Topic: Law and Civil Liberties

“Employee Free Choice Act” Still Bad News

One piece of good news out of Washington yesterday was the decision among supporters of the Orwellian-named Employee Free Choice Act to dump a provision that would have virtually eliminated the secret ballot in union-organizing elections.

The bill is the number-one legislative priority of major U.S. labor unions. It is packed with provisions aimed at making it easier for unions to organize workplaces and halt the relentless 40-year slide in private-sector union membership.

The jettisoned provision would have allowed unions to organize a workplace simply by “persuading” a majority of workers to sign cards saying they want a union. Of course, such a system would leave individual workers wide open to intimidation, as I explained in a recent op-ed. Business-funded ads against the measure struck a cord with voters who are understandably fond of the secret ballot, and the provision became a step too far for moderate Democrats.

What remains of the bill is still bad news. It would reduce the typical union-organizing election from two months to as short as five days. This is a provision that could only be favored by the side that wants workers to be deprived of the information and the time they need to make an informed decision.  And it would force employers to accept the decision of a government arbitration panel even if the resulting union contract would threaten the company’s survival.

University of Chicago law professor Richard Epstein explained cogently in a recent cover story for Cato’s Regulation magazine why the  the bill is fundamentally at odds with our basic constitutional rights.

PASS ID and National ID - Rejoinder to Schwartz

Ari Schwartz responded in characteristic even tones to my critique of his testimony in favor of the PASS ID Act, which would revive the moribund REAL ID law. It’s worth a rejoinder, and I’ll offer him the same again here if he wishes.

Ari clouds matters slightly by suggesting that my “strong biases” obscure certain facts. I readily admit having a strong bias in favor of liberty – it’s why I do what I do. Ari admits several biases, including one in favor of consensus-building, which was what I accused him of prioritizing over principle. Let’s put aside the question of bias.

It’s good to see Ari state that CDT does not support a national ID system. It would be better to see him state that CDT opposes having a national ID system. (I imagine this is just a matter of word choice, but it would be good to have clarity.)

Next, Ari says his testimony “makes it clear that we believe that PASS ID prevents the creation of a National ID system.” I don’t believe this is clear from his testimony. More importantly, this is not a sound assessment of what a national ID is or what PASS ID does.

We need some defined terms, so let’s tease out what he means by “national ID.” (He has told me that there is some distinction between a “national ID,” a “national ID system,” and perhaps a “national ID card,” but the distinction is lost on me. I believe a national ID card is part of a national ID system, both of which are commonly referred to in shorthand as a “national ID.”)

Twice in his testimony, he correctly calls REAL ID a national ID system. The factors that make it so appear to be “the very real possibility that individuals would not be able to function in American society without a REAL ID card” and “giving unfettered discretion to DHS to expand the ‘official purposes’ for which REAL ID cards could be required.”

In my recent post on the subject, I defined a national ID as being a card: 1) nationally uniform in its key elements; 2) the possession of which is either practically or legally required; and 3) that is used for identification.

I think 1) and 3) are both given. Ari’s take on 2) - inability to function without it – and my formulation – practically required – are equivalent, so Ari and I agree on that much.

But is DHS discretion to expand “official purposes” an essential element of a national ID card? I don’t think so.

Let’s say Congress passes a law requiring employers to check a certain card before they hire new workers. What if Congress requires credit issuers to check the card? States require presentation of the card at the voting booth? What if Congress requires pharmacists to check it before selling people cold medicine?

Is this card system saved from being a “national ID system” because someone other than DHS came up with these ideas? Of course not. DHS discretion to expand usage is not what makes an ID system a “national ID system.”

The better definition is what we agree on: A national ID is national, identifying, and practically or legally required, meaning the lack of it disables people from functioning in society.

Do REAL ID and PASS ID differ in ways that make the one a national ID and the other not a national ID? No, and Ari doesn’t say so. He merely says PASS ID would slow national ID mission creep by some margin because it denies DHS some discretion. (PASS ID “[r]emoves from DHS’s authority the ability to unilaterally determine new official purposes for which a PASS ID-compliant card can be required … .”)

