Topic: Law and Civil Liberties

Does the Seventh Amendment Mean What it Says?

James Madison once wrote: “Government is instituted to protect property of every sort … . This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.” Because the power of eminent domain so readily runs the risk of violating private property rights, you would think that those individuals subjected to it would be afforded every procedural protection the Constitution has to offer, including the right to a trial by jury. But according to the federal government, you would be wrong.

When a group of 20 Michigan landowners contested the feds’ use of eminent domain, they asked for a jury trial. By doing so, they challenged a provision of the Tucker Act that says suits against the government for over $10,000 must be brought in the Court of Federal Claims (a legislative tribunal rather than an Article III court). This goes against the Seventh Amendment’s guarantee of a right to trial by jury, argued the landowners. The district court in Michigan sided with the government, however, and dismissed the case for lack of jurisdiction, holding that Congress is within its powers to override the Seventh Amendment’s guarantee of the right to jury trial when the federal government is the defendant (because of “sovereign immunity”).

The district court effectively shielded the government from constitutional checks and balances that protect individuals’ property rights, which is why Cato joined the National Federation of Independent Business on an amicus brief in the next stage of the case, before the U.S. Court of Appeals for the Sixth Circuit. Unfortunately, a three-judge Sixth Circuit panel agreed with the district court that the Seventh Amendment has no force against the United States, and the court is now weighing whether to rehear the case en banc, which means all the judges on the court will hear the case rather than just a three-judge panel. Cato, joined by the National Federation of Independent Business and the Southeastern Legal Foundation, is supporting the en banc petition

We argue that the Seventh Amendment’s guarantee of a trial by jury is one of the oldest rights recognized in Anglo-American law. In City of Monterey v. Del Monte Dunes (1999), the Supreme Court held that, because the claimants in takings cases are seeking compensation, such claims would have been heard by a court of law (rather than, say, an admiralty court or other specialized tribunal) at the time the Seventh Amendment was passed. Accordingly, whenever plaintiffs ask for a determination of just compensation, the right to a jury trial always attaches. Indeed, takings cases are exactly the sort of cases that should be resolved by a jury trial, because they involve factual determinations with which members of the local community are likely best acquainted.

The panel’s opinion was based on dicta in a case that said there was no right to a trial by jury in a suit brought under a federal statue. Suits under statutes are very different than suits that seek to vindicate a constitutional right. The Supreme Court has not once held that the federal government can hide behind the doctrine of sovereign immunity in this manner, picking and choosing when it wants to exempt itself from the Seventh Amendment when citizens are seeking to enforce another constitutional right. Historically, not even the king of England could exempt the crown from private-property suits—and the U.S. government does not have greater powers to deprive individuals of their private property without the just compensation that a jury determines is due. The Sixth Circuit should rehear the case to correct this error. 

I Beg My Pardon?

If you’re looking for an upside to the Trump presidency, there’s this at least: it promises to be endless fun for executive-power geeks. That “this is not normal” means there’s plenty of opportunity to consider constitutional questions that rarely come up in periods of relative normalcy.

Case in point: the current debate over whether the president has the power to pardon himself, sparked by Friday’s Washington Post report that President Trump “has asked his advisers about his power to pardon aides, family members and even himself” in connection with the special prosecutor’s Russia investigation. Trump himself chimed in over Twitter Saturday:

 

 

On ABC’s “This Week” Sunday, Trump attorney Jay Sekulow denied that any such discussion had taken place, but told George Stephanopolous that “with regard to the issue of a president pardoning himself…. from a constitutional, legal perspective you can’t dismiss it one way or the other.” 

It’s true that the president’s power to self-pardon isn’t clear. What is clear, however, is that if he misuses the pardon power, he can be impeached for it. 

