4/20, John Oliver, and Marijuana Reform

Since today is 4/20, a day that marijuana users celebrate, it is an appropriate occasion to consider government policy on this subject. All too often, people in the news media try to joke and chuckle about marijuana use. That’s unfortunate because there are very serious issues surrounding the government’s policy of criminalizing possession and use. 

More than 20 million Americans use marijuana regularly. Millions more use it occasionally.  In the eyes of the law, all these people are considered “criminals.”  That is absurd–and not unlike the sad chapter in U.S. history when the government tried to ban alcohol consumption. There is a marijuana arrest in the U.S. every minute of every day all year round. Some go to prison, some spend short periods in jail, others go to drug court. Everyone will get an arrest record. It is a tremendous waste of time and money.

John Oliver is once again on the mark with his critique of marijuana policy. Take a few minutes to listen to his words of wisdom, then blast it to your friends on social media and remind them that the war on marijuana isn’t just about those who choose to use marijuana any more than alcohol prohibition was just about those who liked to drink. The war has many destructive side-effects and should be ended immediately. During his campaign, Trump said marijuana legalization was a matter for the states to decide. If he’s not going to reverse federal law, he should at least allow the states to opt out of the war on marijuana. 

For related Cato scholarship, go herehere, and here.

Price, Sessions Force Trump’s Hand on Cost-Sharing Reduction Payments

In a recent op-ed at The Federalist, I argued Donald Trump has serious leverage over both Republicans and Democrats in Congress when it comes to ObamaCare:

President Trump can force Republicans and Democrats back to the negotiating table, and get a bill that keeps his promises to fully repeal Obamacare and to protect people with preexisting conditions…by simply undoing the illegal actions by his predecessor, which he has also already promised to do.

One of those illegal actions is the illegal exemption from ObamaCare that President Barack Obama granted members of Congress and their staffs.

Another is the illegal “cost-sharing” subsidies President Obama began issuing – and that President Trump is still issuing – to insurers participating in ObamaCare’s Exchanges. In a case where the House of Representatives challenged the payments, a federal judge ruled that issuing those payments “violates the Constitution” and ordered them to stop, pending appeal. The Obama administration was pursuing an appeal, but the Trump administration has not indicated whether it would continue to appeal that ruling or enforce the judge’s order. Trump must do one or the other.

Two of President Trump’s cabinet picks have practically forced his hand on this issue.

When the federal district-court judge issued her ruling striking down the cost-sharing subsidy payments, Health and Human Services Secretary Tom Price was a Republican member of Congress. He issued a statement endorsing the ruling:

Today, Congressman Tom Price, M.D. issued the following statement after a federal judge ruled in favor of House Republicans’ lawsuit against Obamacare, saying that the Administration does not have the power to spend money on “cost sharing reduction payments” to insurers without an appropriation from Congress:

“The ruling proves a momentous victory for the rule of law and against the Obama Administration’s overreach of Constitutional authority,” said Congressman Tom Price, M.D. “This historic decision defies the Obama’s Administration’s ask that the courts disregard the letter of the law and reasserts Congress’s power of the purse as defined by our nation’s founders in Article One of the Constitution.”

“In recent weeks, we’ve seen insurers announce that they will exit the exchange markets in 2017, further deteriorating patients’ access and choice to health care plans that they want. This is yet again proof that Obamacare is on an unsustainable path, and House Republicans must remain committed to repealing and replacing this law. As a member of the Health Care Task Force, I’m honored to be working with my colleagues to advance positive, patient-centered solutions to the challenges in our health care system.”

Price has made clear his view that Congress did not appropriate funding for these payments, and that continuing to make them would constitute executive overreach and violate the rule of law. If President Trump chooses to appeal the lower-court ruling, he would put Price in a situation where he would have to help implement a policy that he considers unconstitutional. Price arguably would have to resign.

Yesterday, Trump’s attorney general Jeff Sessions expressed his view that the payments are unconstitutional and that the lawsuit challenging those payments “has validity to it.” If Trump chooses to appeal the lower-court ruling, Sessions would be the guy who carries out that appeal. It would be…awkward for him to defend a policy he believes to be unconstitutional. If Trump asks him to do so, Sessions too may have to resign.

Continuing President Obama’s illegal cost-sharing reduction payments could cost President Trump two cabinet officials.

A Surprisingly Easy Supreme Court Win for Religious Nondiscrimination?

The First Amendment says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Both of these religion clauses have been made applicable to the states via the Fourteenth Amendment. The continuing question is how they interact with one another – the play in the joints,” the Supreme Court has called it – in particular regarding when the government can treat religious institutions differently than secular ones, and when it must do so to avoid endorsing or entangling itself with religion.

Yesterday the Supreme Court heard oral argument in Trinity Lutheran Church v. Comer, which involves a Missouri program that provides subsidies to construct playground flooring out of recycled old tires. Trinity Lutheran Church runs a daycare center that had a playground open to the public, so it applied for a grant under the competitive program – and was denied solely because it’s a church. Missouri defended its position by citing a state constitutional provision that prohibits state funds from going to support religion. (For more on these Blaine Amendments, see this summary.) The U.S. Court of Appeals for the Eighth Circuit upheld the state denial, the Supreme Court agreed to hear the case, and Cato filed a brief supporting the church.

