Topic: Constitution, the Law, and the Courts

Supreme Court Finally Takes Up Second Amendment Case

Yesterday morning, the Supreme Court agreed to hear New York State Rifle & Pistol Association v. New York City, which challenges the city’s ban on transferring even licensed, unloaded guns anywhere outside the city – including to weekend homes or shooting ranges. 

Finally! In the decade since the Supreme Court ruled in D.C. v. Heller that the Second Amendment protects an individual right to keep and bear arms, it has declined to take any cases regarding the scope of that right – until now. Matt Larosiere and I made the case a few weeks ago in the pages of the Wall Street Journal that the Court was neglecting its duty to say what the law is by abdicating its responsibility to resolve important controversies regarding various gun regulations. “The federal circuits can’t even agree on how to evaluate Second Amendment challenges, let alone what the result should be.”

With N.Y. State Rifle & Pistol, the Court can start checking the massive resistance of many states and cities to this important constitutional right. And it can start instructing the lower courts, many of which have treated the right as second-class, how the law works in this area. For law-abiding gun owners and others who wish to exercise their fundamental right to armed self-defense – particularly those who live in places with high crime and woeful policing – this is most welcome news. 

Of course, the justices could end up deciding this case on Commerce Clause grounds – interfering with access to another state’s markets – or the Fourteenth Amendment right to travel, to avoid a possibly controversial Second Amendment ruling. But it’s hard to see that there would be more consensus on those grounds. The real fear is that the Court will simply throw out this categorical ban – as in Heller, which involved a complete ban on possession of handguns – without advancing the larger jurisprudential ball. We’ll see if Justice Brett Kavanaugh, who has a strong Second Amendment record, can convince Chief Justice John Roberts to use higher caliber legal analysis.

What’s That Buzzing Overhead? It’s An OSHA Drone

“That buzzing noise over a construction site could be an OSHA drone searching for safety violations,” notes Littler Mendelson lawyer Tammy McCutchen in a piece for the Federalist Society. Quoting a U.S. Department of Labor memorandum from May of last year obtained by Bloomberg Law, McCutchen writes that “your friendly neighborhood OSHA inspector is now authorized by the Labor Department ‘to use camera-carrying drones as part of their inspections of outdoor workplaces.’”

What about the Fourth Amendment, you may ask? Well, court review is unlikely because current procedures call for the agency to obtain employer consent before sending the spycams aloft. Which makes everything okay, right? 

Not really. As McCutchen writes, employers who refuse such consent “risk the ire of the DOL, with serious consequences. Nothing is more likely to put a target on an employer’s back for multiple and frequent future investigations than sending a DOL investigator away from your doors. Refusing consent will label you at the DOL as a bad faith employer that deserves closer scrutiny. This I know through experience practicing before DOL and as a former Administrator of DOL’s Wage & Hour Division.” 

So consent will often, maybe nearly always, be given despite the dangers one might imagine. Some of those dangers: “The drones could record trade secrets or employees doing things they shouldn’t.  But the memo contains not a single word on protecting the privacy of employers or employees caught on video.  How long will OSHA retain the video? Who will have access to the video? Will the videos be obtainable by competitors or unions through a FOIA request?” Or, for that matter, by other law enforcement agencies seeking to build a completely unrelated legal case against the employer, employees, or perhaps even the owners or users of nearby property?

All of which points up one of the problems with trying to turn the abstractions of civil liberties into something real: before a court can act on behalf of your rights, you need to be able to say no to the government’s demand in the first place, or else there will be no dispute for the court to review. And across much of our regulatory and administrative state, that power to say no in the first place has been tending to ebb away.  [adapted from Overlawyered]

The ATF Attempts to Deny Non-Binary and Trans Americans Guns

At the end of January, someone at the National Shooting Sports Federation asked the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) about non-binary people purchasing firearms. The ATF responded that, despite gender non-binary licenses being acceptable identification, the individual must still select either “male” or “female” on the standard firearm transfer form 4473.

The ATF’s rigid, unreasoned response makes it clear there’s a huge disconnect between the purpose of the form, and the ATF’s interpretation. Form 4473, which everyone must fill out when they purchase a firearm from a federally licensed dealer, is intended to identify the purchaser of the firearm, have them confirm they are legally eligible to receive the firearm, and give enough identifying information to run a background check.

How can forcing a prospective gun owner to select “male” or “female” make any difference in identifying them when they have already provided a driver’s license, a home address, place of birth, full name, and even social security number? When a form has so much information, it’s clear that someone’s sex adds little to its ability to properly identify them. Even in the odd situation where completely filling out the form would still yield multiple results, the ATF offers the creation of Unique Personal Identification Numbers (UPIN’s). Still, even with all these avenues of precisely identifying a person, the ATF insists that dealers may not transfer a firearm to a purchaser who refuses to “check the box.”

