At just about the same time FBI Director James Comey was discussing how “extremely careless” Hillary Clinton was with classified information during her time as Secretary of State, the president of the National Education Association, the nation’s largest teachers union, was tweeting this: https://​twit​ter​.com/​L​i​l​y​_​N​E​A​/​s​t​a​t​u​s​/​7​5​0​3​4​4​3​1​5​9​3​5​8​83265 And this: https://​twit​ter​.com/​L​i​l​y​_​N​E​A​/​s​t​a​t​u​s​/​7​5​0​3​4​6​7​5​8​3​0​4​2​39616 And doing this: https://​twit​ter​.com/​L​i​l​y​_​N​E​A​/​s​t​a​t​u​s​/​7​5​0​3​6​7​1​1​4​7​1​6​9​66912 All of this, by the way, took place at the NEA’s national convention. Now, is there anything wrong with a union endorsing and campaigning for a presidential candidate? Heck no! But there is a huge problem when teachers, as a condition of working at government schools, are required to furnish funds for those unions. I know the response: The “agency fees” teachers in many states are compelled to supply only cover collective bargaining, which is not political. Of course, such bargaining is absolutely political—negotiating with government entities is inherently political—and somtimes coming in at 65 percent or more of full dues, a lot of agency fee money is almost certainly going to more than just collective bargaining and administrative stuff. And money is fungible. Dollars that free payers supply for collective bargaining ultimately frees up other bucks for, I don’t know, maybe straight-out politicking! Sadly, as you probably know, the U.S. Supreme Court tied up on this 4–4 earlier this year, maintaining a lower court ruling that agency fees are not a violation of constitutional speech and association rights. But just because the Supreme Court stumbled doesn’t mean the political branches of government can’t act to end forced union funding. And from I saw on Twitter yesterday, justice requires that compelled support of unions end.

It should surprise no one that the government isn’t particularly good at respecting property rights. Still, the Constitution requires that property owners be provided with “due process of law” against arbitrary and unjustified deprivation of their right to put their property to beneficial use. According to several federal appellate courts, however, landowners lack such protections unless they show that they have a statutory “entitlement” to use their land.

This is circular Humpty Dumpty logic. Indeed, that approach impermissibly presumes the legitimacy of restrictions, without considering whether they are lawfully applied.

Most recently, the New York-based U.S. Court of Appeals for the Second Circuit employed the “entitlement” theory to deprive a small developer of its right to upgrade run-down apartment buildings. The NYC Landmarks Commission deprived Stahl York Avenue Company of its property rights by designating these nondescript buildings as landmarks—this despite a previous ruling that these exact buildings lacked any architectural or cultural merit worth preserving.

Courts across the country are deeply split over landowners due-process rights, so Cato and the National Federation of Independent Business have filed an amicus brief urging the Supreme Court to take up Stahl’s case.

The “entitlement” theory itself contradicts longstanding Supreme Court precedent. “Long before the original States adopted the Constitution, the common law protected an owner’s right to decide how best to use his property,” wrote Justice John Paul Stevens in Moore v. City of East Cleveland (1977). Against that common-law background, the Court in Euclid v. Ambler Realty (1926) held that an infringement on property rights “must find [its] justification in some aspect of the police power, asserted for the public welfare.”

Indeed, 60 years later the Court reaffirmed that such infringements must “substantially advance legitimate state interests.” Agins v. City of Tiburon (1980). That due-process test—whether a proposed land-use regulation substantially advances legitimate state interests—is turned on its head when the regulation is presumed to be valid unless the owner can point to a specific statutory “entitlement” (permission from the legislature to use the land in that particular way).

In addition, regulator-friendly historical-preservation rules have lead to various interests in cities that follow the entitlement approach to over-preserve buildings across the nation. In Manhattan and Baltimore—two major cities within “entitlement” jurisdictions—nearly a third of the city mass is landmarked. Yet in places with different legal rules, like Philadelphia, Chicago, and San Francisco—pretty historic burgs!—only 1–5 percent of the city is landmarked. (See pages 13–19 of our brief for details, including a nifty map of Manhattan that shows more preservation in wealthier, politically more powerful neighborhhods.)

