Should Judges Defer to Legislatures on the First Amendment?

Last week the Supreme Court heard oral arguments in Expressions Hair Design v. Schneiderman—an important First Amendment case in which Cato filed an amicus brief—challenging a New York law that allows merchants to advertise “discounts” for paying cash, but makes it illegal to tell their customers that they’re charging an economically equivalent “surcharge” for using a credit card. More simply, the New York legislature was lobbied by credit-card companies to abridge the rights of merchants to convey—and the right of people to receive—information about how prices are structured in the marketplace.  

During the argument, Justice Stephen Breyer invoked a familiar trope when he opined: “We are diving headlong into an area called price regulation. It is a form of price regulation, and price regulation goes on all over the place in regulatory agencies. And so the word that I fear begins with an “L” and ends with an “R”; it’s called Lochner. And there we go.”

Lochner v. New York (1905) involved the Fourteenth Amendment rights of bakers to contract with their employers regarding working hours, and whether the state could restrict those contractual relationships. Unionized bakers had lobbied the New York legislature to put certain conditions on employment that favored bigger bakeries as against upstart immigrant entrepreneurs. The established bakeries could afford to employ more people to keep their shops running for the long hours required in that industry. The Supreme Court recognized the cronyism involved and struck down the law as violating economic liberty.

Lochner became discredited under the New Deal as improper judicial interference with legislative authority. It continues to be seen in progressive and conservative circles alike as the consummate example of “judicial activism,” whereby judges substitute their policy judgment for that of the people’s elected representatives. To say the least, such criticism gets both the history and the law wrong. (For more on how the conservative call for “judicial restraint” is actually based on progressive legal theories, see Ilya Shapiro’s essay in National Affairs.)

So is Justice Breyer really worried that protecting the First Amendment rights of merchants and customers is akin to the states’ ability to regulate the working conditions for bakers in the early 1900s? Lochner had nothing to do with the First Amendment, but it has become a familiar tool for judges to use to advance the theory of judicial deference in cases they don’t like.

Broadly defined, judicial deference is the theory that judges should be restrained when reviewing legislation passed by majorities. This practice is a product of the Progressive-era idea that democracy is the touchstone of our republic, and that people get their rights at the polls. This view, however, goes against our Founding ideal that preservation of liberty is the ends for which we have delegated the government limited powers—and that the judiciary is the branch that should assure that majorities are staying within their bounds.

James Madison made it clear that majorities are dangerous in Federalist 10. He argued that one of the most basic threats to liberty was the ability of “factions” to come together to seek concentrated benefits from majorities through favorable legislation and regulation, rather than competing in the marketplace. The Court in Lochner recognized these dangers when striking down the arbitrary legislation involved, and it has therefore become a symbol of anti-democratic values for progressives who advocate for deference to legislatures.

But even the progressive foundation for judicial deference has its limits. Indeed, the New Deal case United States v. Carolene Products (1938)—the root of the modern presumption of constitutionality of most statutes—explicitly carved out exceptions. In that case’s famous (or infamous) footnote 4, the Supreme Court indicated that this presumption would not apply to certain categories of legislation, including those that run afoul of the First Amendment. And just because a law may have some connection to economics, does not mean that judges should ignore the Constitution when a state has abridged the right of the people to speak freely.

This is not the first time Justice Breyer has used a “parade of horribles” argument when a state legislature has violated the First Amendment. In Sorrell v. IMS Health (2011)—a case in which the Court ruled 6-3 that a Vermont law restricting the sale, disclosure, and use of records revealing the prescribing practices of individual doctors was an unconstitutional speech restriction—Breyer writing in dissent warned: “At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message. At worst, it re-awakens Lochner’s pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue.”

Justice Oliver Wendell Holmes’s dissent in Lochner denigrated the majority for deciding the case “upon an economic theory which a large part of the country does not entertain”—implying that the Court was invoking laissez-faire ideology to enact “Mr. Herbert Spencer’s Social Statics.” In response to Justice Breyer’s concerns in Sorrell, Justice Kennedy noted that while “[t]he Constitution ‘does not enact Mr. Herbert Spencer’s Social Statics[,]’ [i]t does enact the First Amendment.”