Guns and LGBTQ rights might seem like strange bedfellows in today’s political climate, but the pairing makes sense. We’ve known for a long time that LGBTQ people are frequent targets of violent crime. Thus their need for an effective means for self-defense is best served by robust access to firearms. Putting an arbitrary and demeaning barrier between sexually nonbinary individuals and access to a firearm hampers—or even eliminates—their ability to provide for their own defense.

An individual’s sexual identity has absolutely no bearing on their ability to safely own and operate a firearm. Whether you care more about gun rights or LGBTQ rights, you shouldn’t avert your eyes from this injustice. The ATF, in their directive to bar gun dealers from transferring firearms to individuals who refuse to select “male” or “female,” are worsening the status of a class of people predisposed to victimization.

There is no excuse for the ATF’s rigid and unreasoned stated policy. As long as the transferee provides sufficient information to identify themselves and enable a background check to be performed, there is no reason to deny them their natural right to arms. The ATF should reverse course, and in the future take proper stock of the rights of people who might be affected by such judgment calls.

This Is Our Emergency

Last Friday, President Trump threatened to declare a national emergency and build his border wall using “the military version of eminent domain.” By Tuesday, Trump seemed to have climbed down somewhat, declining to repeat the threat in his televised Oval Office address. But the week's end found the president declaring it would be “very surprising” if he didn’t pull the trigger.

So is the emergency-powers gambit a live option or—like the executive order revoking birthright citizenship Trump floated before the midterms—another pump-fake designed to thrill the base and rile the media? Either way, it’s a noxious, thuggish proposal. Using the army to do an end-run around Congress is not how constitutional government is supposed to work. Imagine believing that Latin American immigration so threatens our free institutions that only banana republic tactics can protect us. 

About the best one can say for the idea is that it has the accidental virtue of concentrating the mind wonderfully about the powers we’ve concentrated in the executive branch. 

Our Constitution cedes vanishingly few emergency powers to the president. He commands “the Militia of the several States, when called into the actual Service of the United States," and has the power, via Article II, section 3, to convene Congress on “extraordinary Occasions,” such as a national emergency. “That is about as far as his crisis authorities go,” notes the University of Virginia’s Saikrishna Prakash: “the convening authority would have been unnecessary if the chief executive could take all actions necessary to manage ‘extraordinary occasions.’” 

In Youngstown, the 1952 “steel seizure” case, the Supreme Court rebuffed the Truman administration's claim of a general presidential emergency power divorced from specific statutory or constitutional authority. Justice Jackson, in his influential concurrence, suggested that the Framers neglected to provide such authority for fear “that emergency powers would tend to kindle emergencies.” 

Surely, then, the president can’t just gin up a bogus crisis and use the military to get what he wants when Congress won’t give it to him—can he? It would be nice to be able to answer that question with a confident “no.” Unfortunately, in this case, at least two provisions of the U.S. Code passed during the 1980s, 33 USC § 2293  and 10 USC § 2808, give Trump a non-frivolous rationale for his claim that “I can do it if I want.” 

Overbroad delegations of emergency authority to the executive are a longstanding problem. During the Watergate-era congressional resurgence, a 1974 Senate special committee investigation (co-chaired by Frank Church of Church Committee fame) identified 470 provisions of federal law delegating emergency powers to the president and four proclamations of national emergency, dating as far back as 1933, then still in effect. That investigation led to the National Emergencies Act of 1976, which repealed existing emergency declarations, required the president to formally declare any claimed national emergency and specify the statutory authority invoked, and subjected new declarations to a one-year sunset unless renewed.  

Related upcoming event

A Real Emergency: Executive Power under the National Emergencies Act

March 25, 2019 | Policy Forum
Cato Institute, Washington, DC

Has the National Emergencies Act become part of the problem, rather than a solution? Should it be reformed?

DETAILS & REGISTRATION

Despite those efforts, the U.S. Code today remains honeycombed with overbroad delegations of emergency power to the executive branch. A Brennan Center report released last month identifies 136 statutory powers the president can invoke in a declared national emergency. Few of these provisions require anything more than the president’s signature on the emergency declaration to trigger his new powers—“stroke of the pen, law of the land—kinda cool,” in the Clinton-era phrase. 

Most of these emergency powers have never been invoked, many of them are innocuous, and some—like the provision that allows suspension of the Davis-Bacon Act in a natural disaster—are even sensible. But other long-dormant powers are extraordinarily dangerous.

