Topic: Law and Civil Liberties

Victory for Kids: School Choice Safe in Florida

This morning the Supreme Court of Florida declined to hear McCall v. Scott, the Florida teachers’ union lawsuit against the state’s popular scholarship tax credit, which helps nearly 100,000 low-income students attend the school of their choice. That means the lower court’s decision dismissing the lawsuit stands, and the law is safe from further challenge on these grounds.

As I wrote back in August, the union and its allies had alleged that the scholarship program unconstitutionally supported a “parallel” system of public education and violated the state constitution’s historically anti-Catholic Blaine Amendment, which prohibits publicly funding religious schools. However, the trial court judge rejected this claim, holding that the plaintiffs lacked standing to sue because the scholarships were privately (not publicly) funded and that they were unable to prove that the scholarship program adversely impacted the district school system. The union appealed but the appellate court unanimously upheld the lower court decision. (For a more detailed explanation of the history of the case and the tax credit, see here.) Today’s state supreme court decision is the proverbial nail in the coffin for the union’s legal challenge.

Supporters of the scholarship program expressed their satisfaction this morning:

“The court has spoken, and now is the time for us all to come together to work for the best interests of these children,” Doug Tuthill, [president of Step Up for Students, Florida’s largest scholarship organization], said in a statement. “We face enormous challenges with generational poverty, and we need all hands on deck.”

After the lawsuit was filed in 2014, supporters of the program — including parents and clergy members — waged a full-court press supporting the program. Almost exactly a year ago, they staged a massive rally in Tallahassee.

“On behalf of all the scholarship children, their families and their clergy in the Save Our Scholarships coalition, I commend the state Supreme Court on their wise application of the law,” Reverend R.B. Holmes of Bethel Missionary Baptist Church in Tallahassee, said in a statement. “We look forward to working together with all parties to improve the educational outcomes of low income children in our state.”

School choice is safe in Florida. But just north of the panhandle, Georgia’s scholarship tax credit faces a similar legal challenge. Oral arguments in Gaddy v. Georgia Department of Revenue are scheduled for next week, which just happens to be National School Choice Week. For justice to prevail, the Georgia Supreme Court should dismiss that case as well. 

Should Judges Defer to Legislatures on the First Amendment?

Last week the Supreme Court heard oral arguments in Expressions Hair Design v. Schneiderman—an important First Amendment case in which Cato filed an amicus brief—challenging a New York law that allows merchants to advertise “discounts” for paying cash, but makes it illegal to tell their customers that they’re charging an economically equivalent “surcharge” for using a credit card. More simply, the New York legislature was lobbied by credit-card companies to abridge the rights of merchants to convey—and the right of people to receive—information about how prices are structured in the marketplace.  

During the argument, Justice Stephen Breyer invoked a familiar trope when he opined: “We are diving headlong into an area called price regulation. It is a form of price regulation, and price regulation goes on all over the place in regulatory agencies. And so the word that I fear begins with an “L” and ends with an “R”; it’s called Lochner. And there we go.”

Lochner v. New York (1905) involved the Fourteenth Amendment rights of bakers to contract with their employers regarding working hours, and whether the state could restrict those contractual relationships. Unionized bakers had lobbied the New York legislature to put certain conditions on employment that favored bigger bakeries as against upstart immigrant entrepreneurs. The established bakeries could afford to employ more people to keep their shops running for the long hours required in that industry. The Supreme Court recognized the cronyism involved and struck down the law as violating economic liberty.

Lochner became discredited under the New Deal as improper judicial interference with legislative authority. It continues to be seen in progressive and conservative circles alike as the consummate example of “judicial activism,” whereby judges substitute their policy judgment for that of the people’s elected representatives. To say the least, such criticism gets both the history and the law wrong. (For more on how the conservative call for “judicial restraint” is actually based on progressive legal theories, see Ilya Shapiro’s essay in National Affairs.)

So is Justice Breyer really worried that protecting the First Amendment rights of merchants and customers is akin to the states’ ability to regulate the working conditions for bakers in the early 1900s? Lochner had nothing to do with the First Amendment, but it has become a familiar tool for judges to use to advance the theory of judicial deference in cases they don’t like.

