Topic: Law and Civil Liberties

Let’s Build a New Consensus to Restrain Executive Power

It happened.

Don’t worry, our country is strong enough to deal with what might be coming. Unfortunately, however, our Constitution has some holes in it, many of which were created by the last two administrations, that allow presidents to assert shockingly broad powers. We will gladly welcome back to the fold our left-wing friends who have spent eight years cheering for executive power. They resisted executive power during the Bush administration, and it should be like riding a bike. We hope we will be joined by principled people on the right who understand the need for constitutional limits. Maybe, in the process, we can create a new consensus around limiting executive power.

Constitutionally limited government exists to protect the freedom of the citizens from the vicissitudes of democratic rule. The Framers of the Constitution knew that a person of George Washington’s caliber would not always be chosen president. They knew about demagoguery and populism. James Madison, in particular, was terrified of how voters in states could be swept up in waves of populist fury and, in the process, enact policies damaging to the long-term prosperity and freedom of the people.

Unfortunately, after a century or more of erosion, our Constitution doesn’t limit our government the way it once did. In particular, the president is incredibly powerful, and able to make significant decisions without proper checks and balances. Democrats wanted this power when President Obama was in office, but the powers of the executive, especially after President Obama, are now truly concerning when held by someone as unpredictable as Donald J. Trump.

Here’s a basic principle of good government: Don’t endorse a government power that you wouldn’t want wielded by your worst political enemy. Democrats will soon be learning that painful lesson.

What Trump’s Win Means for the Supreme Court

Some thoughts, with thanks to Josh Blackman for getting the ball rolling:

  • The Garland nomination is dead. Does this mean that Trump will indeed pick someone from his list of 21 potential nominees? That list was perhaps most notable for including 9 state jurists; will we get one of those on the Supreme Court for the first time since Sandra Day O’Connor was picked in 1981?
  • Senate Republicans’ strategy of not even considering D.C. Circuit Judge Merrick Garland, of letting the American people decide who gets to fill Scalia’s seat, worked. Not only that, but it didn’t at all hurt vulnerable senators running for reelection.
  • Anthony Kennedy will almost certainly continue to be the “swing justice” on most controversial issues; he may have been the biggest winner last night.
  • I feel sorry for Garland, a respected jurist and honorable man who’s been in limbo for nearly eight months. That said, this wasn’t about him and I would’ve advised voting against him.
  • An open question is what happens when Trump realizes that the sorts of judges he’s been advised to appoint would rule against him on various matters.
  • If you live by executive action, you die by executive action—which means that many high-profile cases looming on the Supreme Court docket will simply go away. DAPA (executive action on immigration) and the Clean Power Plan will be rescinded, religious nonprofits will be exempt from Obamacare, Trump’s HHS won’t make the illegal payments that have led to House v. Burwell, and more. That may include the transgender-bathroom guidance, which if rescinded would remove the biggest controversy from the Court’s current term.
  • With the election of (my friend and University of Missouri law professor) Josh Hawley as Missouri’s new attorney general, the not-yet-scheduled Trinity Lutheran case will likely be settled.
  • The New York Times editorial board better include “It turns out that Ilya Shapiro was right” in its editorial urging senators to reject Trump’s judicial nominees. Also, I can’t wait for the Paul Krugman column making that point.

An Early Attempt to Explain What Happened Yesterday

As I write, the presidential race has just been called by the media: barring fantastical litigation, Donald Trump will be moving into the White House. But even if he had fallen just short, it’s no understatement to say that Trump shocked the nation and the world—or at least the elites (conservative, progressive, libertarian, and every other kind). Pollsters are eating crow, as are political campaign professionals. I’m not either of those, but here’s my first stab at sketching an explanation for what we just witnessed.