Writing in the Atlantic, the Brennan Center’s Elizabeth Goitein highlights a WWII-era amendment to the Communications Act of 1934 empowering the president to close or take over “‘any facility or station for wire communication’ upon his proclamation ‘that there exists a state or threat of war involving the United States.’” She sketches a nightmare scenario in which Trump puts the country on a war footing with Iran; invokes § 706 of the Communications Act to assume control of U.S. internet traffic, deploys federal troops to put down the resulting unrest, and scares people away from the polling stations with a menacing Presidential Alert text message. Goitein grants that “this scenario might sound extreme,” and I admit I found it a bit overcooked. Even if the administration wanted to do something like this, I’m confident it would go bust, thanks to the sort of spectacular ineptitude that botched the initial rollout of the Travel Ban. 

However, she’s absolutely right to call on Congress to “shore up the guardrails of liberal democracy” with comprehensive reform of emergency powers. “Committees in the House could begin this process now,” she writes, “by undertaking a thorough review of existing emergency powers and declarations,” laying out a roadmap for repealing unnecessary delegations, and providing “stronger protections for abuse.” The sooner, the better: you never know when a competent authoritarian is going to come along. 

New Bill Would Stop Eminent Domain Abuse Along the Border

President Trump’s proposed border wall would cut across nearly a thousand miles of privately owned land, so to build this project, the administration would need to use eminent domain to seize the land—something that the president is eager to do. Aside from the unpleasantness of taking people’s property without their consent, federal eminent domain use comes with it a particularly obnoxious component: the government can take the land but not provide just compensation until years later. New legislation would stop this practice.

As I wrote in 2017:

Right now, when Border Patrol wants to take someone’s land, they send them a letter offering them a nominal low sum of money for their land and threatening to file condemnation proceedings against them if they don’t accept it… . [But] under the eminent domain statute, the federal government can seize property almost as soon as it files a condemnation proceeding—as soon as the legal authority for the taking is established—then they can haggle over just compensation later.

It’s called “quick take.” Quick take eminent domain creates multiple perverse incentives for the government. 1) It can quickly take land, even when it doesn’t really need it, and 2) it has no real incentive to compromise or work with the land owner on compensation. The owner’s bargaining power is significantly diminished. The federal government already possesses the property. This means that for years, people who are subject to a border wall taking go without just compensation.

An NPR analysis of fence cases found that the resolved cases took more than 3 years to resolve. In many other cases, the process took more than a decade for a court to determine just compensation, and some cases are still pending more than 12 years later. Unfortunately, the Supreme Court has determined that this “quick take” eminent domain does not violate the 5th amendment requirement that no “private property be taken for public use, without just compensation.” The reasoning is that as long as the person will eventually get compensation, the taking is constitutional.

The awful component of this process is that, in order to challenge the taking, the property owner must not accept the offered payment. But the border wall will go up on their land just the same. Meanwhile, they have to fight in court without getting the compensation that they deserve. Many people cannot even afford to challenge the taking for this reason alone.

Today, Rep. Justin Amash (R-MI) introduced the Eminent Domain Just Compensation Act to deal with just this issue. “It is unjust for the government to seize someone’s property with a lowball offer and then put the burden on them to fight for what they’re still owed,” Rep. Amash said in a statement. “My bill will stop this practice by requiring that a property’s fair value be finalized before DHS takes ownership.”

It makes this reform by amending Section 103 of the Immigration and Nationality Act (8 U.S.C. 1103), which details the powers of the Secretary of Homeland Security.  Current law provides that:

The [Secretary of Homeland Security] may contract for or buy any interest in land, including temporary use rights, adjacent to or in the vicinity of an international land border when the [Secretary] deems the land essential to control and guard the boundaries and borders of the United States against any violation… When the [Secretary] and the lawful owner of an interest identified pursuant to paragraph (1) are unable to agree upon a reasonable price, the [Secretary] may commence condemnation proceedings pursuant to section 3113 of title 40.

The Eminent Domain Just Compensation Act would amend this provision by adding that: “the Government may not take any land prior to the issuance of a final judgment pursuant to the proceedings under section 3113 of such title.’’ This language forecloses the opportunity for the Trump administration to seize land quickly for the president’s unnecessary, ineffective, and costly border wall without first fully compensating the owners. 

Pushing Back Against ADA Shakedowns

Each year thousands of small and large businesses, non-profits, and organizations are hit with drive-by ADA claims, typically batch-produced affairs in which a complainant out of the blue claims to have found something not fully accessible to disabled users about the target’s operations and goes on to negotiate a settlement that includes ample attorneys’ fees. Because ADA requirements are both obscure and voluminous and even compliance experts do not agree among themselves how much accommodation counts as enough, potential violations can be found at most businesses. While the ADA is a national law, much of the mass filing of accessibility complaints goes on under state laws that piggyback or expand on the federal version, often with added features enhancing damages or attorney’s fee entitlements. 