NIMBY (“not in my backyard”) interests abuse preservation powers in permissive jurisdictions to prevent development like Stahl’s. But over-preservation isn’t economically harmless: it imposes significant negative effects on property values, tax revenues, affordable housing, and the environment. It also chills new residential construction and drives up the price of housing and rents, including in surrounding areas. Moreover, it foists highly expensive maintenance costs onto landlords who are required to keep everything appropriately “historic.” The character of cities changes over time, while over-preservation freezes a city in time and ensures that economic redevelopment cannot occur.

In Stahl York Avenue Co. v. City of New York, the Supreme Court should take up this important question regarding a disturbing national trend, and ensure that property rights aren’t subject to the whims of clerks and municipal bureaucrats.

Unable to legislate new restrictions on what kind of arms can be sold, the government has embarked on a long-term effort of adding an untold number of Americans to “no buy” lists—based on the unfounded conjecture that they pose a “danger” to others—and deprive them of a fundamental constitutional right. The Gun Control Act of 1968 and NICS Improvement Amendments Act of 2007 requires that agencies with pertinent records on who is or is not “a mental defective” disclose those records to the attorney general so those people can be excluded from purchasing arms through the National Instant Criminal Background Check System (NICS).

The Social Security Administration (SSA) has proposed a new regulation that would create a process for transferring the records of those who seek a “representative payee” (legal proxy) under Social Security disability benefits programs to NICS, so that they may be considered a “mental defective” and thus lose their Second Amendment rights. The proposed SSA rule is arbitrary—there’s no evidence that someone who needs help with SSA paperwork can’t be trusted with a gun—and inconsistent with the regulatory and statutory scheme, not to mention blatantly unconstitutional.

Accordingly, for the first time ever, Cato’s Center for Constitutional Studies, with the help of law professors Josh Blackman and Gregory Wallace, has filed a public comment objecting to the rule on 10 different grounds. No one disputes that the government has an interest in keeping guns out of the hands of those who could harm themselves or others, but depriving a constitutional right requires due process of law. Under existing law, the root requirement of the Fifth Amendment’s Due Process Clause is that an individual receive a hearing before she is deprived of a constitutional right by a federal agency, one where the government must justify its restriction.

Here, the process entails an SSA bureaucrat making the determination without the expertise necessary to tell if the applicant is a danger to herself or others and without necessarily having the benefit of medical evidence. Indeed, the criterion evaluated—whether a person is “a mental defective”—is the same unscientific and unspecific standard that the Supreme Court approved in 1927 when legalizing the sterilization of the mentally ill and other eugenic treatments. The term is antiquated and vague.

Moreover, it is unconstitutional to condition the receipt of benefits on the sacrifice of rights. The “condition” here could not be more clear: to gain or maintain a representative payee, needy disabled persons must submit to being placed on the NICS list and foregoing their Second Amendment rights. The government is not allowed to foist that Catch-22 onto those who qualify for Social Security disability but need help administering their benefits.

On a more practical level, the SSA is not the agency that should be making this sweeping policy. Determining whether someone satisfies the criteria for obtaining a representative payee is perfectly within SSA’s expertise, but determining who among its recipients is capable of responsible firearm ownership is far, far afield of the SSA’s area of expertise. The SSA’s job is to administer social-insurance benefits, not to implement gun-safety regulations. The agency is simply not staffed with the medical and gun-policy experts necessary to make such determinations on a regular basis.

Finally, the proposed rule treats the entire category of people who express a misgiving about their mental abilities as per se deprived of their right to armed self-defense. Surely the landmark case District of Columbia v. Heller (2008), which confirmed the individual right to keep and bear arms, did not mean to sweep every hypochondriac, arachnophobiac (spiders), coulrophobiac (clowns), or lepidopterophobiac (butterflies) into the federal mental-health gun-prohibition.

