited to cases of “perfidy” alone. In its comprehensive report on the “Constitutional Grounds for Presidential Impeachment,” the Nixon-era House Judiciary Committee staff identified three categories of misconduct held to be impeachable offenses in American constitutional history: abuse of power, using one’s post for “personal gain,” and, most important here, “behaving in a manner grossly incompatible with the proper function and purpose of the office.” The House has the power to impeach, and the Senate to remove, a federal officer whose conduct “seriously undermine[s] public confidence in his ability to perform his official functions.”

One of our earliest impeachments—the first to result in a federal officer’s removal—fell into that category. It involved federal judge John Pickering, a man “of loose morals and intemperate habits,” per the charges against him. Pickering had committed no crime, but was removed by the Senate in 1804 for the “high misdemeanor” of showing up to work drunk and ranting like a maniac in court. Such conduct was “disgraceful to his own character as a judge, and degrading to the honor and dignity of the United States.”

Nor was Pickering the only federal official to lose his post for erratic behavior demonstrating unfitness for high office. Others include judges Mark Delahay (1873), “intoxicated off the bench as well as on the bench,” and George W. English (1926), whose bizarre conduct included, among other things, summoning “several state and local officials to appear before him in an imaginary case,” and haranguing them “in a loud, angry voice, using improper, profane, and indecent language.” “By his decisions and orders he inspired fear and distrust” Article V summed up, “to the scandal and disrepute of said court.” 

Do precedents from judicial impeachments count when it comes to the presidency, an office with vastly greater powers and responsibilities? No doubt the attempted removal of an elected president is more serious and potentially disruptive than impeachment of one of hundreds of federal judges. But the argument that presidents are singularly important cuts both ways: it’s far more dangerous to leave an unfit president in office than an unfit judge. Judges don’t have the federal law enforcement apparatus or the massive destructive capacity of the US military at their disposal.

In any event, there’s presidential precedent available as well, from the 1868 impeachment of Andrew Johnson, whom Princeton political scientist Keith Whittington has called “the pre-modern Trump.” The 10th article of impeachment against Johnson charged the president with “a high misdemeanor in office” based on a series of “intemperate, inflammatory, and scandalous harangues” he’d delivered in an 1866 speaking tour. Those speeches, according to Article X, were “peculiarly indecent and becoming in the Chief Magistrate” and brought his office “into contempt, ridicule, and disgrace.”

Johnson, who’d been blotto for his maiden speech as vice president, was supposedly sober during the “Swing Around the Circle” tour, during which he accused Congress of, among other things, “undertak[ing] to poison the minds of the American people” and having “substantially planned” a race riot in New Orleans that July.

Much of the offending rhetoric cited in Article X wouldn’t be considered particularly shocking today, but at the time, it was a radical departure from prevailing norms of presidential conduct. Gen. Ulysses S. Grant, dragged along on the tour, wrote to his wife that “I have never been so tired of anything before as I have been with the political stump speeches of Mr. Johnson. I look upon them as a national disgrace.”

Article X never came to a vote in the Senate, having been abandoned after failure to convict on what were believed to be the strongest charges against Johnson. Nor was it uncontroversial at the time.

But according to Rep. Benjamin Butler (R‑MA), a key impeachment manager in the Johnson case, the backlash against the president’s speeches made impeachment possible: “they disgusted everybody.” As Jeffrey Tulis explained in his seminal work The Rhetorical Presidency, “Johnson’s popular rhetoric violated virtually all of the nineteenth-century norms” surrounding presidential popular communication: “he stands as the stark exception to general practice in that century, so demagogic in his appeals to the people” that he resembled “a parody of popular leadership.”

