This morning, in the case of Gamble v. United States, the Supreme Court ruled 7-2—with only Justices Neil Gorsuch and Ruth Bader Ginsburg in dissent—that state and federal governments can continue having a second bite at the apple, both prosecuting someone for the same crime if they wish. It’s really unfortunate that the justices declined to withdraw the “dual-sovereignty” exception to the Double Jeopardy Clause. The Court itself created this doctrine decades ago, before the federal criminal code (unconstitutionally) exploded and before the Double Jeopardy Clause even applied to the states.
As Justice Gorsuch wrote, “the separate-sovereigns exception to the bar against double jeopardy finds no meaningful support in the text of the Constitution, it’s original public meaning, structure, or history.” To put a finer point on it, it’s fully consistent with federalism to say that nobody should be prosecuted twice for the same crime.
Read more at https://www.cato.org/blog/shamefully-only-two-justices-find-you-cant-be-prosecuted-state-feds-same-crime
2019-06-17
2019-04-30
Cato: The Mueller Report: FAQs
1. Did Trump collude with Russians who tried to influence the 2016 presidential election?
No. In Volume 1 of his report, Mueller didn’t mention “collusion,” which is not a legal term. He did, however, find that there was no evidence of a conspiracy, and he therefore exonerated Trump on that count. Still, Mueller concluded that the Russians did interfere, Trump was aware of the interference, he benefited from and encouraged the interference – e.g., Don, Jr. was eager to get and use information on Hillary Clinton – and he didn’t report the interference to the FBI. So, there was no crime and maybe no impeachable offense, but Mueller’s findings will likely inform voters regarding Trump’s fitness for office.
2. Did Trump obstruct justice by impeding either Comey’s or Mueller’s investigations?
Maybe. In Volume 2, Mueller cited numerous acts that could have frustrated both investigations. Trump fired Comey, tried to fire Mueller – but didn’t succeed because White House counsel Don McGahn refused to follow instructions – discouraged testimony, encouraged lying, and dangled (but didn’t actually offer) pardons. Given the evidence, Mueller concluded that he could not exonerate Trump from an obstruction charge. Nonetheless, Mueller would not say whether there was an indictable crime because of a written Justice Department policy that a sitting president cannot be indicted. It would be unfair to charge the president without affording him an opportunity to defend himself at trial. In other words, there may or may not have been sufficient evidence of a crime or impeachable offense; but there was clearly too much evidence to exonerate. Mueller left the criminal charge up to Attorney General Barr; and he left impeachment up to Congress.
3. Since the FBI director serves at the pleasure of the president, could Trump fire Comey at will?
Yes. There are no statutory conditions on the president’s authority to remove the FBI director. He or she serves at the will of the president. But if the president acts with “corrupt intent” – e.g., to impede an investigation into his own conduct – then he can be charged with obstruction of justice. In this instance, by Trump’s own words, he fired Comey because of “this Russian thing.”
4. But can there be corrupt intent if “this Russian thing” was not a crime?
Yes. It’s not necessary to prove an underlying crime in order to charge someone with obstructing justice. Admittedly, however, it’s more difficult to show corrupt intent if there’s no underlying crime. After all, how could Trump have obstructed justice related to the conspiracy investigation if there was no conspiracy? The short answer is that Trump’s motive might have been corrupt even if unrelated to proving his innocence. For example, he may have wanted to protect personal (e.g., family) interests, or business interests, or his political standing with voters. Or he may have wanted to frustrate an investigation into someone else’s crime; or to avoid exposure to a gray area of the law, or to non-criminal impeachment.
5. Trump cooperated with the investigation. How then could he have obstructed justice?
On one hand, Trump provided roughly one million documents; he did not invoke executive privilege; and he allowed White House counsel Don McGahn to testify. But, on the other hand, he refused to testify in person, and he provided inadequate answers to Mueller’s written questions. If time were not of the essence, Mueller would likely have used his subpoena power. Limited cooperation isn’t sufficient to preclude an obstruction charge.
