D.C. Circuit 1, WaPo 0

Substantive due process cases make normally careful commentators sloppy. As many readers know, the D.C. Circuit ruled on Tuesday that “a terminally ill, mentally competent adult patient’s informed access to potentially life-saving … new drugs … warrants protection under the Due Process Clause.” Comes the Washington Post editorial board with a slapdash discussion of the case. The Post argues that the decision pulls a new constitutional right “out of thin air”—one that could “create a right to LSD or marijuana.”

Golly. Is that right? Now, there’s no denying the Court’s substantive due process line of cases is controversial. But this decision didn’t pop out of thin air and its not going to legalize marijuana. [Warning: lengthy legal discussion follows.]

The D.C. Circuit is a lower court, obligated to follow superior court precedent. The Supreme Court over the last three decades has dipped again and again into the substantive due process well. Let’s put Roe v. Wade, the most controversial example, to the side. The most restrictive framework for assessing substantive due process follows the framework set out in Justice Scalia’s plurality opinion Michael H v. Gerald D (joined by Chief Justice Rehnquist). Scalia’s opinion in Michael H makes three points:

1. Constitutionally protected liberty interests must be rooted in a “fundamental principle of the common law.”

2. The Court must select “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.”

3. The liberty interest cannot be rooted in abstractions or generalizations. It must be rooted in a concrete description of actual case law.

The Court has since disagreed, sharply, about how to apply these principles. But, as Michael H underscores, even the most conservative members of the Court agree that the “liberty interests” protected by the due process clause include more than just freedom from restraint.

The Abigail decision does a level job of following the framework laid out in Michael H. It is at its strongest in its reliance on the common law tort rule creating a duty to refrain from “intentionally prevent[ing] a third person from giving to another aid necessary to his bodily security,” which, under Michael H, provides the most specific common law support for the liberty interest recognized.

The challenge for the case is twofold: First, the tort duty against interference with self-help and rescue is, as the court recognizes, ancient but infrequently invoked. It’s arguable that the frequency in which a widely recognized tort is invoked should not factor into whether it rises to the level of a liberty interest, since this sort of empirical judgment isn’t something courts do well. Rather, the legal question is whether the right is ancient and widely accepted as a formal principal of tort law today. (The principal problem for this argument is Lawrence v. Texas, which held state sodomy laws applied to consensual adult homosexual conduct violate the Due Process Clause, based in part on the way in which sodomy laws have been historically prosecuted. But, as the D.C. Circuit notes, some lower courts have viewed Lawrence as “not, properly speacking, a substantive due process decision.”)

Second, the pervasiveness of drug restrictions will lend credence to an argument that common law rule has been limited with respect to certain kinds of administrative regulations and can no longer be described as part of our legal traditions. The D.C. Circuit’s basic argument is that federal prohibitions on marketing of new drugs are too spotty to have displaced the basic common law rule. This is surely the most problematic part of the opinion, because the Michael H framework suggests that the presence of a countervailing regulatory tradition can refute the existence of a liberty interest. Hence the relevance of the dissent’s discussion of a history of drug regulation in colonial and nineteenth century state drug laws.

Here, there are perhaps two arguments for the D.C. Circuit. First, perhaps the evidence of a fundamental right should differ depending on whether the regulation is state or federal: perhaps a history of federal regulation is relevant to the scope of due process limits on federal law. (Michael H and most other substantive due process cases, such as Cruzan and Glucksberg, involve state laws.)

Second, and more interestingly, the D.C. Circuit argues that the challenge involves a challenge to an administrative regulation, not to a federal statute. The logic of the D.C. Circuit (see footnote 9 of the opinion for this point) appears to be that administrative regulations promulgated under a legislative delegation of rulemaking authority come with a lesser presumption of constitutionality for purposes of fundamental rights analysis. The point is fuzzy, but appears to assume that, in such challenges, plaintiffs bear a lesser burden of proving a liberty interest than they do when confronting a duly enacted federal statute. This argument is perhaps the most intriguing—and, to my mind, the most fertile for defenders of the D.C. Circuit’s decision.

