Latest Cato Research on Supreme Court https://www.cato.org/ en Robert A. Levy discusses SCOTUS cases on gay marriage on The Bob Harden Show https://www.cato.org/multimedia/media-highlights-radio/robert-levy-discusses-scotus-cases-gay-marriage-bob-harden-show Wed, 22 Jan 2020 11:23:47 -0500 Robert A. Levy https://www.cato.org/multimedia/media-highlights-radio/robert-levy-discusses-scotus-cases-gay-marriage-bob-harden-show Citizens United at 10 https://www.cato.org/multimedia/cato-daily-podcast/citizens-united-10 Scott Blackburn, Caleb O. Brown <p>The fight over <em>Citizens United</em> free speech ruling has raged on years after the Supreme Court weighed in. Scott Blackburn of the Institute for Free Speech explains why the case’s detractors are so very mistaken.</p> Tue, 21 Jan 2020 18:00:00 -0500 Scott Blackburn, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/citizens-united-10 Public Schools Cannot Be Religiously Neutral, But School Choice Makes Neutrality Possible https://www.cato.org/blog/supreme-court-must-understand-public-schools-cannot-be-religiously-neutral Neal McCluskey <p>Tomorrow the U.S. Supreme Court will hear oral argument in <em><a href="https://www.scotusblog.com/case-files/cases/espinoza-v-montana-department-of-revenue/">Espinoza v. Montana</a></em>, a case addressing state constitutional provisions that bar public funds from going to religious institutions, especially schools. At the crux of the case is the belief that taxpayers should not be forced to take sides on religion. But the oft‐​ignored root problem is that public schools <em>cannot be religiously neutral</em>; no matter what they do they are taking sides on religious matters. Only school choice — what has been quashed in Montana — frees the state from that.</p> <p>The specifics of the case seem minor. The Montana Supreme Court struck down a program offering a $150 tax credit to people who donated to groups furnishing scholarships for students to attend private schools, including religious. As long as religious schools were included, the Montana court ruled that the whole program had to be struck down, lest it violate the state’s <a href="https://leg.mt.gov/bills/mca/title_0000/article_0100/part_0010/section_0060/0000-0100-0010-0060.html">constitutional provision</a>—a so‐​called Blaine amendment — interpreted to prohibit any funds from reaching “sectarian” schools.</p> <p>At the heart of many people’s concern is entangling government with religion, an absolutely legitimate worry. But as long as there is public schooling — which deals inescapably with minds, and hence worldviews — government <em>will be</em> entangled with religion.</p> <p>As I illustrate in this <em><a href="https://www.tandfonline.com/doi/full/10.1080/15582159.2018.1524427">Journal of School Choice<span> </span></a></em><a href="https://www.tandfonline.com/doi/full/10.1080/15582159.2018.1524427"><span>article</span></a>—which is also part of a <a href="https://www.routledge.com/Educating-Believers-Religion-and-School-Choice-1st-Edition/Maranto-Danish-Shakeel/p/book/9780367436650">new book on the nexus of education and religion</a>—public schooling has never been, and <em>can never be</em>, religiously neutral. Reproduced below is a graphic I created for the <em>JSC</em> article to help readers understand the many levels on which public schooling intersects with religion. They run from elevating non‐​religion over religion by the very effort to have religion‐​free education, to teaching religion‐​saturated history.</p> <div data-embed-button="image" data-entity-embed-display="view_mode:media.blog_post" data-entity-type="media" data-entity-uuid="768029ca-f305-4000-9717-eba91c74539b" class="align-center embedded-entity" data-langcode="en"> <p><img srcset="/sites/cato.org/files/styles/pubs/public/2020-01/wjsc_a_1524427_f0002_b_0.jpeg?itok=ndjaOuhX 1x, /sites/cato.org/files/styles/pubs_2x/public/2020-01/wjsc_a_1524427_f0002_b_0.jpeg?itok=gwJp91_o 1.5x" width="700" height="644" src="https://www.cato.org/sites/cato.org/files/styles/pubs/public/2020-01/wjsc_a_1524427_f0002_b_0.jpeg?itok=ndjaOuhX" alt="Diagram showing levels of religion in schools" typeof="Image" class="component-image" /></p></div> <p>The <a href="https://www.cato.org/education-fight-map">Public Schooling Battle Map</a>—sadly, still in a state of reconstruction — illustrates that religion remains a powerful flashpoint in public schools. The database contains 346 state‐ and district‐​level battles explicitly and foremost about the presence of religion, or perceived affronts to religion, ranging from <a href="https://www.ksat.com/news/local/2019/12/17/somerset-isd-takes-down-biblical-religious-display-after-complaint-from-american-humanist-association/">creationist displays</a> in schools to <a href="https://www.mdjonline.com/news/cobb-county-schools-yoga-case-will-get-jury-trial/article_16e47f5e-4821-11e9-9e03-1f6acd26a322.html">yoga classes</a>. Many other conflicts may implicate religion, though it may not be the core concern, including battles over bathroom and locker room access being contested <a href="https://www.cnn.com/2016/08/23/us/transgender-bathroom-policies/index.html">nationwide</a>.</p> <p>Quite simply, religious neutrality in public schools is impossible.</p> <p>Can government promote education at all without touching on religion? Probably not, but it can come much closer than it does with public schooling. The solution is to do the very thing the Montana Supreme Court struck down: allow people to direct some of their income to groups that provide scholarships, and give them a tax credit. That would enable taxpayers to freely direct their money so that families could choose private schools that may be religious, or to otherwise let it go to public schools. What is crucial is that government no longer force funding of particular schools, and hence particular approaches to faith, rendering the state <em>truly</em> neutral.</p> <p>There are <a href="https://ij.org/press-release/friends-of-the-court-submit-u-s-supreme-court-briefs-to-support-religious-options-in-school-choice-programs/">many reasons</a> the U.S. Supreme Court should rule in favor of school choice. But the most important is that the end that Blaine amendments are supposed to achieve — keeping government out of religion — is far better served by the measure Montana struck down than maintaining a public school monopoly over taxpayer funds.</p> Tue, 21 Jan 2020 11:30:37 -0500 Neal McCluskey https://www.cato.org/blog/supreme-court-must-understand-public-schools-cannot-be-religiously-neutral Vugo, Inc. v. City of New York https://www.cato.org/publications/legal-briefs/vugo-inc-v-city-new-york Jacob Huebert, Ilya Shapiro, Sam Spiegelman, Trevor Burrus <div class="lead text-default"> <p>Vugo is a&nbsp;company that provides a&nbsp;software platform for rideshare drivers to display entertainment and advertising in their vehicles on an iPad or other tablets. New York City, however, prohibits advertising on the exterior and interior of “for‐​hire vehicles,” including rideshare vehicles like Uber and Lyft, without authorization from the Taxi and Limousine Commission. The commission allows some advertising in taxis, which is displayed on screens (“Taxi TV”) that the commission required taxis to install.