6. Mueller’s report, as released, was redacted by Attorney General Barr. Were the redactions proper?
Yes. Barr followed the law, which requires that he redact grand jury testimony, classified material, items related to ongoing investigations, and details that could compromise the privacy of innocent persons. Barr committed to as much transparency as lawful, and it appears that he honored that commitment. Only a few of the redactions were grand jury related; most of the redactions involved ongoing investigations.
Read more at https://www.cato.org/blog/mueller-report-faqs
No. In Volume 1 of his report, Mueller didn’t mention “collusion,” which is not a legal term. He did, however, find that there was no evidence of a conspiracy, and he therefore exonerated Trump on that count. Still, Mueller concluded that the Russians did interfere, Trump was aware of the interference, he benefited from and encouraged the interference – e.g., Don, Jr. was eager to get and use information on Hillary Clinton – and he didn’t report the interference to the FBI. So, there was no crime and maybe no impeachable offense, but Mueller’s findings will likely inform voters regarding Trump’s fitness for office.
2. Did Trump obstruct justice by impeding either Comey’s or Mueller’s investigations?
Maybe. In Volume 2, Mueller cited numerous acts that could have frustrated both investigations. Trump fired Comey, tried to fire Mueller – but didn’t succeed because White House counsel Don McGahn refused to follow instructions – discouraged testimony, encouraged lying, and dangled (but didn’t actually offer) pardons. Given the evidence, Mueller concluded that he could not exonerate Trump from an obstruction charge. Nonetheless, Mueller would not say whether there was an indictable crime because of a written Justice Department policy that a sitting president cannot be indicted. It would be unfair to charge the president without affording him an opportunity to defend himself at trial. In other words, there may or may not have been sufficient evidence of a crime or impeachable offense; but there was clearly too much evidence to exonerate. Mueller left the criminal charge up to Attorney General Barr; and he left impeachment up to Congress.
3. Since the FBI director serves at the pleasure of the president, could Trump fire Comey at will?
Yes. There are no statutory conditions on the president’s authority to remove the FBI director. He or she serves at the will of the president. But if the president acts with “corrupt intent” – e.g., to impede an investigation into his own conduct – then he can be charged with obstruction of justice. In this instance, by Trump’s own words, he fired Comey because of “this Russian thing.”
4. But can there be corrupt intent if “this Russian thing” was not a crime?
Yes. It’s not necessary to prove an underlying crime in order to charge someone with obstructing justice. Admittedly, however, it’s more difficult to show corrupt intent if there’s no underlying crime. After all, how could Trump have obstructed justice related to the conspiracy investigation if there was no conspiracy? The short answer is that Trump’s motive might have been corrupt even if unrelated to proving his innocence. For example, he may have wanted to protect personal (e.g., family) interests, or business interests, or his political standing with voters. Or he may have wanted to frustrate an investigation into someone else’s crime; or to avoid exposure to a gray area of the law, or to non-criminal impeachment.
5. Trump cooperated with the investigation. How then could he have obstructed justice?
On one hand, Trump provided roughly one million documents; he did not invoke executive privilege; and he allowed White House counsel Don McGahn to testify. But, on the other hand, he refused to testify in person, and he provided inadequate answers to Mueller’s written questions. If time were not of the essence, Mueller would likely have used his subpoena power. Limited cooperation isn’t sufficient to preclude an obstruction charge.
6. Mueller’s report, as released, was redacted by Attorney General Barr. Were the redactions proper?
Yes. Barr followed the law, which requires that he redact grand jury testimony, classified material, items related to ongoing investigations, and details that could compromise the privacy of innocent persons. Barr committed to as much transparency as lawful, and it appears that he honored that commitment. Only a few of the redactions were grand jury related; most of the redactions involved ongoing investigations.
Read more at https://www.cato.org/blog/mueller-report-faqs
2019-04-29
Cato: Criminal Obstruction vs. Impeachable Obstruction
Earlier this month, the effort to impeach President Trump looked like a #Resistance fantasy. The release of the Mueller Report seems to have shifted the debate dramatically. This week, Democratic presidential contenders Sen. Kamala Harris and Sen. Elizabeth Warren called on the House to impeach Trump for obstruction of justice.