Here are five reasons behind the Trump phenomenon, in no particular order and using purely qualitative analysis:

  1. Hillbilly Elegy – J.D. Vance’s book touched a nerve in the political culture by capturing the zeitgeist regarding the plight of the white working class, particularly in Appalachia. This phenomenon will be a source of many sociology dissertations in coming years.
  2. Shy Trump Voters – Just like the “shy Tories” who reelected David Cameron and the “shy Brexiteers” who voted the U.K. out of the E.U., many people didn’t want to tell pollsters that they planned to vote Trump, or simply declined to be polled.
  3. Hollywood and General Progressive Smugness – People don’t like being condescended to. I missed my chance to write an op-ed citing schadenfreude as the best reason to vote Trump, but maybe now I’ll get to do it as a silver-linings piece.
  4. Celebrity – Down-ballot GOP primary challengers tried to use Trump’s schtick and they failed. A majority/plurality of Republicans reject much of what specific policies Trump has offered. Yet The Donald has such name recognition, such a brand, that he pulled it off. We can expect many more celebrities entering the political arena in future.
  5. An Opponent Who Is a Truly Horrible Candidate – Hillary Clinton was no Democrat’s dream candidate (even the ultra-feminists would’ve preferred someone who hadn’t already been first lady) and she ran a campaign devoid of meaning—apart from the very identity politics that proved to be her undoing. She’s like Martha Coakley, the former Massachusetts attorney general who somehow managed to lose “Ted Kennedy’s” Senate seat.

As we all ponder the election, I welcome suggestions for refinement of and additions to these theories.

RIP Don Kates, Second Amendment Pioneer

Don B. Kates, a pioneer in the revival of the Second Amendment, has died at 75. Eugene Volokh writes in the Washington Post that 

Don wrote “Handgun Prohibition and the Original Meaning of the Second Amendment,” 82 Mich. L. Rev. 204 (1983), the first modern article in a major law review arguing for the individual-rights view of the Second Amendment, and since then he wrote or co-wrote over 15 more law review articles, as well as writing, co-writing or editing four books. His work has been heavily cited both by courts and by scholars.

His writing career may have begun with Inquiry magazine, published in the 1970s by the Cato Institute. His article “Handgun Control: Prohibition Revisited” appeared in Inquiry’s second issue, December 5, 1977. For some reason that piece appears to have been excerpted in the Washington Post three years later.

Libertarian movement historian Brian Doherty expands on his seminal influence:

As explained in an excellent 2014 essay on Kates’ contributions to modern Second Amendment thought by California-based gun law scholar C.D. Michel, “Kates was a nearly lone voice in the constitutional law wilderness….Kates’ work, both as a constitutional scholar and criminologist….largely ignited the counter revolution against the American gun control movement” by arguing and demonstrating that the Amendment was certainly intended to protect an individual right to possess weapons.

Kates’ article became an ur-source to later articles by more academically well-connected authors, such as Sanford Levinson’s 1989 Yale Law Review article “The Embarrassing Second Amendment,” that spread the new understanding of that Amendment as guaranteeing an individual right to the more liberal side of legal academia.

As Michel notes, “All the scholarship that Kates indirectly ignited eventually fueled legal briefs filed before the Supreme Court in District of Columbia v. Heller.”

According to Wikipedia, Kates grew up in the San Francisco Bay Area and later attended Reed College and Yale Law School. During the Civil rights movement, he worked in the South for civil rights lawyers including William Kunstler, an experience that informed his understanding of the need for armed self-defense. After three years of teaching constitutional law, criminal law, and criminal procedure at Saint Louis University School of Law, he returned to San Francisco where he practiced law and began writing on criminology and guns. Dave Kopel has more on his background and influence here.

Watch Don Kates talk about gun control in this 1989 speech at Libertarianism.org.

Government Shouldn’t Retaliate Against Politically Active Citizens

The First Amendment guarantees the right to speak freely without fear of official retribution. One aspect of this right is that a government agency may not punish someone for speaking out, supporting a candidate, or running in an election. Allowing such retribution would be to allow the government to extort citizens into supporting a particular political orthodoxy.

But such extortion is exactly what happened in Nebraska. Robert Bennie, a financial advisor, became active in the Tea Party movement in 2010. Before then, he had never received any disciplinary action from the Nebraska Department of Banking and Finance, a regulatory agency that monitors brokerage advertisements for compliance with financial regulations. After Bennie became politically active, the Department suddenly began a campaign of investigations and threatening letters, despite the fact that Bennie remained fully compliant with all regulations.

Suspecting that these developments were retaliation for his political stands, Bennie sued the Department. Both the district court and the U.S. Court of Appeals for the Eighth Circuit agreed with Bennie that the government took an adverse action against him that was motivated in part by his First-Amendment-protected speech. And yet the courts nonetheless denied Bennie any relief, imposing yet another hurdle: the “ordinary firmness” test.

