Congratulations to Neil Gorsuch, who will be sworn in Monday as the newest Supreme Court justice. Gorsuch’s mentor, Justice Byron White, liked to say that each new justice makes for a new court, and I look forward to the breath of fresh air, intellectual rigor, collegiality, and constitutional seriousness that Justice Gorsuch will bring. I’m also glad that our nation’s political debate can move beyond this toxic episode and that we won’t ever have to discuss nuclear options with regard to judges ever again. 

Today’s removal of the filibuster — a parliamentary tool effectively requiring 60 votes to proceed with a vote on a matter — for Supreme Court nominees is the long overdue denouement of a process that began not with Senate Republicans’ refusal to vote on Merrick Garland, or even Harry Reid’s elimination of the filibuster for lower-court nominees in 2013, but with Reid’s unprecedented partisan filibusters in 2003. Recall especially the record 7 failed votes to end the filibuster of Miguel Estrada, who was blocked primarily because Democrats didn’t want President Bush to appoint the first Hispanic Supreme Court justice.

The Senate is now restored to the status quo ante, such that any judicial nominee with majority support will be confirmed. That’s a good thing.

RIP Partisan Filibuster (2003–2017)

Americans may take for granted that if they’re ever accused of a crime, they can choose their own attorney to represent them. The Supreme Court has ruled that Americans have a right to counsel in serious criminal cases, and nobody seriously argues that the government should make that important decision for us. 

Yet that is exactly what happens across the country when defendants are too poor to hire their own attorneys. While other countries such as the United Kingdom have long allowed indigent defendants to choose their own lawyers, American jurisdictions historically restrict that choice to either a court-appointed lawyer or an assigned public defender. 

In 2010, the Cato Institute published a study, Reforming Indigent Defense, which proposed a client choice model where poor persons accused of crimes would be able to choose their own attorney to represent them in court. If the accused opted for the public defender, he could make that choice, but if he wanted to explore other options, he could do that also. The Texas Indigent Defense Commission became aware of the Cato report and decided to give it a try with a pilot program in Comal County, near San Antonio. The program went into operation in 2015. 

Today, the Justice Management Institute released an evaluation based on two years of data from the Comal Client Choice program. The report, called The Power of Choice: The Implications of a System Where Indigent Defendants Choose Their Own Counsel, suggests that the program is working as well or better than the old system across a variety of metrics. 

The JMI study looks at four factors to assess the viability of the Comal program:

• Does the model impact the quality of representation? 
• Does the model produce a higher level of satisfaction and procedural justice?
• Does the model impact case outcomes?
• What is the impact of the model on overall cost and efficiency?

The study compares the results of Client Choice participants with the representations of defendants who chose to use the pre-existing court-appointment system.

While some aspects of representation were the same for both groups (for instance, client assessments of how hard their lawyers worked were not statistically distinguishable), participants in the Client Choice program were able to meet with their lawyers more quickly, had a stronger sense of fairness, and were more likely to either plead to lesser charges or exercise their right to trial than their peers. The report also finds that the Client Choice program did not increase costs in the system.

Perhaps as important as any objective metric, a majority of defendants who were offered the ability to choose their own attorney opted to do so, suggesting that giving indigent defendants some agency in their choice of representation has a value in itself. Freedom of choice matters to people. 

In too many jurisdictions, indigent criminal defense is in a state of crisis. Texas is in the vanguard with its Client Choice program. Hopefully these promising results will encourage more jurisdictions to consider injecting choice and market principles into their indigent defense systems.

Yesterday, Attorney General Jeff Sessions ordered a review of existing federal consent decrees with respect to troubled police departments. Sessions’s legal memorandum is right that primary responsibility for dysfunctional police agencies resides with local officials–mayors, police chiefs, and city councils. Those officials too often deflect criticism of their oversight failures with loud calls for a “federal investigation.” When the feds announce their intervention, attention shifts to what the federal findings and recommendations may be later on. For example, Mayor Rahm Emanuel was under heavy fire after the video of the Laquan McDonald shooting was disclosed. By agreeing to a federal investigation, Emanuel survived, at least temporarily.