If I read the case right, the latter point adds additional fuel for explaining why this decision says nothing about marijuana and LSD: both drugs are labeled Schedule I drugs (no accepted medical use) by Congress. The decision can only have implications for Schedule I drugs if the FDA uses its delegated authority to reschedule either drug.  Not likely any time soon, I’m afraid.

The point is, even under the most restrictive approach to substantive due process, the D.C. Circuit has a fairly reasonable argument based on precedent. And the D.C. Circuit must follow the Supreme Court’s precedents as it understands them. The decision is surely open to challenge, as even its staunchest defenders must admit. But only a sloppy lawyer can say this decision popped out of thin air.

Why Can’t Suri Laugh?

Tom Cruise and Katie Holmes (AKA TomKat) had a baby last month, Suri Holmes.  Apropos, this week the Medicare program’s public trustees reported that even though only 7 percent of TomKat’s federal income taxes now go toward Medicare, when Suri turns 15 years old, 25 percent of the federal income taxes levied on her modeling earnings will go straight to Medicare.  By the time Suri turns 25 years old, 40 percent of the federal income taxes levied on her book deal will help finance Medicare benefits for her dear old dad, who will then be 68 years old.

No Guardrails?

As Tim Lynch and I detail in our new study Power Surge: The Constitutional Record of George W. Bush, the Bush administration has advanced an extraordinarily broad theory of presidential power during the war on terrorism. The claim that shows up again and again—in the torture memos, in the enemy combatant cases, in the wiretapping controversy—is that the president’s “inherent executive authority” and powers as commander in chief allow him to override validly enacted statutes that proscribe tactics he wants to pursue in the war on terror.

But surely there are limits to this theory, boundaries that even a wartime president cannot cross, right? Well, if there are, administration officials have been pretty cagey about identifying them. At a Senate Judiciary Committee hearing in February, Attorney General Alberto Gonzales stonewalled like a Supreme Court nominee when asked about limits to the president’s power. To questions like “Can the president suspend the application of the Posse Comitatus Act legally?” he’d offer only, “Those are very, very difficult questions. And for me to answer those questions, sort of, off the cuff, I think would not be responsible.”

In April, before the House Judiciary Committee, Gonzales suggested that the president has inherent authority to wiretap Americans’ domestic communications–calls and emails where both parties are in the United States–without a warrant. That day, the Justice Department issued a “nonclarification clarification” of the AG’s remarks: “The attorney general’s comments today should not be interpreted to suggest the existence or nonexistence of a domestic program or whether any such program would be lawful under the existing legal analysis.” Anyone looking for a straight answer on limits to “inherent executive authority” would be well-advised to look elsewhere.

A few months back, CBS’s Bob Schieffer decided to ask the president himself: “Do you believe that there is anything that a president cannot do, if he considers it necessary, in an emergency like this?” Here’s the president’s response:

PRESIDENT BUSH: That’s a–that’s a great question. You know, one of the–yeah, I don’t think a president can tort–get–can order torture, for example. I don’t think a president can order the assassination of a leader of another country with which we’re not at war. Yes, there are clear red lines, and–it–you–you–you just asked a very interesting constitutional question. The extent to which a president, during war, can exercise authorities in order to protect the American people, and that’s really what the debate is about.

It’s a very interesting answer, because, as Jacob Sullum pointed out recently, neither example represents a case in which the president considers himself bound by law or by anything other than his own sense of self-restraint. Assassination is barred by an executive order that the president himself could change. As for torture, the administration has never repudiated the theory of uncheckable executive power outlined in the Justice Department’s torture memos. And recently, when President Bush signed the McCain Amendment reaffirming the ban on torture, the president suggested in the signing statement that he could interpret it out of existence if he thought it necessary.

