Cato: Nevada Supreme Court: Education Savings Accounts Are Constitutional, Funding Mechanism Isn’t

In a landmark decision, the Supreme Court of Nevada today upheld the constitutionality of the nation’s most expansive educational choice law. However, the court ruled that the funding mechanism the legislature adopted is unconstitutional. If the legislature creates a new funding mechanism–as it could and should in a special session–then the ESA program could be implemented right away.

Enacted in 2015, Nevada’s education savings account (ESA) policy was originally scheduled to launch at the beginning of this year, but it immediately drew two separate legal challenges from the government schooling establishment and the ACLU and its allies. Nevada’s ESA provides students with $5,100 per year (plus an additional $600 for low-income students or students with special needs) to use for a wide variety of approved educational expenditures, including private school tuition, tutoring, text books, online courses, homeschool curricula, and more. Families can also roll over unspent funds from year to year.

Read more at https://www.cato.org/blog/nevada-supreme-court-education-savings-accounts-are-constitutional-funding-mechanism-isnt

Cato: Transgender Rights Can Be Vindicated Without Constitution-Bending

The debate over transgender rights has risen in prominence in recent years, with the fight over access to public restrooms and locker rooms receiving particularly heavy public attention. The legal question at the heart of the first such lawsuit to reach the Supreme Court, however, is one not of civil rights law, but of administrative law: Should courts defer to agency interpretations of their own regulations, even when those interpretations constitute major, substantive changes to public policy via informal, non-binding pronouncements?

G.G. is a transgender high school student—minors are identified by letters in sensitive cases—who argues that Gloucester (Va.) High School’s policy disallowing him from using the facilities that correspond with his preferred gender identity violates federal law (Title IX of the Education Amendments) regarding sex discrimination in education. Upon being informed of G.G.’s conflict with the Gloucester County School Board, James A. Ferg-Cadima—a civil servant in the DOE’s Office of Civil Rights (OCR)—decided to get involved. He wrote a letter purporting to interpret the relevant regulation, stating that “[w]hen a school elects to separate or treat students differently on the basis of sex in [situations like this], a school generally must treat transgender students consistent with their gender identity.”

While the district court rejected this interpretation, the U.S. Court of Appeals for the Fourth Circuit deferred to the agency. The Gloucester County School Board now seeks Supreme Court review. Cato, along with three respected law professors (Jonathan Adler, Richard Epstein, and Michael McConnell), has filed an amicus brief supporting that petition.

We do so not because we necessarily oppose OCR’s position as a matter of policy—that’s a question for another day—but because we oppose its unconstitutional method of enacting that policy. OCR seeks to change federal law not through notice-and-comment rulemaking as required by the Administrative Procedure Act, but through an informal, unpublished letter written by a low-level bureaucrat.

Read more at https://www.cato.org/blog/transgender-rights-can-be-vindicated-without-constitution-bending

Cato: President Obama Keeps Making Unconstitutional Appointments

Under the default constitutional rule, all federal officials are nominated by the president with the “advice and consent of the Senate.” But sometimes, when an unexpected vacancy arises, appointing and confirming a replacement can take a while. Congress knows this, and that’s why it has enacted—and frequently updated—the Vacancies Act. The latest version, called the Federal Vacancies Reform Act (FVRA), authorizes the president to bypass advice and consent by appointing temporary “acting officers” to fill certain vacancies.

But Congress is keenly aware that such a unilateral appointment power can be easily abused. That’s why acting officers serve under a strict 210-day time limit. It’s also why “a person may not serve as an acting officer” if that person is nominated to be the permanent officer (with an exception only for longtime first assistants).

Nonetheless, in January 2011, President Obama nominated Lafe Solomon to be the permanent general counsel of the National Labor Relations Board (NLRB) while he was serving—and continued to serve—as the acting general counsel. When Solomon later brought enforcement proceedings against an ambulance company, SW General, that company objected on the grounds that Solomon was no longer validly serving as acting general counsel once he was nominated for the permanent job. The U.S. Court of Appeals for the D.C. Circuit agreed based on a straightforward reading of the text of the FVRA, but the NLRB appealed to the Supreme Court.

