Topic: Law and Civil Liberties

DOJ Enters the Fray…Against the CFPB

There’s another installment in the ongoing saga of PHH v. CFPB, the legal case challenging the constitutionality of the newest federal agency, the Consumer Financial Protection Bureau. And this installment is a weird one. The Department of Justice has now joined in, filing a briefagainst the CFPB. Yes, the federal government is now effectively on opposing sides of this case.

If you haven’t been following the story, I have a few posts that can bring you up to speed. At this point, a panel of judges has ruled against the CFPB, and a majority of them found that the CFPB’s structure is unconstitutional. (I find it difficult to see how anyone could find otherwise.) Part of the problem with the agency’s structure, as the court found, is that it has a single head who is removable only for cause. The director is not accountable to any elected official. To cure this problem, the court decided that the director should be removable by the president at will. This would make the agency more like a traditional executive agency—like the Department of Justice, for example—and less like existing independent agencies. Although it is important to note that even most independent agencies, like the Securities and Exchange Commission, are headed by a multi-member board and the chair of that board serves as chair at the will of the president. 

Now the federal appeals court in D.C. is rehearing the case en banc. That means that all 11 of the active judges on the court will hear the case and issue an opinion together. On Friday, the DOJ filed a friend of the court brief in support of PHH.

While it is extremely rare (although not unheard of) for one part of the government to file a brief in opposition to another part, it is not entirely surprising in this case. In ruling against the CFPB in the earlier hearing, the court handed the president a new bit of power. One of the reasons that our government has three co-equal branches is to allow them to serve as checks on one another. As Judge Kavanaugh noted in his opinion for the panel in the original hearing, quoting Justice Scalia “The purpose of the separation and equilibrium of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom.” Arguably, the government filing on both sides of a case is a sign the system is working as planned. 

No-Knock Warrants and the War on Drugs

Two recent stories on this subject in the New York Times remind us that, despite recent progress toward legalizing marijuana, the U.S. drug war is far from over. 

The articles support many libertarian views on drug policy: that legalization should include all drugs, not just marijuana; that the drug war disproportionately harms the poor and minorities; that prohibition erodes basic constitutional protections against unreasonable searches; that asset forfeiture laws create perverse incentives for law enforcement; and that prohibition senselessly militarizes local police.

One further interesting point is that law enforcement has its own reservations about no-knocks:

The National Tactical Officers Association, which might be expected to mount the most ardent defense, has long called for using dynamic entry [no knocks] sparingly. Robert Chabali, the group’s chairman from 2012 to 2015, goes so far as to recommend that it never be used to serve narcotics warrants.

“It just makes no sense,” said Mr. Chabali, a SWAT veteran who retired as assistant chief of the Dayton, Ohio, Police Department in 2015. “Why would you run into a gunfight? If we are going to risk our lives, we risk them for a hostage, for a citizen, for a fellow officer. You definitely don’t go in and risk your life for drugs.”

Exactly.

 

The Filibuster: A Primer

Most legal scholars agree that Supreme Court nominee Neil Gorsuch has the necessary experience, expertise, and temperament to be confirmed as Justice Scalia’s replacement.  But suppose the Democrats decide to filibuster the nomination and Republicans can’t get the 60 votes needed to break the filibuster?  If that happens, you can expect the Republicans to “go nuclear” and change the filibuster rules so that only 51 votes are required to shut off debate.  To understand what that means, here’s a short backgrounder on the filibuster:

Senate filibusters have been around since 1837.  Beginning in 1917, a cloture vote to shut off debate required a 2/3 supermajority; that was changed to 60 votes in 1975.  Sen. Strom Thurmond (D-SC) set the record with a 1957 talk-a-thon against civil rights legislation: 24 hours, 18 minutes.  Nowadays, senators need not actually speak.  They merely announce their intent to prolong debate and that triggers the 60-vote cloture rule. 

Suppose senators want to revise the 60-vote rule.  Rules can be revised by majority vote.  But suppose further that the vote on revising the 60-vote rule is itself filibustered.  According to Senate rules, if a vote to change the 60-vote rule is filibustered, it takes two-thirds of the senators to break the filibuster.  The so-called nuclear option would override that rule.

There are two versions of the nuclear option – one simple and one complicated.  First, the simple version:  On the first day of a new Congress, Senate rules don’t yet apply.  Therefore, new rules can be adopted – and debate can be halted – by the default procedure, which is majority vote.  After the first day, however, that option isn’t available.