Johnson’s behavior was, you might say, “not normal,” and what is “not normal” can sometimes be impeachable. On a number of occasions, the House has deployed that “indispensable” remedy against federal officers who, by their acts, revealed defects of intellect, character, and temperament “grossly incompatible with the proper function and purpose of the office.” Deliberate, criminal abuse of power may be “the heart of impeachment,” but our constitutional history suggests that the remedy is broad enough to reach “impulsive, ignorant incompetence” in an extreme case—should one happen to crop up.

Through all the chatter about Emoluments and Russian plots, “not normal” is at the heart of the fears evoked by the Trump presidency. That recurring lament, heard even from Republican Senators, often involves the president’s Twitter feed, his outlet for tantrums about bad restaurant reviews, Saturday Night Live skits,  “so-called judges” who should be blamed for future terrorist attacks, and the United States’ nuclear-armed rivals. 

In public appearances, Trump is equally incontinent. Whether he’s addressing CIA officers in front of the “Memorial Wall” at Langley or a gaggle of Webelos at the National Boy Scout Jamboree in West Virginia, the president rants about “fake news,” blasts his political enemies, and brags about the size of his Inaugural crowd. It’s a strange feeling when you find yourself almost relieved he didn’t take the opportunity to tell 30,000 Boy Scouts: “check out sex tape.”

Fans of the president’s speechifying praise him for “shaking things up” and “telling it like it is”—as if it’s only hypocritical Beltway pieties he’s skewering. Just as often, Trump tramples the sort of tacit norms that separate us from banana republic status, like: a president shouldn’t tell active-duty military to “call those senators” on behalf of his agenda, suggest that his political opponents should be put in jail, or make off-the-cuff threats of nuclear annihilation.

Still, in the current debate over impeachment, the conventional wisdom reigns. Even those who desperately want to repeal and replace the Trump presidency are convinced removal would be constitutionally illegitimate unless it can be shown that the president is a crook or a certifiable loon. 

As a result, they’re engaged in an awkward effort to shoehorn Trump’s ignominies into either a criminal or a clinical model. Impeachment advocates, like Rep. Sherman, emphasize obstruction of justice and tales of Kremlin conspiracies. Supporters of the “25th Amendment Solution,” like Ross Douthat and Rep. Jamie Raskin (D‑MD) strain to categorize Trump’s verbal incontinence as some sort of mental disorder.

My guess is, if you put Sherman, Douthat, Raskin et al on the couch for a word-association test (“say the first thing that comes to your mind…”), “Trump” might elicit responses like “crooked” or “insane,” but you’d probably get a lot more along the lines of “reckless,” “juvenile,” “incompetent,” “clownish”—and perhaps a few unprintable epithets. 

Secretary of State Rex Tillerson used an epithet of his own, if you believe the recent reports. The original NBC News story had Tillerson referring to his boss as a “moron” at a Pentagon meeting this summer; one of the reporters, later said that according to her source, it was actually  “[expletive deleted] moron.”

Like they say, there really is “a tweet for everything.” After the Tillerson story broke, internet sleuths went hunting, and someone dug up this gem from Trump’s feed, when he was subtweeting then-president Obama in October 2014.

The Framers are gathered at the Philadelphia Convention and one says: “I keep thinking we should include something in the Constitution in case the people elect a [expletive deleted] moron.”

Zing! But—just maybe—they did include something.

divWith television cameras rolling and Attorney General Jeff Sessions on hand in San Diego, the Coast Guard announced late last month that it had set a new record for cocaine seizures at sea—more than 455,000 pounds through September 11, topping last year’s record. 

At last we’ve turned the corner in the war on drugs. Right? 

Don’t bet on it. When Americans read about ever-larger drug busts, or when we watch television shows about drug enforcement, we get the impres­sion that drug enforcement agents are clever and innovative, always staying one step ahead of the sinister pushers. But in reality the drug distributors are the innovative ones—because they have a financial incentive to be. 

That’s why we keep reading the same story. 

In 2015 the Coast Guard announced the largest submarine drug bust ever, $181 million worth of cocaine. 