Is obstruction of justice an impeachable offense? Yes. It’s one of the few offenses where we have presidential precedent. Obstruction charges played a central role in two of the three serious presidential impeachment cases in American history, forming the basis for Article I of the charges against Richard Nixon, and Article II against Bill Clinton.
Should President Trump be impeached for obstruction of justice? I’m not going to answer that question here; like the cagey Mayor Pete, I’m “going to leave it to the House and Senate to figure that out.” Instead, I want to stress something that should be obvious, but tends to get lost amid the statutory exegesis in Mueller Vol. II: whether the president is guilty of criminal obstruction and whether he’s guilty of impeachable obstruction are different questions.
Summing up Article I of the case against Nixon, the 1974 House Judiciary Committee report explained that:
"President Nixon’s actions…. were contrary to his trust as President and unmindful of the solemn duties of his high office. It was this serious violation of Richard M. Nixon’s constitutional obligations as president, and not the fact that violations of Federal criminal statutes occurred, that lies at the heart of Article I [emphasis added]."
The Judiciary Committee report on the Clinton impeachment echoed that analysis a quarter-century later: “the actions of President Clinton do not have to rise to the level of violating the federal statute regarding obstruction of justice in order to justify impeachment.”
The standards are different because impeachment and the criminal law serve distinct ends and have very different consequences. “The purpose of impeachment is not personal punishment,” the Judiciary Committee emphasized in its 1974 staff report on “Constitutional Grounds for Presidential Impeachment”; instead, impeachment’s function “is primarily to maintain constitutional government.” And where the criminal law deprives the convicted party of liberty, a successful impeachment mainly puts him out of a job.
Read more at https://www.cato.org/blog/criminal-obstruction-vs-impeachable-obstruction
Is obstruction of justice an impeachable offense? Yes. It’s one of the few offenses where we have presidential precedent. Obstruction charges played a central role in two of the three serious presidential impeachment cases in American history, forming the basis for Article I of the charges against Richard Nixon, and Article II against Bill Clinton.
Should President Trump be impeached for obstruction of justice? I’m not going to answer that question here; like the cagey Mayor Pete, I’m “going to leave it to the House and Senate to figure that out.” Instead, I want to stress something that should be obvious, but tends to get lost amid the statutory exegesis in Mueller Vol. II: whether the president is guilty of criminal obstruction and whether he’s guilty of impeachable obstruction are different questions.
Summing up Article I of the case against Nixon, the 1974 House Judiciary Committee report explained that:
"President Nixon’s actions…. were contrary to his trust as President and unmindful of the solemn duties of his high office. It was this serious violation of Richard M. Nixon’s constitutional obligations as president, and not the fact that violations of Federal criminal statutes occurred, that lies at the heart of Article I [emphasis added]."
The Judiciary Committee report on the Clinton impeachment echoed that analysis a quarter-century later: “the actions of President Clinton do not have to rise to the level of violating the federal statute regarding obstruction of justice in order to justify impeachment.”
The standards are different because impeachment and the criminal law serve distinct ends and have very different consequences. “The purpose of impeachment is not personal punishment,” the Judiciary Committee emphasized in its 1974 staff report on “Constitutional Grounds for Presidential Impeachment”; instead, impeachment’s function “is primarily to maintain constitutional government.” And where the criminal law deprives the convicted party of liberty, a successful impeachment mainly puts him out of a job.
Read more at https://www.cato.org/blog/criminal-obstruction-vs-impeachable-obstruction
2019-04-19
Cato: Wisconsin’s Butter Grading Law Is Udderly Ridiculous
Minerva Dairy, based in Ohio, is America’s oldest family-owned cheese and butter dairy. It has been producing artisanal, slow-churned butter in small batches since 1935. It has sustained its business through their website and by selling to regional distributers in several states. This model has worked well everywhere except Wisconsin, which requires butter manufacturers to jump through a series of cumbersome and expensive hoops to sell their product.