Let’s hope that the Court majority sticks to that principle in Expressions Hair Design and similarly rebuffs Breyer’s bogeyman.

Further Thoughts on Mariel Boatlift

Jason Richwine just blogged about my recent Mariel Boatlift post that confirmed George Borjas’ finding of wage increases for those with only a high school degree in post-Mariel Miami.  George Borjas understood my quick extension of his research.  Below are some of Richwine’s points and my quick responses. 

“The point is not especially interesting, since the standard immigration narrative has always been that efficiency gains come at the expense of the natives with whom immigrants most directly compete – high school dropouts, in the case of Mariel.”

It’s important to identify which skill-group of Miamians could have benefited from the Boatlift.  George Borjas pointed out in his report for the Center for Immigration Studies:  “Economic theory predicts that immigration will redistribute income by lowering the wages of competing American workers and increasing the wages of complementary American workers as well as profits for business owners and other “users” of immigrant labor.”  Borjas focused on the benefits for business owners and other “users” of immigrant labor in that paper. 

Trump and Trade on the Cato Daily Podcast

This week the Cato Daily Podcast (Subscribe!) focuses on the importance of trade as the Trump Administration arrives next week. Here’s a quick rundown.

Monday:

Daniel J. Ikenson and Daniel J. Mitchell discusses the backgrounds and new roles for Trump’s “protectionist triumvirate” of Wilbur Ross, Peter Navarro, and Robert Lighthizer.

Tuesday:

Simon Lester discusses the potential fallout of President-elect Trump’s taking to Twitter to threaten companies like Carrier, Ford, Toyota, and General Motors.

It’s a Mistake to End Cuban Asylum Rules

President Obama is abandoning America’s five decade-old policy on asylum seekers that guarantees Cubans asylum in the United States. The change comes at a time when more Cubans will have arrived at U.S. borders than at any time since 1980, and it is a major win for the Cuban regime and opponents of immigration, both of which oppose Cuban immigration to the United States. But the sudden reversal is bad policy that will harm efforts to secure the border and aid the regime most hostile to human rights in the Western Hemisphere.

In 1966, Congress passed the Cuban Adjustment Act (CAA), which grants lawful permanent residency to any Cuban national who has resided in the United States for at least two years (later lowered to one). Each of the last eight administrations has interpreted the law to allow almost all Cubans who arrive at U.S. borders to apply for “parole”—a discretionary legal status that permits them to enter and wait a year to receive a green card to stay permanently.

Heavy Rains Increasing, but Not Disproportionately So

Global Science Report is a feature from the Center for the Study of Science, where we highlight one or two important new items in the scientific literature or the popular media. For broader and more technical perspectives, consult our monthly “Current Wisdom.”

A new paper has been published in the journal Geophysical Research Letters that examines trends in heavy rainfall amounts across the U.S. The paper is authored by Newcastle University’s Renaud Barbero and colleagues, and, to summarize, finds that the heaviest rainfall events of the year have been increasing in magnitude since 1951 when averaged across nearly 500 stations distributed across the U.S. (note: results from individual stations may differ from the general finding).

Someone with a critical eye might ask the real question, which is “how much?” That such a number does not jump out of this paper—a cynic would say—probably means it is very small. Read on and you will find the answer.

That rainfall on the rainiest day of the year is increasing is, of itself, hardly surprising considering that the total annual rainfall amount averaged across the U.S. has also been increasing during this same period (again, results from individual locations/regions may (and do) depart from this generality).

Changes in heavy rainfall like this are often luridly described as a “disproportionate increase” in extreme events, or that extreme precipitation increases are “worse than expected.”

