Topic: Constitution, the Law, and the Courts

The Supreme Court Should Take Another Slice of Wedding Cake

Is cake-baking art, and if so, can someone be compelled to bake one in violation of his or her religious beliefs? More specifically, can a Christian baker refuse to design a wedding cake for a same-sex couple due to her sincere religious objections to same-sex marriage?

Wait, didn’t the Supreme Court already resolve these questions in the Masterpiece Cakeshop case earlier this year? Actually no; the Court declined to answer these and related important issues, instead ruling narrowly in the baker’s favor because the state civil rights commission displayed animus toward his religious beliefs. There was even unresolved disagreement over whether the baker refused to sell the couple a custom cake or any cake. In short, the Court’s decision was really a minor work, not a masterpiece.

But the Court’s punt, to mix metaphors, didn’t kick the can very far down the road. While the Washington Supreme Court is going through the motions of reconsidering the Arlene’s Flowers case in light of Masterpiece, an Oregon case involving another baker has reached the Supreme Court’s doorstep. Melissa and Aaron Klein are practicing Christians who owned and operated a bakery where they made and sold custom wedding cakes. An administrative law judge fined them $135,000 (!) for refusing to make a wedding cake for a same-sex couple, putting them out of business. Even though the Kleins had gladly served the couple in the past, and merely objected to helping celebrate this particular ceremony, Oregon state appellate court upheld the fine.

But freedom of expression, as protected by the First Amendment, doesn’t only secure the ability to say what you wish. It also prevents the government from compelling you to say something you don’t agree with. Cake-baking, as anyone who has seen one of countless TV shows can confirm, is an expressive art form. Accordingly, bakers, as artists, cannot be forced to convey messages that violate their beliefs—whether based in religious or secular values. To live according to one’s own conscience is the foundational principle of a free society. If people who agree with same-sex marriage are the only ones allowed to operate businesses related to weddings, freedom of expression will become a hollow principle in that regard.

Cato, the only organization in the entire country to have filed Supreme Court briefs supporting same-sex couples seeking to get married and vendors who don’t want to participate in those weddings, has now filed a brief supporting the Kleins’ petition to the U.S. Supreme Court. Although quite similar to Masterpiece Cakeshop, the Kleins’ case is neater, with fewer distractions unrelated to the core question of expression. For starters, there is no allegation that the Oregon Bureau of Labor and Industries showed anti-religious animus. Moreover, the Kleins did not sell off-the-shelf cakes to the general public; they created only custom cakes.

The Court should take the case to clarify that the First Amendment protects people from having to convey messages or express support for ceremonies with which they disagree. Klein v. Oregon Bureau of Labor & Industries presents an inquiry into the scope and nature of expression itself—and much like a good cake, we hope that the Court finds these issues too enticing to pass up.

At Cato Unbound: How Best To Reform Child Protective Services?

This month I’m participating in a Cato Unbound symposium on Child Protective Services and family rights. In its lead essay, attorney Diane Redleaf details some of the ways in which CPS agencies can arm-twist parents into so-called interim placements and safety plans that separate families with little or no judicial review.  Participant James G. Dwyer, in a response essay, takes a relatively positive view of the agencies’s work. My essay, by contrast, generally backs up Redleaf’s critique of CPS as a species of government enforcement agency gone wild: far too often, these agencies seize children from parents based on flimsy evidence, second-guess everyday parental behavior and decisions, or act on misguided Drug War zeal. 

Redleaf in her essay then goes on to raise distinctive objections about how the agencies negotiate with parents before a judge has ruled on their cases, which I paraphrase thus: 

…what sorts of policy response should apply to agencies’ practice of proffering to parents ostensibly voluntary interim placements and “safety plans”? What happens when parents regret—the next month, or the next day—having agreed to those conditions? Can they reopen the concessions they made, and how? Does it matter whether the agency has withheld information from them or menaced them with worst-case scenarios?

In my response essay, I argue that the problems with these practices are real but that legal attack on the voluntariness of interim plans is likely to be of at best limited helpfulness because our courts follow a strong presumption of enforcing settlements as written. More promising in the long run, I argue, may be to impose direct obligations on agencies to respect families’ autonomy without attacking the settlement process as such. “Safeguarding every family’s rights will, as one of its benefits, shore up families against unwise surrenders of their rights.”

