Topic: Constitution, the Law, and the Courts

Looking Back: Charles Reich and His Era

Charles Reich, who died Saturday at 91, had a brief run in popular culture as author of “The Greening of America,” the bestseller that endeavored to sell the 1968 outlook to middle-class readers as the coming thing (“Consciousness III”). His reputation was to prove much more durable in the world of law, where as a young professor he penned what was to become the most cited Yale Law Journal article ever: “The New Property,” published in 1964. In it, Reich argued that courts should treat welfare benefits, public employment, and government contracts and licenses as types of property to which current holders were presumptively entitled, at least absent some sort of formalized adversary process. The phrase “new property” invited a comparison to plain-old-property in such forms as real estate, of the rights to which the courts were (with Reich’s approval) becoming less solicitous over this same period, as in 1978’s Penn Central Transportation v. New York City, which authorized the government to take development rights without compensation.

I’ve written over the years about both sides of Reich’s work. In Schools for Misrule (2011) I explored his durably influential 1964 article at some length as an example of academic thinking that indisputably helped to shape real-world jurisprudence. Part of its ingenuity was in couching in seemingly sober and cautious terms an idea whose implications (especially welfare rights) were otherwise controversial, so as to appeal to moderates and also to the sorts of thinkers who would soon be termed libertarian. (The New York Times, in its obituary, says that “The New Property” article “defended an individual’s right to privacy and autonomy against government prerogative,” which sounds either Cato-ish or positively anodyne.) As I put it: 

Many of the social problems Reich discussed were in the air, so to speak, in the early 1960s. In applauding “individualism,” in raising doubts about the “magnification of government power” and the “dependence” it might instill in recipients, Reich might even have been seen as working in a vein similar to that of Milton Friedman, who had just two years earlier (in 1962) been in the public eye with his book Capitalism and Freedom. In one of the most celebrated chapters of that book, Friedman had detailed at length the abuses of occupational licensure and proposed its abolition. And as part of his longtime interest in “negative income tax” proposals, Friedman too criticized some paternalistic and intrusive social-welfare rules that were aimed in part at monitoring and uplifting recipients’ way of life. 

Reich’s idea of making it easier to sue over license denial might come across as a less-drastic alternative to Friedman’s idea of doing away with professional and occupational boards. And you might argue that by advancing the concept of a right to welfare, Reich was echoing Friedman’s critique of welfare bureaucracy. In short, so long as you didn’t examine matters too closely, Reich and Friedman might almost come off as co-thinkers in seeking to constrain the size and power of government….

The Supreme Court’s speedy adoption of the “new property” idea in the years that followed became the stuff of law-school legend. 

Later experience showed, I believe, that the two scholars were by no means on the same track: making it easier to sue over license revocation isn’t much like recognizing freedom to engage in an occupation, and restricting welfare agencies from cutting off benefits they believe to have been fraudulently obtained isn’t very much like what a negative income tax (or universal basic income) tries to do. Reich’s remedies did not really operate to curtail big government, while they did advance the power and role within it of lawyers and those comfortable with legal process. In that way too, Reich outran his peers at capturing the spirit of his era.  


Iowa Channels Colonel Jessup in Prosecuting Truth-Telling

“You can’t handle the truth!” So says Jack Nicholson’s cantankerous Colonel Nathan R. Jessup in A Few Good Men upon the prosecutor’s needling inquisition into the death of a young Marine. So also say the paternalistic officials of Davenport, Iowa to tenants who seek to learn whether their eviction was motivated by what they would consider to be a good or bad reason. The Supreme Court has long held that “hurtful” speech—even outright hate speech—shares the same level of First Amendment protection as a friendly greeting. Two years ago in Matal v. Tam, the Court summarized the law thus: “Speech may not be banned on the ground that it expresses ideas that offend.”

Well, Iowa courts seem to disagree with the U.S. Supreme Court. Theresa Seeberger of Davenport leased a single-family residence to Michelle Schreur and her 15-year-old daughter. After a history of late payments and other bad feelings, Seeberger finally decided to evict the two when the daughter got pregnant. When Schreur asked for the reason for the eviction, Seeberger listed some general grievances and then said that “[n]ow you’re going to bring another person into the mix.” While there are no local laws against evicting tenants for this reason, Davenport prohibits landlords from informing evictees of potentially discriminatory reasoning (family status being a protected category for this purpose).