The SSA should abandon this ill-devised rule. 

Overlawyered reaches the end of its 17th year of publication today. I launched it on July 1, 1999, and it’s regularly described as the oldest law blog; at least, no one seems to be able to name one that’s older that’s been continually published for as long in blog form. Cato has published it since 2013, which has greatly helped in keeping it up-to-date on the technical side and running smoothly.

Some recent stories and items at the site: 

• Has the song “This Land Is Your Land” passed into the public domain? A legal challenge says it has, ironically given what Woody Guthrie said during his lifetime about copyright and property rights generally;
• “Not To Be Used as a Battle Device” on a toy Star Wars light saber, and more finalists from the Wacky Warning Labels contest;
• Plenty of coverage of current legal issues such as the AG campaign to turn climate change denial into “the new tobacco,” the expansion of Title IX into an ever more massive federal regulatory scheme, and Washington’s push for aggressive new regulations in areas like overtime pay and criminal records in hiring;
• Roundups on topics like the Supreme Court, environmental law, and schools and childhood; 
• “Man pleads guilty in auto crash, then sues city alleging police siren and lights distracted him”
• And most recently, a weeklong best-of series on the amazing kinds of fraud people try to get away with in the courtroom, including invented accidents, injuries, and family relationships.

You can get more Overlawyered in your social media diet by liking us on Facebook here (and don’t forget to like the Cato Institute too) and following us on Twitter (ditto).

It was an odd and sad year at the Supreme Court. Most years, reporters and pundits devise a “theme” that’s mostly an artificial construct driven by the vagaries of the docket: “The Court moved left/​right/​minimalist/​unanimous …” But this year there actually is a real theme: the loss of Justice Antonin Scalia. Justice Scalia’s passing “deflated” what would otherwise have been yet another blockbuster term in many ways, defusing several high-profile cases as well as removing the most quotable pen on Earth from media coverage these last weeks of June.

In practical terms, however, Scalia’s absence was felt in ways different than most people assume. For example, of the major cases, only Friedrichs (worker rights) came out the other way, affirming the lower court by a 4–4 vote that would’ve been a 5–4 reversal with Scalia. United States v. Texas (immigration) would’ve been a 5–4 affirmance of the lower-court injunction instead of a 4–4 affirmance. Fisher II (affirmative action) would’ve been a 4–4 affirm instead of 4–3. Zubik (contraceptive mandate) would’ve been 5–4 reversal instead of a weird 8–0 decision to vacate that effectively forces a compromise that the challengers can accept. Whole Women’s Health (abortion) would’ve been a 5–4 reversal instead of a 5–3. To be sure, there would’ve been interesting nuances from the opinions in Scalia’s presence — which may have set precedents for, say, future executive actions — but the direct results wouldn’t have really changed except in Friedrichs (which was a big deal, don’t get me wrong) and a handful of lower-profile cases.

Also, this was a term of very few surprises; the conventional wisdom was borne out in every case that I followed except Fisher II. I still can’t figure out what Justice Kennedy was doing there, reversing himself from Fisher I regarding deference to administrators and voting to uphold a use of racial preferences for the first time ever. Maybe he was just tired of the case. Indeed, both Fisher and Whole Women’s Health, while making national news due to their fraught subject matter, are minimalistic and sui generis, dealing with very specific government policies.

But regardless of the good, bad, and ugly, when the dust cleared, there was one aspect of continuity that’s particularly gratifying to me: Cato continued its successful streak in cases in which we filed amicus briefs. While not as dominating as two terms ago, we still managed to pull off a 4–4 (or 3–3‑2, as I’ll explain shortly) record.

Here’s the breakdown, in the order the opinions arrived:

Winning side (4): Luis v. United States; U.S. Army Corps of Engineers v. Hawkes; Zubik v. Burwell; United States v. Texas (4–4 affirming our position).