Given all that, Schieffer’s question still stands: in the administration’s constitutional theory, is there anything that a president cannot do, if he considers it necessary? It would be good–or at least clarifying–to have an answer, even if that answer turns out to be “no.”

The Social Security Side-Step

In describing the contents of the Social Security Trustees’ latest annual report, most reporters have described the changes as “minor.” That impression rests, however, on a comparison of a large number with a gigantic number—the present value of Social Security’s financial shortfall over 75 years to the present value of total payrolls, also projected over the next 75 years.

Note that according to the report, an additional 2 percentage points must be added to payroll tax rates immediately and must be kept in place permanently. That’s unlikely, and precisely because we are describing the shortfall as “no big deal.”

Problem is, the cost escalates the longer we wait. How long would we wait? When it becomes as large as four percentage points? Six? No, if it becomes that large, chances are taxpayers would revolt and the system would have to face benefit cuts.

Benefit cuts? At a time when beneficiaries are more numerous and politically powerful? Unlikely. Then what?

Buried inside the report are other, larger estimates of the system’s shortfall—the “actuarial deficit” calculated without a time limit is reported to be $13.3 trillion. Including the outstanding Treasury liabilities to Social Security that must be paid for out of higher income or other non-payroll taxes, the total financial shortfall compared to benefits is a whopping $15.2 trillion. And compared to total future payrolls, this amount equals 3.7 percentage points.

Most reports attached some variant of “let’s not panic, these numbers are very uncertain” to the perpetuity estimates of Social Security’s shortfall.

Not panic? OK. But ignore? That’s effectively the message. If we don’t like the outlook, we should just ignore it. It’s not going to affect us. We’ll collect our benefits well before then, so why bother?

That’s not the advice financial planners would give to an individual or family facing uncertainty in personal finances. Rather, they would recommend purchasing insurance or hedging their portfolios by diversifying assets.

But prudence with personal assets and profligacy with public ones imply a collision course—one that’s unlikely to deliver “social security.”

Someone recently asked: Even if God told us these numbers were correct, what can we do today? After all, we can only distribute future outputs to meet future needs. This reminded me of Jacob and the Pharaohs. In that story, Jacob suggested filling the granaries well before the famines arrived—in other words, saving and investing more today.

Existing institutions—Social Security Trust Funds and such—haven’t worked in that regard. Indeed, the evidence points to the exact opposite outcome: Today’s entitlement programs are inducing us to spend more, work less, and retire earlier than ever before.
Rather than give up on a structural reform of Social Security, our efforts need redoubling.

Max Boot, Oil, and the “Dictatorship Dividend”

In the LA Times today, Max Boot identifies a real problem: oil revenue goes disproportionately to some pretty odious regimes. His solutions, such as “increase federal funding for research and rollout of fossil-fuel substitutes such as hydrogen, cellulosic ethanol (produced from grasses and agricultural waste) and plug-in electric engines,” reflect a touching faith in the ability of the federal government to pick winners among all the potential alternatives to oil out there. He would be on stronger ground if we were to argue “tax the hell out of oil and let’s see what emerges.”

Unfortunately, the cost gap between conventional gasoline and the alternatives is quite steep. Look at Europe for instance. Even with gasoline taxes that put prices at between $5-8 per gallon, we don’t see non-oil transportation fuels penetrating the market in any significant way.

I call this the “wish upon a star” policy. Yes, it would be nice if we could render oil valueless through some sort of concerted government effort. But we have made a number of great and small stabs toward that end over the decades and have nothing to show for it save for bankrupt companies, synfuel stories that no one apparently pays any attention to anymore, and forgotten white elephants like California’s glorious attempt in the early 1990s to produce high performance golf carts to replace the automobile. But alas, hope springs eternal.

