The City of Calhoun, Georgia, adopted a scheme by which bail was set to a pre-determined amount, resulting in Maurice Walker being held in jail for nearly 2 weeks on misdemeanor public drunkenness charges. Walker challenged detention on behalf of himself and those similarly situated, including person held on traffic offenses.
The federal district court got it right and enjoined the city from enforcing its scheme: when setting bail for criminal defendants, basic due-process principles require a judge to take into account the defendant’s income and set an individually payable amount. That rule exists to ensure against a manifest injustice, converting pre-trial liberty from a right into a privilege of the wealthy. But Calhoun is pursuing an appeal. As Cato points out in our amicus brief supporting Walker, the due-process rule that the city violated is quite literally as old as the common law.
Read more at https://www.cato.org/blog/dont-jail-people-not-paying-traffic-tickets-you-even-convict-them
2017-02-28
2017-02-27
Cato: Understanding U.S. v. Ackerman
The Supreme Court has eschewed the “reasonable expectation of privacy” test in its most important recent Fourth Amendment cases. It’s not certain that the trend away from the so-called “Katz test,” largely driven by Justice Scalia, will continue, and nobody knows what will replace it. But doctrinal shift is in the air. Courts are searching for new and better ways to administer the Fourth Amendment.
A good example is the Tenth Circuit’s decision last week in U.S. v. Ackerman. That court found that opening an email file was a Fourth Amendment “search,” both as a matter of reasonable expectations doctrine and the “distinct line of authority” that is emerging from the Supreme Court’s 2012 decision in U.S. v. Jones.
Here are the facts: AOL scans outgoing emails for child porn by comparing hashes of files sent through its network to hashes of known child porn. When it becomes aware of child porn, it is required by law to report them to the National Center for Missing and Exploited Children. NCMEC is a governmental entity and agent. (That point takes up the bulk of the decision; Congress has made huge grants of governmental power to the organization.) NCMEC opened the file without a warrant.
Nobody in the case disputed that the email is a “paper” or “effect” for Fourth Amendment purposes. The remaining question was whether the opening of the email was a search. If it was, it required a warrant.
The government persuaded the court below that NCMEC did no more than AOL did. The “private search” doctrine suggests that Ackerman can’t complain of the government learning what AOL told it by looking again.
Read more at https://www.cato.org/blog/understanding-us-v-ackerman
A good example is the Tenth Circuit’s decision last week in U.S. v. Ackerman. That court found that opening an email file was a Fourth Amendment “search,” both as a matter of reasonable expectations doctrine and the “distinct line of authority” that is emerging from the Supreme Court’s 2012 decision in U.S. v. Jones.
Here are the facts: AOL scans outgoing emails for child porn by comparing hashes of files sent through its network to hashes of known child porn. When it becomes aware of child porn, it is required by law to report them to the National Center for Missing and Exploited Children. NCMEC is a governmental entity and agent. (That point takes up the bulk of the decision; Congress has made huge grants of governmental power to the organization.) NCMEC opened the file without a warrant.
Nobody in the case disputed that the email is a “paper” or “effect” for Fourth Amendment purposes. The remaining question was whether the opening of the email was a search. If it was, it required a warrant.
The government persuaded the court below that NCMEC did no more than AOL did. The “private search” doctrine suggests that Ackerman can’t complain of the government learning what AOL told it by looking again.
Read more at https://www.cato.org/blog/understanding-us-v-ackerman
2017-02-26
Cato: Why Should America Defend Europeans Who Won’t Defend Themselves?
Once again Donald Trump has shocked the foreign policy establishment. He suggested that maybe the U.S. should no longer defend its prosperous, populous allies in Europe.
The North Atlantic Treaty Organization made sense when created in 1949. War-ravaged Western Europe faced an aggressive Soviet Union. The American defense shield allowed Washington’s allies to recover and rebuild.
Nearly seven decades later the alliance has become a means rather than an end. The world has changed, yet Washington continues to guarantee the security of its 27 (soon to be 28) NATO allies (as well as Japan, South Korea, and others). Yet only four European nations bother to devote even two percent of GDP to the military, barely half America’s level.
Trump sees this as just a free-riding problem. He said he’d like to keep the alliance, but doesn’t know if it’s possible. “Many NATO nations are not making payments, are not making what they’re supposed to make,” he complained.” He “would prefer not to walk,” but if the Europeans don’t “fulfill their obligations to us,” perhaps Washington shouldn’t defend them.
A predictable firestorm erupted about America keeping its word and reassuring allies. The Trump campaign appeared to retreat ever so slightly: aide Sam Clovis downplayed the candidate’s remarks: “We just want people to follow the rules. We’re putting a marker out there.” Trump told the Washington Post: NATO is a “good thing to have” and “I don’t want to pull it out.”