The Iowa appellate court upheld fines (in the tens of thousands of dollars) that the Davenport Civil Rights Commission imposed on Seeberger, reasoning that her statement to Schreur was “commercial speech” and that the law prevents “landlords from subjecting prospective tenants to the stigmas associated with knowingly being discriminated against.” The Iowa Supreme Court allowed that ruling to stand.

But the government can’t use its desire for politeness as a weapon to “protect” residents from an offensive or derogatory opinion, especially in areas as important as eviction. Prodded by certain voices in the academy, a growing segment of the American public believes that the First Amendment does not in fact protect “hate” speech (whatever that means). This despite a long line of Supreme Court opinions that protect, among other things, callous protests near a fallen soldier’s funeral, the hurtful exclusion of gay organizations from a St. Patrick’s Day parade, and neo-Nazi marches designed to intimidate Holocaust survivors. We doubt there is anything different about the “commercial” context that should allow for the restriction of speech far less offensive than some of the things said in the non-commercial marketplace of ideas.

Laws that stop us from telling the truth strike at the heart of the First Amendment and foreshadow a brave new world in which a paternalistic and inevitably puritanical state determines to prohibit that which offends, upsets, disgusts, hurts, demeans, insults, stigmatizes, or, dare we say, “triggers.” Cato has thus joined with the Hamilton Lincoln Law Institute to file an amicus brief in support of Seeberger’s petition for review by the U.S. Supreme Court, seeking reversal of a state court ruling that undermines core tenets of First Amendment jurisprudence.

Far from protecting the Schreurs of the world from the “stigmas associated with knowingly being discriminated against,” statutory prohibitions against informing tenants of discriminatory motivations behind their eviction can only do more harm than the truth—depriving people of an honest answer to a very basic question: Why are you terminating my lease?

The Supreme Court will decide whether to take up Seeberger v. Davenport Civil Rights Commission in September upon returning from its summer recess.

Article III Court Should Hear Challenge to SEC’s Unconstitutional Enforcement Proceedings

How many constitutional infractions must one endure at the hands of the government before getting the chance to be heard in an Article III court? According to the Securities and Exchange Commission, the answer is at least two.

In April 2016, the SEC commenced an enforcement proceeding against Michelle Cochran for alleged violations of federal accounting regulations. The proceeding took place before an administrative law judge who was reported at the time to have said to defendants that “they should be aware he had never ruled against the agency’s enforcement division.” True to his word, the SEC judge issued an initial decision ruling in the SEC’s favor. Ms. Cochran was fined $22,500 and banned from practicing as an accountant for at least five years.

But before the SEC could finalize its order against Ms. Cochran, the Supreme Court held in Lucia v. SEC that administrative law judges are “inferior officers” subject to the Constitution’s Appointments Clause. Because SEC judges had not been appointed by the “President alone…Courts of Law, or…Heads of Departments”—as required for all “inferior officers” by Article II—the Supreme Court invalidated all ongoing administrative enforcement proceedings before the SEC, including the one against Ms. Cochran.

After Lucia, the SEC attempted to cure this constitutional defect by “ratifying” its administrative law judges’ prior appointments, thereby comporting with constitutional procedures. The problem is that the SEC’s Appointments Clause “solution” entails a violation of the Constitution’s Removal Clause. As a matter of constitutional law, the agency jumped from the frying pan into the fire.

In Free Enterprise Fund v. PCAOB, the Supreme Court held that “officers” of the United States may not be insulated from presidential control by more than one layer of tenure protection. Yet the SEC’s judges enjoy employment protections, and they are removable by SEC commissioners, who also enjoy employment protections. That is, the SEC’s administrative law judges are “officers” with at least two layers of tenure protections, and, therefore, run afoul of the Supreme Court’s reading of the Removal Clause in Free Enterprise Fund.

In its Lucia brief, the SEC acknowledged this constitutional quandary. Notwithstanding this concession, and although the SEC has the discretion to bring its enforcement proceedings in an original action before a federal district court, the agency reassigned Ms. Cochran’s case to a new administrative law judge. As a result, the SEC knowingly subjected Ms. Cochran to a second unconstitutional enforcement proceeding, which remains ongoing.

Enough is enough. In January, with the help of the New Civil Liberties Alliance, Ms. Cochran filed suit against the SEC in a federal district court in Texas. She argued that she should not have to undergo a second unconstitutional enforcement proceeding. To be clear, she’s not asking the court to void the SEC’s charges against her or otherwise diminish the SEC’s enforcement power. Ultimately, Ms. Cochran seeks only for a federal court—and not an unconstitutional administrative law judge—to try the SEC’s case against her. Simply put, she wants her day in a court that passes constitutional muster.