The second version is more complicated; but it can be used at any time.  One party, let’s say the Republicans, moves to change the 60-vote cloture rule to 51 votes.  The Democrats filibuster the rule-change – which means it would take 67 votes to close debate.  Republicans then go for the nuclear option – which is a point-of-order, upheld by the presiding officer, declaring that the 67-vote requirement is unconstitutional.

In 2005, it was the Republicans threatening the nuclear option to stop Democrats from blocking confirmation of George W. Bush’s judicial nominees.  In response, the Democrats said they’d shut down all Senate business.  Then-Senator Obama (D-IL) said, “I urge my Republican colleagues not to go through with changing these rules.  In the long run, it is not a good result for either party.”  Eventually, the confrontation was diffused when the Gang of 14 – seven senators from each party – agreed not to filibuster judicial nominees, except in extraordinary circumstances.  So, the Republicans never did use the nuclear option.  But eight years later, the Democrats had gained control of the Senate.  Majority leader Harry Reid (D-NV), who had previously opposed any effort to change the Senate’s rules, abruptly decided to support the nuclear option that he had argued vigorously against. 

As a result, we now have a new rule:  the minority cannot filibuster executive appointments and federal judicial nominees, except for Supreme Court nominees.  Of course, with the Republicans back in control of the Senate, the rule change backfired on Reid and the Democrats.  Not only was it an unexpected gift to the Republicans, but it also opened the door to a second use of the nuclear option, if necessary, to ensure confirmation of Trump’s Supreme Court nominees.  And that’s what will happen if the Democrats try to stop Neil Gorsuch. 

For what it’s worth, here’s my view of the matter:  The gripe against the filibuster is that it’s undemocratic because it stifles majority rule.  That misses the point.  We are a republic, not a democracy, and our Constitution is intentionally undemocratic.  The Framers were concerned about tyranny by the majority.  Recent majorities, on both sides of the aisle, have proven that those concerns are justified.  Majority parties have killed bills in committee, refused floor votes, and blocked amendments – essentially denying the minority any meaningful role.  The filibuster is a partial counterweight to those problems.

Furthermore, the Framers wrote a Constitution replete with protections that limit majority rule.  To name just a few: we have limited and enumerated federal powers, two senators from each state, the electoral college, and the Bill of Rights.  And note that the Constitution requires a 2/3 vote to propose constitutional amendments, override vetoes, approve treaties, impeach the president, and expel a congressman.  The filibuster’s supermajority requirement may be undemocratic, but that’s precisely why we have it.

Without the filibuster, we would be laboring under a federal government far larger than today’s behemoth.  Thanks to the filibuster, senators can occasionally throw a few grains of sand in the ever-grinding wheels of the regulatory and redistributive state.  Milton Friedman captured that point when he said, “I just shudder at what would happen to freedom in this country if the government were efficient.”  He was right.  The filibuster is a valuable safeguard.  We’d be better off if it were codified as part of the Constitution – especially for votes on significant expenditures and tax increases – and also for confirmation of federal judges, who have lifetime tenure on the bench.  Unless and until we establish judicial term limits, it’s little enough to insist that lifetime appointees be approved by 60 senators. 

More likely, however, the availability of the filibuster for Supreme Court nominees will be short-lived.

NYT Report on Paramilitary Drug Raids

The New York Times has a special investigative report about the militaristic drug raids that are now happening every day in the United States. 

Here is an excerpt:

As policing has militarized to fight a faltering war on drugs, few tactics have proved as dangerous as the use of forcible-entry raids to serve narcotics search warrants, which regularly introduce staggering levels of violence into missions that might be accomplished through patient stakeouts or simple knocks at the door.

Thousands of times a year, these “dynamic entry” raids exploit the element of surprise to effect seizures and arrests of neighborhood drug dealers. But they have also led time and again to avoidable deaths, gruesome injuries, demolished property, enduring trauma, blackened reputations and multimillion-dollar legal settlements at taxpayer expense, an investigation by The New York Times found.

For the most part, governments at all levels have chosen not to quantify the toll by requiring reporting on SWAT operations. But The Times’s investigation, which relied on dozens of open-record requests and thousands of pages from police and court files, found that at least 81 civilians and 13 law enforcement officers died in such raids from 2010 through 2016. Scores of others were maimed or wounded.

It’s terrific reporting that covers so many of the problems: the unnecessary violence, the dilution of constitutional safeguards, the flimsy police investigative work, the cover-ups when things go bad, and the lawsuits that will ultimately burden taxpayers.