Broadly defined, judicial deference is the theory that judges should be restrained when reviewing legislation passed by majorities. This practice is a product of the Progressive-era idea that democracy is the touchstone of our republic, and that people get their rights at the polls. This view, however, goes against our Founding ideal that preservation of liberty is the ends for which we have delegated the government limited powers—and that the judiciary is the branch that should assure that majorities are staying within their bounds.

James Madison made it clear that majorities are dangerous in Federalist 10. He argued that one of the most basic threats to liberty was the ability of “factions” to come together to seek concentrated benefits from majorities through favorable legislation and regulation, rather than competing in the marketplace. The Court in Lochner recognized these dangers when striking down the arbitrary legislation involved, and it has therefore become a symbol of anti-democratic values for progressives who advocate for deference to legislatures.

But even the progressive foundation for judicial deference has its limits. Indeed, the New Deal case United States v. Carolene Products (1938)—the root of the modern presumption of constitutionality of most statutes—explicitly carved out exceptions. In that case’s famous (or infamous) footnote 4, the Supreme Court indicated that this presumption would not apply to certain categories of legislation, including those that run afoul of the First Amendment. And just because a law may have some connection to economics, does not mean that judges should ignore the Constitution when a state has abridged the right of the people to speak freely.

This is not the first time Justice Breyer has used a “parade of horribles” argument when a state legislature has violated the First Amendment. In Sorrell v. IMS Health (2011)—a case in which the Court ruled 6-3 that a Vermont law restricting the sale, disclosure, and use of records revealing the prescribing practices of individual doctors was an unconstitutional speech restriction—Breyer writing in dissent warned: “At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message. At worst, it re-awakens Lochner’s pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue.”

Justice Oliver Wendell Holmes’s dissent in Lochner denigrated the majority for deciding the case “upon an economic theory which a large part of the country does not entertain”—implying that the Court was invoking laissez-faire ideology to enact “Mr. Herbert Spencer’s Social Statics.” In response to Justice Breyer’s concerns in Sorrell, Justice Kennedy noted that while “[t]he Constitution ‘does not enact Mr. Herbert Spencer’s Social Statics[,]’ [i]t does enact the First Amendment.”

Let’s hope that the Court majority sticks to that principle in Expressions Hair Design and similarly rebuffs Breyer’s bogeyman.

Judges Who Stand Up To Presidential Power Grabs Deserve Respect

Some on the left are still blasting judges as activist for standing up to Obama administration assertions of executive power in the regulatory sphere. That might prove shortsighted considering what’s on the agenda for the next four years, or so I argue in a recent piece in the Providence Journal (alternate version).

I take particular exception to a Bloomberg View column in which Noah Feldman, professor at Harvard Law, assails federal district judge Amos Mazzant III for enjoining the Department of Labor’s overtime rule for mid-level employees. In a gratuitous personal jab, Feldman raises the question of “whether Mazzant sees an opportunity for judicial advancement with this anti-regulatory judgment” in light of the election results, though he offers not a particle of evidence that the judge, an Obama appointee, is angling for higher appointment under the new administration.

The problems with the overtime rule were both substantive and procedural. As I mention in the piece, “more than 145 charitable nonprofits signed a letter begging the department to allow more than a 60-day public comment period. It refused.” That letter is here (via, see Aug. 5, 2015 entry). I also mention that a court recently struck down the Department of Labor’s very bad “persuader rule” that would have regulated management-side lawyers and consultants.

After pointing out that many of the rulings restraining the Obama administration have been written or joined by Democratic-appointed judges, I go on to say:

Judges rule all the time against the partisan side that appointed them.

And we’ll be glad of that when the Trump executive orders and regulations begin to hit, and Republican-appointed federal judges are asked to restrain a Republican White House, as they have often done in the past.

We should be celebrating an energetic judiciary that shows a watchful spirit against the encroachments of presidential power.

Read the full piece here or here [cross-posted from Overlawyered]

It’s Irrational to Require 1,000 Hours of Training to Be Able to Braid Hair

Becoming an EMT in Missouri requires 144 hours of training, including instruction in CPR, trauma care, handling hazardous materials, and medical ethics. But Ndioba “Joba” Niang and Tameka Stigers don’t want to be EMTs. They both want to run salons offering traditional African-style hair braiding. Braiding hair, however, requires at minimum 1000 hours of training, 90 percent of which isn’t even generally relevant to African-style hair braiding.

