Latest Cato Research on Constitutional Studies https://www.cato.org/rss/research/constitutional-studies en Federal Protection of Cave Spiders Is Driving Property Owners Up the Wall https://www.cato.org/blog/federal-protection-cave-spiders-driving-property-owners-wall?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Trevor Burrus <p>Much like lawyers, spiders don’t drum up warm feelings for most people. It’s probably because both are known for spinning webs. Unlike lawyers, however, the federal government has placed some spiders on the endangered species list—and not just big ones, but ones so small that it takes 14 surveys of a cave to even make sure they’re there. One such spider, the near-invisible <a href="https://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=J009">bone cave harvestman</a>, is found only in a small section of Texas and resides in an unknown number of underground caves.</p> <p>It’s easy to imagine a property owner’s shock when he finds out his land is teeming with these small spiders and that he could face hefty fines if he accidentally steps on one. This sort of mistaken squashing, defined as a “take,” is prohibited by the Endangered Species Act (ESA). The ESA is a well-known and popular law, but its scope is much bigger than bald eagles and polar bears. The ESA takes an all-or-nothing approach to species preservation: save all the species, all the time, no matter where they are, no matter the cost. That may sound good in theory, but individual property owners are often immensely harmed due to the presence of an endangered species--whether insect or soaring eagle--on their property. People often speak of the ESA in high-minded, collectivist language: "<em>we</em> have decided that <em>we</em> want to preserve these species forever and in order to do so <em>we</em> will pay whatever the cost." In reality, the costs are often paid by Bob the farmer or Ted the logger, who never get compensation for the costs they are purportedly bearing for "us." In reality, most people would be willing to pay relatively little to preserve most of the species on the endangered species list, but they are quite willing to let Bob and Ted bear the costs.</p> <p>As an act of Congress, the application of the ESA to the bone cave harvestman must be constitutionally authorized. This is different than justifying the ESA more generally. The ESA covers many species, and many of those species have some connection to commerce and thus they have a connection to Congress's power to regulate interstate commerce. But the bone cave harvestman is utterly devoid of commercial value—it’s not a delicacy, no one is making necklaces out of them, and no one is traveling from other states to see them, etc.—but the government still claims the Commerce Clause allows it to list the spider as endangered and impose harsh penalties for a “take.”</p> <p>Article 1, Section 8 of the Constitution grants Congress the limited power to regulate commerce between states. Taken at face value, the Commerce Clause would allow the federal government to control the movement and sale of goods that affect the national market—for example, gasoline and other commodities. It wasn’t written to justify federal regulation of noncommercial activities, goods, or species. Yet, the government does precisely that when it uses the ESA to punish property owners for interfering with a nearly undetectable spider that has no commercial value at all.</p> <p>Cato, joined by the Southeastern Legal Foundation and the Mountain States Legal Foundation, has <a href="https://www.cato.org/publications/legal-briefs/yearwood-v-dept-interior">filed a brief </a>in the Fifth Circuit Court of Appeals in <em>Yearwood v. Department of the Interior</em>. We argue that listing the bone cave harvestman under the ESA goes too far in the otherwise admirable goal of preserving wildlife. In <em>NFIB v. Sebelius--</em>the challenge to Obamacare’s individual mandate--the Court ruled that someone who hasn’t purchased health insurance could not be forced to do so under the Commerce Clause (but, alas, they can be made to pay a “tax”). Despite ultimately losing that case, the decision is still an important precedent for the limits of the Commerce Clause. The bone cave harvestman is like someone who hasn’t purchased health insurance. The creatures are not in the stream of commerce and their mere existence can’t be said to put them in congressional jurisdiction. If that were true, then every animal in the country would be within Congress's Commerce Clause jurisdiction, a ridiculous result. Exempting the tiny spider would not require striking down the entire ESA. Surely, the safety of red wolves, blue whales, and spotted owls does not depend on a tiny spider’s appearance on the Endangered Species List. The Commerce Clause has grown far too many legs, and the Fifth Circuit should prevent it from endangering our constitutional order.</p> Fri, 20 Sep 2019 10:02:27 -0400 Trevor Burrus https://www.cato.org/blog/federal-protection-cave-spiders-driving-property-owners-wall Roger Pilon's comments on DC statehood are cited on WUSA's Get Up DC https://www.cato.org/multimedia/media-highlights-tv/roger-pilons-comments-dc-statehood-are-cited-wusas-get-dc?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Thu, 19 Sep 2019 13:26:02 -0400 Roger Pilon https://www.cato.org/multimedia/media-highlights-tv/roger-pilons-comments-dc-statehood-are-cited-wusas-get-dc Testimony Re: H.R. 51: Making DC the 51st State https://www.cato.org/publications/testimony/testimony-re-hr-51-making-dc-51st-state?