In 2001 a Coast Guard crew seized more than 13 tons of cocaine in what authorities called “the largest cocaine seizure in U.S. maritime history.” 

Back in 1998 Attorney General Janet Reno and Treasury Secretary Robert E. Rubin announced more than 100 indictments and the seizure of some $150 million from Mexican banks, representing a successful conclusion to “the largest, most comprehensive drug money launde­ring case in history.”

Indeed, it seems that not a week goes by without a report of “one of the biggest drug busts in Utah’s history,” “Brooklyn’s biggest drug bust in history,” “one of the biggest drug busts in New York City history,” “the largest drug bust ever in the United States outside of Florida,” or—drum roll, please—“the largest drug bust in history.” Visit CBSNews​.com for pictures of “17 massive drug busts.”

Law enforcement agents and journalists love those stories—they publicize the “success” of the war on drugs, and they offer the journalists great visuals and great numbers. Helpful police flacks always provide some sexy dollar figures—cocaine or heroin or meth with a street value of $3.3 million, $20 million, $73 million, $2 billion, $4 billion.

This has been going on forever. In a 1991 San Francisco case, billed as the biggest heroin bust ever, television cameras panned over 59 boxes containing 1,080 pounds of heroin—enough to supply each of the country’s estimated 500,000 heroin addicts for a month. Drug war officials said the street value of the heroin was $2.7 billion to $4 billion. 

It’s true that the drug warriors are interdicting more drugs at our borders all the time. Seizures of cocaine have risen dramatically since President Ronald Reagan revved up the drug war in the 1980s. But does that indicate success? More likely, it means that more drugs are crossing our borders, and officials are interdicting about the same percentage as before. The street prices of cocaine and heroin have been falling for years, a pretty good indication that plenty of both are still crossing our borders.

As Mark A. R. Kleiman, a leading drug policy scholar, said back in 1991 about the California raid, “For any shipment like this that you catch, you can assume that many more get through.” 

Kleiman has a point. Drug distributors have to stay one step ahead of the cops in order to stay in business. 

The Drug Enforcement Agency and other law enforcement organizations are bureaucra­cies, and like all bureaucracies they tend to be inefficient. Police officers and drug agents are paid whether they slow drug traffic or not. In fact, they may receive more funding if the drug problem gets worse. Drug dealers, on the other hand, are entrepre­neurs. If they outwit the officers, they make big money. That economic incentive spurs creativity, innovation, and effi­ciency. 

When the Supreme Court in 1989 approved surveil­lance flights over private property to search for marijuana fields, marijuana growers began moving indoors and under­ground. Every week brings reports of innovations in drug smuggling: people who swallow heroin and carry it into the United States in their stomachs; drugs placed in the luggage of unaccompanied children on international flights; cocaine implanted in a pas­senge­r’s thighs; liquid cocaine; cocaine chemically modified to be odorless and pliable; tunnels, drones, and catapults to get across the U.S.-Mexican border—and those are just the methods police have discov­ered.

Around the world, drug enforcers face what Ethan Nadelmann of the Drug Policy Alliance calls the “push-down/pop-up factor”: push down drug production in one country, and it will pop up in another. Since the stepped-up drug war in the 1980s, drugs have flowed into the American market at different times from Turkey, Mexico, Burma, Afghanistan, Colombia, Peru, and other places. As long as Americans want to use drugs, and are willing to defy the law and pay high prices to do so, drug busts are futile. Other profit-seeking smugglers and dealers will always be ready to step in and take the place of those arrested. 

“We’ve cut off the head of the dragon,” said Robert Bender, head of the DEA’s San Francisco office, in announcing that heroin bust back in 1991. 

But in the decades since, the DEA has discovered that it had cut off the head, not of a dragon, but of a Hydra—the nine-headed monster in Greek mythology that couldn’t be killed because whenever one of its heads was cut off, two more grew to replace it. Is there any reason to hope that this latest Coast Guard triumph will be any different?