</p> </div> , <div class="text-default"> <p>Vugo challenged the city’s ban as a&nbsp;violation of the First Amendment. Since the law restricts commercial speech (advertising) but not non‐​commercial speech, Vugo challenged the advertising ban as an unconstitutional content‐​based restriction on speech — that is, a&nbsp;limit on speech based on what it&nbsp;<em>says</em>&nbsp;rather than&nbsp;<em>how</em>&nbsp;it is said. Vugo also argued that the restriction violated the First Amendment because the city has different rules for taxis and rideshare vehicles.</p> <p>On its face, the First Amendment does not discriminate between commercial and non‐​commercial speech, and any content‐​based restrictions on either should be subject to the strictest scrutiny. In 2015, in&nbsp;<em>Reed v. Town of Gilbert</em>, the Supreme Court confirmed that content‐​based restrictions on speech can be sustained only if the law is narrowly tailored to further a “compelling interest” — a high bar that is rarely met.&nbsp;<em>Reed</em>&nbsp;did not, however, extend this standard of review to commercial speech, and for years lower courts have offered myriad explanations as to why speech advertising goods and services is somehow less deserving of First Amendment protection.</p> <p>Vugo won at the district court level but lost at the Second Circuit. Now Vugo is asking the Supreme Court to take the case, and the Goldwater Institute and Cato have filed a&nbsp;brief in support. We argue that different standards for commercial and non‐​commercial speech have no basis in the Constitution or in good public policy. Courts have argued that commercial speech should be less protected because false advertising harms consumers’ pocketbooks, or it harms the fair exchange of commerce. But false&nbsp;<em>non‐​commercial</em>&nbsp;speech has many negative effects — especially in the political realm — and the harms likely dwarf those of falsities perpetuated in pursuit of profit. Yet few would argue that the regulation of non‐​commercial speech should be subject to anything less than strict scrutiny. Politicians’ lies are and should be protected by the First Amendment. Shouldn’t the government’s purpose for rooting out the lesser evil of false commercial advertising be subject to the same exacting level of scrutiny?</p> <p><em>Vugo</em>&nbsp;is a&nbsp;good case for the Supreme Court to reconsider its existing commercial speech precedent and, ideally, apply the&nbsp;<em>Reed</em>&nbsp;standard to content‐​based restrictions on commercial speech. The Court should take the case and ensure that future efforts to regulate commercial speech face a&nbsp;far more exacting level of scrutiny than they do now.</p> </div> Tue, 21 Jan 2020 11:17:38 -0500 Jacob Huebert, Ilya Shapiro, Sam Spiegelman, Trevor Burrus https://www.cato.org/publications/legal-briefs/vugo-inc-v-city-new-york Chris Edwards’ blog post, “New York vs. Florida on Bureaucracy,” is cited on KEEL’s Strategies for Living https://www.cato.org/multimedia/media-highlights-radio/chris-edwards-blog-post-new-york-vs-florida-bureaucracy-cited Mon, 20 Jan 2020 12:09:25 -0500 Chris Edwards https://www.cato.org/multimedia/media-highlights-radio/chris-edwards-blog-post-new-york-vs-florida-bureaucracy-cited Brackeen v. Bernhard https://www.cato.org/publications/legal-briefs/brackeen-v-bernhard-1 Timothy Sandefur, Ilya Shapiro, Walter Olson, Trevor Burrus <div class="lead text-default"> <p>The Indian Child Welfare Act strips basic constitutional rights any child who is racially classified as “Indian.” ICWA was initially created to prevent seizure of Native American children from their intact families by state actors. Modern‐​day applications, however, both hurt the administrative process of foster families’ adoption proceedings. Even in cases where the Native American parent(s), relatives, or affiliated tribe have no issue with the adoption, the process is still delayed by arbitrary administrative rules. In some cases, the child is even removed from stable adoptive parents to be placed in a&nbsp;neglectful, abusive situation. The U.S. Court of Appeals for the Fifth Circuit reversed a&nbsp;district court’s decision to deem ICWA as applied to adoption unconstitutional under principles of equal protection, the Tenth Amendment, the nondelegation doctrine, and the Administrative Procedure Act.</p> </div> , <div class="text-default"> <p>This Fifth Circuit ruling creates a&nbsp;dangerous new precedent that eliminates the distinction between racial and political classifications, upholding ICWA’s definition of a&nbsp;child’s political classification based solely on her race (as determined by a&nbsp;minute blood quantum). This logic ignores the cultural and political identification of the child, while bolstering the use of race in government decision making. At the very least, biological eligibility for tribal membership is a&nbsp;form of national‐​origin classification, which is subject to the same strict scrutiny that applies to racial classifications in other contexts.</p> <p>The court asserted that because many racially Indian children do not fall under ICWA’s definition of “Indian child,” this term is not a&nbsp;racial classification — which is incorrect, in that legal precedent dictates that a&nbsp;state classification does not become race‐​neutral simply because it is over‐ or underinclusive. Another ICWA provision requires children to be placed with “Indian” adults, regardless of tribal affiliation. In other words, a&nbsp;Sioux child must be placed with Seminole parents instead of a&nbsp;potentially better situation with black, white, Asian, or Hispanic parents. This “generic Indian” concept is a&nbsp;blatantly arbitrary racial identification.</p> <p>Finally, the Fifth Circuit’s ruling will in fact further harm the most at‐​risk minorities. Native American children are at greater risk of abuse, neglect, molestation, alcoholism, drug abuse, and suicide than any other demographic in the nation. Instead of providing these children with more legal protection, ICWA creates heavier evidentiary burdens, thus forcing children to remain in abusive homes longer.</p> <p>Fortunately, the full Fifth Circuit decided to hear the case&nbsp;<em>en banc</em>. Together with the Goldwater Institute and Texas Public Policy Foundation, Cato has filed an amicus brief on behalf of parent plaintiffs frustrated in a&nbsp;wish to adopt children of Native descent. (We likewise did so&nbsp;<a href="https://www.cato.org/sites/cato.org/files/pubs/pdf/brackeen-v-bernhard.pdf">before the Fifth Circuit panel</a>&nbsp;and&nbsp;<a href="https://www.cato.org/sites/cato.org/files/2019-10/Brackeen-5th-Cir-en-banc.pdf">on the plaintiffs’ motion</a>&nbsp;to rehear the case en banc.) We argue that under ICWA, “Indian child” is a&nbsp;genetics‐​based racial category and that ICWA does not constitutionally promote tribal sovereignty. The government may not treat American citizens differently, as it does here, based on whether their genetic ancestry would qualify them for tribal membership. For Congress to impose a&nbsp;racialized and non‐​neutral regime on parents and children is not only unwise and unfair, but unconstitutional.</p> </div> Mon, 13 Jan 2020 09:14:08 -0500 Timothy Sandefur, Ilya Shapiro, Walter Olson, Trevor Burrus https://www.cato.org/publications/legal-briefs/brackeen-v-bernhard-1 How Long Does the Third Party Doctrine Have Left? https://www.cato.org/multimedia/cato-daily-podcast/how-long-does-third-party-doctrine-have-left Billy Easley II, Caleb O. Brown <p>Courts routinely have trouble keeping up with technology, so how long before the Third Party Doctrine is radically altered or eliminated? Billy Easley analyzes tech policy at Americans for Prosperity.