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Roger Pilon <div class="lead text-default"> <p>Mr. Chairman and members of the committee:</p> <p>My name is Roger Pilon. I’m vice president for legal affairs emeritus at the Cato Institute where I hold Cato’s B. Kenneth Simon Chair Constitutional Studies. I want to thank you Mr. Chairman for inviting me to testify today; and I want to thank ranking member Jordan in particular for inviting me to offer a discordant note on H.R. 51, proposing an Act providing for the admission into the Union of a new, 51st state called “Washington, D.C.” or “Washington, Douglass Commonwealth.” This new state would be created from the present District of Columbia, leaving in place as the “District of Columbia” a tiny federal enclave constituted by the National Mall and the land and certain buildings immediately adjacent to the Mall.</p> </div> , <div class="text-default"> <p>Let me begin on two practical notes. First, given the history of proposals on this subject, this bill has little chance of reaching the president’s desk. Accordingly, in deference to the committee’s time and mine, I’ll keep my comments short and to the point.</p> <p>Second, given that history and the much longer history during which the District of Columbia has existed in its present form for well over 200 years, save for the small Virginia portion retroceded in 1847, there must at this point in time be a strong presumption <em>against</em> the kind of radical changes envisioned by this bill. In a word, it strains credulity to believe that the Framers, when they drafted the Constitution’s Enclave Clause, imagined anything like the arrangements contemplated by this bill.</p> <p>Let me turn, then, to a quick summary of the four-step process by which this bill purports to turn most of the District of Columbia into a state. I’ll list these steps chronologically, as contemplated by the bill. In truth, they’re interlarded variously in the bill. Start with the first step, found in the bill’s very last provision, sec. 302: The president certifies to the mayor of the District of Columbia that the bill has been enacted. Now go back to sec. 102(a): There, the mayor issues a proclamation for the first elections for two senators and one representative in Congress.</p> <p>Then in sec. 102(b)(2), the mayor certifies the election results to the president. (Sec. 102(d) provides, interestingly, that “Upon the admission of the State into the Union, the Mayor, members of the Council, and the Chair of the Council at the time of admission shall be deemed the Governor, members of the Legislative Assembly, and the Speaker of the Legislative Assembly of the State, respectively.”)</p> <p>Finally, at sec. 103(a), the president issues a proclamation announcing the election results and, upon that, at sec. 103(b), the state is “deemed” admitted to the Union.</p> <p><strong>Constitutional Objections to H.R. 51</strong></p> <p>The textual objections. In short, it appears, with several noteworthy exceptions, that this bill is patterned after the process through which federal <em>territories</em> have been admitted as states to the Union. If so, the problem is that the District of Columbia is not and never has been a “federal territory.” It is a sui generis entity, expressly provided for by the Constitution, in clear contemplation of its becoming the seat of the new federal government, which it has been for well more than 200 years. It is provided for by Article I, section 8, clause 17 of the Constitution, the Enclave Clause, not by Article IV, section 3, which provides for the admission of new states from federal territory and, prior to any admission, the regulation of federal territory.</p> <p>But the bill’s constitutional problems do not end there. Like the stillborn S. 132, the “New Columbia Admissions Act of 2013,” then before the 113th Congress, this bill looks implicitly to the Enclave Clause, of all things, to justify reducing the District of Columbia to a tiny area around the National Mall. In relevant part, that clause reads as follows:</p> </div> , <blockquote class="blockquote"> <div> The Congress shall have Power To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States.... </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>Seizing on the fact that the Framers did not set a <em>minimum</em> size for the District, statehood proponents believe they can carve out this tiny enclave from what for over 200 years has been the seat of the federal government and turn the rest of today’s District into a new state &mdash; and all without amending the Constitution.</p> <p>To be sure, the Framers did not set a minimum size for the district. But their mention of “ten Miles square,” together with Congress’s nearly contemporaneous 1790 creation of the District from land, ten miles square, ceded to the federal government by Maryland and Virginia, is strong evidence of what they intended &mdash; and strong evidence, too, against this enclave scheme.</p> <p>Beyond this plain language and its implications, however, this bill would strip Congress’s present authority over today’s District of Columbia simply by redefining “the District.” Notice too that Congress was granted exclusive authority not simply over the seat of the government but over the <em>district</em> in which the government is seated, which for over 200 years has been far larger than the small area in which “the government” is literally “seated.” This bill leaves Congress with authority over only that tiny area on which the government literally sits.</p> <p>But the bill’s constitutional problems go beyond that text and its implications. They go especially to a core constitutional principle, the doctrine of enumerated powers, which holds that Congress has only those powers that the people delegated to it as enumerated in the Constitution, mainly in Article I, section 8.<sup><a href="#_endn1" id="_endref1">1</a></sup> Search as you wish among those enumerated powers and you will find none authorizing Congress to carve out a 51st state from the present District of Columbia.