 

 

What Americans Think about Birthright Citizenship

Last week I appeared on Hill.TV’s What America’s Thinking with Jamal Simmons to discuss what the public thinks about birthright citizenship. President Trump has proposed using an executive order to curtail birthright citizenship, which confers automatic citizenship on children born in the United States regardless of their parents’ nationality. Constitutional legal scholars say the president doesn’t have the authority to do this. What do Americans think about the value of birthright citizenship?

The Hill partnered with HarrisX to conduct a nationally representative survey of 1,000 registered voters November 2-3 to find out. First, the survey asked about a child born to a mother legally residing in the United States on a temporary visa: 57% said the child should be considered a U.S. citizen, 28% said the child should not be given citizenship, and 15% aren’t sure. 

What about children born to mothers residing in the United States illegally? Even still, a plurality (48%) support birthright citizenship for children born to mothers living in the U.S. illegally while 38% oppose and 14% aren’t sure. It would be interesting to see what Americans would think about children born to mothers who have a Green Card, but are not yet full citizens of the U.S.

HillTV_BirthrightCitizenship_1

Republicans’ opinions on birthright citizenship are far more impacted by the mother’s legal status than Democrats’ opinions. Sixty-two percent (62%) of Republicans oppose birthright citizenship for children born to mothers in the country illegally; however, opposition declines by 20 points to 45% opposed if the child is born to a mother in the U.S. on a temporary visa. Conversely, 18% of Democrats oppose if the mother is in the country illegally and 14% oppose if the mother has permission to be in the country. Thus, when thinking about birthright citizenship, Republicans tend to care more about the legal status of the parents than Democrats do. 

These results are consistent with a Pew Research Center poll that finds 57% of Americans oppose “changing the Constitution” such that children of illegal immigrants born the U.S. would not longer be considered citizens. 

Birthright_Chart2

On the program, I explained that birthright citizenship has become core to America identity and something that bolsters American exceptionalism.

Many argue that birthright citizenship is a major reason the United States has been so tremendous at assimilating immigrants from many different places. Since the country’s founding, America has successfully absorbed waves of German, Irish, Italian, and Polish immigrants, among many others. Today the U.S. continues to do so with new immigrants coming from Central and South America, East and Southeastern Asia, and Africa.

Further, birthright citizenship has distinguished the U.S. from many European counterparts who have not assimilated immigrants as well into their societies. Many European countries have primarily conferred citizenship to the children of current citizens, rather than to children born within their nations’ borders. For instance, it was only in 2000 that Germany allowed children with non-German parents to acquire citizenship if at least one parent had legally resided in the country for 8 years and if the child demonstrated a link to Germany such as attending or graduating from German schools. 

Why might birthright citizenship help with assimilation? Citizenship not only confers rights and benefits upon its citizens but also places duties upon them. With citizenship comes the implicit duty to be loyal to the country’s principles and values which encourages integration within the broader American community. Francis Fukiyama points out in his excellent book Identity: The Demand for Dignity and the Politics of Resentment, that before Germany liberalized its immigration laws in 2000, there could be second- and third-generation children of Turkish immigrants, born in Germany, speaking perfect German, and having never been to Turkey, and still not be considered German. Yet, ethnic Germans living in the former Soviet Union who spoke no German could be naturalized. It’s not hard to see why a child of Turkish immigrants might feel isolated and excluded from their surrounding community under such a regime.

It may be that Americans have observed the success of birthright citizenship in successfully integrating many immigrants from differently places, including their own grandparents, or great-grandparents and so on, into the American community. It has led most Americans to accept the notion that “we are a nation of immigrants.” This historical memory may help explain why most Americans continue to support birthright citizenship today.

A Taking by Any Other Name Still Smells Rotten

The state of Indiana wanted to expand beach property available to the public along the shoreline of Lake Michigan. Much to its irritation, the beach property was already owed by many other people, as natural extensions of their homes. Indiana could have used its power of eminent domain to pay for this property. Instead, the state attempted to take the beach property without just compensation by abusing the common-law doctrine of “public trust.”

In Gunderson v. Indiana, Cato now joins the National Association of Reversionary Property Owners and two other organizations on an amicus brief supporting the property owners’ request that the Supreme Court review this practice.

The “public trust” mechanism for Indiana’s machinations was once used by kings to control public waterways. In ye olden days, kings would assume authority over waterways abutting private property to ensure that navigation and fishing could continue at a relatively uniform pace. The Indiana bureaucracy and courts reformulated the rule to extend the “trust” upwards from any actual water to the “high water mark” on the sand. This meant that even if a house had a private section of beach behind it, if the water had at some time risen upward, the property was now forfeit to the government.