On March 25, 2019, the district court dismissed her case for lack of subject-matter jurisdiction, concluding that Congress intended to preclude district court jurisdiction over Ms. Cochran’s constitutional claims and channel those claims through the administrative process. Ms. Cochran has appealed the district court’s order to the U.S. Court of Appeals for the Fifth Circuit.

Cato, joined by the Cause of Action Institute and Competitive Enterprise Institute, yesterday filed a brief in support of Ms. Cochran. We argue that the district court misconstrued (and thereby trivialized) Ms. Cochran’s serious ongoing constitutional injury. In addition, we argue that parties like Ms. Cochran may never get any opportunity to seek or obtain redress for their constitutional injury, and even if they do it will be too late to undo or remedy the injury. Because this case alleges a colorable constitutional claim of ongoing ultra vires government action, and because Congress cannot have intended to strip district courts of jurisdiction over such a claim, the Fifth Circuit should allow Ms. Cochran’s case to proceed in the district court.

For more background on this case, see Cato’s briefs in Lucia v. SEC and Free Enterprise Fund v. PCAOB.

Again Pointing Out Executive-Power Abuses in the New Bump Stock Ban

Before the tragic mass shooting in Las Vegas, almost nobody in the United States had ever heard of a “bump stock.” What was, and always has been, a gun-range novelty was suddenly the subject of national discussion. In the months following the tragedy, Congress considered and ultimately rejected a law banning these devices. Eager to seize political capital, however, the Trump administration sought to ban them anyway.

The administration faced one problem, though: the Constitution. As anyone who’s seen School House Rock can tell you, only Congress can write new laws. Never to let something like a written constitution get in their way, the administration tried to make new law by “reinterpreting” an existing law: the National Firearms Act of 1934 (NFA), which heavily regulates “machineguns.”

For decades, Congress, the executive branch, and the people shared a common understanding: the definition of “machinegun” in the NFA was clear, applying only to weapons that fired continuously from a single function. Be it with a button, a lever, or a traditional trigger, a “machinegun” fires continuously upon the performance of a single function. Bump stocks, which require substantial and continuous user input to fire, had never been considered “machineguns.” President Trump announced that his administration was changing course. The president expressly declined to go through Congress, instead directing officials to redefine bump-stock devices as “machineguns.” In turn, the Bureau of Alcohol, Tobacco, and Firearms (ATF) broke from decades of precedent and granted itself a new power to ban a widely owned firearm accessory.

This expansion of regulatory authority, motivated by political expediency, cannot stand. Whether one agrees that bump stocks should be regulated or not, this change is about far more than bump stocks. ATF has asserted the complete authority to ban any new class of weapons that were never covered by the 1934 law. This approach impermissibly expands the executive branch’s power to rewrite criminal laws and the casual approach to ignoring the Constitution would certainly not stop with the ATF if allowed to stand.

The new rule, making felons of an unknowable number of Americans, took effect on March 26, 2019. Gun owners and advocacy groups filed lawsuits in several federal districts, including one that ended up in the U.S. Court of Appeals for D.C. Circuit in which Cato also filed.

Another case is now before the U.S. Court of Appeals for the Tenth Circuit. It was brought by the New Civil Liberties Alliance on behalf of Clark Aposhian, who lawfully purchased a bump stock. Our brief here addresses issues that no other amicus discusses: that the executive branch cannot use the administrative process to accomplish legislative goals that Congress declined to enact.

The implications of this case extend far beyond bump stocks. Regardless of what public opinion is at this moment, the law means what it says. The executive branch has the power to interpret existing law, not create new ones. The administration argues, essentially, that the clear political motive here doesn’t matter, and that nothing prevents them from inventing their own definitions of the terms that define a “machinegun.” That simply isn’t the case. Administrative interpretations are supposed to do just that—interpret existing law—not give new meaning to an old one.

If the government really wants to regulate bump stocks, it needs to do so by passing a new law, not by assigning new meaning to an old one. The Founders weren’t short-sighted; there’s a reason laws that affect the entire nation have to come through Congress, not through politically motivated bureaucratic reimagination.

The Tenth Circuit will hear argument in Aposhian v. Barr this summer.

