Topic: Constitution, the Law, and the Courts

William Van Alstyne, R.I.P.

One of the nation’s foremost constitutional scholars, Professor William Van Alstyne, died on January 29. In his later years he was a friend of Cato’s Center for Constitutional Studies. In fact, in 2010, at the conclusion of the Center’s annual Constitution Day Symposium, he delivered our ninth annual B. Kenneth Simon Lecture in Constitutional Thought. 

A graduate of the University of Southern California and the Stanford Law School, Professor Van Alstyne spent most of his distinguished career as a chaired professor at the Duke Law School, after which he served from 2004 to 2012 as the Lee Professor of Law at the College of William and Mary Law School. His scholarship, covering a vast array of legal subjects, is voluminous, his honors numerous. His First Amendment casebook sits on my shelf. His seminal 1994 article, “The Second Amendment and the Personal Right to Arms,” underpinned the long march to District of Columbia v. Heller, in which Cato played so prominent a part. 

I first heard Professor Van Alstyne address that subject in the late ’70s, at an Association of American Law Schools convention, of all places. He was not reluctant to stand against the tide. Years later, in June of 2008, shortly before Heller was decided, he demonstrated that spirit again in a way personal to me. The Legal Times had run a piece of mine criticizing a decision the Supreme Court had just handed down in a case called Engquist v. Oregon Department of Agriculture. I thought the opinion, written by Chief Justice Roberts for himself, the Court’s four other conservatives, and Justice Breyer, had fundamentally misread the Fourteenth Amendment’s Equal Protection Clause in this anomalousclass-of-one” case. Having thus staked out so contrarian a view, you can imagine my surprise and delight when I received a very nice note from Professor Van Alstyne, whom I had never before met, explaining why I was exactly right! 

That spirit was evident again in Professor Van Alstyne’s 2010 Simon Lecture, which he titled “Clashing Visions of a ‘Living’ Constitution: Of Opportunists and Obligationists.” In that lecture he took on a number of the nation’s most prominent legal academics, from both Left and Right, to show how the Constitution has been systematically misread over the years. He will be missed. May he rest in peace.

Judge Blocks Maryland Law On Political Ads

Last year, amid the outcry over Russian online operations during the 2016 election, the Maryland legislature reacted by passing a law imposing disclosure and compliance burdens on social media providers and newspapers that accept online advertising. Now, in a victory for freedom of the press, a federal judge has blocked enforcement of key provisions of the state’s Online Electioneering Transparency and Accountability Act. The decision provides a reminder that lawmakers should not allow panics over “bad” kinds of speech to undermine basic freedoms protected by the First Amendment. 

The Maryland law as a whole tightened regulations on “campaign materials,” broadly defined to include online and physical material that “relates to a candidate, a prospective candidate or the approval or rejection” of either an actual or a “prospective” ballot measure. The specific provisions that gave rise to the challenge required larger online platforms, such as Facebook, Google, and many daily newspaper websites, to collect and publish information from advertisers that place such materials.

In particular, the platforms would be required to publish within 48 hours on their sites in searchable form a record of who had bought political ads and what they had paid, and would need to make available to the state election board for inspection on demand considerably more detail concerning each ad, including a digital copy of the ad itself, which candidate or question it related to and whether it was for or against, when it had run, what its planned or actual target audience was, and how many impressions of it had been served. Some of the ideas here mimicked the ways federal regulation requires broadcasters to maintain a public inspection file of what they have broadcast on public issues.  

Among those testifying for the bill, the Campaign Legal Center declared the bill a “well-crafted and constitutional” way to advance “greater accountability for online platforms” and said it “should serve as a model for other states.” The Brennan Center said “voluntary efforts are not enough” and favored provisions even tougher than those of the draft bill.  

By contrast, Eric Wang of the Institute for Free Speech called the public file rule “likely unconstitutional” and pointed out that the U.S. Court of Appeals for the Ninth Circuit had found a Nevada law with some similar provisions to be improperly overbroad. And Gov. Larry Hogan, citing constitutional problems as well as protests from the state’s newspaper association, declined to sign the bill, which became law anyway.

