President Obama has called on the nation to accept the decision of the Ferguson grand jury. But looking forward, across much of this country, our system for dealing with police use of deadly force is broken. Police shoot and kill civilians at a rate unheard of in many other advanced nations, and even after incidents where there are indications that excessive force was used, police across many parts of the country seldom face trial or even dismissal from the force. A system for review of police misconduct must take care to vindicate and protect the innocent cop, but it also needs to deliver a credible promise of justice to the communities being policed. As a front-line means of regulating lethal force, grand juries — which are secret, remote from the truth-finding of an adversary process, and dependent on prosecutors’ guidance — do not command broad public confidence. We see that in Ferguson today.

The grand jury’s decision not to indict Darren Wilson is not surprising because police officers are rarely prosecuted for on-duty shootings. And in the rare instances in which criminal charges are ever brought against police, juries are reluctant to hold them accountable with a felony criminal charge. A report on Cato’s Police Misconduct web site found a conviction rate of only 33% — roughly half the percentage in non-police, civilian prosecutions. It remains to be seen whether Wilson will be held accountable in some other way. We must remember that just because a jury has declined to bring criminal charges does not automatically mean that Wilson should return to duty. Police commanders may conclude, given all the surrounding circumstances, that he may not be right for police work. Certainly his involvement in Brown’s death will create problems for prosecutors who will have to rely on his future work. Wilson’s testimony in future trials could be very problematic.

With respect to the unrest in Ferguson, there seems to be a reluctance to acknowledge the crimes that are being committed by thugs who are taking advantage of the situation. It seems wildly inaccurate to say that protesters have started fires and are looting stores, for instance. The people doing that are criminal troublemakers, not “protesters.”

The violence in Ferguson is inexcusable. But it should not be seen as primarily a reaction to the grand jury’s decision not to indict Darren Wilson. Rather, it should be seen as a reaction to years of racially charged policing and a discriminatory justice. Focusing on Officer Wilson’s culpability detracts from the bigger, nation-wide story: That every month there are innumerable police abuses throughout the country that go unnoticed and unreported, and, even if they are reported, the accused officers will likely never be disciplined, much less charged with a crime. Unfortunately, many of these abuses are disproportionately felt by people of color. Abuses can be small and nearly impossible to discover, such as stopping a car full of black men without probable cause, or they can be large and public, such as unjustifiably gunning down an unarmed black teenager. Sometimes the police action may be justified, and sometimes it may not, but the systems in place for determining culpability are egregiously biased in favor of police officers. Add to this an over-militarized police force that uses surplus military gear to violently break into homes 100 times per day, usually to only execute search warrants, and you have a recipe for disaster and an urgent need for reform. We should take advantage of this time of heightened awareness to reform a justice system that has too much power and too little accountability. Hopefully the violence in the street will not overshadow the legitimate protests, but I fear it may. 

In their effort to provide the public with information about controversial yet important world events, journalists face constant intimidation. Whether it takes an extreme form—such as beheading or death threats—or a less violent one—like government censorship or enforced political correctness—it nonetheless constricts their ability to convey truthful information about key issues.

No one knows this better than Flemming Rose.

In 2006, the Danish newspaper Jyllands-Posten published 12 cartoons of the prophet Muhammad, stoking the fires of a worldwide debate about what limits—if any—should constrain freedom of speech in the 21st century.

Rose, then the paper’s culture editor, defended the decision to print the drawings, quickly becoming the target of death threats and more, all of which he recounts in his new book, published by the Cato Institute.

In The Tyranny of Silence: How One Cartoon Ignited a Global Debate on the Future of Free Speech, Rose provides a personal account of an event that has shaped the global debate about what it means to be a citizen in a democracy and how to coexist in a world that is increasingly multicultural, multireligious, and multiethnic. Rose writes about the people and experiences that have influenced his understanding of the crisis—including meetings with dissidents from the former Soviet Union and ex-Muslims living in Europe—and takes a hard look at the slippery slope of attempts to limit free speech.