That’s when things got weird. The high court agreed to hear the case back in January 2016, but then Justice Antonin Scalia died. Even though briefing proceeded apace, the case wasn’t scheduled for argument before the end of the term in June. When the argument calendar was released for the new term that started in October, Trinity Lutheran was still not there. The conventional wisdom was that the justices must have thought that there would be a 4-4 deadlock. But then lo and behold in early February – days after Neil Gorsuch’s nomination – two other cases that had been granted at the same time as Trinity were scheduled for argument in March. A couple of weeks after that, when Gorsuch’s confirmation was by no means assured, the Court released its April calendar, which did include this religious-liberty case.

Was the Court simply confident that Gorsuch would take his seat in time, or did the chief justice think it unseemly to hold the case through another entire term? Either way, Gorsuch was indeed sworn in on April 10 – but that wasn’t the end of the drama. Late last week, the new governor of Missouri, Eric Greitens, changed the policy at issue, announcing that, going forward, religious organizations would be eligible for the scrap-tire subsidies, among other grants administered by the state’s department of natural resources.

The Court then asked the parties to submit letter-briefs about whether this latest development mooted the case or otherwise affected it. They both agreed that the argument should proceed, that the issue was a live one – in part because the governor’s policy decision could be reversed at any time and in part because lawsuits were expected over the reversal of course anyway. Curiously, the lawyer allowed by the state to argue for the old policy was the former solicitor general, who had been swept out of office along with the rest of the attorney general’s political appointees when Josh Hawley (a personal friend of mine, and a friend of Cato) was elected in November.

In any event, the argument proceeded apace and went very well for the church. Justice Anthony Kennedy opened the questioning by expressing concern for the use of religious status to deny government benefits. It was mostly downhill from there for the state, as Justice Samuel Alito launched into a devastating series of hypotheticals regarding Homeland Security funds for terrorism-prevention, grants to rebuild religious structures damaged in the Oklahoma City bombing, and other government transfers to pay for certain non-devotional expenses. Justice Stephen Breyer also got into that mix, questioning how provision of police, fire, and other public health protections okay but making playgrounds safe was not. Even Justice Elena Kagan, at first appearing skeptical of the church’s position, acknowledged her discomfort with the burden Missouri had placed on a constitutional right. Justice Gorsuch stayed quiet until the very end of argument, when he expressed bewilderment at how the Court was supposed to draw the line the state’s lawyer was suggesting between “general” or “universal” programs and “selective” ones like the scrap-tire grant here.

Justices Ruth Bader Ginsburg and Sonia Sotomayor were the only ones suggesting opposition to the church’s free-exercise and equal-protection arguments, and they were also the only ones who seemed inclined to see problems of mootness or “adversariality” after the change in state policy. That’s surprising, because if indeed the case is headed to a 7-2 resolution, then it would’ve been 6-2 without Gorsuch and there was no need to hold it for so long.  

Anyhow, my basic position remains what it was when this saga began: Missouri isn’t required to have a scrap-tire grant program, but once it created one, it must open it to all without regard to religious status.

(For more case background and commentery, see the case’s SCOTUSblog page, read the argument transcript, and listen to my Federalist Society teleforum that will be posted soon.)

Four Decades of Carter’s ‘Moral Equivalent of War’

Forty years ago tonight, President Jimmy Carter delivered his Address to the Nation on National Energy Policy, better known as the “Moral Equivalent of War” speech. Seated behind his ornate desk in the Oval Office and wearing a sober pinstriped suit, he offered a litany of dark predictions:

  • “The oil and natural gas we rely on for 75 percent of our energy are running out.”
  • “Unless profound changes are made to lower oil consumption, we now believe that early in the 1980s the world will be demanding more oil than it can produce.”
  • “World oil production can probably keep going up for another six or eight years. But some time in the 1980s it can’t go up much more. Demand will overtake production. We have no choice about that.”
  • “We can’t substantially increase our domestic production…”
  • “Within ten years we would not be able to import enough oil—from any country, at any acceptable price.”
  • “If we fail to act soon, we will face an economic, social and political crisis that will threaten our free institutions.”

Adult Rights for Adult Businesses

An ordinance of the City of Sandy Springs, Georgia, prohibits the sale of sex toys. Businesses and individuals have challenged this statute as unconstitutional under the Fourteenth Amendment’s Due Process Clause in controlling their consensual, sexual behavior in the privacy of their homes. The district court and a panel of the U.S. Court of Appeals for the Eleventh Circuit upheld the ordinance given the Eleventh Circuit precedent of Williams v. Attorney General (2004), which upheld an Alabama sex-toy-sales ban.