</p> Sat, 11 Jan 2020 00:00:00 -0500 Billy Easley II, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/how-long-does-third-party-doctrine-have-left How to Make Congress Great Again https://www.cato.org/blog/how-make-congress-great-again William Yeatman <p><a href="https://www.cato.org/blog/wall-street-journal-editorial-board-misses-mark-congressional-staffing">As</a> <a href="https://www.cato.org/blog/vox-misses-mark-institutional-primacy-contemporary-federal-policymaking">I’ve</a> <a href="https://www.cato.org/publications/commentary/isnt-founding-fathers-impeachment">argued</a> <a href="https://www.cato.org/blog/trump-isnt-only-constitutional-crisis-afflicting-congressional-oversight">repeatedly</a>, Congress is a&nbsp;shell of its former self.</p> <p>In last Sunday’s <em>Washington Post</em>, Paul Kane <a href="https://www.washingtonpost.com/powerpost/least-deliberative-senate-faces-weighty-task-of-holding-trumps-impeachment-trial/2020/01/04/ba120cf4-2ea9-11ea-bcd4-24597950008f_story.html">made the same point</a> specifically with respect to&nbsp;Congress’s&nbsp;upper chamber. He wrote:</p> <blockquote><p>The Senate tasked with holding President Trump’s impeachment trial would be unrecognizable to most of its predecessors … By almost every measure, today’s Senate is the least deliberative in the modern era of a&nbsp;chamber that bills itself as the world’s greatest deliberative body.</p> </blockquote> <p>Congress’s weakness threatens liberty because it reflects a&nbsp;breakdown of the Constitution’s structural check on overbearing government. In modern America, policy flows from regulatory agencies known in the aggregate as the “administrative state.” From 1995 to 2017, the executive branch issued over 92,000 rules, compared to 4,400 laws enacted by Congress.</p> <p>Over the last forty years, alas, Congress&nbsp;abandoned oversight of the agencies it had legislated into existence. Meanwhile, the president’s grip over administrative policymaking tightened with each successive administration.</p> <p>With Congress M.I.A., the president has become the policymaker‐​in‐​chief at the head of the administrative state. Indeed, the presidency has become so powerful that one of the two parties in Congress — roughly half the legislature — loses interest in executive overreach whenever “their guy” occupies the White House.</p> <p>Our constitutional system of separate and competing powers — a bulwark for liberty — is dangerously out of whack. Which raises a&nbsp;crucial question: What do we do about it?</p> <p><a href="https://www.jewishpolicycenter.org/2020/01/06/its-time-to-make-congress-great-again/">In the latest issue of <em>InFOCUS</em>&nbsp;quarterly</a>, I&nbsp;offer a&nbsp;menu of options&nbsp;to “Make Congress Great Again”:</p> <blockquote><p>So, how do we make Congress great again?</p> <p>Congress might be compelled to get its act together, even if it doesn’t want to.</p> <p>For almost 80&nbsp;years, the Supreme Court has refused to police how much power Congress transfers to the executive branch … [Yet] [f]or the first time since the New Deal‐​era, a&nbsp;majority on the Supreme Court has expressed a&nbsp;willingness to revisit the nondelegation doctrine. Were the Court to add teeth to its “intelligible principle” test, then Congress would be forced to curtail the breadth of its delegations to the executive branch.</p> <p>Turning from the Supreme Court to Congress, there are many institutional reforms that the legislature could take to empower itself <em>vis‐​a‐​vis</em> the presidency.</p> <p>Starting with the easiest measures, Congress could remedy its anemic staffing. In fact, the current level of committee staffing is commensurate with levels from the early 1970s, even though government has grown much larger and more complex in the five decades since.</p> <p>…</p> <p>Congress also could create new institutions to better compete. In the early 1980s, the president unilaterally established the Office of Information and Regulatory Affairs (within the Office of Management and Budget) to manage regulations out of the White House. Yet Congress has no commensurate capacity. There is an obvious need for Congress to create its own comparable mechanism to oversee agency rules.</p> <p>Congress could adopt simple legislative fixes. For example, lawmakers used to regularly limit the clock on their delegations, such that an agency’s regulatory authority expired after a&nbsp;given time. These “sunset” provisions force Congress to periodically review the programs it creates, before these regimes are re‐​authorized.</p> <p>Or lawmakers could make greater use of “resolutions of disapproval,” which allow them to veto individual regulations …&nbsp;</p> <p>If it wanted to get bold, Congress could pass more comprehensive reform. The Regulatory Accountability Act, for example, would require agencies to better justify rules that cost more than $100 million.</p> <p>And if Congress wanted to regain the upper hand in one fell swoop, the House and Senate would get behind the REINS Act, which would require both chambers of Congress to approve all major regulations before they took effect.</p> <p>These reforms are fantastic ideas, to be sure, but they’re all nonstarters for as long as love of party trumps institutional pride in Congress. You can lead a&nbsp;horse to water, but you can’t make it drink. Even were Congress to pass REINS, no doubt the House and Senate could find a&nbsp;way to avoid accountability.</p> <p>Most likely, we need a&nbsp;new type of lawmaker, one who is cut from old cloth …</p> </blockquote> <p>Read the whole thing <a href="https://www.jewishpolicycenter.org/2020/01/06/its-time-to-make-congress-great-again/">here</a>.</p> Thu, 09 Jan 2020 10:04:11 -0500 William Yeatman https://www.cato.org/blog/how-make-congress-great-again Robert A. Levy discusses Altitude Express inc. v. Zarda and other cases on The Bob Harden Show https://www.cato.org/multimedia/media-highlights-radio/robert-levy-discusses-altitude-express-inc-v-zarda-other-cases Wed, 08 Jan 2020 11:48:22 -0500 Robert A. Levy https://www.cato.org/multimedia/media-highlights-radio/robert-levy-discusses-altitude-express-inc-v-zarda-other-cases Unions Can Dispense Legal Advice. Why Can’t Trade Associations? https://www.cato.org/blog/why-cant-trade-association-practice-law Walter Olson <p>May a&nbsp;state prohibit a&nbsp;trade association from employing lawyers to dispense legal advice to member firms? Last spring the Fourth Circuit <a href="https://casetext.com/case/capital-associated-indus-inc-v-stein-2">ruled</a> that it does not violate the First Amendment for the state of North Carolina to maintain such a&nbsp;ban, and on December 16 the Supreme Court let that result stand by <a href="https://www.scotusblog.com/case-files/cases/capital-associated-industries-inc-v-stein/">declining</a> a&nbsp;<a href="https://www.supremecourt.gov/DocketPDF/19/19-281/114317/20190830143156629_CAI%20Petition.final.pdf">certiorari petition</a>. But the issues in the case are worth our attention.