Of course, Wisconsin is America’s Dairyland, with many large producers who (big surprise) have an interest in limiting competition. At the behest of these companies, the state requires every batch of butter to be “graded” by a specifically state-licensed grader—all of whom live in Wisconsin, except for a half-dozen in neighboring Illinois and a handful around the country that have been licensed only in the last year—who must taste-test every single batch. Because Minerva’s butter is produced in multiple small batches over the course of each day, the law would effectively require the dairy to keep a licensed tester on-site at all times, which is cost-prohibitive. The state admits that the grading scheme has nothing to do with public health or nutrition, but claims that its grades, based largely on taste, inform consumers.
The fact that Wisconsin is trying to shape the taste of butter isn’t even the most absurd part of this story. The criteria used to grade the butter are a ludicrous mad-lib of meaningless jargon not even the state’s experts understand. The law purports to identify such flavor characteristics as “flat,” “ragged-boring,” and “utensil.” (All commonplace terms spoken by consumers in dairy aisles across the nation, no doubt.) The terminology hearkens to a freshmanic—not even sophomoric—term paper on the semiotics of postmodern agrarian literature. To claim that a grade calculated with reference to udder nonsense serves the purpose of informing anyone illustrates the danger inherent in judges’ deferring to government rationales for silly laws that burden people who are just trying to make an honest living.
Read more at https://www.cato.org/blog/wisconsins-butter-grading-law-udderly-ridiculous
Of course, Wisconsin is America’s Dairyland, with many large producers who (big surprise) have an interest in limiting competition. At the behest of these companies, the state requires every batch of butter to be “graded” by a specifically state-licensed grader—all of whom live in Wisconsin, except for a half-dozen in neighboring Illinois and a handful around the country that have been licensed only in the last year—who must taste-test every single batch. Because Minerva’s butter is produced in multiple small batches over the course of each day, the law would effectively require the dairy to keep a licensed tester on-site at all times, which is cost-prohibitive. The state admits that the grading scheme has nothing to do with public health or nutrition, but claims that its grades, based largely on taste, inform consumers.
The fact that Wisconsin is trying to shape the taste of butter isn’t even the most absurd part of this story. The criteria used to grade the butter are a ludicrous mad-lib of meaningless jargon not even the state’s experts understand. The law purports to identify such flavor characteristics as “flat,” “ragged-boring,” and “utensil.” (All commonplace terms spoken by consumers in dairy aisles across the nation, no doubt.) The terminology hearkens to a freshmanic—not even sophomoric—term paper on the semiotics of postmodern agrarian literature. To claim that a grade calculated with reference to udder nonsense serves the purpose of informing anyone illustrates the danger inherent in judges’ deferring to government rationales for silly laws that burden people who are just trying to make an honest living.
Read more at https://www.cato.org/blog/wisconsins-butter-grading-law-udderly-ridiculous
2019-04-18
Cato: Cato’s Latest “Funny” Brief
“Fuct” is a clothing brand with, shall we say, a colorful name. It doesn’t take much imagination to figure out what they’re going for, and of course those who brazenly wear the clothing are fully aware of the signal it sends. Nevertheless, the U.S. Patent and Trademark Office (PTO) decided that the American public’s fragile sensibilities should be protected from this brand, at least in some way, by denying federal trademark registration on the grounds that the brand name is “scandalous.” The PTO also has fainting couches on hand for those who need further assistance.
Here we go again. Remember “The Slants,” the Asian-American rock band who were denied a trademark based on their band name being “disparaging”? Simon Tam, the group’s lead singer, brought his case to the Supreme Court in 2017 and had the anti-disparaging law struck down unanimously. (That also resolved the PTO’s fight with the Washington Redskins.)
In Matal v. Tam, Cato and a basket of deplorable people and organizations, including political satirist P.J. O’Rourke and former ACLU president Nadine Strossen, filed a brief supporting the Slants and arguing that disparaging speech serves a valuable purpose, especially in rock music. Where would the world be without disparagingly named bands like N.W.A. or the Queers? Most importantly, the government can’t be trusted to decide what’s a slur.
