Topic: Law and Civil Liberties

‘Reefer Sanity’

Kathleen Parker in the Washington Post:

Arguments for and against decriminalization of some or all drugs are familiar by now. Distilled to the basics, the drug war has empowered criminals while criminalizing otherwise law-abiding citizens and wasted billions that could have been better spent on education and rehabilitation.

By ever-greater numbers, Americans support decriminalizing at least marijuana, which millions admit to having used, including a couple of presidents and a Supreme Court justice. A recent Gallup poll found that 44 percent of Americans favor legalization for any purpose, not just medical, up from 31 percent in 2000.

Read the whole thing.  For more Cato work, go here.

Nice Insurance Company. Shame If Anything Were to Happen to It.

Just days after the health-insurance lobby released a report criticizing the Senate Finance Committee’s health care overhaul (for not expanding government enough!), Democrats and President Barack Obama lashed out at health insurers, threatening to revoke what the Government Accountability Office calls the insurers’ “very limited exemption from the federal antitrust laws.”

Democrats say they’re motivated by the need to increase competition in health insurance markets.  Right.

According to Business Week:

David Hyman, a professor of law and medicine at the University of Illinois College of Law and adjunct scholar at the Cato Institute…considers it unlikely that repeal would fundamentally change the nature of the market. While it might increase competition in some markets, he says, it could actually decrease it in others, such as those where small insurers survive because they have access to larger providers’ data. Changes to the act could therefore hurt smaller companies more than larger ones, he says.

Because the act doesn’t outlaw the existence of a dominant provider but simply prohibits collusion, says Hyman, a repeal would fall short of breaking up existing market monopolies that are blamed for artificially inflating prices. The current move against [the] McCarran-Ferguson [Act], he says, “has more to do with the politics of pushing back against the insurance industry’s opposition to health reform than it does with increasing competition in health-insurance markets.”

Combined with what The New York Times described as the Obama administration’s “ham-handed” attempt to censor insurers who communicated with seniors about the effects of the president’s health plan – the Times editorialized: “the government’s Centers for Medicare and Medicaid Services had to stretch facts to the breaking point to make a weak case that the insurers were doing anything improper” – it’s hard to argue that this is anything but Democrats threatening to use the power of the state to punish dissidents.

When Republicans were in power, dissent was the highest form of patriotism.  Now that Democrats are in power, obedience is the highest form of patriotism.

‘Is Obama Punting on Human Rights?’

That’s today’s Arena question over at Politico.

My response:

This morning, both Bret Stephens, in the Wall Street Journal, and Mona Charen, at Real Clear Politics, catalogue Obama’s silence on human rights – China, Tibet, Sudan, Iran, Burma, Honduras – and his backpedaling from his campaign rhetoric. Meanwhile, Eric Posner, at the Volokh Conspiracy, rightly credits Obama for, among other things, not backing the Goldstone Report and pressuring Spain to water down its undemocratic “universal jurisdiction” statute, even as he condemns the administration, again rightly, for its decision to join “the comically named U.N. Human Rights Council,” bastion of some of the world’s worst human rights abusers.

What’s missing, it seems, is any coherent and systematic approach to those matters. During the Reagan administration I served for a time at State as director of policy for the Bureau of Human Rights and Humanitarian Affairs – now called, interestingly, the Bureau of Democracy, Human Rights, and Labor. Things were simpler during the Cold War. We focused on totalitarian regimes, somewhat less on authoritarian regimes, since people were allowed to leave those. And, yes, realpolitik played at least a part in our thinking, as inevitably it must. But the basic principles were clear: If human rights were to be respected, not simply behavioral but systematic change would be required. And Reagan kept the pressure on, publicly. With the fall of the Berlin Wall, millions saw that kind of change, in varying degrees. But the contrast between totalitarianism and democratic capitalism is less clear today than it was then, and the Obama administration, in both its foreign and domestic policies, is doing little to clarify it.

The promotion of human rights starts at home, with allowing people to plan and live their own lives, not with vast public programs that compel people to live under government planning. And in foreign affairs it requires both private and public diplomacy, quiet and not-so-quiet attention to the conditions that give rise to human rights abuses. That doesn’t mean military intervention to change those conditions. But neither does it mean remaining silent, as the Obama administration too often has. Countless victims of abuse, from Cuba to China and far beyond, have written about how important it was that they knew that the world knew about them: When America speaks, the world listens. But equally important, history demonstrates that regimes that respect their own people respect other people as well. It’s time for Obama to speak out.

9/11: All the PSA We Needed

Right on the heels of my post the other day discussing the error in inviting terrorism reporting, here’s another video (and suspicious-activity-reporting Web site) produced by the Los Angeles Police Department.

The production values in this video are hipper, and L.A. appears to have its share of actors willing to look concerned about terrorism. But really, the attacks of September 11, 2001 were all the Public Service Announcement we needed to encourage reporting of genuine suspicions.