Police Misconduct — The Worst Case in October

Over at Cato’s Police Misconduct web site we have selected the worst case for the month of October.  It goes to the City of Minneapolis for its handling of an excessive force complaint against Officer Blayne Lehner.

Here’s the background: Lehner and his partner responded to domestic disturbance call at an apartment building where they found two women arguing with one another.   According to the news reports, the encounter was captured on video.  The owner of the apartment building was so disturbed by what he saw–Lehner pushing one of the women without cause–that he filed a complaint with the department.

Later, Police Chief Janee Harteau agrees that Lehner’s conduct was unacceptable.  The Chief terminates Lehner’s employment with the police department.

Only now a labor arbitrator has overturned that employment decision and has ordered the city to reinstate Lehner along with compensation for the time he has been off the force.

News reports also show that Lehner has been the subject of previous complaints and lawsuits:

City records show that since 2000, more than 30 complaint investigations have been opened against Lehner. The vast majority of investigations were closed with no discipline. One case from 2014 with the Office of Police Conduct Review is still open. Records show Lehner was suspended twice in 2013. However, the reasons for the discipline were not listed. Lehner was also issued two letters of reprimand in 2012.

In 2015, Lehner was sued by a man who claimed the officer kicked him in the face, breaking a few of his teeth and causing him to briefly lose consciousness. In a rare move, the city decided not to defend Lehner. However, the city later settled the case for $360,000.

Officer Lehner will soon be back to policing again.

School Choice Is Just Peachy

In 2008, Georgia’s General Assembly enacted the Qualified Educational Tax Credit Program in an effort to expand educational opportunities for schoolchildren and provide alternatives for parents concerned about underperforming public schools. Under the program, individual and corporate donors can receive a credit against their state income tax liability in exchange for contributions to qualified, nonprofit Student Scholarship Organizations that aid Georgia families in paying tuition at qualified private schools of their choice.

Unfortunately, opponents of school choice are once again trying to restrict parents’ ability to select the best education for their children. Because many of the scholarship students use them to attend religiously affiliated schools, the plaintiffs in this case argue that the tax-credit program entangles government in religion. Specifically, they claim that the program violates the Georgia constitution’s No-Aid Clause—one of the historically anti-Catholic Blaine Amendments—which forbids the taking of money “from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution.” They also allege a violation of the Gratuities Clause, which says that “the General Assembly shall not have the power to grant any donation or gratuity or to forgive any debt or obligation owing to the public.” Several families who have benefitted from the program, represented by the Institute for Justice, have intervened to defend the law.

The trial court held that plaintiffs lacked standing to challenge the tax-credit program. It further ruled that, even if they had standing, plaintiffs’ constitutional arguments failed because tax credits are not government funds. Violations of the No-Aid Clause require that public funds be spent in aid of a sectarian institution, and the Gratuities Clause could not have been violated because “the General Assembly cannot donate or give what it does not own.” Plaintiffs appealed and Cato has now filed an amicus brief, in collaboration with Neal McCluskey and Jason Bedrick of our Center for Educational Freedom, before the Georgia Supreme Court.

We urge the court to affirm the determination that the tax-credit program does not violate the state constitution, focusing on the fact that it does not involve spending public funds for any sectarian purpose. Because the program makes no expenditures from the public fisc, it cannot violate the No-Aid Clause. Taxpayers choose to donate voluntarily using their own private funds and receive a tax credit for the amount of the donation; no money ever enters or leaves the treasury.

The challengers attempt to get around this fact by claiming that the credits constitute an indirect public expenditure, but this argument relies on a budgetary theory known as “tax expenditure analysis” that finds no support as a legitimate means of constitutional interpretation under Georgia (or federal, or any other state) law. Indeed, the U.S. Supreme Court rejected this type of reasoning in Arizona Christian School Tuition Organization v. Winn (2011).

The argument that the program constitutes an unconstitutional gratuity is likewise incorrect because the tax credits are not public funds, and the government cannot give away that which it does not own. Even if Georgia were giving up something of value, it would not be a “gratuity” because the state receives a substantial benefit in return: increased educational attainment, plus the secondary effects that increased competition and a more educated citizenry create.

The Georgia Supreme Court should affirm the lower court’s decision and uphold the state’s Qualified Educational Tax Credit Program—ensuring educational choice for Georgia families, regardless of how much money they make.