Topic: Government and Politics

President Obama’s Farewell Speech

Yesterday in this space Gene Healy previewed last night’s farewell speech by President Barack Obama before an arena of supporters in Chicago’s McCormick Place. I wrote up my own reaction to the address for the National Interest and the results are here. The speech had little policy and less law in it, but the President did take up some themes of national unity and not demonizing opponents that – timed as they are amid confirmation season – may turn out to have a short shelf life.   

As I note, “Obama’s words have always held broader appeal than his policies.” And this President shows at best limited self-awareness of why his initiatives have met with so much opposition, as on topics of economic intervention: “his administration’s implacably pro-union policies, along with its many new mandates on employers and heavy regulatory hand in general, played a key role in driving business-oriented voters home to the Republican Party in recent elections.”

In his post-Presidency Obama plans to take up the worthy cause of redistricting reform, where I am cautiously optimistic he may do some good. And I also liked the passage in which he lauded the Founders’ “essential spirit of innovation and practical problem-solving,” a spirit

born of the Enlightenment, that made us an economic powerhouse – the spirit that took flight at Kitty Hawk and Cape Canaveral, the spirit that cures disease and put a computer in every pocket.

It’s that spirit – a faith in reason, and enterprise, and the primacy of right over might, that allowed us to resist the lure of fascism and tyranny during the Great Depression, and build a post-World War II order with other democracies, an order based not just on military power or national affiliations but on principles – the rule of law, human rights, freedoms of religion, speech, assembly, and an independent press.

That order is now being challenged – first by violent fanatics who claim to speak for Islam; more recently by autocrats in foreign capitals who see free markets, open democracies, and civil society itself as a threat to their power.

With perhaps a word or two changed here or there, that’s a passage I would have been happy to write myself. I hope it augurs well for his public service as a former President. Read the whole thing here.

Low-Level Bureaucrats Shouldn’t Be Changing Federal Law

The debate over transgender rights has risen in prominence in recent years, with the fight over access to public restrooms and locker rooms receiving particularly heavy public attention. The legal question at the heart of the first such lawsuit to reach the Supreme Court, however, is one not of civil rights, but of administrative law: Should courts defer to agency interpretations of their own regulations, even when those interpretations constitute major, substantive changes to public policy via informal, non-binding pronouncements?

G.G. is a transgender high school student—minors are identified by letters in sensitive cases—who argues that Gloucester (Va.) High School’s policy disallowing him from using the facilities that correspond with his preferred gender identity violates federal law (Title IX of the Education Amendments) regarding sex discrimination in education. Upon being informed of G.G.’s conflict with the Gloucester County School Board, James Ferg-Cadima—a civil servant in the U.S. Department of Education’s Office of Civil Rights (OCR)—wrote a letter purporting to interpret the relevant regulation. This letter stated that “[w]hen a school elects to separate or treat students differently on the basis of sex in [situations like this], a school generally must treat transgender students consistent with their gender identity.”

While the federal district court rejected this interpretation, the U.S. Court of Appeals for the Fourth Circuit reversed that ruling and deferred to the agency’s new understanding of its Title IX regulations. The Supreme Court took the case and Cato, along with the Cause of Action Institute and four respected law professors (Jonathan Adler, James Blumstein, Richard Epstein, and Michael McConnell), has filed an amicus brief supporting the school board.

We do so not because we necessarily oppose OCR’s position as a matter of policy or even whether the relevant federal law can properly be read to support that policy—those are questions for another day—but because we oppose its unconstitutional method of enacting that policy. OCR seeks to change federal law not through the procedures spelled out in the Administrative Procedure Act, but via an informal, unpublished letter written by a low-level bureaucrat.

Current Supreme Court precedent under Auer v. Robbins (1997) says that courts must give such agency interpretations of their own regulations controlling deference. But deferring in this way incentivizes agencies to write vague regulations because they will then be free to reinterpret them at a later date without having to go through the trouble and expense of the rulemaking process—changing the law with no notice to regulated entities or the general public. Auer deference also allows executive agencies to consolidate legislative and judicial power by effectively rewriting regulations beyond the scope delegated by Congress and then judging for themselves whether they’ve overstepped that authority.