</p> <p>It is still taught that corporations cannot practice law, but the <a href="https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3440&amp;context=mlr">exceptions to that maxim are big ones</a>. Long ago the rules changed to permit corporations to hire in‐​house lawyers and insurance companies to employ staff lawyers to represent policyholders. Meanwhile, lawyers themselves have won the right to the advantages of incorporation, which amounts to saying a&nbsp;corporation can practice law so long as lawyers run it. In general, what survived was more like a&nbsp;rule that if you want to practice law on behalf of third party clients you need to be either self‐​employed or employed by other lawyers.</p> <p>Whether rules like this restricting the unauthorized practice of law (UPL) make sense is a&nbsp;matter of debate. On the one hand, no less an authority than now‐​Justice Neil Gorsuch <a href="https://judicialstudies.duke.edu/sites/default/files/centers/judicialstudies/judicature/judicature_100-3_gorsuch.pdf">has written</a> that opening up a&nbsp;bigger role for non‐​lawyers can sometimes “be expected to lower prices, drive efficiency, and improve consumer satisfaction.” There are, to be sure, counter‐​arguments about how legal practice will fare better under the putatively higher ethical standards of lawyers as opposed to regular business people.</p> <p>Over the past 60&nbsp;years, at any rate, courts have eroded the old rules further in a&nbsp;significant new way. In 1963’s NAACP v. Button, the Supreme Court ruled that Virginia UPL laws could not prevent the NAACP from dispensing legal advice to its members. In 1967’s United Mine Workers of America, District 12 v. Illinois State Bar Association, it held that the First Amendment gives a&nbsp;labor union the right to hire lawyers to dispense advice to its members. And in 1978’s In re Primus, it accorded the ACLU a&nbsp;similar right. Along the way, various state courts have extended the principle to non‐​profit disability and housing‐​rights groups, even in cases where the recipient of legal advice is not a&nbsp;member of the organization in question.</p> <p>That makes the trade association’s claim more interesting. Why shouldn’t it be allowed to dispense legal advice to its business members, the same way a&nbsp;union can for its members? The advice might even come on a&nbsp;matter in which the other side was being represented by a&nbsp;lawyer from one of the unions or private advocacy groups exercising their First Amendment rights under cases like UMW, Primus, or Button.</p> <p>But the Fourth Circuit rebuffed this argument. It said the difference was that the unions and advocacy groups were “expanding and guarding [members’] civil rights,” whereas all the trade association wanted to do was “help its members ‘resolv[e] private differences.’”</p> <p>If the Fourth Circuit panel believes that all the idealism, all the regard for civil and constitutional rights, and all the public‐​spiritedness in legal work is to be found on the side adverse to business, and none on the side that defends it, that’s really… well, contestable. Talk to lawyers who represent businesses&nbsp;and many will tell you that defending those businesses’s rights can be just as moral and idealistic a&nbsp;line of work as filing claims against them, or pursuing other courtroom specialties such as criminal or local‐​government law. (Julie Havlak of Carolina Journal <a href="https://www.carolinajournal.com/news-article/u-s-supreme-court-could-overturn-n-c-statute-barring-companies-from-offering-legal-advice/">quoted me</a> in covering the North Carolina controversy.)</p> <p>The Court won’t be deciding those issues this term. But let’s hope it will have a&nbsp;chance to look at them in the future.</p> Tue, 07 Jan 2020 17:28:59 -0500 Walter Olson https://www.cato.org/blog/why-cant-trade-association-practice-law Yes, Colorado, the Excessive Fines Clause Protects Small Businesses against Your Regulatory Death Penalty https://www.cato.org/blog/yes-colorado-excessive-fines-clause-protects-small-businesses-against-regulatory-death-penalty Ilya Shapiro <p>Mrs. Soon Pak manages Dami Hospitality, LLC, a&nbsp;company that runs hotels and motels in Colorado. Pak is a&nbsp;Korean immigrant with minimal proficiency in English. She relies on third‐​party professionals to assist her in maintaining compliance with the myriad regulations that even native English speakers struggle to understand. Between 2006 and 2014, Dami’s insurance agent failed to renew the company’s worker’s compensation insurance, despite assuring Pak that Dami maintained full coverage.<br><br> In 2014, the state division of workers’ compensation gave notice that Dami’s policy had lapsed, and Pak immediately secured coverage without any employee suffering any harm. A&nbsp;few weeks later, the division imposed a&nbsp;fine of $841,200, calculated at a $25 – 500 daily rate that the division had allowed to accumulate for eight years before finally giving notice to the company. Put simply, the state assessed nearly a&nbsp;million‐​dollar fine against a&nbsp;small corporation — which grosses less than a&nbsp;quarter of the total fine — for a&nbsp;violation that was solved immediately after notice was received, with no actual harm done to anyone.</p> <p>However one defines “excessive,” this fine is excessive compared to Dami’s violation. To frame it in the worker’s comp context, if an employee is killed on a&nbsp;job, his dependent receives $250,000. That means the Colorado Labor Department considers the results of Dami’s lazy insurance agent to be worse than three workplace fatalities.</p> <p>Dami sought relief in the Colorado courts, arguing that the fine violated the Excessive Fines Clause of the Eighth Amendment (which the U.S. Supreme Court held <a href="https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf">just this part term</a> applies to the states). Cato filed an <a href="https://www.cato.org/sites/cato.org/files/pubs/pdf/dami-hospitality-scoco.pdf">amicus brief</a> supporting Dami before the Colorado Supreme Court, arguing that the excessive fines clause applies to corporations (which the state had been denying). The Colorado Supreme Court ruled that the Excessive Fines Clause does indeed apply to corporations and that a&nbsp;fine that is financially ruinous may be deemed unconstitutionally excessive, but that the total fine in this case cannot be considered in the aggregate. The question, the court said, is limited to evaluating whether each individual daily fine is financially ruinous. While the decision was favorable to Dami and Mrs. Pak in part, as one justice wrote in dissent, confining the excessiveness inquiry to the <em>daily </em>fine ($250-$500) misses the point of the constitutional exercise.</p> <p>Both Colorado and Dami were&nbsp;unsatisfied with the&nbsp;ruling and have asked the U.S. Supreme Court to step in. The state has <a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-641.html">asked the Court</a> to review&nbsp;(1) whether&nbsp;the Excessive Fines Clause applies&nbsp;to corporations at all, and (2) even if it does, whether the financial ruin the fine may cause is relevant to determining its&nbsp;excessiveness. Dami has filed a&nbsp;<a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-719.html">cross‐​petition</a>, asking&nbsp;the Court to take up both of those issues — to finally resolve all the issues in this expensive and time‐​consuming enforcement action — and also to look at whether the fine must be considered in the aggregate.</p> <p>The Supreme Court will review at its conference next week (January 10) whether to take up this case — which it should.