It has been hard to get state-level relief from the depredations of the filing mills, since lawyers and disabled-rights activists can make for a formidable lobbying combination. But a piece of legislation just signed by Gov. John Kasich in Ohio, and an unrelated ruling in the California state courts, at least offer tiny rays of hope. 

Ohio’s HB 271 provides that in order to collect automatic attorneys’ fees under state accessibility law, a complainant must notify the business concerned, which then has 15 business days to respond and 60 days to remedy the violation.” The law, which goes into effect in March, is itself a bit of a compromise: it excludes housing discrimination claims, and provides that even a complaint filed without notice or opportunity to correct can still collect fees if a judge finds such payment appropriate. A similar bill on a national scale passed the U.S. House of Representatives last February but went nowhere in the U.S. Senate, and is likely to muster less support in the new House. 

In California, meanwhile, a state court has ruled that the distinctively harsh Unruh Act, which awards automatic damages in the thousands of dollars each to prevailing civil rights complainants whether or not they can prove any injury to themselves, does not apply as a matter of law to complaints against websites. Because of ongoing uncertainty about whether the ADA applies to websites, defendants across the country have been deluged with web accessibility lawsuits in recent years; if the ruling sticks, they will at least be spared the extra-high damages of the California version.  

Cato Sues SEC Over Gag Orders

Earlier today, Cato sued the Securities and Exchange Commission in federal court challenging the SEC’s policy of imposing perpetual gag orders on settling defendants in civil enforcement actions. The clear point of that policy is to prevent people with the best understanding of how the SEC uses its vast enforcement powers from sharing that knowledge with others. But silencing potential critics is not an appropriate use of government power and, as explained in Cato’s complaint, it plainly violates the First Amendment’s protections of free speech and a free press.

The case began when a well-known law professor introduced us to a former businessman who wanted to publish a memoir he had written about his experience being sued by the SEC and prosecuted by DOJ in connection with a business he created and ran for several years before the 2008 financial crisis. The memoir explains in compelling detail how both agencies fundamentally misconceived the author’s business model—absurdly accusing him of operating a Ponzi scheme and sticking with that theory even after it fell to pieces as the investigation unfolded—and ultimately coerced him into settling the SEC’s meritless civil suit and pleading guilty in DOJ’s baseless criminal prosecution after being threatened with life in prison if he refused.

The author now wants to tell his side of the story, and Cato wants to publish it as a book—but both are prevented from doing so by a provision in the SEC settlement agreement that forbids the author from “mak[ing] any public statement denying, directly or indirectly, any allegation in the [SEC’s] complaint or creating the impression that the complaint is without factual basis.” This provision appears to be standard not only in SEC settlements, but with the CFTC, the CFPB, and possibly other regulatory agencies as well. Thus, when the federal government unleashes its immense financial regulatory power in a civil enforcement action, the price of settling—as the vast majority of cases do—is a perpetual gag order that prohibits the defendant from ever telling his or her side of the story.

This is a wildly inappropriate use of government power, and it is directly contrary to the spirit of accountability and transparency that permeates our founding documents. Indeed, the Sixth Amendment guarantees the right to a speedy and public trial precisely to ensure that when the government accuses people of wrongdoing it must place its cards faceup on the table for all to see. Today, however, 97 percent of federal criminal convictions are obtained through plea bargains, and a similar percentage of SEC civil enforcement actions are settled instead of adjudicated. This means that, contrary to the constitutional prescription for a public airing of the government’s case, most enforcement actions—both civil and criminal—unfold behind closed doors and under the radar. And it is increasingly clear that the process by which the government extracts confessions, plea deals, and settlement agreements from defendants in those cases can be incredibly (and even unconstitutionally) coercive. It is at this coercive dynamic that a significant portion of Cato’s criminal justice work takes aim, in order to restore the system envisioned by the founders and enshrined in the Constitution.

Thus, the more adamant the government is about preventing us from knowing what tools and techniques are being brought to bear against those whom it accuses of misconduct, the more important it is for us to find out. Perpetual gag orders like the ones routinely imposed by the SEC, CFTC, and CFPB as a condition of settlement are utterly antithetical to principles of good government and, not coincidentally, to the First Amendment’s protections of free speech and a free press as well.

Accordingly, we at Cato have teamed up with our friends at the Institute for Justice, which represents Cato in its challenge to the SEC’s unconstitutional policy of demanding perpetual gag orders as a condition of settlement in civil enforcement actions. Together, we aim to strike down not only the specific gag order at issue in this case, but all perpetual gag orders in all existing civil settlements with federal agencies—and to terminate the government’s policy of silencing those whom it accuses of wrongdoing.

It is often said that sunlight is the best disinfectant. The SEC and its cohorts are about to get a healthy dose of each.