Drawing the Right Lessons from Chinese Military Exercises

China’s first and only aircraft carrier, the Liaoning, recently passed through the Taiwan Strait after conducting exercises in the South China Sea. Initial reporting and commentary on the transit paint a pretty dire picture. In The New York Times Bonnie Glaser of the Center for Strategic and International Studies called the transit “a show of force” that may be seen “as a test of U.S. resolve” by the incoming Trump administration. The BBC called the transit “the latest escalation amid tensions” between China and Taiwan, and Camila Domonoske’s story at NPR called it “a provocative move.”

Such coverage of the Liaoning’s transit is emblematic of the high degree of attention paid to China’s military exercises, but it also is emblematic of a tendency to read too much into these exercises.

Military exercises involving Chinese air and naval forces have received a lot of focus in recent months. The Liaoning’s first live-fire exercises in mid-December 2016 received a good deal of coverage. Earlier that month, China flew a “nuclear-capable” H-6 bomber aircraft over the South China Sea. In September, the South China Sea played host to Russian and Chinese naval forces participating in a joint naval exercise.

These exercises stir up plenty of angst within the China-watching community over Beijing’s strategic intentions, and are often used to portray China as a dangerous actor. Framing military exercises as signaling tools is not a bad thing, and such analysis can provide useful information about state behavior. However, the reaction to the Liaoning’s transit of the Taiwan Strait and other recent Chinese exercises demonstrates the limitations of this approach.

For example, while the Liaoning was in the Taiwan Strait it stayed to the west of the strait’s midline and (as of yet) there is no evidence that it launched fighter aircraft during its transit or even had aircraft on the flight deck while it passed through the strait. Such behavior is consistent with the Liaoning’s previous transit of the strait in late 2013. The timing of the transit, coming around a month after Trump’s phone call with Taiwan’s president and hints at dropping the One China policy, bolsters the perception of the exercise as a signal. However, given the recent transit’s similarity to the 2013 transit, it is not obvious that China is trying to signal a challenge to Taiwan or Trump beyond the longstanding military challenge it has posed to Taiwan. If the carrier traveled to the east of the strait’s midline or scrambled aircraft then an intimidating signal would be obvious, but behaving in a consistent way suggests continuity in China’s approach rather than reactionary behavior in response to recent events. Therefore, interpreting the Liaoning’s recent transit of the Taiwan Strait as a signal of intimidation or test of American resolve is problematic.

Judges Who Stand Up To Presidential Power Grabs Deserve Respect

Some on the left are still blasting judges as activist for standing up to Obama administration assertions of executive power in the regulatory sphere. That might prove shortsighted considering what’s on the agenda for the next four years, or so I argue in a recent piece in the Providence Journal (alternate version).

I take particular exception to a Bloomberg View column in which Noah Feldman, professor at Harvard Law, assails federal district judge Amos Mazzant III for enjoining the Department of Labor’s overtime rule for mid-level employees. In a gratuitous personal jab, Feldman raises the question of “whether Mazzant sees an opportunity for judicial advancement with this anti-regulatory judgment” in light of the election results, though he offers not a particle of evidence that the judge, an Obama appointee, is angling for higher appointment under the new administration.

The problems with the overtime rule were both substantive and procedural. As I mention in the piece, “more than 145 charitable nonprofits signed a letter begging the department to allow more than a 60-day public comment period. It refused.” That letter is here (via, see Aug. 5, 2015 entry). I also mention that a court recently struck down the Department of Labor’s very bad “persuader rule” that would have regulated management-side lawyers and consultants.

After pointing out that many of the rulings restraining the Obama administration have been written or joined by Democratic-appointed judges, I go on to say:

Judges rule all the time against the partisan side that appointed them.

And we’ll be glad of that when the Trump executive orders and regulations begin to hit, and Republican-appointed federal judges are asked to restrain a Republican White House, as they have often done in the past.

We should be celebrating an energetic judiciary that shows a watchful spirit against the encroachments of presidential power.

Read the full piece here or here [cross-posted from Overlawyered]