Topic: Law and Civil Liberties

Ask Kagan about ObamaCare

Senate Judiciary Committee members should be sure to ask Solicitor General and Supreme Court nominee Elena Kagan, during her upcoming confirmation hearings, whether she or her office played any part in crafting ObamaCare or the administration’s defense to the lawsuits challenging that law.  If Kagan helped to craft either, that would present a conflict of interest: when those lawsuits reach the Supreme Court, she would be sitting in judgment over a case in which she had already taken sides.

Though the Solicitor General deals with appellate matters, it is certainly possible that Kagan was consulted during the drafting of the law or the administration’s legal strategy for defending it.

The Senate Democrats who drafted ObamaCare took pains to protect it from a constitutional challenge.  The law contains several pages of findings designed to show that the Constitution’s commerce clause authorizes Congress to force Americans to purchase health insurance.  It would have been prudent for Senate Democrats to ask the government’s top appellate lawyer, who belongs to the same political party, whether they had done all they could to protect the “individual mandate” from a constitutional challenge.

Opponents began filing legal challenges to ObamaCare just minutes after President Obama signed it into law, and seven weeks before he announced Kagan’s nomination.  On Tuesday, the Obama administration filed its first response, to a private lawsuit.  According to the Associated Press, that filing “is to be followed in coming weeks and months by federal government court responses to lawsuits filed by many states.”  Regarding the case filed by 13 (soon to be 20) state attorneys general, The New York Times reports, “Some legal scholars, including some who normally lean to the left, believe the states have identified the law’s weak spot and devised a credible theory for eviscerating it.”  It is not certain, but it is certainly possible that the Office of the Solicitor General was consulted on the government’s response to lawsuits that would likely reach the Supreme Court.

If Kagan played a role in drafting ObamaCare or formulating the administration’s legal defense, and is confirmed by the Senate, propriety would dictate that she recuse herself from any challenges to that law that reach the high court.  Supporters and opponents alike should be interested to know whether the Court will judge ObamaCare with nine justices on the bench, or eight.

Stopping and Searching

Police in New York City conducted 575,000 “stops” in 2009.  The actual number could be higher–depending on the number of stops the police decided not to record on paper.  The ‘stop and search’ is a legally dubious tactic that persists largely because white, middle-class people are mostly unaffected by it.  It is bad enough when the officers are in uniform, but gets worse when the police are in plain clothes and approach people rapidly.  The police “target” may have only seconds to determine whether he/she is facing a mugging or a police stop.  More here.

Getting Serious about Immigration

Today Politico Arena asks:

Does the level of support for Arizona’s  immigration law demonstrate that immigration can be a potent campaign issue in the 2010 midterms?

My response:

Few national issues produce more heat and less light than immigration, as the reaction to Arizona’s recent legislation on the subject demonstrates. And with nearly three-quarters of Americans now saying they approve of allowing police to ask for documents, according to the latest Pew Research Center poll, and the Arizona law’s approval-disapproval rating at nearly 2 to 1, it’s hard to imagine that immigration will not be a factor in the coming elections.

The issues surrounding the immigration debate – criminal, economic, social – are often complex, and not always clear. But the underlying issue is clear: We no longer control our southern border, and Congress seems unable or unwilling to do anything about it. It hardly needs saying that a welfare state, in the age of terrorism, cannot have open borders. If the failure to control is partly a function of our substantive law – the absence of a serious guest-worker program, for example – then that needs to be corrected. But it needs to be done in concert with serious enforcement.

Yet what was President Obama’s response to the Arizona law, which at bottom was a call to Washington to do something? It was to ask the Justice Department to look for any legal problems in the law and to respond accordingly. It was to play the presumed political card, that is, rather than to address the underlying issue, which he’d promised to do during his campaign for the presidency. Well if the Pew numbers are any indication, this “master politician” may have once again, as with ObamaCare, misread his mandate and the public mood. For a growing number of Americans, as recent elections have shown, November can’t come soon enough.

GM Ads and the FTC: Fred Smith Responds

Last week in this space I criticized my friends at the Competitive Enterprise Institute for siccing the Federal Trade Commission on General Motors over its misleading “we repaid our bailout money” ads. Now CEI founder/president (and old friend) Fred Smith gives his side of the story in a lengthy response. And a new report from Fox News covers the whole controversy.

Jury Acquits Tonya Craft

A Georgia jury has acquitted Tonya Craft of 22 criminal charges relating to child abuse and child molestation. A remarkable outcome given the awful rulings of the judge during the trial.  Previous coverage here and here.   

When so many charges are leveled, the pressure to enter into a plea bargain intensifies–even if the accused is innocent.  The defense attorney will say something like, “Look, some kids are going to say you did something awful.  That’s going to happen.  We might persuade the jury to acquit on most of the charges, but there’s still a chance they will convict you on a few counts.  That could mean several years in jail.  Might be better to plead guilty to one charge, serve six months, and then get on with your life.”   Some people breezily proclaim that they would never plead guilty to a crime they did not commit, but when your own freedom is really on the line, the decision is not so easy.