Rose’s message clearly resonates with lovers of liberty around the world. A special one-on-one conversation between Rose and Jonathan Rauch of the Brookings Institution, hosted at the Cato Institute in mid-November, saw over 100 in-person attendees with another 53 people tuning in online.

That impressive showing, however, was far outpaced by the mass response to Cato’s very first Reddit AMA, featuring Rose, which has been viewed well over 200,000 times since it was first published on November 13th, and continues to draw thousands of Reddit viewers every hour, almost two weeks later.

Rose’s AMA, entitled “I am a journalist and free speech advocate who has received hundreds of death threats since 2006. AMA,” quickly broke into the top ten discussions on the iAMA forum that week. As questions continues pouring in, Rose sat down for a second full hour session the day after the original session was scheduled.

You should definitely read the AMA yourself, but here are some highlights:

Enjoyed the discussion? You can read the whole thing here. And, of course, don’t forget to buy the book to read all of Rose’s harrowing tale.

Title VIII of the Civil Rights Act, also known as the Fair Housing Act (FHA), makes it illegal to deny someone housing on the basis of race and other protected characteristics. Applicable to governments, private entities, and individuals, the FHA prohibits racially discriminatory practices in most if not all transactions relating to housing.

For example, a landlord can’t refuse to rent an apartment to an otherwise qualified tenant, solely on the basis of race. Similarly, banks and credit unions can’t take a borrower’s race into account when deciding whether and on what terms to extend credit for the purpose of buying a home.

While it’s clear that the FHA bars such discriminatory intent, it remains an open question whether it covers claims of “disparate impact,” where a neutral policy disproportionately harms members of the protected class. Under this theory, a landlord insisting that all applicants pass a credit check could be held liable if it turns out that applicants from one protected group are disproportionately unlikely to have a sufficiently high credit score. That landlord would be held liable even though a satisfactory credit score is required of all potential tenants, regardless of race, and the landlord’s only intent was the (perfectly legal) desire to avoid tenants who would get behind on their rent—not to deny housing to any particular group.

In the decades since the FHA was passed, disparate impact has been used by the government and private litigants to exact tens of millions of dollars in fines and settlements from banks and developers whose facially neutral policies were alleged to have excluded members of a protected class from the housing market. The problem is that unlike with other anti-discrimination laws, such as the Americans with Disabilities Act—which expressly prohibits policies that have a disparate impact—the text of the FHA explicitly forbids only intentional discrimination.

In 2011, the Supreme Court agreed to decide once and for all the simple question of whether the FHA allows for disparate-impact claims. Before the Court had the chance to rule on the case, however, the government and certain interest groups intervened — in part at the instigation of Labor Secretary Thomas Perez, who was then head of the Justice Deaprtment’s Civil Rights Division. Fearing (not without justification) that the Court would decide that the FHA only allows claims based on intentional discrimination, they arranged a settlement package that induced the parties challenging the FHA to drop their case. The same thing happened in 2013.

Now the Court is facing the issue a third time, in a case arising out of a Texas program that allocated federal tax credits for developers to build low-income housing projects. An advocacy group called the Inclusive Communities Project sued the Texas Department of Housing and Community Affairs, claiming that by attempting in good faith to spend the federal funds in the poor neighborhoods where they’re most needed, the Department violated the FHA by concentrating low-income housing in predominantly minority neighborhoods.

Together with the Pacific Legal Foundation and five other groups, Cato has filed a brief arguing that the FHA can’t be read to prohibit innocently adopted policies that happen to have a statistically disproportionate impact on one group.

The brief makes three key points. First, the text of the FHA doesn’t support disparate-impact claims. The relevant provision—making it unlawful to “refuse to sell or rent … because of race”—connotes a purposeful, causal connection between the refusal to deal and the person’s race. Second, the FHA’s legislative history reveals that Congress only intended to target intentional discrimination, not the unpredictable consequences of nondiscriminatory policies.

Finally, allowing for claims against government bodies to be based on disparate impact forces them to engage in unconstitutional race-conscious decision making to avoid potential liability. The only way to avoid claims based on disparate impact is by designing policies which work backwards from the desired result, essentially requiring unconstitutional devices like racial quotas.