Losing side (4): Evenwel v. Abbott; Fisher v. UT-Austin; Tyson Foods v. Bouaphakeo; Friedrichs v. California Teachers Association (4–4 affirming position we opposed).

But regardless, we still pipped our main competition, the U.S. government, which went 13–14 on the term, including a record 10 unanimous losses. This administration is easily the worst performer of any to have come before the Court in modern times (and probably ever, though it’s more relevant to compare Obama to Bush, Reagan, and Kennedy than, say, Benjamin Harrison). There are three basic reasons for this: expansive executive action, envelope-pushing legal theories, and Justice Kennedy acting like a libertarian on close cases.

I’ll have more to say on this in future commentary, but if you’d like to learn more about all these cases/​trends and the views of Cato-friendly scholars and lawyers, register for our 15th Annual Constitution Day Symposium, which will be held September 15 to review the term and look ahead to next year. That’s also when we’ll be releasing the latest volume of the Cato Supreme Court Review, the editing of which will consume much of my summer.

Today, the Supreme Court issued a unanimous ruling on the closely watched corruption case concerning former Virginia governor, Robert McDonnell. McDonnell and his wife were charged with a Hobbs Act violation and honest services fraud. The McDonnells had accepted $175,000 in loans and gifts from the CEO of Star Scientific, a nutritional supplement developer. Merely accepting gifts is not a crime, however. Under the honest services statutes and the Hobbs Act, a government official must have exchanged “official acts” for those gifts. The crux of the case boiled down to what, exactly, constitutes an “official act”.

The prosecution argued that McDonnell made five official acts, all in furtherance of getting Star Scientific’s new supplement, Anatabloc, tested by Virginia’s public universities, which would greatly assist the FDA-approval process. The acts included sending aides to view and take notes at meetings between the CEO and others, hosting events where he encouraged state universities to conduct studies on Anatabloc, contacted other officials within the governor’s office to encourage the same studies, allowing the CEO to invite business partners to events at the governor’s mansion, and suggesting that Anatabloc be a part of the state healthcare plan.

Another “official act” was an email saying “pls see me about Anatabloc issues at VCU and UVA.”

Jonnie Williams, the CEO, failed in his attempts to get state universities to conduct his studies, but according to the prosecution, it was the intention to influence the process which triggers the corruption charges.

The situation does look suspicious on its face, but a problem stems from the fact that if the government construes the term “official acts” this broadly, it could criminalize many actions which officials take in order to make government function more smoothly for any and all of its constituents. If the prosecution succeeded in its argument (and it had succeeded in two lower courts before making its way to SCOTUS), it could punish any official who sends or forwards an email to a slow-moving bureaucracy urging them to remedy the problems of an aggrieved citizen. It could punish any official who invites business leaders to an event. It could punish any official who attends an event which is promoted by business leaders. And it could punish an official who asks any of his subordinates to take notes at any of these meetings. During oral arguments, Justice Breyer said, “For better or for worse, it puts at risk behavior that is common.”

Seventy-seven former attorneys general from a variety of states agreed with these fears and reiterated them in an amicus curiae brief. “McDonnell’s acts were ‘assuredly ‘official acts’ in some sense,’ but they ‘[were] not ‘official acts’ within the meaning of’ the federal bribery statutes. United States v. Sun-Diamond Growers of Cal.” Lastly, from page 5 of the same, “And when they ask their legal advisers, ‘Does this violate the law?’ too often the reply will be, ‘We really don’t know.’”

Here’s an excerpt from the ruling:

[C]onscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm. The Government’s position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame. Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.