Shamefully, Only Two Justices Find that You Can’t Be Prosecuted by a State and the Feds for the Same Crime

This morning, in the case of Gamble v. United States, the Supreme Court ruled 7-2—with only Justices Neil Gorsuch and Ruth Bader Ginsburg in dissent—that state and federal governments can continue having a second bite at the apple, both prosecuting someone for the same crime if they wish. It’s really unfortunate that the justices declined to withdraw the “dual-sovereignty” exception to the Double Jeopardy Clause. The Court itself created this doctrine decades ago, before the federal criminal code (unconstitutionally) exploded and before the Double Jeopardy Clause even applied to the states. 

As Justice Gorsuch wrote, “the separate-sovereigns exception to the bar against double jeopardy finds no meaningful support in the text of the Constitution, it’s original public meaning, structure, or history.” To put a finer point on it, it’s fully consistent with federalism to say that nobody should be prosecuted twice for the same crime. 

That is, federalism—the division of sovereignty between the federal and state governments—exists to protect our liberties. It divides power to lessen the chance of government abuse. It decidedly does not multiply power or act as some sort of redundancy whereby the federal and state government both get to regulate in the same areas—including the criminal law. 

It’s a shame that the Supreme Court failed to correct the constitutional anomaly here, and to ensure that criminal defendants receive the protection against multiple prosecutions that the Fifth Amendment so plainly commands.

For more on this line of analysis, see Cato’s brief.

Natural Law, Gay Rights, and the State Department’s New Commission on Unalienable Rights

More on the State Department’s new Commission on Unalienable Rights, about which I wrote in this space on Friday. Aimed at providing Secretary Pompeo “with fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights,” the commission has raised several concerns. Chief among them is whether “natural law” is code, signaling that the department in future might “focus less on protecting women and LGBT people,” as put by Politico, which broke the story on Thursday afternoon. 

Giving weight to those concerns, ABC News late Friday reported that, according to a source familiar with the plans for the commission, Princeton’s Robbie George has played a prominent role in its creation. I’ve known Prof. George for some time now. He’s a first-rate scholar and advocate for religious liberty. In fact, he spoke at Cato’s 2016 conference on religious liberty, which we memorialized with our book Deep Commitments. But as co-founder of the National Organization for Marriage and a prominent voice in Catholic circles, he has long argued against the gay-rights agenda, especially same-sex marriage.

If this is the course the commission takes, this “fresh thinking about human rights” could seriously complicate the work of the department’s Bureau of Democracy, Human Rights, and Labor, especially in countries with draconian anti-gay laws and practices. But at a theoretical level too, as noted in my earlier post, the promise this “fresh thinking” raises for correcting some of the misconceptions that afflict today’s rights talk could easily be lost by coupling natural law and religious belief. A word is in order on that matter. 

Start with this: Natural law and natural rights are not the same thing. True, natural rights emerged historically from natural law. And in the Declaration of Independence, Jefferson did speak of our rights as being “endowed by [our] Creator.” But that was a very general invocation, suited properly for “a candid World” wherein was found a variety of beliefs. Properly understood, however, especially as modern natural rights theory has evolved, our rights are not grounded in a prescriptive natural law, much less in any belief system, religious or otherwise, but in universal human reason, as John Locke and many of the Founders understood. They saw that liberty—the right to pursue happiness by our own subjective lights—was the very essence of natural rights. 

Thus, on this understanding, natural rights are not derived from natural law. On the contrary, natural law—the rules suited to securing our logically prior natural rights—is derived from those rights. In fact, if you look at the famous second paragraph of the Declaration, that’s exactly the order you’ll find. Jefferson sets forth the moral vision first, defined by our natural rights; only then does he set forth the political and legal order—the law—that is “instituted among Men” to secure those rights. 

Historically, of course, many have associated natural law with, and grounded it on, religious beliefs, and many still do, although the ancient Greeks, especially the Stoics, and Roman Law did not so ground it. But the American founding emerged from the Enlightenment—English, Scottish, and continental—and so is best understood as having eschewed an undue reliance on theological considerations—though I grant that on that historical question it’s a mixed record, despite the theory of the matter. 

As a practical matter, however, it would be far better if this commission emphasized natural rights and the nation’s founding principles rather than natural law, because the former does not carry what many today see, not without reason, as the “baggage” of the latter. I presume that we all want a world that respects liberty, including religious liberty, not one that restricts our freedoms. That is what animated us at Cato’s Center for Constitutional Studies as the same-sex cases were coming along. Thus, we filed amicus briefs with the Supreme Court defending, on equal protection grounds, the liberty of same-sex couples to marry and, after that, the liberty of bakers and others, on religious freedom grounds, to decline to participate in various ways in same-sex weddings. In both cases, the principle was the same—liberty. 