</p> <p>That point was stated somewhat differently in 1963 by Attorney General Robert F. Kennedy, commenting on a bill that would have retroceded the District to Maryland:</p> </div> , <blockquote class="blockquote"> <div> While Congress' power to legislate for the District is a <em>continuing</em> power, its power to create the District by acceptance of cession contemplates a single act. The Constitution makes no provision for revocation of the act of acceptance, or for retrocession. (emphasis added)<sup><a href="#_endn2" id="_endref2">2</a></sup> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>Since then, variations of that point have been repeated by every Justice Department that has addressed DC statehood and related questions. All, with one exception, have concluded that Congress has no authority to alter the status of the District <em>legislatively</em>. That one exception was Attorney General Eric Holder. After receiving a similar opinion in 2009 from the department’s Office of Legal Counsel regarding a DC voting rights bill then pending in Congress, Holder “rejected the advice and sought the opinion of the solicitor general’s office. Lawyers there told him that they could defend the legislation if it were challenged after its enactment.”<sup><a href="#_endn3" id="_endref3">3</a></sup> The ambiguity is precious: Of course the solicitor general’s office “can defend” the legislation; it’s the job of that office “to defend” all legislation, no matter how unconstitutional it might turn out to be.</p> <p>Regarding the 1847 retrocession of the small Virginia portion of the original District, that offers no real support for this bill since the Supreme Court, when finally asked to rule on the question nearly 30 years later in a private taxpayer suit, declined to declare the retrocession unconstitutional because so ruling would have resulted in dire consequences given all that had transpired over those years.<sup><a href="#_endn4" id="_endref6">4</a></sup></p> <p><strong>The consent of Maryland is likely necessary for the creation of Washington, D.C. from the present District of Columbia.</strong> As the Enclave Clause contemplates, the District was created through the consent of both Congress and the states that ceded land for its creation. And the purpose of the cession was made clear in the initial act that gave the Maryland delegation in the House of Representatives authority “to cede to the congress of the United States, any district in this state, not exceeding ten miles square, which the congress may fix upon and accept for the seat of government of the United States.”<sup><a href="#_endn5" id="_endref5">5</a></sup> Here again we have a single act, for a single purpose. Maryland did not cede the land for the purpose of creating a new state on its border.</p> <p>Were Congress to put that land to a different purpose, therefore, the terms of the original cession would be violated. Indeed, that would be crystal clear were it to have happened initially rather than more than 200 years later. It would have been sheer political mischief if Congress and Maryland had agreed to the cession for the purpose of creating the District and then Congress turned right around and carved out a separate state from that grant. Congress cannot do in two steps, simply from the passage of time, what it could not have done in one fell swoop initially, a conclusion that is further buttressed by Article IV, Section 3, which provides that no new state may be created out of the territory of an existing state without that state’s consent. Whether Maryland would consent to the creation of “Washington, D.C.” is an open question, of course. There are numerous practical objections that would arise, a few of which I will address below. Suffice it to say here that past efforts in this direction have received little support from the free state.</p> <p><strong>Practical Objections to HR. 51</strong><br>James Madison, the principal author of the Constitution, explained in <em>Federalist</em> No. 43 why we needed a “federal district,” separate and apart from the territory and authority of any one of the states, where Congress would exercise “exclusive” jurisdiction:</p> </div> , <blockquote class="blockquote"> <div> The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy. </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>Independency runs through Madison’s explanation: It was imperative that the federal government not be dependent on any one of the states, and equally that no state be either dependent on the federal government or disproportionately influential on that government. Neither of those objectives would be met under this bill.</p> <p>Today, Congress has authority over the entire District of Columbia, albeit delegated in large measure to the District government. That authority would cease under this bill. Congress would have exclusive authority over only the tiny sliver of land outlined in the bill &mdash; essentially the White House, the Capitol, the Supreme Court, and the area close to the National Mall. That would make the federal government dependent on this new independent state, “Washington, D.C.,” for everything from electrical power to water, sewer, snow removal, police and fire protection, and so much else that today is part of an integrated jurisdiction under the ultimate authority of Congress. Nearly every foreign embassy would be beyond federal jurisdiction and dependent mainly on the services of this new and effectively untested state. Ambulances, police and fire equipment, diplomatic entourages, members of Congress, and ordinary citizens would be constantly moving over state boundaries in their daily affairs and in and out of jurisdictions, potentially increasing jurisdictional problems exponentially.