Alas, Trump fundamentally misperceives the real problem. As I argue on Forbes: “The issue is not burden-sharing, getting the Europeans to do more. It is burden-shedding, turning responsibility over to the Europeans. There no longer is any geopolitical justification for America to defend Europe.”
Read more at https://www.cato.org/blog/why-should-america-defend-europeans-who-wont-defend-themselves
The North Atlantic Treaty Organization made sense when created in 1949. War-ravaged Western Europe faced an aggressive Soviet Union. The American defense shield allowed Washington’s allies to recover and rebuild.
Nearly seven decades later the alliance has become a means rather than an end. The world has changed, yet Washington continues to guarantee the security of its 27 (soon to be 28) NATO allies (as well as Japan, South Korea, and others). Yet only four European nations bother to devote even two percent of GDP to the military, barely half America’s level.
Trump sees this as just a free-riding problem. He said he’d like to keep the alliance, but doesn’t know if it’s possible. “Many NATO nations are not making payments, are not making what they’re supposed to make,” he complained.” He “would prefer not to walk,” but if the Europeans don’t “fulfill their obligations to us,” perhaps Washington shouldn’t defend them.
A predictable firestorm erupted about America keeping its word and reassuring allies. The Trump campaign appeared to retreat ever so slightly: aide Sam Clovis downplayed the candidate’s remarks: “We just want people to follow the rules. We’re putting a marker out there.” Trump told the Washington Post: NATO is a “good thing to have” and “I don’t want to pull it out.”
Alas, Trump fundamentally misperceives the real problem. As I argue on Forbes: “The issue is not burden-sharing, getting the Europeans to do more. It is burden-shedding, turning responsibility over to the Europeans. There no longer is any geopolitical justification for America to defend Europe.”
Read more at https://www.cato.org/blog/why-should-america-defend-europeans-who-wont-defend-themselves
2017-02-25
Cato: Supreme Court Leaves Meaning of “One-Person, One-Vote” Unclear
This morning, the unanimous Supreme Court ruled that Texas was constitutionally justified in drawing state electoral districts based on total population, even if this meant that great disparatives result among districts in numbers of voters. This was the case of Evenwel v. Abbott, in which Cato had filed a brief arguing that the plaintiff-voters’ proposed “citizen of voting age population” (CVAP) metric was a much better one to use when applying the “one-person, one-vote” standard.
While the eight-justice Court managed to achieve rare unanimity in an election-law case, at least in judgment, it did so only by declining to address the elephant in the voting booth. The Court failed to fill the gaping hole in its voting-rights jurisprudence: the question whether the venerable “one-person, one-vote” principle requires equalizing people or voters (or both) when crafting representational districts.
Read more at https://www.cato.org/blog/supreme-court-leaves-meaning-one-person-one-vote-unclear
While the eight-justice Court managed to achieve rare unanimity in an election-law case, at least in judgment, it did so only by declining to address the elephant in the voting booth. The Court failed to fill the gaping hole in its voting-rights jurisprudence: the question whether the venerable “one-person, one-vote” principle requires equalizing people or voters (or both) when crafting representational districts.
Read more at https://www.cato.org/blog/supreme-court-leaves-meaning-one-person-one-vote-unclear
2017-02-24
Cato: Responding to Brussels
Just four days after Salah Abdeslam, the mastermind of last fall’s Paris attacks, was finally captured, the Islamic State (ISIS) has claimed responsibility for this morning’s terrorist attacks in Brussels. The attacks, which have killed more than 30 and wounded almost 200, provide another chilling reminder of how dangerous the world can be.
As Brussels tends its wounds, the simple question looms: How should Europe and the United States respond?
In and around official Washington, the script is becoming sadly predictable. Immediately following the news, administration officials assert their resolve and commitment to combating terrorism: “Attacks like these only deepen shared resolve to defeat terrorism around the world”
Close on their heels, administration critics line up to fear monger, launch cheap insults at Obama for not paying enough attention the terrorism, and to talk tough about striking back at ISIS. All the Republican candidates criticized Obama for staying in Cuba. Donald Trump took the opportunity to point out that he has long been in favor of closing up the border while Ted Cruz called on the president to recognize that “Radical Islam is at war with us” and for “empowering law enforcement to patrol and secure Muslim neighborhoods before they become radicalized.”
Finally, both Europe and the United States are likely to ratchet up the war on the ground against ISIS. To date this approach has born decidedly mixed fruit. On the one hand ISIS has certainly lost significant ground over the past year. On the other hand, very little of that success can be traced directly to U.S. or French military efforts.
Rather than go through the motions focused on short-term political gains, both Europe and the United States should pursue a long-term strategy. That strategy might take many forms but at heart a sound long-term approach needs three fundamental components.
