Topic: Law and Civil Liberties

Constitution Day

Tomorrow, September 17, is Constitution Day in America, celebrating the day 229 years ago when the Framers of the Constitution finished their work in Philadelphia over that long hot summer and then sent the document they’d just completed out to the states for ratification. Reflecting a vision of liberty through limited government that the Founders had first set forth 11 years earlier in the Declaration of Independence, “We the People,” through that compact, sought “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”

The political and legal history that has followed has been far from perfect, of course. Has any nation’s been otherwise? But in the great sweep of human affairs, we’ve done pretty well living under this, the world’s oldest written constitution still in effect. Much that has happened to and under the Constitution during the ensuing years has been good, such as the ratification of the Civil War Amendments, which incorporated at last the grand principles of the Declaration of Independence; much has not been so good, such as the major reinterpretations of the document, without amendment, that took place during the New Deal, giving us the modern executive state that undermines the Founders’ idea of liberty through limited government.

Here at the Cato Institute we’ve long celebrated this day as we did yesterday with our 15th annual Constitution Day symposium. Those who missed the event, which concluded with Arizona Supreme Court Justice Clint Bolick’s B. Kenneth Simon Lecture in Constitutional Thought, will be able to see it in a couple of days at Cato’s events archives. At the symposium, as we do every year, we released our 15th annual Cato Supreme Court Review, which is already online, along with the volumes from previous years. As the Founders and Framers understood, liberty under constitutionally limited government will endure only as long as it remains alive in the hearts and minds of the people. That’s why we mark this day each year.

What You Don’t Know Will Hurt You: Reining in Prosecutorial Overreach with Meaningful Mens Rea Requirements

James Madison presciently warned “it will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” Sadly, however, Madison’s admonishment has fallen on deaf ears when it comes to modern statutes and regulations—which in some cases are so numerous and complex that they cannot be deciphered by trained attorneys, much less the general public.

What’s worse, federal prosecutors have seized the opportunity to use these vague statutes, and they now have the ability to prosecute almost anyone for anything. One protection against these incoherent laws and regulations, however, is that, in most criminal cases, the prosecution must prove a defendant had a certain degree of criminal intent (mens rea) to prove a violation. But in order for this protection to be effective, the courts must properly instruct the jury on the level of intent required by the statute.

In United States v. Clay, the district court—as well as a panel of judges on the Eleventh Circuit Court of Appeals—failed in this respect. In 2002, the Florida legislature enacted the “80/20 Statute,” which requires certain medical providers receiving state Medicaid funds to spend 80 percent of such funds towards “the provision of behavioral health care services” or refund the difference to Florida’s Agency for Health Care Administration (AHCA). The statute, however, was ambiguous as to how the expenditures were to be calculated and did not set out any certain guidelines. Despite this ambiguity, in 2011, federal prosecutors indicted Mr. Clay and others for healthcare fraud and making false statements relating to not properly calculating and reporting their expenditures to the AHCA. The defendants were prosecuted under a federal fraud statute, which requires the government to prove that the defendants “knew” the reports were false. The judge, however, instructed the jury that it could convict if the defendants knew either that the submissions were “untrue” or if they acted “with deliberate indifference as to the truth,” which is certainly not the same as the “knowledge” required by the statute. The district court allowed this jury instruction despite a 2011 Supreme Court case that held “deliberate indifference” cannot substitute for a statutory knowledge requirement, and a three-judge panel in the Eleventh Circuit upheld the district court’s instruction.

The Cato Institute has joined with the National Association of Criminal Defense Lawyers, the Washington Legal Foundation, the Reason Foundation and twelve criminal and business law professors in requesting the full Eleventh Circuit to rehear the case and vacate the panel’s opinion. The district court’s jury instruction was a clear departure from Supreme Court precedent, and, if upheld, would weaken one of the fundamental checks on vague statutes and over-zealous prosecutors—the requirement that the government prove someone knows they are committing a crime. 

Agencies Should Not Be Allowed to Ambiguously Interpret Their Ambiguous Interpretations

Arlen and Cindy Foster are farmers in Miner County, South Dakota. Arlen’s grandfather bought the land over a century ago, and the family has been working it ever since. In 1936, Arlen’s father planted a tree belt on the south end of the farm as a conservation measure. As the weather warms, the snow around the tree belt melts and the water flows into the circular depression, called a “prairie pothole” (circled in blue on the lower right hand part of the picture). Unfortunately for the Fosters, the federal government has declared that the shallow depression is a protected wetland, and thus denied them the productive use of that portion of their land. 