Read more at https://www.cato.org/blog/president-obama-keeps-making-unconstitutional-appointments

Cato: Congress Takes on the U.S.-Saudi Relationship

In yesterday’s Washington Post, a headline proclaimed: “Saudi Arabia is Facing Unprecedented Scrutiny from Congress.” The article focused on a recently defeated Senate bill which sought to express disapproval of a pending $1.15 billion arms sale to Saudi Arabia. Unfortunately, though the presence of a genuine debate on U.S. support for Saudi Arabia – and the ongoing war in Yemen – is a good sign, Congress has so far been unable to turn this debate into any meaningful action.

Yesterday’s resolution, proposed by Kentucky Senator Rand Paul and Connecticut Senator Chris Murphy, would have been primarily symbolic. Indeed, support for the bill wasn’t really about impacting Saudi Arabia’s military capacity. As co-sponsor Sen. Al Franken noted, “the very fact that we are voting on it today sends a very important message to the kingdom of Saudi Arabia that we are watching your actions closely and that the United States is not going to turn a blind eye to the indiscriminate killing of men, women and children.” This message was intended as much for the White House as for the Saudi government, with supporters arguing that the Obama administration should rethink its logistical support for the war in Yemen.

Read more at https://www.cato.org/blog/congress-takes-us-saudi-relationship

Cato: South Korea’s Preemptive Decapitation Strike Is a Bad Idea

Last week’s nuclear test by North Korea generated a wealth of commentary and analysis about the future of security on the Korean peninsula. The United States and South Korea quickly responded to the test. On September 13, the United States flew two B-1 bombers over South Korea in a show of force, reminiscent of bomber flights conducted after North Korea’s third nuclear test in March 2013. South Korea’s response didn’t feature any displays of military force, but in many respects it was more dangerous due to its implications for crisis stability.

Two days after the nuclear test, South Korea’s Yonhap News Agency reported on the Korea Massive Punishment & Retaliation (KMPR) operational concept. According to the news report, “[KMPR] is intended to launch pre-emptive bombing attacks on North Korean leader Kim Jong-un and the country’s military leadership if signs of their impending use of nuclear weapons are detected or in the event of a war.” The strikes would likely be conducted using conventionally-armed ballistic and cruise missiles. Jeffrey Lewis of the Middlebury Institute of International Studies summed up the concept, “[South Korea’s] goal is to kill [Kim] so that he can’t shove his fat little finger on the proverbial button.”

A preemptive decapitation strike against North Korean political leadership is a bad idea for a host of reasons.

Read more at https://www.cato.org/blog/south-koreas-preemptive-decapitation-strike-bad-idea

Cato: Micro-Housing, Meet Modern Zoning

Beginning in 2009, developers in Seattle became leaders in micro-housing. As the name suggests, micro-housing consists of tiny studio apartments or small rooms in dorm-like living quarters. These diminutive homes come in at around 150–220 sq. ft. each and usually aren’t accompanied by a lot of frills. Precisely because of their size and modesty, this option provides a cost-effective alternative to the conventional, expensive, downtown Seattle apartment model.

Unfortunately, in the years following its creation, micro-housing development has all but disappeared. It isn’t that Seattle prohibited micro-housing outright. Instead, micro-housing’s gradual demise was death by a thousand cuts, with a mushroom cloud of incremental zoning regulation finally doing it in for good. Design review requirements, floor space requirements, amenity requirements, and location prohibitions constitute just a few of the Seattle Planning Commission’s assorted weapons of choice.

As a result of the exacting new regulations placed on tiny homes, Seattle lost an estimated 800 units of low-cost housing per year. While this free market (and free to the taxpayer) solution faltered, Seattle poured millions into various housing initiatives that subsidize housing supply or housing demand, all on the taxpayer’s dole.