Pelosi Complains About Procedure Surrounding, Not Substance Of, Intelligence Bill

As I reported over the weekend, today the House will take up the FY 2018 Intelligence Authorization Act (HR 3180) under an expedited consideration mechanism known as suspension of the rules. The announcement was made Friday, but late on Sunday, House Democratic Leader Nancy Pelosi complained about the fast-tracking of the bill. POLITICO quoted a letter from Pelosi to House Democrats:

“The Republican move to place this intelligence bill on Monday’s suspension calendar would deprive Democrats of the ability to have a full and open debate on critical intelligence issues at this sensitive time in our nation’s history…This is unacceptable when critical intelligence decisions are being made that impact America’s national security, and while the House and Senate Intelligence Committees are leading investigations into Russia’s continued efforts to undermine our democracy.”

Pelosi then when on to say that the substance of the bill itself is “not problematic.” 

The lead Democrat on the House Intelligence Committee, Adam Schiff of California, is the co-sponsor of the bill. Schiff issued no statement of protest on Friday when the voting schedule for the week of July 24 was announced. And in her own comments to POLITICO, Pelosi offered no list of potential Democratic amendments to the bill. Indeed, Pelosi made no mention at all of the fact that key bipartisan surveillance reform amendments to the National Defense Authorization Act were disallowed earlier this month—amendments that would absolutely be germane to the Intelligence Authorization bill.

It appears that for Pelosi, substance-free procedural sniping is more important than actually making a case for protecting the constitutional rights of Americans to be free from unwarranted surveillance by NSA and other intelligence agencies.

What’s Missing from Apple’s Latest Lobbying Disclosure Form

MacRumors has a piece out today noting that Apple has raised its lobbying game in Washington over the last six months, spending $3.6 million on a team of lobbyists who’ve visited House and Senate offices on issues ranging from “general patent reform” to “green technology” to “issues related to implementation of Section 1502 of the Dodd-Frank Act.” What’s missing from the lobbying disclosure form is any mention of federal government surveillance practices, whether it be Section 702 of the FISA Amendments Act or that nasty encryption-related battle Apple had with the FBI in the wake of the San Bernardino shooting in 2015. 

As Reuters noted earlier this month, the tech industry generally has been rather quiet about FISA reform, though members of the Reform Government Surveillance consortium (of which Apple is a member) like to point to a letter they sent to key Congressional committees earlier this year as evidence of their committment to getting NSA and the FBI to clean up their acts on domestic surveillance. But as the old saying goes, talk is cheap.

Apple, as the richest and most successful tech company in human history, certainly has the resources to make it’s lobbying campaign–or even a surveillance reform-focused PAC–far more robust and politically threatening to pro-Surveillance State House and Senate members. That it has declined to do so to date is telling. Until Apple and the other members of the RSG make it clear to House and Senate members that there will be a steep political price to pay for failing to rein in NSA and the FBI, don’t expect significant domestic surveillance reforms to make it into law.

Sessions’ Civil Forfeiture Memo: It’s Not Just the Money

Yesterday, Attorney General Jeff Sessions reanimated the suspended Department of Justice program that allows local police to circumvent their own state laws to profit from seizing property from individuals who have not been charged, much less convicted, of a crime. Over at Democracy: A Journal of Ideas, I wrote that this may have the unintended consequence of increasing racial profiling on American roads:

Virtually everywhere police stops are counted and measured demographically, black and/or Hispanic drivers are over-represented in those pulled over and subsequently searched for contraband. The vast majority of searches of drivers across ethnicities come up empty, and statistics show that black and Hispanic drivers who are searched are less likely to be carrying contraband than whites who are similarly searched.

Stopping drivers to search for drugs and drug proceeds is much cheaper than developing leads and building cases against large drug organizations through buy-and-bust operations or long-term stings, making interdiction through traffic stops all the more appealing. For that reason, while the disparity in stops almost certainly exists independent of asset forfeiture laws, increasing the use of forfeiture will likely result in an increase of racial profiling.  

These traffic stops that officers initiate to search a car aren’t the typical traffic stops many Americans have experienced. These stops are intrusive, probing, invasive interrogations that are designed to get presumptively innocent people to give up their right to not be searched. These stops are degrading, and the people who experience them–disproportionately black and Hispanic drivers–resent being treated like criminals with something to hide. As I wrote in the Case Western Reserve Law Review, this can diminish police legitimacy in minority communities and thus can erode public safety.