</p> <p>But neither would this new state be independent of the federal government. In <em>Federalist</em> No. 51 Madison discussed the “multiplicity of interests” that define a proper state, with urban and rural parts and economic activity sufficient and sufficiently varied to be and to remain an independent entity. That hardly describes the present District of Columbia. Washington is an urban, one-industry town (though not as much as it used to be), dependent on the federal government far in excess of any other state. This new state, our first “citystate,” would be no different. Moreover, as a state, no longer under the exclusive authority of a Congress that would now be dependent on it, as just outlined, this state would be in a position to exert influence on the federal government far in excess of that of any other state. The potential for “dishonorable” influence, as Madison noted, is palpable. And a tiny new “District of Columbia,” compressed as it would be under this bill, would be unable to effectively control its place of business, rendering it susceptible to such influence.</p> <p><strong>The Constitution Again</strong><br>Let me conclude by returning to the Constitution, where the strongest arguments against this bill are to be found. As this bill seems to contemplate, the 23rd Amendment, ratified in 1961, would need to be repealed. In relevant part, the 23rd Amendment provides that:</p> </div> , <blockquote class="blockquote"> <div> The <em>District</em> constituting the seat of government shall appoint in such manner as the Congress may direct:<br><br>A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; ... (emphasis added) </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>Plainly, those who wrote and ratified the 23rd Amendment envisioned a district of a certain size. In fact, the amendment speaks of the District as “if it were a State,” granting it the number of presidential electors it would be entitled to “if it were a State.” But under this bill, the “District” would be a tiny enclave where perhaps a handful of voters will live &mdash; including the presidential family. Empowered to select the three electors presently allotted, their votes would then be vastly weightier than those of their fellow citizens. Moreover, the amendment authorizes Congress to direct the manner in which the District appoints electors; it does not allow Congress to <em>eliminate</em> the District’s constitutional power to appoint those electors. Neither those <em>constitutional</em> rights nor that constitutional power may be taken away by mere statute.</p> <p>Recognizing that, apparently, this bill offers a convoluted way to preserve those rights, if not that power. Sec. 204 requires each state, including the new state of Washington, D.C., to permit “individuals residing in the new seat of government [i.e., the tiny District of Columbia] to vote in federal elections in [their] state of most recent domicile.” Sec. 204(b) expresses “the sense of Congress” that States <em>should</em> waive registration requirements for absent District of Columbia voters,” etc. And sec. 205 purports to strike the District of Columbia from the definition of a state for the purpose of choosing electors, effective upon Washington, D.C.’s admittance to the Union.</p> <p>If passed standing alone, sec. 205 would plainly be unconstitutional. In the context of this bill, it remains so. The repeal is not sensibly pegged to the repeal of the 23rd Amendment or even to the last (51st) state’s adoption of absentee procedures. Congress presumes in this section that it can undo what it took a constitutional amendment to do. Indeed, if all of this would do the trick, why the need for sec. 206, appropriately titled, “Expedited procedures for consideration of constitutional amendment repealing 23rd Amendment.”</p> <p>The word “expedited” (to say nothing of the procedures that follow) speaks volumes about the what is going on here. This bill cannot stand unless the 23rd Amendment is repealed by the provisions of Article V of the Constitution. But the chances of that are infinitesimally small. As we saw when an amendment to afford greater representation for the District was put before the nation in 1978, only 16 states had signed on by the time the allotted period for ratification had concluded in 1985. Outside the Beltway there is little support for even that kind of change. I submit that so radical a change as is contemplated by this bill &mdash; reducing the nation’s capital to this tiny enclave &mdash; will meet with even less support. In fact, as a July 15 Gallup poll showed, even among Democrats, support for DC Statehood stands at only 39 percent, with 51 percent opposed. Among Americans generally, 29 percent support DC Statehood, 64 percent oppose it.<sup><a href="#_endn6" id="_endref6">6</a></sup></p> <p>Which brings me to this: With a national debt at $22 trillion dollars and growing, with entitlement programs facing near-term insolvency under demographic pressures and unrealistic assumptions, why are we spending time debating a bill with so little prospect of succeeding and with problems galore if it did? The Framers knew what they were doing when they provided for the seat of government that we have. It has served us well for over two centuries. There are more pressing issues before this chamber.</p> </div> Thu, 19 Sep 2019 13:13:01 -0400 Roger Pilon https://www.cato.org/publications/testimony/testimony-re-hr-51-making-dc-51st-state Roger Pilon testifies at the hearing, "H.R. 51, the Washington, D.C. Admission Act," at the House Committee on Oversight and Reform (Testimony and Q&A) https://www.cato.org/multimedia/media-highlights-tv/roger-pilon-testifies-hearing-hr-51-washington-dc-admission-act-0?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Thu, 19 Sep 2019 11:26:15 -0400 Roger Pilon https://www.cato.org/multimedia/media-highlights-tv/roger-pilon-testifies-hearing-hr-51-washington-dc-admission-act-0 Roger Pilon's testimony on DC Statehood is shown on Newsy https://www.cato.org/multimedia/media-highlights-tv/roger-pilons-testimony-dc-statehood-shown-newsy?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Thu, 19 Sep 2019 11:23:50 -0400 Roger Pilon https://www.cato.org/multimedia/media-highlights-tv/roger-pilons-testimony-dc-statehood-shown-newsy Roger Pilon discusses his DC Statehood testimony on WUSA's Off Script with Bruce Johnson https://www.cato.org/multimedia/media-highlights-tv/roger-pilon-discusses-dc-statehood-testimony-wusas-script-bruce?