Cato has been sounding the alarm on this trend since 1999, with the publication of “Warrior Cops.” That was followed by Radley Balko’s study, “Overkill,” and there have been countless events, media appearances, opinion articles, and book chapters since. Indeed, one of the NYT’s own reporters, Matt Apuzzo, acknowledged a few years ago that “the criticism of the so-called militarization of police has largely come from libertarian quarters for several years. They have kind of been the lone voice on this, folks like the Cato institute.” 

For related Cato scholarship, go here.

What to Look for in the Gorsuch Confirmation Hearings

The moment has arrived: this week, we finally have Supreme Court confirmation hearings before the Senate Judiciary Committee. This is the culmination of a series of unusual political events that took place after Justice Antonin Scalia’s untimely death in February 2016.

Indeed, when Scalia died, President Barack Obama had almost a year left in office, so it seemed likely that he would get to select the Court’s next justice. But it was an election year—and the last time that a Senate controlled by the party not in the White House confirmed a Supreme Court nominee to a vacancy that arose during a presidential election year was 1888. Accordingly, Republicans vowed not to consider any high-court nominee until after the election. In a politically polarized nation that had reelected a Democrat to the presidency in 2012 and then gave Senate control to the GOP in 2014, they were determined to let the people have another say regarding who would get to appoint the next justice.

Nevertheless, Obama nominated Judge Merrick Garland, a seemingly uncontroversial pick designed to pressure Senate Republicans to cave. As Donald Trump became the Republican nominee and the electoral winds blew harder against the GOP, Senate Majority Leader Mitch McConnell’s #NoHearingsNoVotes gambit (which I supported) seemed increasingly ill-advised. But the unlikely happened: Trump not only won the presidency, but he picked his nominee from a gold-plated list of 21 candidates that he had issued during his campaign.

Since Judge Neil Gorsuch of the Denver-based U.S. Court of Appeals for the Tenth Circuit was nominated on January 31, his chances of joining the high court have only improved. A recent survey showed that 91 percent of Democratic congressional staffers expect him to be confirmed, as Democratic senators have failed to find any salient items that would merit disqualification. Sure, activists will attempt to tar Gorsuch as anti-women, anti-worker, anti-this-that-and-the-other, but the mild-mannered originalist is anything but the cartoon Monopoly Man this caricature tries to paint. And the argument about how this is a #StolenSeat isn’t going anywhere because that was litigated at the election.

Court Rules the President Violated the 1965 Law with Executive Order

Last year, I put forward a statutory argument that President Trump’s proposal to ban immigrants from several majority Muslim countries was illegal because it violated a 1965 law that specifically banned discrimination against immigrants based on race, gender, nationality or place of residence or birth. On the night that the original executive order was released, I wrote an op-ed in the New York Times laying out the case again.

Now, finally, a ruling from a federal district court judge in Maryland addressed the issue, agreed with me in part, and partially stayed the executive order on this basis. This afternoon, the Trump administration appealed the ruling to the Fourth Circuit. The portion of ruling relevant to the statutory argument states:

Plaintiffs argue that by generally barring the entry of citizens of the Designated Countries, the Second Order violates Section 202(a) of the INA, codified at 8 U.S.C. 1152(a) (“1152(a)”), which provides that, with certain exceptions:

No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence.

House Moves Forward On Tort Reform — And With A Nod To Federalism

As I note in a post at Overlawyered, the House of Representatives has been moving quickly on litigation reform, both on perennial measures long stymied by Democratic opposition and on others of newer vintage (more). Of particular interest, two measures track recommendations Cato scholars have been making for years, while a third has been scaled back in a way that at least nods to concerns Cato scholars have expressed.

The new 8th edition Cato Handbook for Policymakers contains a chapter on tort and class action law prepared by Robert Levy, Mark Moller, and me. Its first federal-level recommendation is that “Congress should restore meaningful sanctions for meritless litigation in federal court.” On March 10, by a largely party-line vote of 230-188, the House passed the Lawsuit Abuse Reduction Act (LARA), H.R. 720, which would restore the regime of strong Rule 11 sanctions in federal litigation that were gutted in 1993 (committee report here). LARA has been proposed in one form or another for many Congresses and has passed the House more than once before stalling in the Senate; more on it here.

Our handbook chapter also recommends that Congress “implement further reforms for class actions that cross state lines,” a type of suit that often enables state courts to assert their power over transactions and parties in other states. While our recommendations are multi-faceted, many of them overlap with provisions in the pending H.R. 985, the Fairness in Class Action Litigation Act (committee report; passed the House March 9, 220-201). FICALA in turn adds other provisions of its own; attorney Andrew Trask, author of multiple essays on class action law for the Cato Supreme Court Review, takes a relatively favorable view of its overall impact.