Topic: Law and Civil Liberties

The Wrong Way to Enforce Immigration Laws

Yesterday, the Los Angeles Times noted that reports of sexual assault and domestic violence are down in Latino-dominated areas of Los Angeles. NPR also published a story yesterday about four cases of domestic violence dropped by four Latina women in Denver, Colorado. The underlying factor blamed in both stories is federal enforcement of immigration laws at local courthouses.

I wrote about the fallout of this abhorrent practice last month in the Washington Post.

Seizing a person who is seeking refuge from violence subverts the protective function of police officers. If individuals fear as much from law enforcement as they do the criminals living among and victimizing them, they will not come forward to report crimes or cooperate with criminal investigations.

While immigration enforcement is often done under the banner of “public safety,” victims of crimes will be less likely to come forward if doing so risks breaking up their families by deportation. This puts more people in harm’s way and enables abusers and predators free rein among people too fearful to ask for the help that they need.

Moreover, despite the “law and order” rhetoric touted by the Trump Campaign and now Administration, these efforts make police officers’ jobs more difficult.

One Los Angeles Police Dept. detective told the Los Angeles Times, “It is my job to investigate crimes… . And if I can’t do that, I can’t get justice for people, because all of a sudden, I’m losing my witnesses or my victims because they’re afraid that talking to me is going to lead to them getting deported.” When he recently approached a group of Latino workers to investigate a crime, they stood up and walked away. Even though Los Angeles has repeatedly asserted its self-appointed status as a “sanctuary city” for immigrants, one of the workers uttered “Trump is coming,” as he left.

All the pro-police rhetoric in the world cannot make-up for the real-world problems that misguided immigration enforcement can cause. Emboldening violent criminals by making large swaths of the population too scared to come forward not only makes police work more difficult, it can make it more dangerous.

Supporting the police means respecting their jobs and enforcement priorities, not just reciting tough-on-crime pablum. If the Administration really cares about police officers, it should start listening to what they have to say. Immigration agents can find other ways to enforce the law than to pick on the most vulnerable at their time of need.

How Strawberries and The Clash Helped Save Separation of Powers

Yesterday the Supreme Court ruled in the case of National Labor Relations Board v. SW General that an “acting” officer cannot simultaneously stand as a nominee to hold that office permanently, regardless of how the acting officer was appointed. The ruling is a double victory, both for the separation of powers between the president and Senate and for textualism.

Though technical, the statutory interpretation issue in this case was not overly complicated. The Federal Vacancies Reform Act (FVRA) lays out three methods by which someone can become an acting officer in three separate clauses, subsections (a)(1), (a)(2), and (a)(3). It also has a “disqualifying clause,” declaring that (with some exceptions not relevant here) “a person may not serve as an acting officer” if he has also been nominated for a permanent position as that same officer.

There would be no dispute that the disqualifying clause applies to all acting officers, except for one wrinkle: the disqualifying clause begins with the preamble “Notwithstanding subsection (a)(1).” Based only on this preamble, the government argued that the disqualifying clause applies only to those who became acting officers under subsection (a)(1). This would mean that anyone who became an acting officer under subsections (a)(2) or (a)(3) (including the man at the center of this case, former NLRB acting general counsel Lafe Solomon) could never be disqualified by the clause.

The decisive moment in the case may have come during oral argument, when Justice Kagan delivered a simple textual analogy to drive home the implausibility of the government’s argument:

I’m at a restaurant and I’m talking to my waiter, and I place three orders. I say, number one: I’ll have the house salad. Number two: I’ll have the steak. Number three: I’ll have the fruit cup. And then I tell the waiter: notwithstanding order number three, I can’t eat anything with strawberries.

As those in the courtroom recognized, this hypothetical maps onto the disputed text of the FVRA: the three orders are the three subsections, and “I can’t eat anything with strawberries” is the disqualifying clause. Then comes the punchline:

So on your theory, the waiter could bring me a house salad with strawberries in it. And that seems to me a quite odd interpretation of what’s a pretty clear instruction: No strawberries.

In the opinion by Chief Justice Roberts (which Kagan joined), fruit salad is sadly nowhere to be found. But in its place is a nearly identical analogy, which shows just how powerful Kagan’s argument was in shaping the Court’s textual analysis:

Suppose a radio station announces: “We play your favorite hits from the ’60s, ’70s, and ’80s. Notwithstanding the fact that we play hits from the ’60s, we do not play music by British bands.”

You would not tune in expecting to hear the 1970s British band “The Clash” any more than the 1960s “Beatles.” The station, after all, has announced that “we do not play music by British bands.” The “notwithstanding” clause just establishes that this applies even to music from the ’60s, when British bands were prominently featured on the charts.

In other words, the Court placed the textual emphasis squarely where it belonged, on the all-encompassing phrase “a person may not serve as an acting officer.”

Government Can’t Ban Businesses from Telling their Customers the Truth

In a unanimous decision yesterday, the U.S. Court of Appeals for the Eleventh Circuit vindicated Ocheesee Creamery’s free speech rights when it reversed a district court’s decision that prevented the creamery from telling its customers the truth about the products it sells.

Ocheesee Creamery is a small, all-natural dairy farm located in rural Florida that prides itself on selling organic products to its customers. This mission requires that they not add ingredients to the food they sell. One such product the creamery offered was “skim milk”—which is simply milk that has had the cream removed. For a number of years, Ocheesee sold its milk and accurately labeled it as pure pasteurized skim milk—nothing more, nothing less.

In 2012, however, the Florida Department of Agriculture and Consumer Services (FDACS) told the small business that it had to inject its all-natural milk with artificial vitamins or quit telling its customers that what they were offering was skim milk, and instead call it “imitation milk product.” FDACS regulations define skim milk as milk that is not just milk, but as milk injected with vitamins A and D. Now, you might ask yourself how injecting artificial ingredients into all-natural product transforms it into something that is considered “imitation”. Yet that’s precisely what the FDACS requires under its regulations.

This left Ocheesee with a Hobson’s choice: it could mislead its customers by labeling its milk as “imitation”; it could pump the milk full of artificial ingredients and thus violate its mission to sell all-natural products; or it could quit selling skim milk and lose substantial profits. Faced with this dilemma, the creamery offered to put a disclaimer on its labels that would tell customers that its milk doesn’t include added vitamins. But this wasn’t good enough, so, aided by the Institute for Justice, the creamery sued the Florida bureaucrats in federal court.

Ocheesee lost its opening battle when a district court granted the government’s Motion for Summary Judgment, but the Eleventh Circuit reversed the decision. The court found that the First Amendment protects the creamery’s labeling of its skim milk because the labeling did not relate to an illegal activity and it is not false or inherently misleading speech. The court pointed to Webster’s Dictionary, which defines “skim milk” as “milk from which the cream has been taken”—which is exactly what the creamery was offering its customers. The court elaborated that while “[i]t is undoubtedly true that a state can propose a definition for a given term … it does not follow that once a state has done so, any use of the term inconsistent with the state’s preferred definition is inherently misleading.” Because if the government were allowed to do so, “[a]ll a state would need to do in order to regulate speech would be to redefine the pertinent language in accordance with its regulatory goals… . Such reasoning is self-evidently circular.”

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.