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Thu, 19 Sep 2019 11:21:23 -0400 Roger Pilon https://www.cato.org/multimedia/media-highlights-tv/roger-pilon-discusses-dc-statehood-testimony-wusas-script-bruce Roger Pilon's testimony on DC Statehood is shown on WUSA's 9 News at 6 https://www.cato.org/multimedia/media-highlights-tv/roger-pilons-testimony-dc-statehood-shown-wusas-9-news-6?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Thu, 19 Sep 2019 11:19:57 -0400 Roger Pilon https://www.cato.org/multimedia/media-highlights-tv/roger-pilons-testimony-dc-statehood-shown-wusas-9-news-6 Roger Pilon's testimony on DC Statehood is shown on WUSA's 9 News at 5 https://www.cato.org/multimedia/media-highlights-tv/roger-pilons-testimony-dc-statehood-shown-wusas-9-news-5?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Thu, 19 Sep 2019 11:17:38 -0400 Roger Pilon https://www.cato.org/multimedia/media-highlights-tv/roger-pilons-testimony-dc-statehood-shown-wusas-9-news-5 Roger Pilon discusses DC Statehood on WUSA's 9 News at 5 https://www.cato.org/multimedia/media-highlights-tv/roger-pilon-discusses-dc-statehood-wusas-9-news-5?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Thu, 19 Sep 2019 11:15:59 -0400 Roger Pilon https://www.cato.org/multimedia/media-highlights-tv/roger-pilon-discusses-dc-statehood-wusas-9-news-5 Roger Pilon's testimony on DC Statehood is shown on WUSA's 9 News at Noon https://www.cato.org/multimedia/media-highlights-tv/roger-pilons-testimony-dc-statehood-shown-wusas-9-news-noon?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Thu, 19 Sep 2019 11:14:04 -0400 Roger Pilon https://www.cato.org/multimedia/media-highlights-tv/roger-pilons-testimony-dc-statehood-shown-wusas-9-news-noon Roger Pilon discusses the DC statehood campaign on CBS WUSA's 9 News at 11 https://www.cato.org/multimedia/media-highlights-tv/roger-pilon-discusses-dc-statehood-campaign-cbs-wusas-9-news-11?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Wed, 18 Sep 2019 11:34:31 -0400 Roger Pilon https://www.cato.org/multimedia/media-highlights-tv/roger-pilon-discusses-dc-statehood-campaign-cbs-wusas-9-news-11 Yearwood v. Dept. of Interior https://www.cato.org/publications/legal-briefs/yearwood-v-dept-interior?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Ilya Shapiro, Trevor Burrus <div class="lead text-default"> <p>Much like lawyers, spiders don’t drum up warm feelings for most people. It’s probably because both are known for spinning webs. Unlike lawyers, however, the federal government has placed some spiders on the endangered species list&mdash;and not just big ones, but ones so small that it takes 14 surveys of a cave to even make sure they’re there. One such spider, the near-invisible bone cave harvestman, is found only in a small section of Texas and resides in an unknown number of underground caves.</p> </div> , <div class="text-default"> <p>It&rsquo;s easy to imagine a property owner&rsquo;s shock when he finds out his land is teeming with these small spiders and that he could face hefty fines if he accidentally steps on one. This sort of mistaken squashing, defined as a &ldquo;take,&rdquo; is prohibited by the Endangered Species Act (ESA). As an act of Congress, the application of the ESA to the bone cave harvestman must be constitutionally authorized. But even though the bone cave harvestman is utterly devoid of commercial value&mdash;it&rsquo;s not a delicacy, no one is making necklaces out of them, and no one is traveling from other states to see them&mdash;the government claims the Commerce Clause allows it to list the spider as endangered and impose harsh penalties for a &ldquo;take.&rdquo;</p> <p>Article 1, Section 8 of the Constitution grants Congress the limited power to regulate commerce between states. Taken at face value, the Commerce Clause would allow the federal government to control the movement and sale of goods that affect the national market&mdash;for example, gasoline and other commodities. It wasn&rsquo;t written to justify federal regulation of noncommercial activities, goods, or species. Yet, the government does precisely that when it uses the ESA to punish property owners for interfering with a nearly undetectable spider that has no commercial value at all.</p> <p>Cato, joined by the Southeastern Legal Foundation and the Mountain States Legal Foundation, has filed a brief in the Fifth Circuit Court of Appeals in <em>Yearwood v. Department of the Interior</em>. We argue that listing the bone cave harvestman under the ESA goes too far in the otherwise admirable goal of preserving wildlife. In <em>NFIB v. Sebelius</em>, the challenge to Obamacare&rsquo;s individual mandate, the Court ruled that someone who hasn&rsquo;t purchased health insurance could not be forced to do so under the Commerce Clause (but, alas, they can be made to pay a &ldquo;tax&rdquo;). Despite ultimately losing that case, the decision is still an important precedent for the limits of the Commerce Clause. The bone cave harvestman is like someone who hasn&rsquo;t purchased health insurance. The creatures are not in the stream of commerce and their mere existence can&rsquo;t be said to put them in congressional jurisdiction. Exempting the tiny spider would not require striking down the entire ESA. Surely, the safety of red wolves, blue whales, and spotted owls does not depend wholly on a tiny spider&rsquo;s appearance on the Endangered Species List. The Commerce Clause has grown far too many legs, and the Fifth Circuit should prevent it from endangering our constitutional order.</p> </div> Wed, 18 Sep 2019 08:38:49 -0400 Ilya Shapiro, Trevor Burrus https://www.cato.org/publications/legal-briefs/yearwood-v-dept-interior Ilya Shapiro discusses Constitution Day on Cronkite News https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-constitution-day-cronkite-news?