The Fosters' farm.

Department of Agriculture regulations define what qualifies as a wetland, but remain vague on some of the details. The regulations say that, if a parcel’s wetland status can’t be determined due to alteration of the vegetation (such as through filling or tilling the land), a similar parcel from the “local area” will be chosen to act as a proxy. “Local area” is never defined, but a 2010 internal field circular refers agency officials to an Army Corps of Engineers manual that uses the parallel language “adjacent vegetation.” Here, the agency interpreted “local area” to refer to an area of almost 11,000 square miles and then selected proxy site some 33 miles from the Fosters’ farm. That proxy site supports wetland vegetation, so the Fosters’ land was also declared a protected wetland.

Using the Income Tax to Map Our Lives

And it came to pass in those days, that there went out a decree that all the world should be taxed.

And lo, the ubiquity of taxation made it possible for the Treasury Department to identify all the same-sex marriages in the land by zip code and present the data in tables and a map.

And in all the land only a few paranoids worried about the implications for privacy and freedom, of gay people and others, of a government that knows everything about you.

The Incoherence of Schedule I

Drug policy watchers learned earlier this month that the latest substance to earn Schedule I status is the obscure plant ​called kratom. So what’s Schedule I? By the letter of the law, Schedule I of the Controlled Substances Act contains “drugs, substances, or chemicals” that meet the following criteria:

The drug or other substance has a high potential for abuse.
The drug or other substance has no currently accepted medical use in treatment in the United States.
There is a lack of accepted safety for use of the drug or other substance under medical supervision.

In this post, I’m not going to consider the penalties that apply to the use, possession, or sale of Schedule I substances. I’m just going to look at the criteria for inclusion. While they may appear plausible, these criteria are preposterous and completely indefensible as applied.

The most important unwritten fact about Schedule I is that all three of its criteria are terms of political art. Neither science nor the plain meanings of the words have much to do with what Schedule I really includes.

We can see this first in how Schedule I fails to include many substances that clearly belong there. These substances easily meet all three criteria. Yet they are in no danger whatsoever of being scheduled. It literally will never happen.

Solvent inhalants, such as toluene, have a high potential for abuse, have no accepted medical uses, and cannot be used safely even with close medical supervision. The same is true of obsolete anesthetics like diethyl ether and chloroform. Toluene, ether, and chloroform are all dangerous when used as drugs. Overdosing on each is relatively easy, they bring serious health risks at any level of use, and they have no valid medical uses today.

None, of course, will ever be scheduled, because each is also an essential industrial chemical. That they happen to be abusable as drugs is a fact that a crime-based drug policy can’t easily accommodate. And so that fact is simply ignored.

The substances included on Schedule I are an odd lot as well. Some clearly meet the criteria, but many do not.

Why, for example, is fenethylline Schedule I, while amphetamine is in the less restrictive Schedule II? On ingestion, fenethylline breaks down into two other compounds: theophylline – a caffeine-like molecule found in chocolate – and amphetamine.

People commonly use amphetamine under medical supervision in the United States; the popular ADHD drug Adderall is simply a mixture of various forms of amphetamine. Theophylline has also seen use by physicians for care of various respiratory issues. And people still use fenethylline under medical supervision in other countries. In the published literature, fenethylline is described as having a “lower abuse potential and little actual abuse compared to amphetamine.” (Emphasis added.) To say that fenethylline has “no accepted medical use in the United States” is, quite literally, to suggest that medical science changes when you cross the border.

​Fenethylline isn’t unique. Schedule I contains many drugs quite like it, molecules that bear a close but not exact resemblance to familiar and widely used medical drugs. Many of these are prodrugs – substances that break down in the body to become familiar, medically useful molecules like morphine or amphetamine. Others, like dimethylamphetamine, are held by the medical literature to be safer than their less strictly regulated chemical cousins.

This is not to say that fenethylline, dimethylamphetamine, or amphetamine itself is risk-free. No drug is. But one could hardly find a less rational set of classifications than this one, in which drugs are scheduled more severely if and when they are less risky.

O​r consider psilocybin. ​Psilocybin flunks the first criterion for Schedule I because it is in fact fairly difficult to abuse. Psilocybin​ ​binges don’t generally happen because even a single dose creates a swift and strong tolerance response: A second dose, or an added dose of any other traditional psychedelic, usually does little or nothing, and doses after that will likely be inert until several days have elapsed.