That’s because the Missouri Board of Cosmetology and Barber Examiners (an administrative board made up primarily of practicing barbers and cosmetologists, as well as the owners of in-state cosmetology/barbering schools) has declared that anyone wanting to braid hair professionally must be a licensed cosmetologist or barber—despite the fact that neither licensing program offers any training whatsoever in the services Niang and Stigers intend to offer. Defended as necessary to protect Missouri’s consumers from the health, safety, and fraud risks caused by untrained hair braiders, this licensing regime is actually a thinly disguised cartel in which insiders have built up arbitrary and expensive licensing requirements in an effort to limit competition.

It is for this reason that Niang and Stigers, with the assistance of the good people at the Institute for Justice, have filed suit challenging Missouri’s licensing regime as a violation of the Fourteenth Amendment’s Due Process and Equal Protection clauses. A federal district court upheld the licensing regime, using an extremely deferential form of judicial review that requires judges to blindly accept the government’s justifications of its actions, and even supply their own if they don’t find the government’s compelling enough. Under that form of review, as long as there is any potentially conceivable “rational basis” for the law, courts will not strike it down.

Cato, joined by the Reason Foundation, Individual Rights Foundation, and Senator Rand Paul (R-KY), has filed an amicus brief urging the U.S. Court of Appeals for the Eighth Circuit to reverse the district court and reject its rubber-stamp approach to the core judicial function of keeping the other two branches in check. The district court’s application of the rational basis test undermines the constitutional guarantee of procedural due process by denying plaintiffs both the right to a meaningful opportunity to be heard and to have their case judged by an impartial tribunal.

Deprivations of economic liberty require meaningful judicial scrutiny that actively engages with the facts of the case without putting a finger on the scales in favor of the government. As the Supreme Court has held in other contexts, meaningful scrutiny is especially important in situations like this one, where there are strong indications that the government’s proffered justifications are just pretextual smokescreens for illegitimate anti-competitive cartel behavior—and when the victims of the regulations lack sufficient numbers and resources to overcome the cartel through political means.

In Niang v. Carroll, the Eighth Circuit should reverse the lower court because Missouri’s licensing scheme for traditional African hair braiders isn’t rationally related to any legitimate governmental purpose.

Low-Level Bureaucrats Shouldn’t Be Changing Federal Law

The debate over transgender rights has risen in prominence in recent years, with the fight over access to public restrooms and locker rooms receiving particularly heavy public attention. The legal question at the heart of the first such lawsuit to reach the Supreme Court, however, is one not of civil rights, but of administrative law: Should courts defer to agency interpretations of their own regulations, even when those interpretations constitute major, substantive changes to public policy via informal, non-binding pronouncements?

G.G. is a transgender high school student—minors are identified by letters in sensitive cases—who argues that Gloucester (Va.) High School’s policy disallowing him from using the facilities that correspond with his preferred gender identity violates federal law (Title IX of the Education Amendments) regarding sex discrimination in education. Upon being informed of G.G.’s conflict with the Gloucester County School Board, James Ferg-Cadima—a civil servant in the U.S. Department of Education’s Office of Civil Rights (OCR)—wrote a letter purporting to interpret the relevant regulation. This letter stated that “[w]hen a school elects to separate or treat students differently on the basis of sex in [situations like this], a school generally must treat transgender students consistent with their gender identity.”

While the federal district court rejected this interpretation, the U.S. Court of Appeals for the Fourth Circuit reversed that ruling and deferred to the agency’s new understanding of its Title IX regulations. The Supreme Court took the case and Cato, along with the Cause of Action Institute and four respected law professors (Jonathan Adler, James Blumstein, Richard Epstein, and Michael McConnell), has filed an amicus brief supporting the school board.

We do so not because we necessarily oppose OCR’s position as a matter of policy or even whether the relevant federal law can properly be read to support that policy—those are questions for another day—but because we oppose its unconstitutional method of enacting that policy. OCR seeks to change federal law not through the procedures spelled out in the Administrative Procedure Act, but via an informal, unpublished letter written by a low-level bureaucrat.