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Tue, 17 Sep 2019 11:59:45 -0400 Ilya Shapiro https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-constitution-day-cronkite-news Josh Blackman discusses Constitution Day on KZIM's Real Talk With Riggin https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-constitution-day-kzims-real-talk-riggin?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Tue, 17 Sep 2019 10:44:10 -0400 Josh Blackman https://www.cato.org/multimedia/media-highlights-radio/josh-blackman-discusses-constitution-day-kzims-real-talk-riggin Constitution Day 2019: the Hidden Domestic Surveillance Crisis https://www.cato.org/publications/commentary/constitution-day-2019-hidden-domestic-surveillance-crisis?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Patrick G. Eddington <div class="lead text-default"> <p>As we mark the 232nd anniversary of the signing of America's governing charter in 1787, we have ample evidence that it continues to be violated by the federal officials charged with upholding it.</p> </div> , <div class="text-default"> <p>Last month, <em>The Young Turks</em> (TYT) news and talk network <a href="https://tyt.com/stories/4vZLCHuQrYE4uKagy0oyMA/mnzAKMpdtiZ7AcYLd5cRR" target="_blank">obtained</a> the FBI&rsquo;s 2018-2020 &ldquo;Consolidated Strategy Guide,&rdquo; which not only referenced the targeting of so-called &ldquo;Black Identity Extremists&rdquo; (BIE&rsquo;s) but also those designated as engaged in &ldquo;Anti-Government/Anti-Authority Extremism,&rdquo; &ldquo;Abortion Extremism,&rdquo; or &ldquo;Animal Rights/Environmental Extremism.&rdquo; In a House Oversight and Reform subcommittee <a href="https://oversight.house.gov/legislation/hearings/confronting-white-supremacy-part-ii-adequacy-of-the-federal-response" target="_blank">hearing</a> in June, FBI Counterterrorism Division Director Michael McGarrity had admitted under questioning that the FBI <a href="https://www.theroot.com/the-fbi-admits-black-lives-matter-was-never-a-threat-i-1835417043" target="_blank">could not cite</a> a single example of a murder that could be linked to any African American activist group, including Black Lives Matter. He also claimed that the Bureau had eliminated the entire category of &ldquo;Black Identity Extremists&rdquo; from its lexicon. The document obtained by TYT casts doubt on McGarrity&rsquo;s claim, particularly given the use of the term &ldquo;Black Racially Motivated Extremists&rdquo; (BRME) elsewhere in the Guide.</p> <p>The Guide does not disclose the precise criteria the FBI uses to label individuals or groups as extremists or alleged threats, but it does discuss in some detail the aggressive &ldquo;intelligence collection&rdquo; posture the FBI took against so-called BIE&rsquo;s. Page 1 of the section on BIE&rsquo;s contains the following:</p> </div> , <blockquote class="blockquote"> <div> <p>&ldquo;The FBIHQ-led Threat Mitigation Strategy IRON FIST was implemented to mitigate the potential threat posed by the BIE movement at the national level. IRON FlST will accomplish this by identifying actionable intelligence to directly support the initiation of FBI investigations and augment current efforts directed against BlEs. IRON FIST is designed to evolve and adapt to the ever-changing threat posed by BlEs, to proactively address this priority domestic terrorism target by focusing FBI operations via enhanced intelligence collection efforts. ln addition, FBIHQ works to develop potential [confidential human sources] CHSs and conduct assessments on the current BIE CHS base. Many BlEs are convicted felons who are prohibited possessors, therefore the FBI will continue to use their prohibited possessor status as a tactic to assist in mitigating the threat for potential violence.&rdquo;</p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>Indeed, this &ldquo;Threat Mitigation Strategy&rdquo; is a template that the FBI is applying to other groups and individuals designated as &ldquo;White Supremacy Extremists&rdquo; (WSEs), as revealed on page 1 of the section on WSE&rsquo;s:</p> </div> , <blockquote class="blockquote"> <div> <p>&ldquo;The FBIHQ-led Threat Mitigation Strategy SUPREME RENDITION was implemented to mitigate the potential threat posed by WSE movements at the national level and will accomplish this by identifying actionable intelligence to directly support the initiation of FBI investigations and augment current efforts directed against WSEs. SUPREME RENDITION is designed to evolve and adapt to the ever-changing threat posed by WSEs, to proactively address this priority domestic terrorism target by focusing FBI operations via enhanced intelligence collection efforts. ln addition, FBIHQ works to develop potential CHSs and conduct assessments on the current WSE CHS base. Noting that many WSE subjects are convicted felons and are prohibited from legally possessing firearms, the FBI is exploiting the Dark Web or Dark Net to determine whether persons with a WSE ideology are using these non-indexed &ldquo;hidden&rdquo; websites and domains to procure firearms, explosives, murder-for-hire, or other illegal services in furtherance of their beliefs. Also, the FBI will use their prohibited possessor status as a tactic to assist in mitigating the threat for potential violence.&rdquo;</p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p><strong>The Threat of an Ideological Test</strong></p> <p>That the FBI is using an ideological test of its own devising to determine whether a person seeking products or services on &ldquo;the Dark Web&rdquo; is a threat raises a host of potential constitutional issues, including whether the monitoring of a person&rsquo;s online activities based on their ideology runs afoul of the First Amendment or the <a href="https://www.oyez.org/cases/1968/492" target="_blank"><em>Brandenburg v. Ohio</em></a> decision.