</p> Mon, 30 Dec 2019 14:48:32 -0500 Ilya Shapiro https://www.cato.org/blog/yes-colorado-excessive-fines-clause-protects-small-businesses-against-regulatory-death-penalty Disputed Appointments and the Supreme Court’s Legitimacy, in 1937 and Today https://www.cato.org/blog/improper-appointments-supreme-courts-legitimacy-1937-now Walter Olson <p>Here is news you probably can’t use: a&nbsp;<a href="https://texaslawreview.org/wp-content/uploads/2019/12/Baude.Printer.pdf">new Texas Law Review analysis</a> by University of Chicago law professor William Baude <a href="https://www.summarycommajudgment.com/blog/published-the-unconstitutionality-of-justice-black">concludes</a>&nbsp;that Justice Hugo Black, who served on the Supreme Court from 1937 to 1971, was unconstitutionally appointed.</p> <p>The relevant text is the Constitution’s Article I, Section 6, which says “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time.”</p> <p>At the time of his appointment Black was serving as a&nbsp;senator from Alabama&nbsp;as part of a&nbsp;Congress that had enacted new retirement benefits for Justices, and while his backers argued that the clause did not apply to bar his nomination, Baude concludes that it probably did. One litigant before the high court challenged Black’s right to serve, but the Court chose to sidestep the merits of that claim by ruling against its standing, and the controversy&nbsp;died.</p> <p>All of this might seem purely academic. At this remove there would be no way to unscramble the legal omelet as to Black’s jurisprudential contributions, even were there a&nbsp;will. (Despite an unpromising start, the Alabaman eventually showed a&nbsp;<a href="https://www.cato.org/publications/commentary/take-obama-word-which-one-when">libertarian streak</a> on many Bill of Rights issues.)</p> <p>But the issue is not quite so remote as that, because more than a&nbsp;few contemporary commentators have flirted — in some cases more than flirted — with claims that the makeup of <a href="https://harvardlawreview.org/2019/06/the-supreme-courts-legitimacy-dilemma/">the present Supreme Court is illegitimate</a>.</p> <p>After the Senate leadership refused to hold hearings on the Supreme Court nomination of Merrick Garland, the editorial board of the New York Times repeatedly declared the seat of the late Justice Scalia to have been <a href="https://www.nytimes.com/2016/12/24/opinion/sunday/the-stolen-supreme-court-seat.html">“stolen,”</a> and then‐​Rep. Keith Ellison (D‑Minn.) <a href="https://www.nydailynews.com/news/politics/ny-pol-gorsuch-outrage-republicans-20180626-story.html">said of</a> eventual nominee Neil Gorsuch that “he’s not there properly.”</p> <p>The confirmation of Brett Kavanaugh to the seat vacated by Justice Anthony Kennedy brought renewed attack, with former Attorney General Eric Holder declaring that “the legitimacy of the Supreme Court can justifiably be questioned” and <a href="https://dailycaller.com/2018/10/06/democrats-supreme-court-illegitimate-kavanaugh/">other high‐​profile figures</a> taking a&nbsp;similar line.</p> <p>Law professor Erwin Chemerinsky raised the ante with <a href="https://prospect.org/justice/tarnished-court/">this remarkable assertion</a> in The American Prospect: “each of the five conservative justices — Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, and Kavanaugh <em>or someone like him</em> (emphasis added) — came on to the Court in a&nbsp;manner that lacks legitimacy. … Perhaps at some point it will lead to open defiance of the Court.”</p> <p>Other commentators were happy to take up the exciting theme that future Court opinions written by, or decided by the votes of, Gorsuch, Kavanaugh, and perhaps other Justices might meet with open defiance or resistance from a&nbsp;future Democratic president, from state officials, or from people “marching in the streets.”</p> <p>“What can the Supreme Court do? Send its tiny police force to storm the White House?” wrote <a href="https://slate.com/news-and-politics/2018/10/brett-kavanaugh-confirmation-constitutional-crisis.html">Mark Joseph Stern at Slate</a>. Libertarian‐​minded law professor Ilya Somin, who does not welcome the efforts to de‐​legitimize the Court or promote defiance of its rulings, nonetheless found them worth taking seriously enough to <a href="https://reason.com/2018/10/09/is-the-supreme-court-going-to-suffer-a-c/">analyze at length last year</a>.</p> <p>Baude’s research may provide a&nbsp;bit of reassurance in this respect. The challenge to the legitimacy of Black’s seat fizzled in part because it gained little headway with the public, but much more because the Court’s other Justices welcomed Black aboard.</p> <p>Most of the scenarios in which triumphant Democrats in 2021 or 2022 defy Supreme Court rulings are difficult to reconcile with the reality that the Court’s liberal Justices have, to all appearances, been entirely content to regard Gorsuch and Kavanaugh as legitimate colleagues, and would, themselves, neither counsel nor welcome defiance of Court rulings. As I&nbsp;<a href="https://www.cato.org/blog/brett-kavanaugh-merrick-garland-cohesion-federal-bench">wrote last year</a>, “the federal courts are not as polarized and tribal as much of the higher political class and punditry at nomination time.”&nbsp;</p> <p>Baude puts it this way at the conclusion of his article: “the real source of constitutional settlement in our system is not always judicial decision, but sometimes sheer practice.”</p> Mon, 30 Dec 2019 13:34:53 -0500 Walter Olson https://www.cato.org/blog/improper-appointments-supreme-courts-legitimacy-1937-now Bank of America v. Miami https://www.cato.org/publications/legal-briefs/bank-america-v-miami Ilya Shapiro, Trevor Burrus, Sam Spiegelman <div class="lead text-default"> <p>The city of Miami has come up with an ingenious scheme: raise revenue without taxation by suing consumer banks for racial discrimination under the Fair Housing Act (FHA). The claim is that the banks’ allegedly discriminatory and predatory lending practices led to thousands of residential foreclosures and therefore millions in lost tax revenues to the city. And Miami isn’t alone in this plan. So far, more than a&nbsp;dozen other towns, cities, and counties have followed its lead.</p> </div> , <div class="text-default"> <p>The Supreme Court first heard this case in 2016. In a&nbsp;split opinion, the Court held that Miami had standing to sue because it was in the “zone of interests” the FHA was designed to protect. The Court sent the case back to Eleventh Circuit to re‐​examine proximate causation. “Proximate cause” is legal jargon for a&nbsp;moral limit on causation. Your refrigerator might break one morning, causing you to get into an accident while rushing to get to work. Proximate cause prevents you from suing the refrigerator manufacturer even though you wouldn’t have got in an accident otherwise. In this case, the Eleventh Circuit held that the injury had to be a “foreseeable” result of the harm, which strayed too far from the common‐​law tradition that informs statutory, tort‐​based liability.</p> <p>The second time the Eleventh Circuit heard the case it again used a&nbsp;proximate cause formula that is far off target. Instead of relying on “foreseeability” alone, the Eleventh Circuit concocted a&nbsp;new standard also requiring some “logical bond” or “meaningful and logical continuity” between an FHA violation and a&nbsp;claimed injury. The new standard is almost nonsensical. In some sense, everything shares <em>some</em> “logical bond.” And what is a “meaningful continuity”?