The Court appears unwilling to overrule Auer in its entirety, but we call on it to take this opportunity to limit Auer to a more appropriate scope by holding that only agency interpretations that have received the public scrutiny of notice-and-comment rulemaking merit judicial deference.

One final note: The justices are expected to hear Gloucester County School Board v. G.G. this spring and decide it by the end of June, but the case could be made moot before it’s heard or decided. The Trump administration could simply withdraw the Ferg-Cadima letter or take other actions that would moot the case and leave the important issues it raises unsettled. Considering the importance Gloucester County may hold for the state of administrative law, we chose to file our amicus brief under the assumption that it will remain a live controversy—and to make a strong statement about constitutional structure and the rule of law.

Swan Song from a “Reluctant” Hawk

President Obama will deliver his Farewell Address tonight to a capacity crowd in Chicago’s McCormick Place convention center. It’s the right venue for the speech, the president explained last week, because Chicago is “where my career in public service began.”

Indeed, it’s the city where, as a young state senator in 2002, Obama gave an antiwar rally speech railing against the “dumb,” “rash” rush to war in Iraq; and where, as a presidential candidate five years later, he promised to “turn the page on the imperial presidency” and usher in “a new dawn of peace.” And yet, 2008’s “peace candidate” will leave office as the first two-term president in American history to have been at war every day of his presidency, having dropped over 25,000 bombs on seven countries in 2016 alone.

Given that record, it seems unlikely that Obama will use his Farewell Address to warn against excessive foreign entanglements or the dangers of the military-industrial complex. But you never know: our 44th president has never lacked chutzpah. In a speech to US troops last month, he denounced the “false promise” that “we can eliminate terrorism by dropping more bombs,” and piously proclaimed that “democracies should not operate in a state of permanently authorized war.”

An audacious statement—given that it is Obama himself who’s made perpetual warfare the new normal, and the president the ultimate “decider” in matters of war and peace. Where George W. Bush secured congressional authorization for the two major wars he fought, Obama has launched two undeclared wars (in Libya and against ISIS), ordered 10 times as many drone strikes as his predecessor, and this summer bombed six different countries just over Labor Day weekend. And it is Obama who is largely responsible for warping the 2001 Authorization for the Use of Military Force—passed three days after 9/11 to target Al Qaeda and the Taliban—into an enabling act for endless war, anywhere in the world.

Through it all, Obama has maintained the pose of a “reluctant warrior,” repeatedly lecturing the country about the dangers of an imperial presidency while forging new frontiers in the expansion of executive power. “Unless we discipline our thinking, our definitions, our actions,” he chided in May 2013, “we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers.” In the same speech, Obama even had the gall to quote James Madison’s admonition that “no nation could preserve its freedom in the midst of continual warfare.”

Can States Forcibly Unionize Small Businesses?

Imagine that you run a family daycare out of your home. You have no direct connection to the state government, but its bureaucrats decide that because you lack an “organized voice” as a profession, they’re going to appoint a union representative to speak on your behalf. So you get a union you didn’t choose and which you refuse to join. This union is now representing your “interests” before the state, which isn’t even your employer. All this despite the fact that you might not even agree with what the union is saying!

It sounds far-fetched, but this is what’s happening to Mary Jarvis and several others in New York. These plaintiffs have sued the Empire State, arguing that the imposition of an exclusive representative violates their First Amendment freedom of association.

In the 2014 case Harris v. Quinn, the Supreme Court ruled that states that unionize healthcare aides and other home-based workers who are “not full-fledged public employees” cannot require those who do not wish to join the union to pay fees to support it. This new case asks the question Harris left unanswered: May a state even mandate exclusive representation for those who are “not full-fledged public employees”—or not employees of the state at all?