Asking amateurs for tips about terrorism will have many wasteful and harmful results, like racial and ethnic discrimination, angry neighbors turning each other in, and—given the rarity of terrorism—lots and lots of folks just plain getting it wrong. People with expertise—even in very limited domains—can discover suspicious circumstances in their worlds almost automatically when they find things “hinky.”

My impressions of the LAPD were formed up in the late 80’s and early 90’s when I lived in southern California. To encourage reporting, what that department needs most is to make the community confident of its own fairness and competence. Reporting of meritorious suspicions will naturally follow that. There’s no need for it to artificially gin up crime or terrorism reporting.

Flex Your Rights

Friends of the Cato Institute who closely follow the news about search and seizure and other civil liberties issues will probably know that there are simple, practical steps one can take to exercise our constitutionally guaranteed liberties, even when confronted by the police.

For everyone else, there’s Flex Your Rights. Founded by former Cato intern Steven Silverman, Flex Your Rights aims to teach ordinary citizens how to make good use of their civil liberties:

The vast majority of people are mystified by the basic rules of search and seizure and due process of law. Consequentially, they’re likely to be tricked or intimidated by police into waiving their constitutional rights, resulting in a greater likelihood of regrettable outcomes.

The sum of these outcomes flow into all major criminal justice problems – including racial and class disparities in search, arrest, sentencing and incarceration rates.

In order to ensure that constitutional rights and equal justice are upheld by law enforcement, we must build a constitutionally literate citizenry.

“Regrettable outcomes” aren’t limited to time behind bars for breaking the drug laws. Consider also damage to property during searches, loss of dignity and privacy, wasted law enforcement time, and police violence during what’s sure to be a nerve-wracking encounter. All of this can happen even when you’re not violating any laws at all, and that’s reason enough to refuse a search.

The police, and the laws themselves, should work for us, and if we don’t require their help, then that should usually be for us to decide. Flex Your Rights is here to help you do so. They’ve just launched a revamped website, which looks great, and they also have a new film in production titled 10 Rules for Dealing with Police. I look forward to seeing it!

Department of Bias

The Department of Justice just invalidated a move by the residents of Kinston, North Carolina, to have non-partisan local elections. Rationale?

The Justice Department’s ruling, which affects races for City Council and mayor, went so far as to say partisan elections are needed so that black voters can elect their “candidates of choice” - identified by the department as those who are Democrats and almost exclusively black.

The department ruled that white voters in Kinston will vote for blacks only if they are Democrats and that therefore the city cannot get rid of party affiliations for local elections because that would violate black voters’ right to elect the candidates they want.

This, coming from the same Department of Justice officials that wouldn’t know a civil rights violation if it picked up a club and barred them access to a polling place.

Next Move: Suing the Sun for Unseasonably Cool Weather

The New Orleans-based Fifth Circuit, the federal court of appeals where I once clerked, has allowed a class action lawsuit by Hurricane Katrina victims to proceed against a motley crew of energy, oil, and chemical companies.  Their claim: that the defendants’ greenhouse gas emissions raised air and water temperatures on the Gulf Coast, contributing to Katrina’s strength and causing property damage.  Mass tort litigation specialist Russell Jackson calls the plaintiffs’ claims “the litigator’s equivalent to the game ‘Six Degrees of Kevin Bacon.’”

In Comer v. Murphy Oil USA, the plaintiffs assert a variety of theories under Mississippi common law, but the main issue at this stage was whether the plaintiffs had standing, or whether they could demonstrate that their injuries were “fairly traceable” to the defendant’s actions.  The court dismissed several claims but held that plaintiffs indeed could allege public and private nuisance, trespass and negligence.  The court also held that these latter claims do not present a so-called “political question” that the court doesn’t have the authority to resolve.  You can read about the Court’s ruling in more detail at the WSJ Law Blog and Jackson’s Consumer Class Actions and Mass Torts Blog.

This is actually the second federal appeals court to rule this way; last month, the Second Circuit (based in New York) held that states, municipalities and certain private organizations had standing to bring federal common law nuisance claims to impose caps on certain companies’ greenhouse gas emissions.  Here’s the opinion in that case, Connecticut v. American Electric Power Company, and you can read a pretty good summary and analysis here.

Both of these cases, which herald a flood of global warming-related litigation, so to speak, owe their continuing vitality to the Supreme Court’s misbegotten 2007 decision in Massachusetts v. EPA.  The 2006-2007 Cato Supreme Court Review covered that case in an insightful article by Andrew Morriss of the University of Illinois.  (To get your copy of the latest (2008-2009) Review, go here.)

I should note from my own experience at the Fifth Circuit that the panel here consisted of the two worst judges on the court – Clinton appointees Carl Stewart and James Dennis – and one of Reagan’s weakest federal appellate appointments, Eugene Davis.  Even Davis, however, wrote separately to note that while he agreed on the standing issue, he would have affirmed the district court’s dismissal of the suit on a different ground (that pesky proximate cause issue).

I predict that the full (16-judge) Fifth Circuit will review this case en banc –and if not that the Supreme Court will eventually take it up (if the district court on remand doesn’t again dispose of the case on causation grounds).