But discrimination can’t lead to equality. As Chief Justice John Roberts wrote for a Supreme Court plurality in 2007: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The Supreme Court will hear the case of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project on January 21. Regardless of Tom Perez’s whereabouts between now and then, this case is unlikely to settle.

In an excellent speech combining reasoned policy arguments, appeals to American ideals, touching anecdotes, and well-selected Scripture, President Obama launched significant positive reforms to an immigration (non-)system that I’ve long called the worst part of the U.S. government (at least before Obamacare). Unfortunately, the centerpiece of this action, the legalization of around five million people who are in the country illegally—mostly the parents of U.S. citizens and green-card holders—is beyond the powers of the president acting alone.

To be sure, the relevant statutes give executive branch officials very broad discretion in how they enforce immigration laws. For example, Section 212(d)(5)(A) gives the Secretary of Homeland Security the “case-by-case” discretion to “parole” for “urgent humanitarian reasons or significant public benefit” an alien applying for admission. The authorization for “deferred action”—a decision not to seek deportation and concomittant authorization to reside and work legally, which was the basis for Obama’s 2012 Deferred Action for Childhood Arrivals program—is similarly broad.

And all modern presidents, from both parties, have used such discretionary powers. President Ronald Reagan’s Justice Department issued regulations to comport with the family-unity provisions of the 1986 Immigration Reform and Control Act. President George H.W. Bush temporarily expanded the category of undocumented children and spouses eligible to stay in the country before Congress formalized their status. President Bill Clinton deferred action on illegal immigrants from Haiti during that country’s convulsions in the 1990s—one example of many relating to executive discretion regarding nationals of war-torn nations—while President George W. Bush took various actions regarding illegal aliens in areas affected by Hurricane Katrina. These are just a few examples, but they’re all different from what President Obama is doing, both qualitatively—discrete and temporary versus open-ended and potentially timeless—and quantitatively. (See here and here for contrasts between Reagan/​Bush and Obama.)

But don’t take it from me. Here are a few solid arguments that were made by a noted constitutional lawyer over the last several years:

• “Comprehensive reform, that’s how we’re going to solve this problem.… Anybody who tells you it’s going to be easy or that [the president] can wave a magic wand and make it happen hasn’t been paying attention to how this town works.” (March 10, 2010)
• “America is a nation of laws, which means [the President is] obligated to enforce the law.… With respect to the notion that [the president] can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed.… [W]e’ve got three branches of government. Congress passes the law. The executive branch’s job is to enforce and implement those laws. And then the judiciary has to interpret the laws. There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with [Obama’s] appropriate role as President.” (March 28, 2011)
• “If this was an issue that [the president] could do unilaterally, [Obama] would have done it a long time ago.… The way our system works is Congress has to pass legislation. [The president] then get[s] an opportunity to sign it and implement it.” (Jan. 30, 2013)

These are but three examples of the 22 times that this particular analyst of executive power has argued that the president can’t do what he just announced. Who is this person with such strong feelings that he’s felt the need to opine so many times on this? Barack Obama.

There comes a time even under statutes that are ambiguous or open-ended that executive discretion ceases to be a lawful execution of the law and becomes a suspension or re-writing of it. It’s very difficult to articulate where that line is, but my view is that President Obama is on the other side of it. He’s set a dangerous precedent for executive action, one in which the president somehow gets more power when Congress isn’t acting (as if gridlock were a bug in our system of checks-and-balances, not a feature).

Accordingly, while the applicable immigration laws give the president discretion that’s quite broad, either (1) this executive action goes beyond even that broad grant of power, or (2) the laws themselves are an unconstitutional delegation of legislative power. After all, Congress could not constitutionally pass a law saying, “The president is now dictator and can make any laws he wishes”—even temporarily or regarding but one area of policy. So if the administration’s defenders are right that President Obama is toeing but not crossing the letter of the law, then that letter is invalid and the president’s actions are still unconstitutional.

Ultimately, more than enough blame goes to Congress for not fixing this mess of an immigration system that serves nobody’s interests—not big business or small, not skilled or unskilled workers, not the economy or national security—but that doesn’t justify what the president is doing. And in acting like he has, President Obama—who as a senator in 2007 voted against the guest-worker program that would have sealed the Bush-era compromise—has eviscerated any chance for real, legislated immigration reform.