This is not central to “national ID-ness,” and PASS ID doesn’t actually deny DHS that authority – it simply removes the specific grant of authority in REAL ID. Removing a grant of authority in one law does not deny an agency authority it has elsewhere. (It’s like the difference between “not supporting” and “opposing” something.) DHS and other agencies almost certainly have power under other law to require the IDs they choose for functions that are plausibly related to security or fraud prevention.

I was wrong to assume that it was lack of principle driving CDT and Ari to endorse the PASS ID Act, which revives our moribund national ID law. Other explanations are no more palatable, though, and no other group that I am aware of missed the true import of PASS ID.

Here’s a memorable Bruce Schneier quote to emphasize the importance of opposing a national ID, which so many civil liberties groups are doing:

History will record what we, here in the early decades of the information age, did to foster freedom, liberty and democracy. Did we build information technologies that protected people’s freedoms even during times when society tried to subvert them? Or did we build technologies that could easily be modified to watch and control? It’s bad civic hygiene to build an infrastructure that can be used to facilitate a police state.

No civil liberties group supports PASS ID. CDT can’t claim that mantle while it does.

Sotomayor Playing Out the Clock

As she began to do more and more yesterday, the nominee has started today’s hearings with a series of painfully drawn-out non-answers to Senator Kyl’s questions.

Kyl is pointing out the conflict between Sotomayor’s claim that in Ricci she was simply following precedent and the Supreme Court’s finding that there was no precedent on point—and so Sotomayor’s panel summary disposition was improper.

Sotomayor’s responses have ranged from explaining again the procedural posture of the case, to references to irrelevant background cases (not binding precedent), to recounting en banc voting procedures in the Second Circuit. It is clear that, even as the Republicans reload and regroup at every break and recess, Sotomayor has been counseled to talk and talk—again, in an excruciatingly slow rate—without really saying anything.

CP Townhall

Lack of Deep Thinking = Belief in the Living Constitution?

In a twist on the “lack of deep thinking” idea, part of what might be going on in Sotomayor’s head—why she keeps answering questions about judicial philosophy with reference to precedent rather than constitutional first principles is because she’s not an originalist. How can we hope for her to tell us her understanding of the meaning of the constitutional text, after all, if that text’s meaning changes with the times?

For example, Stuart Smalley Al Franken asked Sotomayor point blank, “do you believe the right to privacy includes the right to have an abortion?” The nominee began here response with: “The Court has said….” That is, it is not the Constitution—whatever your view of it may be, whether you think it contains a right to abortion or not—that is the supreme law of the land, but what nine black-robed philosopher-kings say. Of course, if your (non-)theory of constitutional interpretation is to keep “improving” the document—and to keep one step ahead of public opinion, so judges can effect social “progress”—then it’s irrelevant what the Constitution said before the Supreme Court put its gloss on it.

And if you subscribe to this “living Constitution” or “active liberty” theory, then naturally the life experiences of a “wise Latina,” along with lessons from foreign and international law—which, Sotomayor said as recently as her April speech to ACLU, get a judge’s “creative juices flowing”—are all valid parts of your jurisprudential toolkit.

CP Townhall

Hate Crimes Bill Becomes an Amendment

Unsure about prospects on passing the Local Law Enforcement Hate Crimes Prevention Act as a stand-alone bill, proponents intend to attach it as an amendment to the Department of Defense Authorization bill. As I have said previously, this bill is an affront to federalism and counterproductive hater-aid.

Federal Criminal Law Power Grab

This legislation awards grants to jurisdictions for the purpose of combating hate crimes. It also creates a substantive federal crime of violent acts motivated by the “actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person.”

This is a federalization of a huge number of intrastate crimes. It is hard to imagine a rape case where the sex of the victim is not an issue. The same goes for robbery - why grab a wallet from someone who can fight back on equal terms when you can pick a victim who is smaller and weaker than you are?