Read more at https://www.cato.org/blog/micro-housing-meet-modern-zoning

Cato: The Incoherence of Schedule I

Drug policy watchers learned earlier this month that the latest substance to earn Schedule I status is the obscure plant ​called kratom. So what’s Schedule I? By the letter of the law, Schedule I of the Controlled Substances Act contains “drugs, substances, or chemicals” that meet the following criteria:

"The drug or other substance has a high potential for abuse.
The drug or other substance has no currently accepted medical use in treatment in the United States.
There is a lack of accepted safety for use of the drug or other substance under medical supervision."

In this post, I’m not going to consider the penalties that apply to the use, possession, or sale of Schedule I substances. I’m just going to look at the criteria for inclusion. While they may appear plausible, these criteria are preposterous and completely indefensible as applied.

The most important unwritten fact about Schedule I is that all three of its criteria are terms of political art. Neither science nor the plain meanings of the words have much to do with what Schedule I really includes.

We can see this first in how Schedule I fails to include many substances that clearly belong there. These substances easily meet all three criteria. Yet they are in no danger whatsoever of being scheduled. It literally will never happen.

Solvent inhalants, such as toluene, have a high potential for abuse, have no accepted medical uses, and cannot be used safely even with close medical supervision. The same is true of obsolete anesthetics like diethyl ether and chloroform. Toluene, ether, and chloroform are all dangerous when used as drugs. Overdosing on each is relatively easy, they bring serious health risks at any level of use, and they have no valid medical uses today.

None, of course, will ever be scheduled, because each is also an essential industrial chemical. That they happen to be abusable as drugs is a fact that a crime-based drug policy can’t easily accommodate. And so that fact is simply ignored.

The substances included on Schedule I are an odd lot as well. Some clearly meet the criteria, but many do not.

Read more at https://www.cato.org/blog/incoherence-schedule-i-0

Cato: You Have the Right to Remain Silent Even if You Use Encryption

The Third Circuit last week held oral arguments on whether an individual can be forced to decrypt a drive with incriminating information on it. The Fifth Amendment prohibits any person from bring “compelled in any criminal case to be a witness against himself.” The Third Circuit will hopefully recognize that being forced to decrypt information is just the kind of testimonial act that the Fifth Amendment prohibits.

In a forced decryption case there are two kinds of subpoenas that could be issued. The first compels the individual to turn over the encryption key or password. This isn’t the kind of subpoena in the Third Circuit case, but it is useful in looking at why this is also not allowed. The other kind of subpoena is to produce the documents themselves.

With a direct subpoena of the password the password itself isn’t incriminating, but the Supreme Court has held that that the Fifth Amendment also prevents compelling incriminating “information directly or indirectly derived from such testimony.” The Supreme Court “particularly emphasized the critical importance of protection against a future prosecution ‘based on knowledge and sources of information obtained from the compelled testimony.’” While the password itself isn’t incriminating it clearly provides the lead necessary to get incriminating information from the encrypted drives. Another close analogy that seems to apply was that the Supreme Court clearly prohibited compelling a person to disclose a combination to a safe.

Read more at https://www.cato.org/blog/you-have-right-remain-silent-even-you-use-encryption

Cato: Using Antitrust Law to Protect the Right to Earn a Living

Teladoc, Inc. is a health services company that provides access to state-licensed physicians through telecommunications technology, usually for a fraction of the cost of a visit to a physician’s office or urgent care center. Teladoc sued the Texas Medical Board—comprised mostly of practicing physicians—because the board took steps to protect the interests of traditional physicians by imposing licensing rules such as requiring the in-person examination of patients before telephonic treatment is permitted.

Because the board isn’t supervised by the Texas legislature, executive, or judiciary, Teladoc argues that its self-dealing violates federal antitrust laws—and the federal district court agreed. The Texas Medical Board has now appealed to the U.S. Court of Appeals for the Fifth Circuit, where Cato filed an amicus brief urging the court to affirm the lower-court ruling and protect the fundamental right to earn a living.

Our brief argues that the Supreme Court has consistently held that the right to earn a living without unreasonable government interference is guaranteed by the Constitution, and that this protection dates back much earlier, to Magna Carta and the common law. Indeed, the right to earn a living is central to a person’s life and ability to pursue happiness. As Frederick Douglass wrote in his autobiography, “To understand the emotion which swelled in my heart as I clasped this money, realizing that I had no master who could take it from me—that it was mine—that my hands were my own, and could earn more of the precious coin—one must have been in some sense himself a slave… . I was not only a freeman but a free-working man.”