This is a perversion of the “public trust” doctrine and a misreading of the common law, which preserved private property rights both by adhering to uniform decisions over time and by clearly defining what rights people could expect in their property. The “public trust” doctrine was used only to give the sovereign control over waterways for navigation and fishing. It never extended to beaches—and certainly was not meant to deprive private parties of their reasonable expectation to their own property. For the Indiana courts to invoke that power in this context is to steal property under the guise of an ancient protector.

This redefinition is a taking by any other name: what once belonged to a person now belongs to the state. And a taking, by any other name, still requires payment under the Fifth Amendment’s Takings Clause. The Supreme Court has long recognized that states attempt takings without directly invoking their powers of eminent domain. These “inverse condemnations” often come in the form of physical invasions—such as the government’s putting objects on the people’s property—or in regulations. The regulations here may not have been so wide as to deprive the owners of all their land, but the wound to their interests is still there.

The lower courts don’t have the right to kick sand in the face of Fifth Amendment and then hide behind the common law. State and local officials may wish they could step into the place of benevolent kings, but their attempts to do so here show them to be despots.

Hacking the Appointments Clause

The naming of Matthew Whitaker as acting head of the Department of Justice, following the forced resignation of Attorney General Jeff Sessions, has kicked off a mini-debate between legal scholars over the propriety of his appointment.  On Thursday, Neal Katyal and George Conway argued in The New York Times that Whitaker’s elevation ran afoul of the Constitution’s Appointments Clause, which requires that the president appoint “principal officers” of the United States, such as the Attorney General, only with the “advice and consent” of the Senate.  John Yoo, a conservative legal scholar who served at DOJ under the Bush Administration, told Axios he agreed, and that the Federal Vacancies Reform Act, which purports to authorize the appointment of unconfirmed interim officers to fill vacancies, was unconstitutional as applied to such “principal” offices.  Supreme Court Justice Clarence Thomas expressed a similar view in an opinion just last year.  On the other side, we have Steve Vladeck, a law professor at the University of Texas, who notes that the Supreme Court blessed temporary appointments without confirmation back in 1898, in United States v. Eaton.  

I’m not sufficiently steeped in the history or jurisprudence of the appointments clause to have a strong view either way on the legality of Whitaker’s elevation, but it does at least seem to run contrary to the spirit and intention of the Appointments Clause as articulated by Alexander Hamilton in Federalist 76, which gives the following rationale for requiring Senate confirmation for the highest posts in the executive branch:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

 

The elevation of Whitaker to the role of acting attorney general seems as precise an instance as one could imagine of the scenario the Framers hoped to deter.  It is, after all, no secret why President Trump has been dissatisfied with Sessions: He has frequently made clear that he was infuriated by Sessions’ recusal (quite clearly required by DOJ rules) from overseeing the investigation into Russian election tampering—which has already seen legal penalties imposed on several of the president’s allies—and his insufficient enthusiasm for pursuing the president’s political adversaries.  Whitaker, formerly Sessions’ chief of staff, seems certain to be more accommodating.  He took that job only a year ago, after making a successful play to get noticed by the administration via editorials and television appearances in which he attacked Special Counsel Robert Mueller’s investigation, and asserted that he would have indicted Hillary Clinton over her private e-mail server, despite the consensus of DOJ attorneys that there was no sound basis for prosecution. Though he did serve a stint as U.S. Attorney during the George W. Bush administration, Whitaker had spent recent years running a nonprofit that produced partisan attack ads targeting Democrats.  Charitably put, his resume is a bit thin for the nation’s top law enforcement job, even in an “acting” capacity: His chief qualification for the post is being “personally allied” to Trump.  He might, under present circumstances, nevertheless muster the votes for confirmation in the Senate, but the confirmation process itself would doubtless be fraught, providing an opportunity for pointed questions about whether he’d signaled to the White House his eagerness to shut down investigations like Mueller, or pursue prosecutions of the president’s foes.  It seems quite plausible, in other words, that the Appointments Clause would have functioned as intended to deter the nomination of someone like Whitaker to head the Justice Department if he had to go through confirmation.