</p> </div> , <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>For the Constitution to have meaning and force, the public —including the Congress, the courts, and the press —must be able to establish what the executive branch is doing in our name and with our tax dollars, particularly when it comes to the use —or misuse —of federal surveillance powers.</p> </div> </div> , <div class="text-default"> <p>Under the broad rubric of &ldquo;Racially Motivated Violent Extremism&rdquo; (RMVE), the Guide notes on page 3 of the RMVE section that &ldquo;Field offices will evaluate their need for an open Type 3 assessment file in regards to RMVE. An open assessment file allows for greater proactive collection techniques should the RMVE threat emerge in the wake of a police-involved incident that sparks potential RMVE activity.&rdquo;</p> <p>The FBI&rsquo;s Domestic Investigations and Operations Guide (<a href="https://www.documentcloud.org/documents/3416775-DIOG-Redactions-Marked-Redacted.html" target="_blank">DIOG</a>) describes a Type 3 assessment as follows:</p> </div> , <blockquote class="blockquote"> <div> <p>&ldquo;Type 3 Assessment: Identify, obtain and utilize information about actual or potential national security threats or Federal criminal activities, or the vulnerability to such threats or activities.&rdquo;</p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>The language is sweeping and allows for the collection of information on the basis of hypothetical, not actual, threats, with Field Offices encouraged to &ldquo;conduct social media analysis of RMVE threats, as appropriate.&rdquo; (p. 3, RMVE section) Exactly what constitutes a validated &ldquo;RMVE threat&rdquo; is not defined, and nowhere in the document is any reference made to avoiding social media monitoring or other intelligence-collection activities solely on the basis of First Amendment protected activities.</p> <p>Even more troubling, there is now abundant evidence that the FBI&rsquo;s focus has expanded beyond known or alleged terrorists or &ldquo;extremists&rdquo; groups to those involved in America&rsquo;s immigration controversy.</p> <p>The latest indicator came in the form of a Sept. 4 <em>Yahoo! News</em> <a href="https://news.yahoo.com/exclusive-document-reveals-the-fbi-is-tracking-border-protest-groups-as-extremist-organizations-170050594.html" target="_blank">story</a> based on an FBI Phoenix Field Office &ldquo;External Intelligence Note&rdquo; dated May 30, 2019. The actual <em>Yahoo! News</em> story lede &mdash;&ldquo;Exclusive: Document reveals the FBI is tracking border protest groups as extremist organizations&rdquo; &mdash;was misleading in that the document obtained by Yahoo! News only referenced &ldquo;Anarchist Extremist&rdquo; groups, and only one by its acronym, BLF, presumably the <a href="https://www.facebook.com/caravansupportnetwork/" target="_blank">Border Liberation Front</a>, one of <a href="https://www.fightbacknews.org/2019/4/1/first-day-legalization-all-network-delegation-focuses-chicano-struggles-arizona" target="_blank">many groups</a> opposed to Trump administration policies in the southwest border region. Even so, the report raises an obvious question: what other immigration-related groups might the FBI be monitoring?</p> <p><strong>Groups Targeted for Surveillance</strong></p> <p>Earlier this year, I submitted Freedom of Information Act (FOIA) requests to the FBI on 37 groups publicly working on immigration policy issues, some of them direct client-services organizations. Many of these FOIAs remain outstanding or are in varying stages of appeal or potential litigation. However, FBI FOIA responses received to date indicate that at least five of these groups &mdash;Chula Vista Partners in Courage, <a href="https://www.pangealegal.org/" target="_blank">Pangea Legal Services</a>, <a href="https://theimmigrationhub.org/" target="_blank">Immigration Hub</a>, <a href="https://supportkind.org/" target="_blank">Kids In Need of Defense (KIND)</a>, and the <a href="https://transgenderlawcenter.org/" target="_blank">Transgender Law Center</a> &mdash; may have been targeted for surveillance.</p> <p>For each of the groups listed above, the FOIA appeal response I received from the Department of Justice&rsquo;s Office of Information Policy (OIP) contained the following language:</p> </div> , <blockquote class="blockquote"> <div> <p>&ldquo;To the extent that your request could encompass any national security or foreign intelligence records, I have determined that the FBI properly refused to confirm or deny the existence of any national security or foreign intelligence records responsive to your request because the existence or nonexistence of any such responsive records is currently and properly classified. See 5 U.S.C. § 552(b)(1).&rdquo;</p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>In the world of FOIA, this kind of response is known as a &ldquo;Glomar&rdquo; &mdash;a reference to a 1981 FOIA case (<em><a href="https://www.leagle.com/decision/19811980655f2d132511758" target="_blank">Phillippi v. CIA, 655 F.2d 1325, 1327 (D.C. Cir. 1981</a></em>), in which the D.C. Circuit Court of Appeals ruled that the CIA could refuse to confirm or deny even the very existence of information on a topic if the fact of its existence was itself deemed classified.</p> <p>The 1981 case revolved around the efforts of a <em>Rolling Stone</em> reporter to get records of conversations between CIA Director William Colby and the heads of various news organizations that had learned about a Tom Clancy-like CIA operation to raise a sunken Soviet sub from the Pacific Ocean. The CIA&rsquo;s argument, which the Court accepted, was that even the revelation of Colby&rsquo;s efforts to kill the story would tip off the Soviets that the CIA might, in fact, have managed to salvage at least something from the sunken Soviet sub.