</p> <p>Bank of America and Wells Fargo are again petitioning the Supreme Court to hear the case. Cato has filed an amicus brief in support arguing that the Eleventh Circuit’s misapplied the Supreme Court’s “guiding principles” of proximate cause, which include elements of foreseeability (a moral choice), continuity (the objective element), and directness (the essentially economic choice of how far to extend liability).</p> <p>Miami’s claimed injuries might be an indirect result of the banks’ alleged FHA violations, but, historically, courts restrict the scope of liability to the first step in any causal chain — that is, to cover only direct harms. Power companies also lost customers due to foreclosures, but that doesn’t mean they can sue under the FHA even though that is an entirely foreseeable result. Similarly, banks shouldn’t be on the hook for the attenuated consequences of alleged FHA violations.</p> <p>If the Supreme Court sustains the Eleventh Circuit’s decision, there will be national and even international consequences. If the Court doesn’t rein in the Eleventh Circuit, banks with millions of customers at home and abroad could be forced to foot the bill for losses “exceedingly attenuated” to their alleged FHA violations. Cato urges the Court to cabin FHA’s proximate cause standard within the tried‐​and‐​true confines of common‐​law precedents.</p> </div> Fri, 20 Dec 2019 17:05:17 -0500 Ilya Shapiro, Trevor Burrus, Sam Spiegelman https://www.cato.org/publications/legal-briefs/bank-america-v-miami Torres v. Madrid https://www.cato.org/publications/legal-briefs/torres-v-madrid Clark Neily, Jay Schweikert, Anton Metlitsky, Dimitri D. Portnoi <div class="lead text-default"> <p>Police officers shot Petitioner, but she drove away and temporarily eluded capture. In this excessive force suit, the district court granted summary judgment for the officers on the ground that no Fourth Amendment “seizure” occurred. The Tenth Circuit affirmed, reasoning that an officer’s application of physical force is not a&nbsp;seizure if the person upon whom the force is applied evades apprehension.</p> </div> , <div class="text-default"> <p>The question presented is:</p> <p>Is an unsuccessful attempt to detain a&nbsp;suspect by use of physical force a “seizure” within the meaning of the Fourth Amendment, as the Eighth, Ninth, and Eleventh Circuits and the New Mexico Supreme Court hold, or must physical force be successful in detaining a&nbsp;suspect to constitute a “seizure,” as the Tenth Circuit and the D.C. Court of Appeals hold?</p> </div> Wed, 18 Dec 2019 13:18:01 -0500 Clark Neily, Jay Schweikert, Anton Metlitsky, Dimitri D. Portnoi https://www.cato.org/publications/legal-briefs/torres-v-madrid Copyright and Georgia v. Pub​li​cRe​source​.org https://www.cato.org/multimedia/cato-daily-podcast/copyright-georgia-v-publicresourceorg Trevor Burrus, Caleb O. Brown <p>A case argued recently before the U.S. Supreme Court takes aim at a&nbsp;state that allows a&nbsp;private company to hold and enforce the copyright on the state’s “annotated code.” Trevor Burrus describes what’s at issue.</p> Wed, 18 Dec 2019 12:02:25 -0500 Trevor Burrus, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/copyright-georgia-v-publicresourceorg Seila Law LLC v. Consumer Financial Protection Bureau https://www.cato.org/publications/legal-briefs/seila-law-llc-v-consumer-financial-protection-bureau-0 Ilya Shapiro, Trevor Burrus, James Knight <div class="lead text-default"> <p>One of the Constitution’s chief protections for liberty is the separation of powers. The legislative power is granted to Congress, the judicial power to the courts, and the executive power to the president. This division cannot be altered by anything short of a&nbsp;constitutional amendment. Still, since the beginning of the 20th century, Congress has enjoyed considerable success in limiting the president’s executive power through the creation of what are known as “independent agencies.” One of the main differences between independent agencies and traditional executive departments is that while officers of the latter serve at the pleasure of the president, the heads of independent agencies are insulated from presidential removal except “for cause.” This structure denies the president the ability to exert control over independent agencies, even though they exercise significant executive power by enforcing laws and pursuing investigations.</p> </div> , <div class="text-default"> <p>In 2010, Congress added another independent agency to the ever‐​expanding administrative state: the Consumer Financial Protection Bureau. The CFPB is even less accountable to the democratically elected branches because, unlike every independent agency created in the 20th century, all of which are headed by multi‐​member commissions, the CFPB is headed by a&nbsp;single director, removable only for cause. The CFPB director has near‐​unilateral authority to enforce 19 federal laws, without answering to anyone. This is a&nbsp;problem.</p> <p>Supporters of the CFPB’s constitutionality — a group which doesn’t now include the CFPB itself, as the Trump administration has changed sides — seek refuge in a&nbsp;1935 Supreme Court case called&nbsp;<em>Humphrey’s Executor</em>.&nbsp;In that case, the Court, flying in the face of history and precedent, declared that limitations on the president’s ability to remove the heads of independent agencies were constitutional. Since 1935, the rationale for that decision has become increasingly muddled with subsequent inconsistent cases. The Court has recently shown a&nbsp;willingness to return to enforcing the Constitution’s separation of powers principles, but has lacked an opportunity to address&nbsp;<em>Humphrey’s Executor</em>&nbsp;directly.</p> <p>Thankfully, the Court now has a&nbsp;case where it can do just that, in a&nbsp;case brought by a&nbsp;law firm that assists in resolving personal‐​debt issues. The Supreme Court agreed to hear the case of&nbsp;<em>Seila Law v. CFPB</em>, with oral argument scheduled for March 3. Cato has now filed a&nbsp;brief urging the Supreme Court to clarify the constitutional test for removal limitations and find the CFPB unconstitutionally structured. (Cato also filed a&nbsp;<a href="https://www.cato.org/publications/legal-briefs/seila-law-llc-v-consumer-financial-protection-bureau">brief</a>&nbsp;supporting Seila Law in its request for the Court to hear this case, and has&nbsp;<a href="https://object.cato.org/sites/cato.org/files/pubs/pdf/phh-v-cfpb.pdf">filed</a>&nbsp;<a href="https://object.cato.org/sites/cato.org/files/pubs/pdf/cato-amicus-brief-in-cfpb-v-all-american-check-cashing.pdf">twice</a>&nbsp;in the lower courts arguing that the CFPB is unconstitutional.) In our brief, we argue that the best path forward for the Court is to narrow&nbsp;<em>Humphrey’s Executor</em>—or just craft a&nbsp;new “Seila Law” test — so as to allow removal limitations only if the officer in question doesn’t exercise any executive power.