In the Federal Vacancies Reform Act, the White House has seemingly found a mechanism for, in effect, hacking the Appointments Clause:  Get a loyalist hired in a subordinate role to a Senate-confirmed “principal officer,” create a vacancy by forcing that officer to resign, and then promote the loyalist to the top job, circumventing the Senate for at least seven months.  Moreover, the seven-month clock is extended for the period during which the nomination of a permanent replacement is pending, and restarts if that nomination fails to win the Senate’s consent.  In theory, at least, that means Whitaker’s “temporary” leadership of DOJ could last for the remainder of Trump’s term, provided the Senate finds Trump’s nominees to replace him even less acceptable.  Given that Trump has been open about his desire to replace Sessions with a more “loyal” attorney general for more than a year, it’s even conceivable that the White House anticipated his eventual elevation back when he first joined the Justice Department.  

It’s anyone’s guess whether, in light of Eaton, the courts will balk at this circumvention of the Senate’s role in providing “advice and consent,” but if they don’t, the White House has drawn a convenient roadmap for circumventing a constitutional safeguard that seems ripe for further exploitation. 

N.Y. Proposal: Social Media Checks Before Gun Purchases

WCBS NewsRadio New York reports

Two New York lawmakers are working to draft a bill that would propose a social media check before a gun purchase.

Brooklyn Borough President Eric Adams and state Sen. Kevin Palmer’s proposal would allow authorities to review three years of social media history and one year of internet search history of any person seeking to purchase a firearm.

True, “free speech and gun rights complaints are likely to come up” – no kidding! – but Adams says it’s a way to identify persons who “not suitable to hold and possess a firearm.” 

The two are hoping to identify any hate speech on social media profiles, which are often revealed only after someone is arrested in a mass shooting.

The only way to make this proposal better – by which I mean worse – would be to arrange for New York to quarter troops on the homes of applicants with especially bad social media postings. That way the sponsors could achieve a straight flush of Bill of Rights violations.

Poll: The ACA’s Pre-existing Condition Regulations Lose Support When the Public Learns the Cost

Days before the 2018 midterms, 68% of voters say that health care is very or extremely important to how they plan to vote in this year’s elections, according to a new Cato 2018 Health Care Survey of 2,498 Americans. These numbers are driven primarily by Democratic voters with 86% who say this issue is especially important to them—in fact, 56% say the issue is “extremely important” to them. Independent (33%) and Republican voters (21%) are far less likely to say this is an “extremely” crucial issue for their vote this Tuesday.

 FIND FULL POLL RESULTS HERE

These results are consistent with analysis of 2018 campaign ads, which finds Democrats have made healthcare the centerpiece of their case to voters. About half of Democratic ads have featured health care issues compared to less than a third of Republican ads. At the core of the debate is what to do with pre-existing condition regulations embedded in the Affordable Care Act (ACA) that prevent health insurers from denying coverage or charging higher premiums to people with pre-existing conditions. Much of the public debate centered on pre-existing condition protections assume that these regulations enjoy widespread public support. However, these protections lose public support when voters learn about their costs, finds the Cato 2018 Health Care Survey.

The survey first replicated the results from myriad other surveys finding a majority (65%) of Americans favor regulations that prohibit insurance companies from refusing to cover, or charging higher premiums to, people with pre-existing conditions, while 32% oppose. However, support plummets when Americans are faced with likely consequences of these regulations. 

Support drops 20 points to 44% in favor and 51% opposed if pre-existing condition protections limited people’s access to medical tests and treatments. Similarly, 44% would favor and 50% would oppose if these regulations harmed the delivery of high-quality health care. Support drops 18 points to 47% in favor and 48% opposed if these regulations limited people’s access to top-rated medical facilities and treatment centers. Some may dismiss these potential costs as improbable; however, research finds these are likely consequences from the incentives these regulations create for the health care industry. It is for this reason that we investigate how the public evaluates these costs.

Compared to quality reductions, Americans are more prepared to pay higher taxes or premiums in exchange for keeping regulations that prevent insurers from denying coverage or charger higher premiums to people with pre-existing conditions. About half (51%) would favor and 44% oppose if these regulations raised taxes and 49% would favor and 47% would oppose if they drove up premiums. 

These results follow a familiar pattern identified in the Cato 2017 Health Care Survey that asked about each of these pre-existing condition protections separately. However, in this year’s survey we improve the desirability of these regulations by offering them as a bundle. Even still, when faced with the realistic costs of these mandates, public support plummets. 