Some on the right mistakenly believe that the Obama administration was “anti-police” and that the DOJ investigations exhibited some sort of bias against law enforcement. Not true. Sessions is making a grave mistake if he thinks previous DOJ investigations did not uncover severe problems in American policing. The problems are there. The real question is how to address them. In the education area, teacher unions are the main obstacles to reform. Police unions are the major obstacle to sensible accountability measures for police organizations. But over the long run, local mayors and city councils must make a sustained commitment to proper oversight of police. It is unrealistic to expect the Attorney General or a federal monitor to do their jobs.

For related Cato work, go here and here.

Since his election to Congress in 2012, Beto O’Rourke (D‑TX) has been one of the federal legislature’s most outspoken critics of the failed drug war. Rep. O’Rourke is in the news again this week following his announcement that he plans to run against sitting Senator Ted Cruz in 2018.

In November of 2011, O’Rourke spoke at Cato’s “Ending the Global War on Drugs” conference regarding his experiences as an El Paso native and the costs of drug prohibition on both sides of the border.

Rep. O’Rourke also spoke with Cato regarding his support for immigration reform in March of last year.

On Thursday, the Supreme Court ruled in Expressions Hair Design v. Schneiderman that imposing restrictions on how merchants inform buyers about the prices they charge triggers First Amendment scrutiny. This would seem to be an obvious conclusion, but the decision is an important, although limited, victory for those who want to convey honest information to their customers, and for those who have a right to receive that information.

The case dealt with New York Business Law § 518, which prohibits merchants from imposing a “surcharge” on customers who use credit cards, but allows for a “cash discount.” To put it simply: the law allows stores to advertise “discounts” for paying cash, but makes it a crime to advertise an economically equivalent “surcharge” for paying with plastic.

Expressions Hair Design, along with several other merchants, sued the state, arguing that the law was vague and a violation of their First Amendment right to convey information to their customers. The federal district court agreed, but the U.S. Court of Appeals for the Second Circuit reversed that decision. The circuit court’s ruling held that the First Amendment wasn’t implicated because the law didn’t regulate speech but merely regulated prices. The Supreme Court granted review to determine two issues: The threshold question of whether the law regulated speech rather than conduct and, if so, whether the law violated the First Amendment.

Chief Justice John Roberts, writing for a majority of the Court, held that the New York law was not only a price regulation dealing with conduct, but also a speech regulation: “What the law does regulate is how sellers may communicate their prices.” As he explained:

A merchant who wants to charge $10 for cash and $10.30 for credit may not convey that price any way he pleases. He is not free to say “$10, with a 3% credit card surcharge” or “$10, plus $0.30 for credit” because both of those displays identify a single sticker price—$10—that is less than the amount credit card users will be charged. Instead, if the merchant wishes to post a single sticker price, he must display $10.30 as his sticker price. Accordingly, while we agree with the Court of Appeals that §518 regulates a relationship between a sticker price and the price charged to credit card users, we cannot accept its conclusion that §518 is nothing more than a mine-run price regulation. In regulating the communication of prices rather than prices themselves, Section 518 regulates speech.

While this part of the Court’s decision is an important victory for free speech, the Court also held that the law was not vague and did not decide whether the speech restriction amounted to a First Amendment violation under the commercial speech doctrine. In what has become a theme, the Court made a point of ruling as narrowly as possible and remanded the case to the Second Circuit to make that hard balls-and-strikes call that John Roberts discussed at his confirmation hearing. This means the merchants will have to continue to fight for their rights in the lower court.

Although the judgment remanding the case to the circuit court was unanimous, Justices Stephen Breyer and Sonia Sotomayor (joined by Justice Samuel Alito) wrote separate concurring opinions. Justice Breyer continued his disheartening plea for the Court to adopt a rational-basis-type test when dealing with certain commercial speech (meaning the government wins). As Cato pointed out in our amicus brief, however, this approach has no foundation in First Amendment law. All restrictions based on content of speech should be subject to exacting scrutiny. Justice Sotomayor wrote a longer concurrence, arguing that because of the complexity of the case, the Court should have sought the input of the New York Court of Appeals (New York’s highest state court) to get a clearer picture of what the statute actually does.