Current Supreme Court precedent under Auer v. Robbins (1997) says that courts must give such agency interpretations of their own regulations controlling deference. But deferring in this way incentivizes agencies to write vague regulations because they will then be free to reinterpret them at a later date without having to go through the trouble and expense of the rulemaking process—changing the law with no notice to regulated entities or the general public. Auer deference also allows executive agencies to consolidate legislative and judicial power by effectively rewriting regulations beyond the scope delegated by Congress and then judging for themselves whether they’ve overstepped that authority.

The Court appears unwilling to overrule Auer in its entirety, but we call on it to take this opportunity to limit Auer to a more appropriate scope by holding that only agency interpretations that have received the public scrutiny of notice-and-comment rulemaking merit judicial deference.

One final note: The justices are expected to hear Gloucester County School Board v. G.G. this spring and decide it by the end of June, but the case could be made moot before it’s heard or decided. The Trump administration could simply withdraw the Ferg-Cadima letter or take other actions that would moot the case and leave the important issues it raises unsettled. Considering the importance Gloucester County may hold for the state of administrative law, we chose to file our amicus brief under the assumption that it will remain a live controversy—and to make a strong statement about constitutional structure and the rule of law.

California Bill Seeks Police Surveillance Transparency

Image from Persistent Surveillance SystemsIf you’re a Baltimore resident there is a chance that last year you spotted a Cessna airplane overhead at 8,500 feet. You’d be forgiven for thinking that this was nothing out of the ordinary. Yet reporting revealed that this plane was doing something extraordinary. It was carrying a persistent surveillance cameras system, allowing analysts working with Baltimore police to access what its designer calls “Google Earth with TiVo.” The surveillance cameras mounted on the airplane can cover an area of 30 square miles. With the help of the equipment police could track where suspects came from before a shooting or theft and where they went afterwards.

But the use of this surveillance technology was kept secret. When the program began the mayor, members of the city council, prosecutors, and public defenders were left in the dark.

The Baltimore aerial surveillance program is one of the most prominent recent reminders of law enforcement surveillance that can take place without public knowledge or approval.

Such secrecy is the target of a recently proposed California bill. If enacted into law the bill would require that police departments disclose information about the surveillance equipment they use on or by July 1, 2018. The bill would also prohibit police from acquiring new surveillance tools without approval from local officials.

The bill would cover “any electronic device or system primarily intended to monitor and collect audio, visual, locational, thermal, or similar information on any individual or group” including biometric tools, cell-site simulators, drones, radio-frequency identification technology, and more. 

According to the bill, police departments that wish to use such gadgets would have to submit a “Surveillance Use Policy,” which will have to be publicly available and presented to local officials at an open hearing. Police departments submitting the policy will have to include not only the type of surveillance equipment in question but also the purpose of the equipment, the types of data it collects, and an outline of who is using the equipment. The bill also requires police departments to outline how they are keeping collected information secure as well as how long such information will be retained.

The obvious objection to such legislation is that it forces police to reveal their hands to criminals. After all, if police publicly disclose a new surveillance tool criminals could change their behavior accordingly, thereby becoming harder for police to surveil. The FBI used this very line of argument to justify the secrecy surrounding StingRays when outlining StingRay policies to Baltimore police.

The Chilling Effect of the Government’s Subpar Subpoenas

Here we go again. History repeats itself with classified-ad website Backpage.com’s announcement yesterday that it’s shuttering its “adult” section after years of unrelenting pressure from public officials at all levels of government. 

Most recently, the Senate’s Permanent Subcommittee on Investigations (PSI) hauled several Backpage.com officials before it for a public shaming without bothering to wait for a ruling on the legality of its “investigation.” In California, just before Christmas then-attorney general (now U.S. Senator) Kamala Harris refiled criminal charges against Backpage’s CEO and its former owners in the face of a December 9 ruling throwing her initial charges out.

These tactics represent a marked escalation since September 2010, when Craigslist caved in to pressure from a group of 17 state attorneys general and shut down its “adult advertisements” section. As a federal court had already ruled at that time—and numerous courts have held since—the government cannot assume that ads that mention sex are advertising illegal transactions, much less coercive sex-trafficking. Laws censoring such websites have been roundly and repeatedly held to violate the First Amendment.

But the law is one thing, and less-direct pressure tactics are quite another. It’s harder to hold government accountable when it tries to hide what it’s up to with public letters, demands, and investigations, even if meritless.