A user may have a regrettable or upsetting psilocybin​ ​experience, and many do. But users can’t have a binge, and deaths and serious illnesses are exceedingly rare. Psilocybin isn’t an entirely risk-free drug – again, no drug is risk-free – but it’s clearly not in the same league as cocaine (Schedule II) or even ketamine (Schedule III). Going by the letter of the law, psilocybin’s place on Schedule I is inexplicable.

Still more inexplicable is cannabis, which has​ a relatively low ​potential for abuse, ​many important medical uses, ​and ​​such a favorable safety profile that a life-threatening overdose is impossible. Too much cannabis can be deeply psychologically unpleasant, but it can’t be fatal.

As you all know, cannabis is Schedule I.

You Have the Right to Remain Silent Even if You Use Encryption

The Third Circuit last week held oral arguments on whether an individual can be forced to decrypt a drive with incriminating information on it. The Fifth Amendment prohibits any person from bring “compelled in any criminal case to be a witness against himself.” The Third Circuit will hopefully recognize that being forced to decrypt information is just the kind of testimonial act that the Fifth Amendment prohibits.

In a forced decryption case there are two kinds of subpoenas that could be issued. The first compels the individual to turn over the encryption key or password. This isn’t the kind of subpoena in the Third Circuit case, but it is useful in looking at why this is also not allowed. The other kind of subpoena is to produce the documents themselves.

With a direct subpoena of the password the password itself isn’t incriminating, but the Supreme Court has held that that the Fifth Amendment also prevents compelling incriminating “information directly or indirectly derived from such testimony.” The Supreme Court “particularly emphasized the critical importance of protection against a future prosecution ‘based on knowledge and sources of information obtained from the compelled testimony.’” While the password itself isn’t incriminating it clearly provides the lead necessary to get incriminating information from the encrypted drives. Another close analogy that seems to apply was that the Supreme Court clearly prohibited compelling a person to disclose a combination to a safe.

Was Hillary Clinton Fired from the Nixon Impeachment Inquiry?

Washington Post fact checker Glenn Kessler gives a maximum Four Pinocchios to the claim that Hillary Clinton was fired during the Watergate inquiry, which has gotten a lot of circulation on social media. He makes a detailed case that there is no evidence for such a firing. However, along the way he does note some unflattering aspects of her tenure there:

In neither of his books does Zeifman say he fired Clinton. But in 2008, a reporter named Dan Calabrese wrote an article that claimed that “when the investigation was over, Zeifman fired Hillary from the committee staff and refused to give her a letter of recommendation.” The article quoted Zeifman as saying: “She was a liar. She was an unethical, dishonest lawyer. She conspired to violate the Constitution, the rules of the House, the rules of the committee and the rules of confidentiality.”…

In 1999, nine years before the Calabrese interview, Zeifman told the Scripps-Howard news agency: “If I had the power to fire her, I would have fired her.” In a 2008 interview on “The Neal Boortz Show,” Zeifman was asked directly whether he fired her. His answer: “Well, let me put it this way. I terminated her, along with some other staff members who were — we no longer needed, and advised her that I would not — could not recommend her for any further positions.”

So it’s pretty clear that Jerry Zeifman, chief counsel of the House Judiciary Committee during the Watergate inquiry, had a low opinion of the young Yale Law graduate Hillary Rodham. But because she reported to the chief counsel of the impeachment inquiry, who was hired separately by the committee and did not report to Zeifman, Zeifman had no authority over her. He simply didn’t hire her for the permanent committee staff after the impeachment inquiry ended.

Kessler also notes that Clinton failed the D.C. bar exam in that period. She never retook the exam (passing the Arkansas exam instead) and concealed her failure even from her closest friends until her autobiography in 2003.

And then there’s this:

Zeifman’s specific beef with Clinton is rather obscure. It mostly concerns his dislike of a brief that she wrote under Doar’s direction to advance a position advocated by Rodino — which would have denied Nixon the right to counsel as the committee investigated whether to recommend impeachment. 

That brief may get some attention during the next few years, should any members of the Clinton administration become the subject of an impeachment inquiry. Also in Sunday’s Post, George Will cites James Madison’s view that the power to impeach is “indispensable” to control of executive abuse of power.