Read more at https://www.cato.org/blog/using-antitrust-law-protect-right-earn-living

Cato: Feinstein-Burr 2.0: The Crypto Backdoor Bill Is Still Alive

When it was first released back in April, a “discussion draft” of the Compliance With Court Orders Act sponsored by Sens. Dianne Feinstein (D-CA) and Richard Burr (R-NC) met with near universal derision from privacy advocates and security experts.  (Your humble author was among the critics.) In the wake of that chilly reception, press reports were declaring the bill effectively dead just weeks later, even as law enforcement and intelligence officials insisted they would continue pressing for a solution to the putative “going dark” problem that encryption creates for government eavesdroppers.  Feinstein and Burr, however, appear not to have given up on their baby: Their offices have been circulating a series of proposed changes to the bill, presumably in hopes of making it more palatable to stakeholders.  I recently got a look at some of those proposed changes. (NB: I referred to these in an earlier version of this post to a “revised draft”, which probably suggested something relatively finalized and ready to introduce.  I’ve edited the post to more accurately characterize these as changes to the previously circulated draft that are under consideration.)

Read more at https://www.cato.org/blog/feinstein-burr-20-crypto-backdoor-bill-still-alive

Cato: The Fourth Amendment Protects Your Cell-Location Data

When the federal district court in D.C. ordered a seizure of Alonzo Marlow’s cell service location information (CSLI) held by his cell provider, it held that the federal government didn’t need a warrant to obtain CSLI data from a person’s phone provider. The Stored Communications Act of 1986 (SCA) governs the searching of such data, and under § 2703(d) of that act, federal investigators need not demonstrate probable cause in order to search—but merely to show “specific and articulable facts” that there is criminal wrongdoing. Thus, the Fourth Amendment requirement that “no warrants shall issue, but upon probable cause” is effectively removed.

Cato has filed an amicus brief with the U.S. Court of Appeals for the D.C. Circuit, supporting the appeal of Marlow and his co-defendants. For purposes of the Fourth Amendment, cell phone data is a “paper” or “effect” in which there is a right of the people to be secure. The Supreme Court made clear in Riley v. California (2014) that giving police carte blanche to search a phone incident to an arrest would “in effect give police officers unbridled discretion to rummage at will among a person’s private effects.”

Read more at https://www.cato.org/blog/fourth-amendment-protects-cell-location-data

Cato: The Government Shouldn’t Get to Do Unconstitutional Things by Only Doing Them for Short Periods of Time

When people want to join together to spend money in an election campaign, federal law requires them to form a “political action committee” or PAC. Most PACs are allowed to donate up to $5,000 to any candidate in an election. If a PAC has been registered for less than six months, however, this maximum donation is inexplicably lowered to $2,700 per candidate.

Since the 1974 case of Buckley v. Valeo, the Supreme Court has consistently held that limitations on campaign contributions “implicate fundamental First Amendment interests.” And only two years ago, in McCutcheon v. FEC, the Court reiterated that such limits could only be justified if they reduce quid pro quo corruption (or its appearance). By that standard, the $2,700 limit on new PACs is clearly unconstitutional: If a $5,000 donation from a seven-month-old PAC does not run the risk of corruption, it’s hard to see how a $2,701 donation from a five-month-old PAC does. Making just this argument, a new PAC – the colorfully titled Stop Reckless Economic Instability Caused by Democrats (Stop REID) – sued the Federal Election Commission.

There was just one problem: Although this plaintiff PAC was less than six months old when the case was filed, it was more than six months old when the district court ruled. For that reason, the U.S. Court of Appeals for the Fourth Circuit held that it could not rule on the constitutionality of the $2,700 limit because the question had become “moot”; the limit no longer applied to the particular PAC that had brought the case.