Major newspapers in the state promptly sued and on January 3 federal judge Paul W. Grimm granted them a preliminary injunction barring the state from enforcing the provisions, ruling against the state on almost every point. He observed that although federal courts under Buckley v. Valeo had upheld some restrictions on candidates, political committees and donors, all of whom were actors seeking to influence election outcomes, they had never approved using campaign law to regulate third-party media outlets or publishers. (Broadcast cases aren’t a relevant exception because courts have long handled them under a less speech-protective regime ultimately traceable to notions of scarce public airwaves.)

Maryland’s rule, the judge wrote, would fail whether examined under either strict scrutiny or the somewhat more relaxed alternative known as exacting scrutiny. The provisions were decidedly overbroad in controlling activity unrelated to the law’s aims, nor were they the least restrictive means of attempting to get foreigners seeking to sway U.S. elections to identify themselves. Significantly, the provisions did not just mandate speech in the form of obligatory disclosures, but directly impinged on press freedoms themselves, with unpredictable effects. For example, because the required disclosures might furnish competitors with valuable information about a platform’s ad rates and viewer reach, some online platforms might find it more appealing simply to begin turning down political and issue ads as a category. 

Social media trickery is bad. Chipping away at First Amendment liberties to stop it is worse. 

Court Administrators Outpace the First Amendment

When people lack the means to hold their government accountable, tyranny flourishes. The First Amendment secures the public’s right to access public information, acting as one of many safeguards against government officials’ abusing their authority. James Madison famously quipped that “Popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.” Court records are one such form of information, and the right to acquire them serves as an important check on the judiciary.

The Administrative Office of the U.S. Courts (AO) runs the Public Access to Court Electronic Records (PACER), charging fees for people to access court records online. In the 1990s, PACER fees were much higher than the cost of providing the service; the AO overcharged and used the fees to subsidize other aspects of judicial administration. As a solution, Congress passed the E-Government Act, which authorizes fees only “as a charge for services rendered” and “only to the extent necessary” to “reimburse expenses” incurred. Despite that law, the AO still runs a large surplus from PACER and spends it on different projects.

The National Veterans Legal Services Program challenged the validity of those fees. The case is now before the specialized U.S. Court of Appeals for the Federal Circuit, where Cato has joined the ACLU and several other organizations on an amicus brief.

The Supreme Court uses a two-pronged “experience and logic” test to determine whether a right to access specific types of records is protected under the First Amendment. The experience prong asks if the public has traditionally had access to a type of record, while the logic prong asks whether such access plays a “significant positive role” in a governmental process. Since there is a long history of public access to court records, and this access acts as a check on the courts, it seems clear that a government action that impedes public access to judicial records, like PACER fees, must be narrowly tailored to meet a compelling interest. Here, the government has not met that burden of proof. Instead, the AO claims that it has congressional authority to impose unnecessary costs—an idea that even the author of the statute has refuted.

Although society and technology develop over time, rights—such as the right to access court records—are unchanging. The Federal Circuit should reject the government’s interpretation of the E-Government Act because it would raise a substantial constitutional question about congressional authority to intrude on the First Amendment, and should instead affirm the idea that people have the right to access court records without having to pay prohibitive costs.

Congress Isn’t Only Branch Enabling Trump’s Emergency Threats

As President Trump delivered a weekend salvo in the ongoing shutdown battle, White House aides reminded reporters that the president remains convinced of his “legal authority to declare a national emergency at the border, which could allow him to redirect Pentagon funding to a build a border wall.” The flacks’ messaging was clear: If congressional Democrats turn a deaf ear to Trump’s latest proposal, then the president retains recourse to his emergency powers.

In a thoughtful post earlier this month, my colleague Gene Healy explained that Trump’s threats are far from idle, and that the Congress bears much of the blame for this bizarre scenario whereby the president can win domestic policy priorities by declaring an ad hoc emergency. Gene pointed to “at least two provisions of the U.S. Code passed during the 1980s, 33 USC § 2293  and 10 USC § 2808,” that plausibly empower Trump to fund a border wall if he declares a national emergency.

Disconcertingly, these were only two out of more than a hundred delegations of emergency powers to the president! Returning to Gene’s post:  

[T]he U.S. Code today [is] 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. 