I guess we’ll have to wait for President Ted Cruz to accomplish that in a latter-day Nixon-to-China moment.

For an excellent point-by-point analysis of the Office of Legal Counsel memo justifying the president’s action—OLC is the Justice Department’s elite unit responsible for advising the government on the legality of various actions—see Josh Blackman’s post from last night.

Virtually every aspect of government’s work depends on contracts, whether they be with manufacturers of naval ships, civilian contractors, the companies that sell office supplies, or the landlords who lease the office space that houses the vast bureaucracy. These contracts, like any contract, only work when both parties have legal certainty; each must be able to depend on the promises made by the other.

That said, federal contractors do have to assume less certainty when dealing with the government because the Supreme Court has held that contracts can’t bind Congress from passing new legislation, or agencies from adopting new regulations. For example, while the government could enter into a contract promising to buy 100 widgets, Congress could pass a law making it illegal to manufacture or sell widgets—effectively voiding the agreement.

In the case of Century Exploration v. United States, an energy company leased the rights to an oil field in the Gulf of Mexico owned by the government for $23 million dollars up front, and $50,000 per year of the lease. Because oil drilling is a heavily regulated industry, Century only felt safe spending that kind of money because the lease contained a promise that Century wouldn’t be subject to any changes to the law that the government might make in the future, except for a specific class of regulations created under the authority of a single statute, the Outer Continental Shelf Lands Act (OSCLA). Without this promise, there would have been nothing to stop the government from taking Century Exploration’s money and then outlawing drilling in the Gulf of Mexico, or passing new regulations that would make it prohibitively expensive for Century to make use of the leased plot.

Unfortunately, the government did the very thing it promised not to. Under the Oil Pollution Act (OPA), drilling companies have to calculate the volume of oil that would be released in a “worst case scenario” and prove that they have the financial resources to fund cleanup efforts. The method for calculating the amount of oil, and the cost of cleanup, are governed by regulations issued under the OPA. Two years into Century’s lease, however, a civil servant in the Interior Department sent the company an email demanding a recalculation of the “worst case scenario” using a more extreme methodology contained in an attached FAQ. Using that new method, the cost of cleaning up a hypothetical spill increased from $4.5 million to $1.8 billion. Because Century couldn’t prove that it would have $1.8 billion on-hand in the event of a disaster, it could no longer operate on the leased plot.

Century appealed to the courts, relying on a 2000 case called Mobil Oil in which the Supreme Court interpreted a nearly identical lease to mean that the government would breach its contract if it tried to apply new laws or regulations to the leaseholders (except, again, for regulations under OSCLA). Under Mobil Oil, unilaterally changing the method of calculating the volume and cost of a spill would be just such a breach; the regulatory changes were made under the OPA, not OSCLA, and the changes were made by email, not by formal regulation. The government insisted it had done no wrong and, remarkably, the U.S. Court for the Federal Circuit agreed.

Cato has filed an amicus brief urging the Supreme Court to review this case and make clear that the government can’t violate contractual obligations with impunity. We make two key points:

First, it is vital to the smooth operation of the government and the health of the economy that private entities are confident that the government will honor its contractual promises. Federal spending on contracts has totaled roughly $500 billion annually since 2008—or 15% of the federal budget. If businesses and individuals have no reason to believe that the government will live up to its business obligations, they’ll have no reason to work with it. The Federal Circuit’s decision, which condoned the government’s flagrant breach of its contract with Century, sets a bad example and must be reversed.

Second, and quite simply, words have meaning—in the Constitution, in statutes, and yes, in contracts. A “regulation” is a formal rule adopted and issued by an authorized agency, in accordance with strict procedural protocols. It’s not a casual email. Giving informal government policy documents created by civil servants the full weight of the law is unconstitutional, undemocratic, and unsustainable.

In the end, this case is about following the law: the Federal Circuit needs to abide by Supreme Court precedent and the government needs to abide by its own word.