If consumers want to strike a blow against “the dictator dividend” associated with gasoline consumption, there’s nothing stopping them. Don’t buy gasoline. Ride a bike. Walk. Tool around in a golf cart. Retrofit your car to run on vegetable oil or “Bio-Willie.” If that’s too much for you, you can always simply cut back on gasoline and shrink the dividend that way. There’s nothing here that government needs to do that we can’t do ourselves—if we really want to go where Boot would take us.

Operation Human Shield

It is not offensive that Congress is planning to spend $70 billion to assist American soldiers in a hostile foreign nation. What’s offensive is that Congress is using those soldiers as human shields to protect $70 billion it is wasting on less defensible priorities.

The spending bill that the Senate is expected to vote on today has been designated “emergency” spending. In effect, that means it doesn’t count toward the spending caps that Congress supposedly imposes on itself.

It has become routine for Congress to meet those caps by packing the regular spending bills with junk and then to spend well beyond those caps by labeling predictable expenditures “emergency” needs. So every $1 billion of Iraq war spending they label as “emergency” allows them to spend another $1 billion on junk.

Talk about war profiteering.

A Right to Experimental Drugs? Yes. No. Maybe.

The D.C. Circuit recently ruled that ”a terminally ill, mentally competent adult patient’s informed access to potentially life-saving … new drugs determined by the FDA after Phase I trials to be sufficiently safe for expanded human trials warrants protection under the Due Process Clause.” You can read more about it here.

 I want to raise a question about the way others are characterizing the case.

Following some of the language of the D.C. Circuit’s opinion, Jonathan Adler and Orin Kerr describe the case as a decision that recognizes a new “right to experimental drugs.” This characterization makes the case sound quite revolutionary. And it raises an interesting problem about how to talk about substantive due process cases. Compare common descriptions of Cruzan v. Director, Missouri Department of Health. There, the Supreme Court upheld a state law that, in effect, prohibited withdrawal of life support from a vegetative patient despite her previously expressed wish to die when in such a condition. (The law forced a surrogate to prove the patient’s wishes by heightened evidence.) But the Court also held that patients have a protected liberty interest in “refusing unwanted medical treatment.” Why then did it uphold state law? Because the Court held that the state interests outweighed the liberty interest at issue on the facts of the case.

Cruzan defies easy categorization. It’s variously described as a case that (1) left the right to die “unanswered”; or (2) recognized a “right to die.” This D.C. Circuit case also defies easy categorization. Relying on the logic of Cruzan, the D.C. Circuit held that patients have a liberty interest in control over their use of life-saving drugs protected by the Due Process Clause. But, whether the state has a sufficiently strong interest to override the liberty interest remains an open question, which the trial court must now consider. Like the state regs in Cruzan, the FDA regulations will be upheld if the government can show the regs serve a narrowly tailored “compelling interest”–what lawyers call “strict scrutiny.” (One way the FDA may try to do so, suggested by Cruzan, is to show that the regs somehow protect patients who don’t understand the risks involved–perhaps by attempting to show that terminally ill patients are poor judges of unknown risks and therefore at high risk of manipulation by doctors and pharmaceutical companies during Phase I trials. See this article for notes toward such an argument.)

In short, you shouldn’t assume that strict scrutiny is always fatal in fact. “Strict scrutiny” tests appear throughout constitutional law, and they are applied with different degrees of rigor: more exacting in some free speech cases, less exacting in equal protection cases. If Cruzan is any evidence, the “strict scrutiny test” applied in the field of substantive due process is a weaker variety. Perhaps there are important differences between the FDA regs here and state regs upheld in Cruzan. But on the face of things, it’s possible the endgame of this decision may leave room for government regulation—or even uphold the FDA regs in their entirety.

This is one reason why I think the Supreme Court–if the case were to be appealed–would be wise to wait until the trial court has balanced the state interests and the liberty interest recognized by the D.C. Circuit. And it is also a reason why pundits should be cautious about describing the case’s real-world effect. The real action in this case may be yet to come.