Ultimately, while the victory was small, the Court chose to recognize the law for what it was—a restriction of the merchants’ ability to tell their customers the truth. Only time will tell whether the Second Circuit will now do the right thing and rule that the restriction violates the First Amendment.

Once again, a court has refused to recognize any meaningful limit to Congress’s authority to regulate Americans’ private lives through the Commerce Clause. On Wednesday, after a long delay in considering the case, the U.S. Court of Appeals for the Tenth Circuit reversed a district court order that had declared the U.S. Fish and Wildlife Service (FWS)’s regulations prohibiting the “taking” of the Utah prairie dog (effectively, anything that may disrupt its habitat) unconstitutional. (This is a case in which Cato had filed a brief nearly two years ago.)

The court held that, since Congress had a rational basis to believe that protecting the prairie dog “constituted an essential part of a comprehensive regulatory scheme that, in the aggregate, substantially affects interstate commerce,” the FWS regulations are authorized under Article I, section 8. This, despite acknowledging that “taking” the prairie dogs—which exist solely within the borders of Utah and have no economic value—is a “noncommercial, purely intrastate activity.”

The case was brought by People for the Ethical Treatment of Property Owners (PETPO), a nonprofit organization formed by Utah residents and property owners to protect their interests in the face of FWS’s burdensome regulations. Its members have been prevented from building homes, starting small businesses, and even from protecting local parks and cemetery grounds. Finally, enough was enough and PETPO brought suit against the FWS on the grounds that neither the Commerce Clause nor the Necessary and Proper Clause authorizes Congress to regulate this rodent on nonfederal land. Such is the bizarre dreamscape in which the Tenth Circuit exists: where the power to regulate interstate commerce somehow covers activities that are neither interstate nor commercial.

But how did we get here? The Commerce Clause, while always a fairly broad source of authority—at least since Chief Justice Marshall’s landmark decision in Gibbons v. Ogden (1824)—wasn’t always read as a congressional blank check. It wasn’t until 1942, when the post-New Deal Supreme Court held in Wickard v. Filburn that even wholly interstate, noncommercial activity can be regulated by Congress, as long as, looked at in the aggregate, the activity could theoretically impact interstate commerce if enough people engaged in it. And while the Court has made some effortsto place outer limits on Congress’s commerce power—most notably in United States v. Lopez (1995), United States v. Morrison (2000), and NFIB v. Sebelius (2012)—these opinions seem to have done little to actually rein in federal overreach. The medical-marijuana case of Gonzales v. Raich (2005), which held that an activity may be regulated if it’s plausible that Congress thought doing so would be an “essential part of a comprehensive regulatory scheme that, in the aggregate, substantially affects interstate commerce,” is the precedent most relied on here. The Tenth Circuit, uncritically following a line of much-maligned cases holding only the most tenuous connections to actual constitutional text, has managed to chip away at the limits on federal power even more than the Supreme Court has already done.

The Constitution’s Commerce Clause affords Congress the power to regulate only items, channels, or instrumentalities of interstate commerce. If Congress wants to regulate activities that “substantially affect” interstate commerce, that power rests in the Necessary and Proper Clause, which gives Congress the means to regulate interstate commerce—provided those means are both necessary and proper. But the activities prohibited by the FWS regulation don’t substantially affect interstate commerce. Moreover, the “take” rule isn’t necessary: Congress can regulate interstate commerce without interfering with residents’ use of their property. Nor is it proper: the power to regulate uses of property that don’t affect interstate commerce belongs to the states.

Hopefully PETPO will now appeal to the Supreme Court, which, newly invigorated by the words and ideas of an energetic textualist like Neil Gorsuch (who, by the by, wasn’t on this Tenth Circuit panel), will see this as another opportunity to place meaningful limits on federal authority. Until then, it appears that the good citizens of Utah will have to continue bearing burdens caused not by the critters at issue — this isn’t Bill Murray in Caddyshack — but by federal regulators’ use of powers that simply aren’t theirs to assert.