First, a long-term strategy requires an enduring commitment to openness and tolerance. Both Europe and the United States benefit tremendously from immigration, both economically and socially, and from a vigorous marketplace of ideas sustained by diverse religious, racial, and ethnic populations. The costs of closing borders, polarizing society along ethnic and religious lines, and limiting civil liberties will far outweigh whatever benefits they might bring in the short run.
Read more at https://www.cato.org/blog/responding-brussels
As Brussels tends its wounds, the simple question looms: How should Europe and the United States respond?
In and around official Washington, the script is becoming sadly predictable. Immediately following the news, administration officials assert their resolve and commitment to combating terrorism: “Attacks like these only deepen shared resolve to defeat terrorism around the world”
Close on their heels, administration critics line up to fear monger, launch cheap insults at Obama for not paying enough attention the terrorism, and to talk tough about striking back at ISIS. All the Republican candidates criticized Obama for staying in Cuba. Donald Trump took the opportunity to point out that he has long been in favor of closing up the border while Ted Cruz called on the president to recognize that “Radical Islam is at war with us” and for “empowering law enforcement to patrol and secure Muslim neighborhoods before they become radicalized.”
Finally, both Europe and the United States are likely to ratchet up the war on the ground against ISIS. To date this approach has born decidedly mixed fruit. On the one hand ISIS has certainly lost significant ground over the past year. On the other hand, very little of that success can be traced directly to U.S. or French military efforts.
Rather than go through the motions focused on short-term political gains, both Europe and the United States should pursue a long-term strategy. That strategy might take many forms but at heart a sound long-term approach needs three fundamental components.
First, a long-term strategy requires an enduring commitment to openness and tolerance. Both Europe and the United States benefit tremendously from immigration, both economically and socially, and from a vigorous marketplace of ideas sustained by diverse religious, racial, and ethnic populations. The costs of closing borders, polarizing society along ethnic and religious lines, and limiting civil liberties will far outweigh whatever benefits they might bring in the short run.
Read more at https://www.cato.org/blog/responding-brussels
2017-02-23
Cato: Oregon Legislature Repeals Laws of Supply & Demand
Like the apocryphal story of the state legislature that passed a law dictating that pi equals 3, the Oregon state legislature has passed two laws that pretend the laws of supply & demand don’t exist. The difference is that, in reality, no state legislature ever did pass a law saying that pi equals 3, but Oregon’s legislature is totally ignoring basic economic principles.
First, earlier this week, the legislature passed a new minimum wage law increasing the minimum to as high as 14.75 per hour in the Portland area by 2022 (with lower minimum for other parts of the state). This will supposedly be the highest in the nation, but only in the unlikely event that no other state raises its minimum wage in the next six years. However, after adjusting for the cost of living, Oregon’s new minimum wage probably is the highest in the nation even before 2022.
Proponents claim the minimum-wage law will improve Oregon’s economy by putting more money in the hands of its residents that they will spend in Oregon businesses. The new minimum wage “is going to be good for Oregon families and is going to add to consumer purchasing power that will benefit our small businesses,” Oregon’s labor commissioner told a reporter. That’s like warming the bed by cutting off one end of a blanket and sewing it on to the other end. If increasing the minimum wage does so much good, why not increase it to $15 right away? Or $50? Or $500?
The reality is that a minimum wage law is a balancing act for politicians. They have to have the wage be just high enough to create a constituency for the wage that will support them but not so high that people who actually vote will lose their jobs. As a Congressional Budget Office study concluded, for every two people who benefit from a minimum wage law, one is put out of work. That’s okay if the people who are out of work don’t vote.
Read more at https://www.cato.org/blog/oregon-legislature-repeals-laws-supply-demand
First, earlier this week, the legislature passed a new minimum wage law increasing the minimum to as high as 14.75 per hour in the Portland area by 2022 (with lower minimum for other parts of the state). This will supposedly be the highest in the nation, but only in the unlikely event that no other state raises its minimum wage in the next six years. However, after adjusting for the cost of living, Oregon’s new minimum wage probably is the highest in the nation even before 2022.
Proponents claim the minimum-wage law will improve Oregon’s economy by putting more money in the hands of its residents that they will spend in Oregon businesses. The new minimum wage “is going to be good for Oregon families and is going to add to consumer purchasing power that will benefit our small businesses,” Oregon’s labor commissioner told a reporter. That’s like warming the bed by cutting off one end of a blanket and sewing it on to the other end. If increasing the minimum wage does so much good, why not increase it to $15 right away? Or $50? Or $500?
The reality is that a minimum wage law is a balancing act for politicians. They have to have the wage be just high enough to create a constituency for the wage that will support them but not so high that people who actually vote will lose their jobs. As a Congressional Budget Office study concluded, for every two people who benefit from a minimum wage law, one is put out of work. That’s okay if the people who are out of work don’t vote.
Read more at https://www.cato.org/blog/oregon-legislature-repeals-laws-supply-demand
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