Taking a look among partisans, we find that without any mention of costs, 83% of Democrats, 55% of independents, and 52% of Republicans initially support pre-existing condition protections. However, independents and Republicans turn against these regulations if they increase the cost of health insurance (66%, 55%), reduce access to medical tests and treatments (59%, 58%), harm the quality of health care people receive (57%, 55%), reduce access to top-rated medical facilities and treatment centers (57%, 55%), or increase taxes (57%, 57%). Democrats are less swayed by these trade-offs; however, they are least willing to sacrifice the quality of health care in exchange for keeping the pre-existing condition regulations (42%). Instead, majorities of Democrats are willing to have less access to medical tests (57%), or top-rated medical facilities (61%), or pay higher premiums (67%) or taxes (72%). Some differences in how partisans answer these questions may depend, perhaps, on how believable these costs seem to respondents rather than how acceptable they are. For instance, since Democrats are most enthusiastic about these regulations, they may be less likely to believe that they could harm the quality of care.

Higher-income Americans are more willing than low-income Americans to make trade-offs, such as shouldering higher premiums or having less access to top-rated medical facilities, to keep the pre-existing condition regulations. For instance, 61% of Americans earning more than $80,000 a year say they’d pay higher premiums to keep these regulations. In contrast, about a third (38%) of Americans earning less than $40,000 a year agree; instead, 56% oppose paying higher premiums for this reason. Nearly 6 in 10 (57%) of people earning more than $80,000 a year say they’d accept having less access to top-rated medical facilities compared to 35% of Americans earning less than $20,000 a year.

Short Term Plans

The survey also asked Americans about new federal rules that allow consumers to purchase alternative health insurance plans that don’t comply with ACA-mandates. The survey finds that majorities support new federal rules that allow consumers to purchase alternative plans, like short-term plans, even when confronted with likely trade-offs.

First, the survey presented respondents with only the anticipated benefits of the new federal rules. Doing so finds that 77% of Americans support new federal rules that allow consumers to purchase health insurance plans that cost 50% less and offer greater choices of hospitals and doctors than current plans and would cover 2 million more uninsured people. 

Support drops to 64% in favor and 31% opposed if these rules meant that some people would purchase insurance policies that cover fewer services than current plans. For instance, these new plans would not be required to cover services like mental health and prescription drugs. 

One reason why such plans have lower premiums is they do not have to comply with ACA pre-existing condition regulations and thus may exclude people, or offer limited services to people, with expensive medical conditions. These lower premiums could draw people who use fewer medical services out of the ACA-compliant plans and thus increase premiums for those who remain in those plans and are not eligible for subsidies. Nevertheless, the survey finds that 59% would continue to favor while 35% would oppose these new rules if they caused premiums to rise for some people who purchase insurance plans in the individual market.

These rule changes are popular among partisans with 77% of Democrats and 86% of Republicans in support. Majorities of Democrats and Republicans continue to favor allowing people to purchase non-ACA compliant plans even if doing so means people would not have as many services covered (58% and 71%) or if doing so increased premiums for unsubsidized people in the individual market (63% and 65%).

The Path Forward

The survey also asked Americans how they felt policymakers should approach health care reform going forward. A majority (55%) of Americans believe that the “better way” to sustainably provide high-quality affordable health care is through expanding free-market competition among insurance companies, doctors, and hospitals. Thirty-nine percent (39%) think that more government regulation of insurance companies, doctors, and hospitals is more likely to provide affordable coverage. These numbers are virtually unchanged from last year’s health care survey.

Independents (54%) and Republicans (79%) agree that more free-market competition rather than more government management of health care is more likely to lead to affordable coverage. However, a majority (60%) of Democrats think more government management is the key. Despite these partisan differences, majorities or slim majorities of whites (58%), African Americans (53%) and Hispanics (51%) believe more free market competition can better provide affordable health care than more government control.

Implications

These results do not support the widespread misperception among the political punditry that pre-existing condition regulations are necessarily and universally supported by voters across the political spectrum. Voters like benefits but not costs. And some costs are more acceptable to voters than others. Democratic accountability demands that we understand if voters are willing to bear the necessary trade-offs and costs in exchange for establishing a new policy, regulatory protection, or social program. But first, pollsters have to ask.

 
 
The Cato Institute 2018 Health Care Survey was designed and conducted by the Cato Institute in collaboration with YouGov. YouGov collected responses online October 26-30, 2018 from a representative national sample of 2,498 Americans 18 years of age and older. The margin of error for the survey is +/- 2.66 percentage points at the 95% level of confidence.