The U.S. Court of Appeals for the Second Circuit said that the case is easily resolved under Abood v. Detroit Board of Education (1977)—which allowed the imposition of “agency fees” on union nonmembers—and does not require further First Amendment scrutiny. Abood, however, is like a house built on the sand: It treated the First Amendment concerns public unions (should) raise as already resolved by earlier cases when in fact those cases merely resolved the question of whether Congress has the constitutional authority to regulate those public unions. Abood’s reliance on the notion of “labor peace”—which was significant in those old cases but shouldn’t be a valid First Amendment interest—conflicts with the First Amendment’s ban on compelled speech and association absent a substantial government interest.

Although the Second Circuit treated this case as automatically resolved under Abood, it would actually be a vast expansion of precedent to say that “labor peace” justifies forcibly unionizing at-home workers who are independent from the state government. States are already doing this in a number of jurisdictions—including in the First Circuit, which recently upheld a similar Massachusetts law that Cato earlier urged the Supreme Court to hear—but expanding Abood here would enable the states to mandate exclusive representation for almost any private business.

Where does it stop? Cato has filed a brief asking the Court to answer that question once and for all, and ultimately to rule that Abood should not be read to give the states free rein to unionize individuals at the expense of their First Amendment rights. The case is Jarvis v. Cuomo.

Campaign-Finance Rules Chill Speech Unrelated to Election Campaigns

In 2014, the Independence Institute—a Colorado think tank—wanted to run a radio advertisement supporting the Justice Safety Valve Act, a bill granting federal judges greater discretion in sentencing nonviolent offenders. The text of the ad asked listeners to “call Senators Michael Bennet and Mark Udall”—Colorado’s two senators at the time—and tell them to support the bill.

But under the Bipartisan Campaign Reform Act of 2002 (BCRA, better known as McCain-Feingold), any organization that spends at least $10,000 on “electioneering communications” in one year is required to make several public disclosures, including “the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more” toward the advertisement. Further, an “electioneering communication” is defined as any broadcast that “refers to a clearly identified candidate for Federal office” within 60 days of a general election. Since Udall was running for reelection that year, the ad would have qualified even though it had nothing to do with Udall’s campaign.

The Independence Institute challenged the rule as an unconstitutional burden on its First Amendment right to speak on issues of public concern. After losing before a three-judge district court, the Institute has now appealed directly to the Supreme Court. Cato, joining the Institute for Justice, has filed a brief urging the Court to grant the case a full hearing on the merits.

We make two broad points. First BCRA’s disclosure provision is undeniably content-based, which should subject it to strict scrutiny under the First Amendment (meaning the government needs to provide a compelling justification). The law applies only if a speaker chooses to make reference to a candidate for office, so the law expressly draws distinctions based on the expressive content of speech.

Second, mandatory-disclosure laws chill speech by forcing people to surrender their “privacy interest in keeping personal facts away from the public eye,” as the Supreme Court put it in U.S. Department of Justice v. Reporters Committee for Freedom of Press (1989). In the context of reviewing disclosures made under the Freedom of Information Act, the Court has recognized that “embarrassment in … social and community relationships” is among the consequences of disclosure that “must be given great weight.” U.S. Department of State v. Ray (1991).

Exactly the same analysis holds true for donors to advocacy organizations. For many people—without tenure, without salary protection, and without security details—government-mandated disclosure of their political leanings and personal data is a real barrier to political participation. Forcing people to divulge their personal information threatens to expose them to reprisals, and this deterrent effect is pervasive precisely because it is impossible to predict whether your viewpoint will trigger retaliation.

BCRA’s disclosure rule is content-based, intrudes on speech and association, and has not been shown to serve a legitimate governmental interest. Because enforcement of the rule raises a substantial question under the First Amendment, the Court should take up Independence Institute v. FEC and ultimately overturn the district court.

79% Want Police Misconduct Investigated by Independent Agencies

In most jurisdictions, local police departments typically conduct internal investigations of police officer shooting and misconduct complaints.[1] However, 79% of Americans would prefer that an “outside law enforcement agency take over the investigation” when an officer is suspected of criminal wrongdoing. Alternatively, 21% favor police departments conducting internal investigations of their own officers.

