As Jerry notes, today’s ruling is welcome news.
Justice Scalia writes the main opinion and here are a few gems: “The U.S. Army Corps of Engineers exercises the discretion of an enlightened despot.” The Corps’ power to grant property owners a permit to do things on their own property relies upon “such factors as “economics,” “aesthetics,” “recreation,” and “in general, the needs and welfare of the people.” Scalia notes “the average applicant for an individual permit spends 788 days and $271,596 in completing the process.”
Full Supreme Court ruling here. Cato brief in the case here. For more evidence of the despotism, go here or here.
It should be noted that the Bush administration was once again pushing a wildly expansive view of federal power in this case. Fortunately, it lost this one.
From a news bulletin I just received from the enviro trade publication Greenwire:
Supreme Court limits reach of Clean Water Act in 5 – 4 ruling
A divided Supreme Court ruled this morning that Clean Water Act protection of “waters of the United States” is limited to “permanent, standing or continuously flowing” water. The ruling limits protection for wetlands separated from “navigable waters” or their tributaries.
Justice Anthony M. Kennedy cast the swing vote in the 5 – 4 ruling in the joint case, Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers.
This is a big win for the good guys!
Earlier this month, I posted about a disturbing new law in Washington State that would impose up to a five‐year prison term for people who gamble online. The law’s supporters said not to worry: no one would be breaking into homes to arrest individual gamblers (though even before the law took effect, there was some evidence to the contrary). Now we find out that not only are Washington State authorities willing to go after individual gamblers, they’re using the law to go after people who merely write about gambling. A Seattle Times columnist writes:
The first casualty in the state’s war on Internet gambling is a local Web site where nobody was actually doing any gambling.
What a Bellingham man did on his site was write about online gambling. He reviewed Internet casinos. He had links to them, and ran ads by them. He fancied himself a guide to an uncharted frontier, even compiling a list of “rogue casinos” that had bilked gamblers.
All that, says the state — the ads, the linking, even the discussing — violates a new state law barring online wagering or using the Internet to transmit “gambling information.”
“It’s what the feds would call ‘aiding and abetting,’ ” says the director of the state’s gambling commission, Rick Day. “Telling people how to gamble online, where to do it, giving a link to it — that’s all obviously enabling something that is illegal.”
Uh‐oh. This is starting to get a little creepy.
I’ll say. It gets worse. The state’s puritans anti‐gambling cops also lashed out at the Seattle Times itself:
Gambling officials told me The Seattle Times may be afoul of the law because we print a poker how‐to column, “Card Shark,” by gambler Daniel Negreanu. He sometimes tells readers to hone their skills at online casinos. And at the end of each column is a Web address, fullcontactpoker.com, where readers can comment.
If you type in that address, you whiz off to Negreanu’s digital casino based in the Antilles.
It’s a tangled Web, isn’t it? The state says we’d best do our part to untangle it.
“My suggestion to you is to remove from your paper any advice about online gambling and any links to illegal sites,” Day said.
So even this column could be illegal?
Unfortunately, columnist Danny Westneat closes the piece by arguing that the state’s law against online gambling is “legitimate;” it’s only the act of extending it to people who write about gambling, he asserts, that crosses the line. But as we’ve seen with the drug war, once you’ve given the state the power to enforce consensual crimes that take no victims, it’s only a matter of time before government makes the case that it can’t enforce those laws unless it’s given the power to encroach on other civil liberties.
I add a couple of provisos to Tim's post below. Justice Kennedy's concurrence makes clear there are not five votes to limit the exclusionary rule in other areas:
Today's decision determines only that in the specific context of the knock-and-announce requirement, a violation is not sufficiently related to the later discovery of evidence to justify suppression. (emphasis added)
That being said, its true that Justice Scalia's reasoning could be extended to other areas of the law if there is another retirement from the Court. Scalia's arguments against exclusion are:
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(1) that police discipline and public interest lawsuits are an effective deterrent to violations;
(2) that the costs of its application -- letting the guilty go free on a technicality -- are large;
(3) the violation is causally attenuated when the police could have discovered the evidence if they had complied with the law in a hypothetical counterfactual world.
Yesterday’s ruling in Hudson v. Michigan could prove to be a landmark Supreme Court precedent. We already knew that it was an important case involving the “knock‐and‐announce” principle, but, as New York Times reporter Linda Greenhouse observes today, the majority opinion is so “dismissive of the exclusionary rule as to serve as an invitation to bring a direct challenge to the rule in a future case.”
I’m afraid that may well be right. If so, it means we are moving from an important battle, which we just lost, over the knock‐and‐announce doctrine, to a battle royal over the Fourth Amendment generally.
For background on the exclusionary rule, go here.
There's a liberal/neo-con tiff brewing over the legacy of Harry Truman. Peter Beinart gets sniffy about George W. Bush "tak[ing] Truman's name in vain." (Who's Harry in that metaphor?) Max Boot says HST, like GWB, was wonderfully unilateral: "The decision to nuke Hiroshima and Nagasaki? A unilateral U.S. initiative. The Marshall Plan to aid European recovery? Ditto." Matt Yglesias thinks Truman was "great," but "What Would Truman Do?" isn't really a useful question.
All three focus on Truman's legacy abroad. But when you look at behavior on the home front, it seems to me that George W. Bush has as good a claim to Truman's legacy as anyone. Domestically, HST was as unilateral as all get-out. Look at the Steel Seizure case. Facing down a nationwide steel strike in the midst of the Korean war, Truman ordered his secretary of commerce to seize the steel companies and operate them for the government. He did so using a constitutional theory that's by now familiar. Here's assistant attorney general Holmes Baldridge laying it out before federal district court judge David A. Pine in 1952:
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Judge Pine: So you contend the Executive has unlimited power in time of an emergency?
Baldridge: He has the power to take such action as is necessary to meet the emergency.
Judge Pine: If the emergency is great, it is unlimited, is it?
Baldridge: I suppose if you carry it to its logical conclusion, that is true....
Judge Pine: And that the Executive determines the emergencies and the courts cannot even review whether it is an emergency.
Baldridge: That is correct.
The following, from Justice Scalia's opinion in Hudson, is an absolute joke:
Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1989, we felt it proper to "assume" that unlawful police behavior "would be dealt with appropriately" by the authorities, but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been "wide ranging reforms in the education, training, and supervision" of police officers (cite omitted).
Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.
Scalia couldn't be more off-base. In the book After Prohibition, edited by my Cato colleague Tim Lynch, Yale University's Steven Duke offers an entire chapter on the way the drug war has eviscerated constitutional protections. David Kopel adds another chapter on the way it has inspired a frightening culture of militarism among our domestic police departments. Jim Bovard, in his book Lost Rights, also documents the way the "drug war exception" to the Bill of Rights has inspired police excesses. And Eastern Kentucky University's Peter Kraska has extensively documented the way military culture has created a battlefield mindset among today's police forces that puts winning the "war" well ahead of protecting constitutional rights. Joel Miller also documents numerous examples of the drug war's corrupting influence on police officers in his book Bad Trip.