Worse yet, the president’s statutory powers aren’t limited to putative national emergencies; instead, there are many and diverse congressional delegations of law-making power directly to the president. For example, through the Antiquities Act, the president can regulate millions of acres of public lands with a brief proclamation. Under trade statutes, the president can impose tariffs backed by little more reasoning than his signature. Prof. Kevin Stack provides other examples in this excellent article.

Gene’s post spotlighted Congress’s complicity to the dangerous accumulation of direct statutory authority in the president’s hands. But Congress isn’t the only branch of government to blame; the judiciary is a co-enabler of executive excess.

Out of undue solicitude for the office of the presidency, the Supreme Court has abandoned substantive review of presidential decision-making pursuant to overbroad delegations of congressional authority. The upshot is that courts won’t scrutinize the president’s decision that a “national emergency” exists. Nor will courts perform a meaningful inquiry of the relationship between the putative national emergency and the border wall. That is, they won’t question if the wall is a reasonable policy to mitigate the supposed national emergency.

Instead, courts would perform a superficial “facial” review of the president’s declaration pursuant to Congress’s broad delegation of “emergency” powers, bending over backwards to accommodate the executive. It’s deference squared.

This ultra-permissive judicial review stands in stark contrast to how Article III courts review exercises of congressional delegations by all other actors in the Executive Branch. Under the Administrative Procedure Act (APA) 5 U.S.C. § 706, all “agency action” is subject to judicial review to ensure that the agency’s lawmaking is not “arbitrary or capricious.”  As interpreted by the Supreme Court, this provision requires courts to take a “hard look” at the reasonableness of an agency’s reasoning and decision-making.

In a seminal 1992 case, Franklin v. Massachusetts, the Supreme Court held that the president is not an “agency” under the APA. Unfortunately, the Franklin Court did not explain its reasoning, other than citing “respect for the separation of powers and the unique constitutional position of the President.” As observed by Prof. Kathryn Kovacs, this crucial question was neither briefed nor broached during oral argument. 

This absence of consideration is reflected by the weakness of Franklin’s legal reasoning.

Looking to the text of the APA, there seems to be ample evidence that the statute contemplates searching review of the president’s statutory powers. As I noted above, all “agency action” is subject to a “hard look” under the APA. In 5 U.S.C. § 701(b)(1), the APA defines “agency” as “each authority of the Government of the United States,” but it expressly does not include “the Congress” or “the courts of the United States.” It wouldn’t make sense for the Congress to explicitly exclude two of the three branches of government from judicial review under the APA, but, at the same time, to implicitly exclude the third branch of government.

There’s another textual clue that a president’s statutory powers should be subject to judicial review under the APA. In 5 U.S.C. § 701(a)(2), the APA precludes from hard look review “agency action [that] is committed to agency discretion by law.” In this context, “law” refers to “the common law’ of judicial review of agency action,” and included in this body of jurisprudence are such non-justiciability principles as the “political questions” doctrine. In turn, the political question doctrine allows courts to decline to take on controversies whose solution is better left to the political branches. Simply put, there’s no reason for the APA to account for the political question doctrine if presidents are not considered “agencies” whose actions are subject to “hard look” review under the APA.

There are also policy reasons why the president should be considered an “agency.” In many instances, the president’s statutory powers mirror policymaking authority possessed by administrative agencies. Consider, for example, the Antiquities Act, which authorizes the president to regulate public land to the same ends as can be achieved by the Interior Department pursuant to the Federal Land Policy and Management Act. The difference is that the Interior Department must submit to procedural safeguards and meaningful judicial review before it can regulate millions of acres of public land, while the president can achieve the same results with a stroke of the pen and meaningless judicial oversight.

Regardless whether the Court thought through what it was doing, the Franklin decision added a perverse complement to a president’s statutory powers. On the one hand, the president enjoys vague and therefore sweeping delegations of statutory authority. On the other, he escapes meaningful judicial review when exercising these overbroad delegations. It’s a toxic mix that permits the president to gin up bogus emergencies to achieve major domestic policy priorities. (Imagine President Elizabeth Warren’s Green New Deal in response to a climate-change “emergency.”)

In sum, Gene is absolutely right to endorse calls on Congress to “shore up the guardrails of liberal democracy” with comprehensive reform of the president’s statutory powers. To the same end, it’s also well past time for the Supreme Court to revisit Franklin v. Massachusetts.

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.