The proposal to have outside investigations of misconduct, rather than internal department investigations, enjoys broad public support. Overwhelming majorities across demographics and partisan groups, including majorities of blacks (82%), whites (81%), Hispanics (66%), Republicans (76%), independents (77%), and Democrats (83%), all favor outside investigations and prosecutions of officers accused of misconduct.

Find the full public opinion report here. 

For public opinion analysis sign up here to receive Cato’s upcoming digest of Public Opinion Insights and public opinion studies.

 The Cato Institute/YouGov national survey of 2000 adults was conducted June 6–22, 2016 using a sample drawn  from YouGov’s online panel, which is designed to be representative of the U.S. population. YouGov uses a method  called sample matching, and restrictions are put in place to ensure that only the people selected and contacted by  YouGov are allowed to participate. The margin of sampling error for all respondents is +/-3.19 percentage points.  The full report can be found here, toplines results can be found here, full methodological details can be found here.

 


[1] USCCR, “Revisiting Who Is Guarding the Guardians? A Report on Police Practices and Civil Rights in America,” U.S. Commission on Civil Rights, November 2000, http://www.usccr.gov/pubs/guard/main.htm.

Americans Want Police to Prioritize Fighting Violent, Property Crime, but Few Prioritize Drug War

Although Americans are divided in their perceptions of how police do their jobs, majorities across demographic and partisan groups agree on what law enforcement’s top priorities ought to be.

A newly released Cato Institute/YouGov survey of 2,000 Americans finds that when people are asked to select their top three priorities for the police they choose the following:

  1. Investigating violent crime like murder, assaults, and domestic violence (78%)
  2. Protecting individuals from violent crime (64%)
  3. Investigating property crime and robbery (58%)

Notably, only 30% think police should make enforcing drug laws a top three priority. Some may find these results surprising, given that police made more arrests for drug abuse violations (1.6 million) than they did for violent crimes (498,666) in 2014. The estimated number of violent crimes committed that year was 1.2 million.

Find the full public opinion report here.

Nineteen percent (19%) say police should make enforcing traffic laws a top priority. In other words, Americans de-prioritize the task leading to the most common interaction individuals have with the police—receiving a traffic ticket.[1]

Another 18% think police should prioritize going beyond traditional law enforcement responsibilities by “providing guidance and social services to troubled young adults.” And another 12% say police enforcing public nuisance laws is most important. 

Black, white, and Hispanic Americans, Democrats and Republicans prioritize the same top three tasks for law enforcement. However, groups differ in their intensity of support. African Americans and Hispanics (45%) and Democrats (51%) are less likely than white Americans (63%) and Republicans (63%) to prioritize the police investigating property crime and robbery. (Although this difference largely dissipates among individuals above the median income.) African Americans, Latinos, and Democrats (27%) are about twice as likely as whites (15%) and three times as likely as Republicans (9%) to say the police should prioritize “providing guidance and social services to troubled young adults.”

No racial group is more likely to prioritize the police enforcing drug laws—30% of whites, Hispanics, and blacks each say it should be a top priority. Even partisans generally de-prioritize fighting the drug war. Thirty-five percent (35%) of Republicans and 27% of Democrats say it should be a top three priority.

Despite these modest differences, Americans across partisanship and demographics agree that the police should prioritize fighting violent and property crime and protecting people from being victims of violence. 

For public opinion analysis sign up here to receive Cato’s upcoming digest of Public Opinion Insights and public opinion studies.

The Cato Institute/YouGov national survey of 2,000 adults was conducted June 6–22, 2016 using a sample drawn from YouGov’s online panel, which is designed to be representative of the U.S. population. YouGov uses a method called sample matching, and restrictions are put in place to ensure that only the people selected and contacted by YouGov are allowed to participate. The margin of sampling error for all respondents is +/-3.19 percentage points. The full report can be found here, topline results can be found here, and full methodological details can be found here.


[1] Christine Eith and Matthew R. Durose, Contacts between Police and the Public, 2008, edited by Bureau of Justice Statistics (Washington, D.C.: U.S. Department of Justice, 2011), https://www.bjs.gov/content/pub/pdf/cpp08.pdf.