This would be different if this were a tweak to sentencing factors.

If this were a sentence enhancement on crimes motivated by racial animus - a practice sanctioned by the Supreme Court in Wisconsin v. Mitchell - then it would be less objectionable if there were independent federal jurisdiction.

Thing is, the federal government has already done this, with the exception of gender identity, with the Federal Sentencing Guidelines (scroll to page 334 at the link):

If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, increase by 3 levels.

The contrast between a sentence enhancement and a substantive crime gives us an honest assessment of what Congress is doing - federalizing intrastate acts of violence.

If Congress were to pass a law prohibiting the use of a firearm or any object that has passed in interstate commerce to commit a violent crime, it would clearly be an unconstitutional abuse of the Commerce Clause.

Minus the hate crime window dressing, that is exactly what this law purports to do.

What this really amounts to is a power grab - giving the federal government power to try or re-try violent crimes that are purely intrastate. Just as the Supreme Court invalidated the Gun Free School Zones Act in United States v. Lopez because it asserted a general federal police power, this law should be resisted as a wholesale usurpation of the states’ police powers.

The act also essentially overrules United States v. Morrison, where the Court overruled a federal civil remedy for intrastate gender-motivated violence. Forget a civil remedy; while we’re re-writing the constitution through the Commerce Clause let’s get a criminal penalty on the books.

Trials as Inquisitions

The hate crime bill will also turn trials into inquisitions. The focus of prosecution could be on whether you ever had a disagreement with someone of another “actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability.” Worse yet, it can turn to whether you have any close friends in one of these categories, as demonstrated in the Ohio case State v. Wyant. The defendant denied that he was a racist, which led to the following exchange in cross-examination on the nature of the defendant’s relationship with his black neighbor:

Q. And you lived next door … for nine years and you don’t even know her first name?

A. No.

Q. Never had dinner with her?

A. No.

Q. Never gone out and had a beer with her?

A. No… .

Q. You don’t associate with her, do you?

A. I talk with her when I can, whenever I see her out.

Q. All these black people that you have described that are your friends, I want you to give me one person, just one who was really a good friend of yours.

David Neiwert says that this won’t happen because of a constitutional backstop in the legislation. Unfortunately, the House version of the bill explicitly endorses impeaching a defendant in exactly this manner:

In a prosecution for an offense under this section, evidence of expression or associations of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense. However, nothing in this section affects the rules of evidence governing impeachment of a witness.

Worse yet, the Senate version of the hate crime bill, the one which will likely become law after conference committee, does not contain this provision. Instead, it explicitly says:

Courts may consider relevant evidence of speech, beliefs, or expressive conduct to the extent that such evidence is offered to prove an element of a charged offense or is otherwise admissible under the Federal Rules of Evidence. Nothing in this Act is intended to affect the existing rules of evidence.

Anyone want to bet that an aggressive prosecutor could find that not having a close enough relationship with your neighbor counts as “expressive conduct” for the purposes of prosecution?

Future Push for More Federal Authority Over Intrastate Crimes

The hate crime bill also pushes a snowball down the mountain toward wholesale federalization of intrastate crime. In a few years this snowball will be an avalanche. By making any gender-motivated crime a hate crime, which will necessarily include nearly all rapes, we will define ordinary street crimes as hate crimes.

With a consistent average of 90,000 rapes a year, this expansion of hate crime definition will come back in a few years where those ignorant of the change in terms will wonder why hate crime is now rampant. “Rampant” only because we have made the relevant definition over-inclusive to the point of being meaningless.

And in a few years, we can revisit this issue with a fierce moral urgency to pass more feel-good legislation that upends state police powers in an effort to do something - anything - to confront this perceived crisis. A perception that Congress is creating in this legislation.