Cato has now joined the DKT Liberty Project on a brief to the entire (en banc) Eleventh Circuit asking it to overturn Williams, which is inconsistent with more recent Supreme Court precedent in United States v. Windsor (2013) and Obergefell v. Hodges (2015) (the DOMA and same-sex marriage cases, respectively). Williams had relied on Washington v. Glucksberg (1997), where the Supreme Court declared that for a right to be protected under the Fourteenth Amendment, its specific articulation must be “deeply rooted in our history and traditions” or “fundamental to our concept of constitutionally ordered liberty.”

Williams upheld the law after finding no history or traditions concerning sex toys, though the Fifth Circuit disagreed in 2008 in striking down a similar Texas restriction. Windsor and Obergefell then raised the protection of rights concerning private sexual intimacy and Obergefell described this right as “fundamental.” Obergefell also explicitly rejected the Glucksberg test, at least as applied to sexual intimacy, as “inconsistent with the approach this Court has used in discussing other fundamental rights.”

Williams also misinterpreted Lawrence v. Texas (2003), which in striking down a ban on homosexual sodomy made clear that it wasn’t merely the right to perform “a particular sexual act” that was in question in these intimacy cases, but the infringement of rights regulating “the most private human conduct, sexual behavior, in the most private of places, the home.” Lawrence also made clear that state assertion of a “morality” interest isn’t a sufficient justification for limiting the right to adult sexual intimacy. Lawrence held that, as to “whether the majority may use the power of the State to enforce these [moral] views on the whole society,” the answer is no.

Legislative Takings Are Still Takings

The Fifth Amendment’s Takings Clause states that the government may take no property for public use without just compensation. Unfortunately, local governments often see the Takings Clause not as a fundamental safeguard of liberty so much as an inconvenient obstacle getting in the way of preferred policy outcomes.

One way cities have devised to avoid their obligations to provide just compensation is to condition issuance of land-use permits on landowners’ surrendering property rights the government would otherwise have had to pay for (what’s a little extortion between friends). That’s exactly what the City of West Hollywood is attempting to do with a zoning ordinance that requires developers who build multi-unit housing to either (1) sell or rent a percentage of that housing at below-market prices or (2) pay an “in lieu” fee that the city calculates using a formula created by statute.

Shelah and Jonathan Lehrer-Graiwer sought a permit to build an 11-unit development and elected to pay the in-lieu fee under protest, later challenging it as an unconstitutional taking. The trial court, following binding state-court precedent, found in favor of the city, and the California Court of Appeals affirmed. Now the property owners seek U.S. Supreme Court review.

Cato, joined by Reason Foundation and the National Association of Home Builders, and with the assistance of Antonin Scalia Law School’s Supreme Court clinic, has filed a brief supporting that request.

Under the Supreme Court’s decisions in Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), the government may not require a property owner to surrender a constitutional right (here, to just compensation for a taking of private property) in exchange for permit approval unless there’s an “essential nexus” between the conditions and an alleged harm that would be caused by the development. The conditions must also be roughly proportional to the expected impact.

Temperament Matters in Foreign Policy

The last few weeks have seen a surprisingly activist foreign policy from the Trump administration. Since the inauguration, the rate of U.S. airstrikes in Iraq and Syria, the willingness to launch special operations raids in countries like Yemen, and the use of taunting rhetoric towards adversaries had all increased in comparison to the Obama administration.

But this month things seem to have been put into hyper-drive. Trump authorized a symbolic punitive airstrike on a Syrian military base–a serious escalation that had no legal authorization. The administration also threatened to engage in preventive war against North Korea if it should move forward with a sixth nuclear test. Trump ordered an aircraft carrier strike group to sail within 300 miles of North Korea’s coastline in a show of force meant to bolster this threat. And finally, Trump’s penchant for militarism was on display when America’s biggest non-nuclear bomb ever used in active combat was dropped in Afghanistan.

It’s hard to say whether these are signs of a clear Trump Doctrine emerging, or whether this intensification of military activism abroad simply reflects Trump’s character. One can easily recall warnings from candidate Trump’s opponents, on the Democratic side but also from many in his own party, that he was temperamentally unfit for office.

In the latest edition of Survival, Francios Heisbourg, Chair of the International Institute for Strategic Studies Council, which publishes the journal, compares Trump to Kaiser Wilhelm II, the leader of Germany from 1888 to 1918. Wilhelm II goes down in history as the man who took Germany down the path of naval expansion, colonial aggrandizement, and aggressive militarism, eventually contributing to the outbreak of World War I thanks to military postures that were a great departure from those of the more restrained Otto Von Bismarck, whom the Kaiser dismissed in 1890. Heisbourg quotes a German historian describing Wilhelm II thusly:

[He had] a taste for the modern–technology, industry, science–but at the same time [was] superficial, hasty, restless, without any deeper level of seriousness, without any desire for hard work…without any sense of sobriety, or balance and boundaries, or even for reality or real problems, uncontrollable and scarcely capable of learning from experience, desperate for applause and success…He wanted every day to be his birthday–unsure and arrogant, with an immeasurably exaggerated self-confidence and desire to show off.