</p> <p>The Supreme Court has an obligation to defend our separation of powers. If the Court allows the CFPB to continue as currently constituted, it will allow major violations of constitutionally protected liberty by a&nbsp;powerful and unaccountable federal agency. If the Court allows removal doctrine to remain muddled and incoherent, it will only lead to more confusion and inconsistency in the lower courts and in Congress. The Court should thus pull the plug on&nbsp;<em>Humphrey’s Executor</em>’s — salvaging its useful parts into a&nbsp;new, more coherent removal doctrine — in the context of finding the CFPB unconstitutional.</p> </div> Mon, 16 Dec 2019 14:57:20 -0500 Ilya Shapiro, Trevor Burrus, James Knight https://www.cato.org/publications/legal-briefs/seila-law-llc-v-consumer-financial-protection-bureau-0 Put an End to Unaccountable Fourth and Fifth Branches of Government https://www.cato.org/blog/put-end-unaccountable-fourth-fifth-branches-government Ilya Shapiro, James Knight <p>One of the Constitution’s chief protections for liberty is the separation of powers. The legislative power is granted to Congress, the judicial power to the courts, and the executive power to the president. This division cannot be altered by anything short of a&nbsp;constitutional amendment. Still, since the beginning of the 20th century, Congress has enjoyed considerable success in limiting the president’s executive power through the creation of what are known as “independent agencies.”</p> <p>One of the main differences between independent agencies and traditional executive departments is that while officers of the latter serve at the pleasure of the president, the heads of independent agencies are insulated from presidential removal except “for cause.” This structure denies the president the ability to exert control over independent agencies, even though they exercise significant executive power by enforcing laws and pursuing investigations.</p> <p>In 2010, Congress added another independent agency to the ever‐​expanding administrative state: the Consumer Financial Protection Bureau. The CFPB is even less accountable to the democratically elected branches because, unlike every independent agency created in the 20th century, all of which are headed by multi‐​member commissions, the CFPB is headed by a&nbsp;single director, removable only for cause. The CFPB director has near‐​unilateral authority to enforce 19 federal laws, without answering to anyone. This is a&nbsp;problem.</p> <p>Supporters of the CFPB’s constitutionality — a group that doesn’t now include the CFPB itself, as the Trump administration has changed sides — seek refuge in a&nbsp;1935 Supreme Court case called <em>Humphrey’s Executor</em>. In that case, the Court, flying in the face of history and precedent, declared that limitations on the president’s ability to remove the heads of independent agencies were constitutional.</p> <p>Since 1935, the rationale for that decision has become increasingly muddled with subsequent inconsistent cases. The Court has recently shown a&nbsp;willingness to return to enforcing the Constitution’s separation of powers principles but has lacked an opportunity to address <em>Humphrey’s Executor</em> directly.</p> <p>Thankfully, the Court now has a&nbsp;case where it can do just that, in a&nbsp;case brought by a&nbsp;law firm that assists in resolving personal‐​debt issues. The Supreme Court agreed to hear the case of <em>Seila Law v. CFPB</em>, with oral argument scheduled for March 3. Cato has now filed <a href="https://www.cato.org/sites/cato.org/files/2019-12/Seila%20Law%20merits.pdf">an amicus brief</a> urging the Supreme Court to clarify the constitutional test for removal limitations and find the CFPB unconstitutionally structured. (Cato also filed a&nbsp;<a href="https://www.cato.org/publications/legal-briefs/seila-law-llc-v-consumer-financial-protection-bureau">brief</a> supporting Seila Law in its request for the Court to hear this case, and has <a href="https://object.cato.org/sites/cato.org/files/pubs/pdf/phh-v-cfpb.pdf">filed</a> <a href="https://object.cato.org/sites/cato.org/files/pubs/pdf/cato-amicus-brief-in-cfpb-v-all-american-check-cashing.pdf">twice</a> in the lower courts arguing that the CFPB is unconstitutional.) In our brief, we argue that the best path forward for the Court is to narrow <em>Humphrey’s Executor</em>—or just craft a&nbsp;new “Seila Law” test — so as to allow removal limitations only if the officer in question doesn’t exercise any executive power.</p> <p>The Supreme Court has an obligation to defend our separation of powers. If the Court allows the CFPB to continue as currently constituted, it will allow major violations of constitutionally protected liberty by a&nbsp;powerful and unaccountable federal agency. If the Court allows removal doctrine to remain muddled and incoherent, it will only lead to more confusion and inconsistency in the lower courts and in Congress. The Court should thus pull the plug on <em>Humphrey’s Executor</em>’s — salvaging its useful parts into a&nbsp;new, more coherent removal doctrine — in the context of finding the CFPB unconstitutional.</p> Mon, 16 Dec 2019 14:03:39 -0500 Ilya Shapiro, James Knight https://www.cato.org/blog/put-end-unaccountable-fourth-fifth-branches-government Ilya Shapiro discusses the SCOTUS moving to hear three cases involving Trump’s finances on CBSN https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-scotus-moving-hear-three-cases-involving Mon, 16 Dec 2019 11:32:12 -0500 Ilya Shapiro https://www.cato.org/multimedia/media-highlights-tv/ilya-shapiro-discusses-scotus-moving-hear-three-cases-involving Vox Misses Mark on Institutional Primacy in Contemporary Federal Policymaking https://www.cato.org/blog/vox-misses-mark-institutional-primacy-contemporary-federal-policymaking William Yeatman <p>Yesterday, <em>Vox<a href="https://www.vox.com/"><span>’s</span></a></em> Ian Millhiser posted <a href="https://www.vox.com/platform/amp/policy-and-politics/2019/12/9/20962980/trump-supreme-court-federal-judges?__twitter_impression=true">an interesting article</a> on how President Trump’s judicial nominees are changing the federal courts.</p> <p>I’ve no argument with Millhiser’s underlying thesis: A&nbsp;lot of (great) judges have been appointed during Trump’s administration.</p> <p>The causes for this are obvious. There’s a&nbsp;Republican in the White House, and Republicans control the Senate, so the appointment process is well‐​oiled. In addition, past Senates (under both parties) changed the body’s rules so as to ease the confirmation of a&nbsp;president’s nominees.</p> <p>Where I&nbsp;take issue with Millhiser is with his understanding of the judicial power. He writes:</p> <blockquote><p>In an age of legislative dysfunction, whoever controls the courts controls the country … [Judges] have become the most consequential policymakers in the nation … The judiciary is where policy is made in the United States.</p> </blockquote> <p>This can’t be right.</p> <p>By its nature, the judiciary is weaker than either of the political branches. As Hamilton wrote in <a href="https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-78">Federalist 78</a>, courts have “no influence over either the sword or the purse,” unlike Congress and the president. Approvingly, Hamilton quotes Montesquieu’s assertion that “Of the three powers … the judiciary is next to nothing.”</p> <p>Millhiser might&nbsp;reply: “Well, ‘next to nothing’ in the judiciary is more than ‘doing‐​nothing’ in Congress.”</p> <p>And, perhaps, he’d have a&nbsp;point. But he’d still be mistaken overall, because the president is the undisputed policymaker‐​in‐​chief in modern American&nbsp;government.