This concern is substantial. White House counsel who worked in every administration from that of President Reagan to President Obama warn that the Government’s “breathtaking expansion of public-corruption law would likely chill federal officials’ interactions with the people they serve and thus damage their ability effectively to perform their duties.” Six former Virginia attorneys general—four Democrats and two Republicans—also filed an amicus brief in this Court echoing those concerns, as did 77 former state attorneys general from States other than Virginia—41 Democrats, 35 Republicans, and 1 independent. [internal citations removed]

Chief Justice Roberts made it clear that the underlying facts were distasteful (the McDonnells exercised extremely poor judgment), but the Court had to consider the implications of the government’s “boundless interpretation” of the federal corruption statutes. By its unanimous vote, the Court has sent a powerful signal to both the U.S. Attorney General and the lower federal courts: Stop stretching the laws to cover grubby politicking; only crack down on old-fashioned bribery. Lastly, the Court noted that due process requires that people have fair notice of what conduct is criminal and what conduct is lawful. When the government urges broad interpretations of the criminal statutes, due process is threatened. To avoid that danger, courts should generally embrace a more confining view of the statute and thus federal prosecutorial power.

It may appear abstract, but look at what happened today. Prosecutors asked that Robert McDonnell be imprisoned ten years for his conduct. Today, he remains a free man because it is not obvious that his conduct was unlawful. There might still be a retrial, but the prosecution’s theory was unanimously rejected by the Supreme Court.

Related item here.

At the Washington Post, Tom Jackman highlights a new report documenting arrests of police officers across the country. The report, entitled “Police Integrity Lost: A Study of Law Enforcement Officers Arrested” and written by scholars at Bowling Green State University, estimates that three American police officers are arrested per day every year. The years covered in the study cover 2005–2011.

From the WaPo story:

The most common crimes were simple assault, drunken driving and aggravated assault, and significant numbers of sex crimes were also found. About 72 percent of officers charged in cases with known outcomes are convicted, more than 40 percent of the crimes are committed on duty, and nearly 95 percent of the officers charged are men.

[…]

“This is probably the tip of the iceberg,” said Cara Rabe-Hemp, a professor at Illinois State University who has studied police deviance. She said the effort is the “first-ever study to quantify police crime” and shows it is “much much more common than what police scholars and police administrators previously thought.”

A representative of the National Fraternal Order of Police union stated that the numbers are small when put in the context of 900,000 police officers nationwide. But there is nothing contradictory between his statement and that of Professor Rabe-Hemp. The raw numbers the BGSU researchers found are interesting, but we can be sure that they do not tell the whole story.

At the National Police Misconduct Reporting Project, we collect similar data that is consistent with the BGSU findings. Every day we find cases of misconduct, both on and off-duty. Some incidents result in arrests, other incidents are handled administratively, and some others are revealed by civil suits brought by victims and surviving families of police misconduct. We track the stories over time to see how they are handled by the police and prosecutors as the cases move through the labyrinth of administrative, civil, or criminal procedures.

We find cases where officers are arrested and convicted of crimes. But we also find officers who are given “professional courtesy” and not arrested for drunk driving. We see cases in which officers plea down their violent and disturbing felony cases to misdemeanor disorderly conduct, which allows them to maintain their peace officers’ license. We find longstanding criminal conspiracies that sometimes take years to uncover. And, just today in Baltimore, we see prosecutors unable to convict the officer believed to be most culpable for the conduct that resulted in the death of Freddie Gray. It is impossible to gauge the extent of misconduct because we don’t know how much of it the police and the media are catching.

Part of the reason NPMRP tracks these stories is to get a better sense of how different police agencies handle their misconduct cases, as well as the judicial systems that are sometimes involved. For a number of reasons—the Blue Wall of Silence, qualified immunity, use-of-force protocols, political pressures, the Law Enforcement Officers Bills of Rights, and sympathetic juries, among others—it is very difficult to bring criminal charges against a police officer, let alone secure a conviction, absent incontrovertible proof of wrongdoing.

As I testified last year before the U.S. Commission on Civil Rights, policymakers, watchdog agencies, and police leadership can benefit from more collection and analysis of police misconduct data. The new BGSU report is a welcomed one. It is 209 pages plus another 440 pages of notes and appendices, and we’re looking forward to digging further into those findings. You can read it for yourself here.

We are doing our part to make these issues clearer at NPMRP, which you can check out here. Keep an eye on NPMRP for more information about police misconduct in the coming weeks.