More on plea bargaining here (pdf).

Who Is Fighting (Or Helping) Whom In Mexico’s Drug Wars?

Are Mexican authorities fighting an all out war against drug cartels or simply helping one drug organization win the battle against other criminal gangs for the most lucrative trafficking route to the United States? Street banners alongside Mexico’s highways—put up by rival drug gangs—have long suggested that the administration of Felipe Calderon is in bed with the Sinaloa cartel, that country’s most powerful drug organization. As The Economist reported earlier this year, the Mexican government’s efforts against drug trafficking have been fairly one-sided:

“The Sinaloa organisation (named after a north-western state) is responsible for around 45% of the drug trade in Mexico, reckons Edgardo Buscaglia, a lawyer and economist at ITAM, a Mexico City university. But using statistics from the security forces, he calculates that only 941 of the 53,174 people arrested for organised crime in the past six years were associated with Sinaloa.”

Leaked documents obtained and reported on Monday by Reforma newspaper suggest that drug corruption reaches the top levels of law-enforcement in that country, adding to the suspicion that the Mexican authorities have indeed sided with (some) drug lords. The documents apparently also show the police sharing DEA intelligence with its drug clients, a troubling development when Mexico is asking for more U.S. cooperation in its fight against some drug cartels.

Surveys indicate that the Mexican people still support the Calderon administration in its drug war. However, patience is running out, especially as the number of innocents killed in the violence soars. The tourism industry is also taking its toll, as shootings become commonplace in resorts such as Acapulco and Cancun, driving away visitors. If Mexicans perceive that all this blood and treasure have been paid just to help one criminal gang over the other ones, support for Calderon’s war will rapidly wane.

Also, these allegations present a conundrum for president Obama, who happens to host Felipe Calderon on Monday for a state dinner at the White House. The administration has been pressed by the Mexican government to substantially increase the level of assistance in the fight against cartels. However, if it becomes clear that high-ranking Mexican law enforcement officials are in bed with one or more criminal organizations (not the first time that something like this has happened) and that U.S. intelligence has ended up in the hands of drug lords, there will be growing resistance within the U.S. government to further aid Mexico. This in turn, will only exacerbate the tension between both governments.

“Plata o plomo” (which literally means “silver or lead” and refers to how officials are either corrupted or killed by drug lords) has long been a common feature of the drug war in Latin America. It is not surprising that multi-billion dollar cartels corrupt the officials who are supposed to fight them. What is surprising is some people in Washington still believe that this is a winnable war.

On the Right to Discriminate

In his post this morning, “Kagan on Military Recruitment,” Cato adjunct scholar Mark Moller touches on Cato’s 2005 amicus brief in Rumsfeld v. FAIR, which he co-authored when he was with us as editor-and-chief of the Cato Supreme Court Review – a duty he performed splendidly before moving off to the legal academy. In mentioning the brief, however, Mark says that he recalls that the position it took was controversial within Cato, that it might still be, and that Cato’s legal shop might take a different view were the case presented today.

I don’t recall that the position we took was controversial within Cato, but then it was five years ago, memories fade, and much has happened in the meantime, including the filing of a brief just three months ago that nicely complements the earlier position we took. In Rumsfeld v. Fair we argued that the government could not condition a private university’s eligibility for federal grants, as the Solomon Amendment did, on the university’s giving up one of its rights, namely, its right to freedom of association. The law school plaintiffs, citing the military’s “Don’t ask, don’t tell” policy, sought to exclude military recruiters from campus. Pursuant to their nondiscrimination policies, that is, the law schools sought to discriminate against those they thought to be wrongly discriminating. In our brief we took no position on the policy Congress had set for the military (that question was not before the Court), nor on the rights of public universities in this matter – nor did we address the question whether Congress, under its raise-and-support-armies power, could directly order schools to admit recruiters, as the Court ultimately held.

Well we now have the public school version of that issue before us, and the Court, in Christian Legal Society v. Martinez. And our brief in this case, written by Cato adjunct scholar Richard Epstein, argues that a public law school – Hastings, in this case – cannot condition the receipt of benefits it extends to all other student groups on CLS’s giving up its right to freedom of association. CLS, a private student group, excludes nonbelievers from its membership, which is its right. As a public institution, we argue, Hastings must treat all equally.

Thus, the principle in the two cases is the same. Private parties, pursuant to their right to freedom of association, may discriminate, whether we agree with their grounds for doing so or not. Public institutions, which belong to all of us, may not discriminate except on grounds narrowly tailored to their functions. Unfortunately, in numerous respects, that’s not our current law. For more, see here.