</p> <p>Since that 1981 D.C. appellate court decision, other federal courts have generally <a href="https://foia.wiki/wiki/Glomar" target="_blank">upheld</a> executive branch invocations of Glomar responses to FOIA requests. In my view, those ill-considered decisions have now led to a much wider and far more dubious resort to Glomar responses by federal agencies and departments, in this case by the FBI as it relates to immigration policy activism by domestic U.S. groups.</p> <p>For the five groups in question in my FOIA actions, the FBI is asserting FOIA&rsquo;s &ldquo;national security&rdquo; or (b)(1) exemption in a Glomar context. How can the provision of legal advice, counseling or other services to immigrants represent &ldquo;a threat to national security?&rdquo;</p> <p><strong>A Role for Congress</strong></p> <p>Congress should investigate whether the FBI is targeting these groups in the absence of a legitimate criminal investigative predicate and is using the Glomar exception (or other dubious FOIA evasion <a href="https://www.scribd.com/document/425859640/ACLU-Michigan-v-FBI" target="_blank">tactics</a>) to conceal that activity from the public and the courts. As for the courts, federal judges should cease taking executive branch Glomar assertions at face value and should require the production of all relevant documents for <em>in camera</em> reviews whenever a federal agency or department invokes Glomar to dodge a FOIA request.</p> <p>The FBI and other federal departments and agencies are trying to erect an impenetrable legal shield over their potentially illegal surveillance activities via the misuse of FOIA exemptions, either statutory or court-constructed, as in the case of Glomar. For the Constitution to have meaning and force, the public &mdash;including the Congress, the courts, and the press &mdash;must be able to establish what the executive branch is doing in our name and with our tax dollars, particularly when it comes to the use &mdash;or misuse &mdash;of federal surveillance powers. If we are on the cusp of a de facto <a href="https://vault.fbi.gov/cointel-pro" target="_blank">COINTELPRO</a> 2.0, the infamous Cold War-era FBI program of domestic spying and organizational disruption, we need to end it. Now.</p> </div> Tue, 17 Sep 2019 09:39:15 -0400 Patrick G. Eddington https://www.cato.org/publications/commentary/constitution-day-2019-hidden-domestic-surveillance-crisis IntroductIon https://www.cato.org/publications/supreme-court-review/introduction?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Tue, 17 Sep 2019 03:00:00 -0400 Trevor Burrus https://www.cato.org/publications/supreme-court-review/introduction Looking Ahead: October Term 2019 https://www.cato.org/publications/supreme-court-review/looking-ahead-october-term-2019?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Mon, 16 Sep 2019 14:58:06 -0400 Elizabeth H. Slattery https://www.cato.org/publications/supreme-court-review/looking-ahead-october-term-2019 What’s Next in Apple Inc. v. Pepper?: The Indirect-Purchaser Rule and the Economics of Pass-Through https://www.cato.org/publications/supreme-court-review/whats-next-apple-inc-v-pepper-indirect-purchaser-rule-economics?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Mon, 16 Sep 2019 14:52:30 -0400 Bruce H. Kobayashi, Joshua D. Wright https://www.cato.org/publications/supreme-court-review/whats-next-apple-inc-v-pepper-indirect-purchaser-rule-economics Timbs v. Indiana: Mere Constitutional Housekeeping or the Timely Revival of a Critical Safeguard? https://www.cato.org/publications/supreme-court-review/timbs-v-indiana-mere-constitutional-housekeeping-or-timely?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Mon, 16 Sep 2019 14:47:32 -0400 Brianne Gorod, Brian R. Frazelle https://www.cato.org/publications/supreme-court-review/timbs-v-indiana-mere-constitutional-housekeeping-or-timely Gamble, Dual Sovereignty, and Due Process https://www.cato.org/publications/supreme-court-review/gamble-dual-sovereignty-due-process?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Mon, 16 Sep 2019 14:40:19 -0400 Anthony J. Colangelo https://www.cato.org/publications/supreme-court-review/gamble-dual-sovereignty-due-process Knick v. Township of Scott: Ending a Catch-22 That Barred Takings Cases from Federal Court https://www.cato.org/publications/supreme-court-review/knick-v-township-scott-ending-catch-22-barred-takings-cases?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Mon, 16 Sep 2019 14:35:57 -0400 Ilya Somin https://www.cato.org/publications/supreme-court-review/knick-v-township-scott-ending-catch-22-barred-takings-cases That’s Why I Hang My Hat in Tennessee: Alcohol and the Commerce Clause https://www.cato.org/publications/supreme-court-review/thats-why-i-hang-hat-tennessee-alcohol-commerce-clause?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Mon, 16 Sep 2019 14:29:02 -0400 Braden Boucek https://www.cato.org/publications/supreme-court-review/thats-why-i-hang-hat-tennessee-alcohol-commerce-clause No More (Old) Symbol Cases https://www.cato.org/publications/supreme-court-review/no-more-old-symbol-cases?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Mon, 16 Sep 2019 14:24:32 -0400 Michael W. McConnell https://www.cato.org/publications/supreme-court-review/no-more-old-symbol-cases Baseball, Legal Doctrines, and Judicial Deference to an Agency’s Interpretation of the Law: Kisor v. Wilkie https://www.cato.org/publications/supreme-court-review/baseball-legal-doctrines-judicial-deference-agencys?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Mon, 16 Sep 2019 14:21:15 -0400 Paul J. Larkin, Jr. https://www.cato.org/publications/supreme-court-review/baseball-legal-doctrines-judicial-deference-agencys “I’m Leavin’ It (All) Up to You”: Gundy and the (Sort-of) Resurrection of the Subdelegation Doctrine https://www.cato.org/publications/supreme-court-review/im-leavin-it-all-you-gundy-sort-resurrection-subdelegation?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Mon, 16 Sep 2019 14:11:00 -0400 Gary Lawson https://www.cato.org/publications/supreme-court-review/im-leavin-it-all-you-gundy-sort-resurrection-subdelegation