Sotomayor Displays a Lack of Deep Thinking

It strikes me that Sotomayor has been fairly forthright in her responses to questioning, not hiding too much behind the tired cliché that she can’t answer a question because it could lead to prejudging a case—certainly far less than Ruth Bader Ginsburg and even John Roberts.  Still, on several important issues, such as property rights, national security law, abortion, and even her overall judicial philosophy, she has appeared disingenuous in saying that she has no firm views on the subject—hiding behind precedent again and again as if first principles didn’t exist.  In other words, she says a lot—displaying a broad knowledge of cases and legal doctrine—without answering larger questions.  She answers questions about what the law should be with what the law is, questions about what the Constitution says with what the Supreme Court has said about the Constitution.

This would be barely appropriate for a nominee to a lower court, who is, of course, bound by precedent.  But senators rightly want to know a Supreme Court nominee’s preferred legal theories, what her view of the Constitution is unencumbered by others’ attempts to interpret that document.

The more Sotomayor speaks, the more it becomes clear that these types of nonanswers, this inability to see (or lack of desire to express) a big picture view, is her own essence.  It continues a pattern that is evident from her judicial opinions, which are mostly unremarkable and, in the neutral sense of that term, unimpressive.  For all her career success and a personal story we should all celebrate, she is an average judge who apparently gives little thought to the broad swath of law and where her rulings fit into that.

That is, Sonia Sotomayor is not a Cass Sunstein or Larry Tribe or Elana Kagan or (fellow circuit judge) Diane Wood.  She is not a scholar or an ideologue.  Her liberality is reflexive and warmed-over, a product of the post-modern educational environment that formed her in the 1970s—complete with ethnic activism—but not an intellectual edifice.  This does not mean she isn’t a danger to liberty and the rule of law, or that her votes and opinions won’t harm the Constitution.  But it does indicate that, for all her bluster about being a “wise Latina,” she is little more than a left-leaning empty robe.

CP Townhall

Sotomayor Waffles on Property Rights

The hearing began after lunch with Senator Grassley probing Sotomayor’s views on Kelo v. New London and the Fifth Amendment’s protection of property right—one of the questions I would ask her. The nominee apparently thought the senator (who’s not a lawyer) needed a lesson in what went on in Kelo and how the Court ruled. Grassley, having been briefed by counsel, didn’t seem to care for that, pushing Sotomayor on whether she thought Kelo was correctly decided and how she views constitutional property rights generally.

Sotomayor said Kelo was a judgment of the Court that she accepts, but that any future case she would have to judge on its own merits. Well, of course, but that wasn’t the question on the table. Exasperated, Grassley asked Sotomayor whether a taking with no compensation would be constitutional. The “wise Latina” couldn’t formulate a proper response, smiling and explaining that what constitutes a “taking” is subject to legal analysis. Well, yes, but that still doesn’t answer the question. Finally, Sotomayor concluded that if a taking violated the Constitution, she would have to strike it down.

In short, according to Sotomayor, if something is unconstitutional, a judge can’t allow it. The technical term we lawyers use for this kind of sophisticated reasoning is “circular”—with the judge here getting to decide based on no discernible criteria whether something is constitutional. For more on the outrageous takings Judge Sotomayor has allowed, see George Mason law professor Ilya Somin’s analysis of the Didden v. Port Chester case. (Somin, also a Cato adjunct scholar, will be testifying at the hearings later this week.)

Update: Sotomayor and “Secret Law”

Sotomayor didn’t have much to say in response to Senator Feingold’s inquiries regarding national security law and civil liberties post-9/11, but the Wisconsin lawmaker’s questions about “secret law”—on which he didn’t press the nominee’s non-answers—made me think of the following: Both Ricci (the infamous firefighters race discrimination case) and Didden were “unpublished” summary dispositions.

If Sotomayor had not been nominated to the Supreme Court, causing hundreds if not thousands of lawyers to comb through her judicial opinions, would anyone have uncovered these blatant attempts to sweep controversial legal issues under the rug?  Are Ricci and Didden Sotomayor’s secret law?

CP Townhall