The Second-Class Second Amendment?

The landmark Supreme Court case District of Columbia v. Heller established that the right to keep and bear arms under the Second Amendment is an individual right. McDonald v. City of Chicago, which applied the right against state laws, clarified that states can’t “single out” the Second Amendment and treat it with less respect than any other fundamental right.

Heller and McDonald are based on the premise that if states are allowed to decide the scope of our constitutional rights, citizens will receive inferior rights in certain states. Maryland and the U.S. Court of Appeals for the Fourth Circuit are encouraging this system of inferior rights by ignoring the key principle of these cases and allowing state legislatures to define how the Second Amendment should function.

Over a decade ago, James Hamilton accepted a laptop purchased on a stolen credit card and was subsequently convicted of three felonies in Virginia. He completed probation and paid restitution. In 2013, the governor of Virginia restored his Second Amendment rights. Since then, Hamilton has been an exemplary law-abiding citizen; he became an armed security officer with the Virginia Department of Criminal Justice Services and is now a protective security officer with the Department of Homeland Security. A family man and junior wrestling coach, Hamilton is far from a danger to society.

Maryland, however, treats Hamilton as a dangerous felon. When he applied for a handgun permit, he was denied due to his past conviction. A Maryland statute bars felons from owning firearms, with no exception for someone whose rights had been restored. Worst of all, when Hamilton brought his case to federal district court, it was dismissed for failure to state a claim. He did not even argue that the statute was unconstitutional; he argued that the statute, as applied to him, wrongly infringed on his constitutional rights. Yet the Fourth Circuit affirmed the district court, so Hamilton is now petitioning to the Supreme Court for his final chance to reclaim his Second Amendment rights in Maryland.

Cato is supporting his request with an amicus brief. We argue that the Second Amendment has not been adequately protected in lower courts—especially the Fourth Circuit—and that judicial deference has granted states an unacceptable amount of power over civil liberties. With lower courts split on the issue, the Supreme Court has a duty to clarify exactly how states must apply Heller and McDonald. Although Heller established a presumption that state restrictions on felon firearm ownership are valid, this presumption is rebuttable and not immune from as-applied challenges. A decade-old, non-violent felony should not act as a scarlet letter, preventing a person from challenging a statute in court.

When it considers the petition in Hamilton v. Pallozzi this fall, the Supreme Court should take this case and reaffirm a strong commitment to safeguarding our Second Amendment rights against state infringement.

Locking Up Kingpins Causes Violence

This story from the WSJ claims that 

the extradition of Joaquín “El Chapo” Guzmán, Mexico’s long-dominant drug lord, has led to an explosion of violence in his home state of Sinaloa, the birthplace of the country’s narcotics industry.

Rival factions are fighting over Mr. Guzmán’s billion-dollar empire as he awaits trial in solitary confinement inside a high-security prison in New York. He was extradited to the U.S. in January on drug-trafficking and murder charges.

This explanation for increased violence in Mexico is exactly what one would predict from this Cato Research Brief, by economists Jason Lindo and Maria Padilla-Romo:

We find that the capture of a [Drug Trafficking Organization] (DTO) leader in a municipality increases its homicide rate by 80 percent, and this effect persists for at least 12 months. Consistent with the notion that the kingpin strategy destabilizes an organization, we also find that these captures significantly increase homicides in other municipalities with the same DTO presence. In particular, we find that homicide rates in neighboring municipalities with the same DTO presence rise 30 percent in the six months after a kingpin capture before returning to expected levels. Further, kingpin captures cause homicide rates to grow over time (to 18 percent above expected levels 12 or more months after a capture) for more-distant municipalities with the same DTO presence. We find little evidence of increased homicide in neighboring municipalities where the captured leader’s DTO did not have a presence.

Disputes between rival suppliers occur in all industries; but in legal ones, the disputes take the form of advertising wars and lawsuits, not violence. See also this old paper of mine on the same subject.

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