</p> <p>Last week, in <em>The Hill</em>, I&nbsp;<a href="https://thehill.com/blogs/congress-blog/politics/472876-this-isnt-your-founding-fathers-impeachment">used</a> the ongoing impeachment proceedings to make this very point:</p> <blockquote><p>Why have the House and Senate, through the impeachment process, become willing cogs in the oily machinery of the 2020 presidential contest?</p> <p>The answer involves a&nbsp;tectonic shift in American government, from a&nbsp;functioning separation of powers to one that is out of whack … Over the last century, Congress has given away, or “delegated,” much of its policymaking initiative to the executive branch … Through these grants of authority, Congress created an alphabet soup’s worth of regulatory agencies collectively known as the administrative state.</p> <p>As … Congress lost the capacity to oversee its delegations … modern presidents have seized undisputed supremacy over the administrative state by increasing control over agency budgets and regulatory management.</p> <p>Policy now flows from the White House.</p> <p>Congress couldn’t pass immigration reform, but President Obama achieved the same results with DACA. Congress denied President Trump funding to build a&nbsp;border wall, but then he exercised his delegated authority to declare an “emergency” and funded the wall unilaterally.</p> <p>In this context — where the president calls the shots and Congress is beholden to party leadership — half the legislature always is unbothered with unbound executive authority whenever “their guy” occupies the White House.</p> <p>It’s a&nbsp;vicious feedback loop. The more powerful the president becomes, the more our party‐​centric Congress rationally believes that the Oval Office is the most efficient means to implement the planks of a&nbsp;given party’s platform.</p> </blockquote> <p>The full article, titled “This Isn’t Your Founding Fathers’ Impeachment,” is available <a href="https://thehill.com/blogs/congress-blog/politics/472876-this-isnt-your-founding-fathers-impeachment">here</a>.</p> Tue, 10 Dec 2019 10:35:49 -0500 William Yeatman https://www.cato.org/blog/vox-misses-mark-institutional-primacy-contemporary-federal-policymaking Woodcrest Homes v. Carousel Farms Metro District https://www.cato.org/publications/legal-briefs/woodcrest-homes-v-carousel-farms-metro-district Robert H. Thomas, Kimberly S. Hermann, Luke Wake, Ilya Shapiro, Trevor Burrus <div class="lead text-default"> <p>The Constitution requires that governments must give “just compensation” when they take private property, and even then property can be taken only for “public use.” While the Supreme Court has given a&nbsp;broad reading of these terms, it has insisted that private property cannot be taken on a&nbsp;mere pretext of public benefit to provide a&nbsp;private benefit to favored individuals. Even in the infamous&nbsp;<em>Kelo</em> case, when the Court allowed a&nbsp;woman’s house to be taken for the “public use” of increased tax revenue, the Court said that if a&nbsp;purported public use was actually a&nbsp;mere pretext for private benefit, then it would be unconstitutional. Yet the Court has resisted further defining what a “pretextual taking” might look like. This case, featuring a&nbsp;sham municipality created to take property for private benefit, gives the Court an opportunity to show that it was serious about stopping pretextual takings.</p> </div> , <div class="text-default"> <p>Woodcrest Homes is a&nbsp;housing developer whose property was taken by the Carousel Farms Metropolitan District. In 2006, Woodcrest purchased a&nbsp;parcel of land near Parker, Colorado with the intent to develop the property. When recession struck, however, Woodcrest abandoned the project and declined to exercise an option to purchase two adjoining plots. Later these adjacent properties were purchased by Century Communities, another developer. The Parker town government would not approve Century’s development unless Century was in possession of all three properties. When Century failed to negotiate the sale of Woodcrest’s land, they decided to obtain the property by other means.</p> <p>Century filed to create a&nbsp;special district, a&nbsp;specialized unit of local government under Colorado law. Because even non‐​resident property owners are eligible to elect district officers, Century was able to use a&nbsp;series of phony transfers to engineer a&nbsp;government made up entirely of its own employees and stakeholders. That sham government then voted to condemn and take Woodcrest’s property. While the board members were required to disclose their conflicts of interest, which they did, no state law prohibited them from voting for their private interests.</p> <p>The condemnation of Woodcrest’s parcel was upheld by the Colorado Supreme Court. Woodcrest is now seeking review by the United States Supreme Court. Cato, joined by the Southeastern Legal Foundation, has filed a&nbsp;brief in support of the petition. This case offers the court an opportunity to address several lingering ambiguities that have vexed the lower courts since&nbsp;<em>Kelo</em>. We argue that the court could establish a&nbsp;new, higher, standard of review for cases where government authority is wielded by private actors. If the Colorado Supreme Court’s decision is not overturned state power may continue to be captured by self‐​interested actors, endangering Americans’ property rights and making a&nbsp;mockery of local representative government.</p> </div> Tue, 10 Dec 2019 08:42:43 -0500 Robert H. Thomas, Kimberly S. Hermann, Luke Wake, Ilya Shapiro, Trevor Burrus https://www.cato.org/publications/legal-briefs/woodcrest-homes-v-carousel-farms-metro-district 2019 Cato Institute Surveillance Conference panel, “Return of the Crypto Wars,” airs on C‑SPAN 2 https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-panel-return-crypto-wars Fri, 06 Dec 2019 10:46:59 -0500 Cato Institute, Julian Sanchez https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-panel-return-crypto-wars 2019 Cato Institute Surveillance Conference panel, “A Conversation with the Privacy and Civil Liberties Oversight Board,” airs on C‑SPAN 2 https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-panel-conversation Fri, 06 Dec 2019 10:44:53 -0500 Cato Institute, Julian Sanchez https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-panel-conversation 2019 Cato Institute Surveillance Conference Afternoon Flash Talks airs on C‑SPAN 2 https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-afternoon-flash-talks Fri, 06 Dec 2019 10:43:28 -0500 Cato Institute, Julian Sanchez https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-afternoon-flash-talks 2019 Cato Institute Surveillance Conference Morning Flash Talks airs on C‑SPAN 2 https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-morning-flash-talks-airs Fri, 06 Dec 2019 10:41:00 -0500 Cato Institute, Julian Sanchez https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-morning-flash-talks-airs 2019 Cato Institute Surveillance Conference panel,“Watching the Detectives: Improving Intelligence Oversight”, airs on C‑SPAN 2 https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-panelwatching-detectives Fri, 06 Dec 2019 10:38:41 -0500 Cato Institute, Julian Sanchez https://www.cato.org/multimedia/media-highlights-tv/2019-cato-institute-surveillance-conference-panelwatching-detectives