As I intimated in Friday’s post, albeit with a focus on aberrations that have arisen from modern “human rights” thinking, this commission, properly staffed and conducted, affords an opportunity to redirect our public debate to America’s first principles—and to do so on many issues. Given the state of liberty today around the world, the concerns raised so far about this commission should be seen not as something to be countered but to be embraced. There will be close calls, to be sure, and some differences. But in the end, those raising the concerns and those calling for fresh thinking should be focused on the same thing—the liberty that natural rights are all about. 

Natural Rights vs. Human Rights: The State Department’s New Commission on Unalienable Rights

Yesterday afternoon we learned from Politico that the State Department had just “quietly published” in the Federal Register a notice that the department intends to establish a Commission on Unalienable Rights. Its aim, as the notice states, is to

provide the Secretary of State advice and recommendations concerning international human rights matters. The Commission will provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights.

The Politico report goes on to cite human rights activists and former State Department officials worrying “that talk of the ‘nation’s founding principles’ and ‘natural law’ are coded signals of plans to focus less on protecting women and LGBT people.” And critics note also, correctly, that “the Trump administration’s record on human rights so far is spotty at best.”

Still, properly undertaken, this commission could help correct confusions at the core of modern human rights thinking and policy, many of which were highlighted in a new book we featured at a Cato forum a year ago, Aaron Rhodes’ The Debasement of Human Rights: How Politics Sabotage the Ideal of Freedom. Shortly thereafter, Dr. Rhodes and I summarized those issues with a piece at National Review.

In a nutshell, the modern human rights movement took shape in the aftermath of World War II, with the creation of the United Nations and the drafting of the U.N.’s 1948 Universal Declaration of Human Rights. As we wrote in the National Review piece:

Arising from political compromises between post-war progressives and some of the world’s worst tyrannies, the UDHR bows simply to “inherent dignity,” making no mention of natural law or natural rights. To be sure, it lists rights in that tradition. But it goes on with a list of so-called economic and social rights — to jobs, housing, “periodic holidays with pay” — which today dominate human-rights debate and practice.

Unlike natural rights to freedom, which require only that we be left alone, these economic and social rights, if rights at all, are not universalizable. They’re created by legislatures, requiring endless redistributive schemes. And as demand for them grows, governments grow and liberty yields. More sinister still, the original compromises that elevated these rights to the status of human rights have enabled totalitarian regimes to sit at the human-rights table. After 70 years, a toxic hypocrisy poisons the debate. Russia, China, Cuba, Islamic theocracies, even North Korea boast about their often illusory economic and social programs as evidence of human-rights compliance and their own legitimacy.

We have here, in short, a textbook example of how confused thinking, coming out of the Progressive Era, has led to confused policy, and worse. In fact, the Politico article notes that Kiron Skinner, Secretary of State Pompeo’s director of policy planning and the commission contact listed in the Federal Register notice, “drew criticism recently for seeming to suggest that China, a rising power, is such a fundamentally different culture from the United States that arguments about human rights may not have much effect in dialogue with Beijing.”

But there is truth in that suggestion. As I showed in a chapter on China’s Constitution in Cato’s 1998 book, China in the New Millennium, unlike in the natural rights tradition, which begins with the individual, the socialist tradition—and, in fact, progressivism too—begins with the group, its agenda carried out, in countries like China, through the Communist Party. On that understanding, “human rights” are not innate and unalienable but rather are a function of that starting point. Thus, as I wrote in that chapter, “a careful reading of [the Chinese Constitution] will show that the ‘law’ provides virtually no protection for individual rights, notwithstanding its use of the language of rights.” Indeed,

Article 51 sets out a general defeasance clause: “Citizens of the People’s Republic of China, in exercising their freedoms and rights, may not infringe upon the interests of the state, of society, or of the collective.” Given that those “interests” are boundless in principle, and vague besides, any claims that individuals might have against the state can always be trumped as a matter of constitutional law. It should hardly surprise that the Constitution elevates the interests of the state above the rights of the citizen. After all, the whole point of the Constitution is to order affairs—including the affairs of individual citizens—toward the goal of building socialism. Given that all-encompassing end, it stands to reason that individuals should not be permitted to act in ways that might compromise the end. In fact, when they do, their acts are branded as “counterrevolutionary” and subject to suppression (Article 28).

If this new commission can refocus America’s human rights thinking and policy on America’s first principles, grounded in our unalienable natural rights, the implications are far reaching, not only for the rest of the world but for America itself.