Read more at https://www.cato.org/blog/catos-latest-funny-brief
Here we go again. Remember “The Slants,” the Asian-American rock band who were denied a trademark based on their band name being “disparaging”? Simon Tam, the group’s lead singer, brought his case to the Supreme Court in 2017 and had the anti-disparaging law struck down unanimously. (That also resolved the PTO’s fight with the Washington Redskins.)
In Matal v. Tam, Cato and a basket of deplorable people and organizations, including political satirist P.J. O’Rourke and former ACLU president Nadine Strossen, filed a brief supporting the Slants and arguing that disparaging speech serves a valuable purpose, especially in rock music. Where would the world be without disparagingly named bands like N.W.A. or the Queers? Most importantly, the government can’t be trusted to decide what’s a slur.
Read more at https://www.cato.org/blog/catos-latest-funny-brief
2019-04-17
Cato: Is This Infrastructure Really Necessary?
The United States has “at least $232 billion in critical public transportation” needs, claims the American Public Transportation Association (APTA). Among the “critically needed” infrastructure on APTA’s list are a streetcar in downtown Los Angeles, another one in downtown Sacramento (which local voters have rejected), one in Tempe, and streetcar extensions in Tampa and Kansas City.
Get real: even ardent transit advocates admit that streetcars are stupid. The economic development benefits that supposedly come from streetcars are purely imaginary, and even if they weren’t, it would be hard to describe streetcars – whose average speed, APTA admits, is less than 7.5 miles per hour – as “critically needed.”
Much of the nation’s transit infrastructure is falling apart, and the Department of Transportation has identified $100 billion of infrastructure backlog needs. (Page l – that is, Roman numeral 50 – of the report indicates a backlog of $89.9 billion in 2012 dollars. Converting to 2019 dollars brings this up to $100 billion.) Yet APTA’s “critical needs” list includes only $24 billion worth of “state of good repair” projects. Just about all of the other “needs” listed – $142 billion worth – are new projects or extensions of existing projects.
In fact, few if any of these new projects are “needed” – they are simply transit agency wish lists. For example, it includes $6 billion for phase 2 of New York’s Second Avenue Subway, but no money for rehabilitating New York’s existing, and rapidly deteriorating, subway system. Similarly, it includes $140 million for a new transitway in Alexandria, Virginia, but no money for rehabilitating the DC area’s also rapidly deteriorating Metrorail system. (In case anyone is interested, I’ve converted APTA’s project list into a spreadsheet for easy review and calculations.)
The $166 billion total on APTA’s “Project Examples” list is less than the $232 billion APTA says is needed, but even if all of the difference is “state of good repair” projects, that difference plus the $24 billion on APTA’s list doesn’t add up to what the DOT says is needed to restore transit infrastructure. This shows that even APTA doesn’t take public safety and “crumbling infrastructure” seriously.
Read more at https://www.cato.org/blog/infrastructure-really-necessary
Get real: even ardent transit advocates admit that streetcars are stupid. The economic development benefits that supposedly come from streetcars are purely imaginary, and even if they weren’t, it would be hard to describe streetcars – whose average speed, APTA admits, is less than 7.5 miles per hour – as “critically needed.”
Much of the nation’s transit infrastructure is falling apart, and the Department of Transportation has identified $100 billion of infrastructure backlog needs. (Page l – that is, Roman numeral 50 – of the report indicates a backlog of $89.9 billion in 2012 dollars. Converting to 2019 dollars brings this up to $100 billion.) Yet APTA’s “critical needs” list includes only $24 billion worth of “state of good repair” projects. Just about all of the other “needs” listed – $142 billion worth – are new projects or extensions of existing projects.