Read more at https://www.cato.org/blog/government-shouldnt-get-do-unconstitutional-things-only-doing-them-short-periods-time

Cato: In Marijuana Policy, States Lead the Way

This November’s election could be a decisive turning point in the struggle to end U.S. marijuana prohibition. ​It’s been a long time coming.

As recently as the 90s, every major political faction was squarely in favor of prohibition. Only drug-addled hippies and libertarians thought otherwise. With just a few honorable exceptions, every significant public intellectual supported prohibition too. We libertarians walked a lonely road, patiently pointing out prohibition’s high costs and doubtful benefits. In some ways we’re still alone, because we certainly wouldn’t stop with marijuana. But let’s consider what progress we’ve made.

In November’s election, five states – Arizona, California, Maine, Massachusetts, and Nevada – may each legalize recreational marijuana for adults. State-level opinion polling is notoriously unreliable, but so far it’s favorable in Maine and Nevada​, and overwhelmingly favorable in California. It’s unfavorable in Arizona and Massachusetts, though the Massachusetts poll only asked a generic marijuana legalization question and did not reference the specific initiative. If recent history is any guide, things look good for this November: Of the seven legalization initiatives offered to voters since 2012, five have passed, in Alaska, Colorado, Oregon, Washington, and Washington DC.

Read more at https://www.cato.org/blog/marijuana-policy-states-lead-way

Cato: Washington’s First Obligation Is to Defend America, Not the World

The last NATO Secretary General, Anders Fogh Rasmussen, hailed from Denmark, which has 17,200 citizens under arms. That position did not allow him to deploy the American military, but it did give him unusual influence over U.S. policy.

Even as the American people tire of trying to solve other nations’ problems, Rasmussen wants the United States to continue its interventionist course. Politico recently interviewed Rasmussen, who promoted an “American-led world order”—at American expense, of course. Rasmussen’s greatest fear is the end of Washington’s unique global role: “What is at stake here is the American role as the global superpower.”

He agreed that Europeans should do more on behalf of their own defense, but offered no strategy to make serious and permanent increases a reality. Rasmussen was critical of Trump’s desire for better relations with Russia, even though in a conflict the Danes would do little to help defeat Moscow.

Rasmussen also complained that the GOP platform eliminated a pledge for military aid to Kiev. He worried: “The West risks losing a democratic Ukraine by undermining our support for the country.” But is the prospect of a “democratic Ukraine,” whatever that means in practice, worth war with Russia?

Of course, Rasmussen contended that it is “in America’s self-interest” to preserve “the international order.” But surely not only America’s interest. How about the interest of Europe, which today can’t be bothered to spend much on its own defense, let alone for operations elsewhere?

Rasmussen is prepared to be quite generous with U.S. lives. Washington has “a special obligation to maintain the world order and promote peace.” Indeed, it is America’s “destiny” to lead.

Read more at https://www.cato.org/blog/washingtons-first-obligation-defend-america-not-world

Cato: The Attack on Chile’s Private Pension System

Last month, a scandal erupted in Chile. The media discovered that the former director of the Chilean gendarmerie, the country’s penitentiary service, was receiving a pension of about $8,000 per month. Chile privatized its pension system in 1980. Instead of sending retirement money to the government, workers there put their money in private accounts that invest and accumulate savings to be used in old age. When Chile approved the reform, the military and some law enforcement agencies (such as the gendarmerie) remained in the old public system.

Although the abuse occurred within the old public pension system, which benefits a minority of Chileans, and the beneficiary in this case was a socialist political activist and ex-wife of the head of the lower house of Congress (also a socialist), the episode was used to attack the private system to which almost every Chilean worker belongs. The left declared that the private accounts managed by the private pension fund companies (known by their Spanish acronym AFP) provide low pensions, something that incensed many Chileans who saw that the AFPs do not pay the same level of pension evident in this particular case.

Before long, protests involving hundreds of thousands of people took place throughout the country under the slogan “No + AFP,” and demanded a return to the old pension system. Last week, President Michelle Bachelet announced a series of reforms that would give the state a larger role in peoples’ retirement.

Read more at https://www.cato.org/blog/attack-chiles-private-pension-system