In fact, few if any of these new projects are “needed” – they are simply transit agency wish lists. For example, it includes $6 billion for phase 2 of New York’s Second Avenue Subway, but no money for rehabilitating New York’s existing, and rapidly deteriorating, subway system. Similarly, it includes $140 million for a new transitway in Alexandria, Virginia, but no money for rehabilitating the DC area’s also rapidly deteriorating Metrorail system. (In case anyone is interested, I’ve converted APTA’s project list into a spreadsheet for easy review and calculations.)
The $166 billion total on APTA’s “Project Examples” list is less than the $232 billion APTA says is needed, but even if all of the difference is “state of good repair” projects, that difference plus the $24 billion on APTA’s list doesn’t add up to what the DOT says is needed to restore transit infrastructure. This shows that even APTA doesn’t take public safety and “crumbling infrastructure” seriously.
Read more at https://www.cato.org/blog/infrastructure-really-necessary
2019-04-16
Cato: A Win on Student Speech in Rhode Island
The government can’t force people to promote messages they disagree with, even when – particularly when – the government actors are public university professors and the speaker is a student who needs to pass certain classes to get a degree.
William Felkner, a self-identified “conservative libertarian,” studied social work at Rhode Island College, a state school. His views unsurprisingly clashed with those of his professors, who consider the social work course – and the profession itself – to be “devoted to the value of social and economic justice.” In keeping with this philosophy, one of his professors assigned him to lobby the state legislature for a progressive bill.
Felkner refused to speak against his beliefs by lobbying in favor of progressive legislation. His term paper instead reflected his honest opinion of the bill. As a result, his professor gave him a failing grade and Felkner ultimately never completed the program.
That incident, in addition to a long string of events in which professors disparaged Felkner’s politics and tried to stifle his opinions, led him to sue the college. He argued, among several claims, that the school infringed on his right to free speech, compelled him to speak against his conscience, and placed unconstitutional conditions on his earning his degree.
Read more at https://www.cato.org/blog/win-student-speech-rhode-island
William Felkner, a self-identified “conservative libertarian,” studied social work at Rhode Island College, a state school. His views unsurprisingly clashed with those of his professors, who consider the social work course – and the profession itself – to be “devoted to the value of social and economic justice.” In keeping with this philosophy, one of his professors assigned him to lobby the state legislature for a progressive bill.
Felkner refused to speak against his beliefs by lobbying in favor of progressive legislation. His term paper instead reflected his honest opinion of the bill. As a result, his professor gave him a failing grade and Felkner ultimately never completed the program.
That incident, in addition to a long string of events in which professors disparaged Felkner’s politics and tried to stifle his opinions, led him to sue the college. He argued, among several claims, that the school infringed on his right to free speech, compelled him to speak against his conscience, and placed unconstitutional conditions on his earning his degree.
Read more at https://www.cato.org/blog/win-student-speech-rhode-island
2019-04-15
Cato: On Asbestos Blame, Supreme Court is Still At Sea
With Justices Kavanaugh and Roberts crossing over to join the liberals, the Supreme Court ruled 6-3 today in Air & Liquid Systems v. DeVries that federal maritime law permits seafarers claiming asbestos-related ailments to sue manufacturers of ship components such as boilers and turbines that contained no asbestos, on the grounds that they knew that the mineral would be used in conjunction with their product later in such forms as insulation or connective gaskets. Justice Neil Gorsuch, dissenting on behalf of himself and Justices Thomas and Alito, had the better argument: doing so requires stretching traditional bounds of tort liability in a way that imposes unreasonable duties to warn. By requiring makers of components to pay for damages they did not cause in the name of warnings that the U.S. Navy almost certainly would not have heeded, the Court yields to an impulse to round up deep pockets lest a sympathetic set of litigants otherwise go uncompensated.
I wrote about the case in December and quoted libertarian law professor Richard Epstein, who criticized the use of legal doctrine here “to serve as surrogate (and extremely costly) social insurance: ‘the bankruptcy of parties that should be liable [i.e., primary asbestos manufacturers] is no reason to impose onerous liability on parties that should not be liable.’” At the same time I noted the argument, which plaintiffs relied on heavily and seems to have influenced today’s outcome, “that [federal] maritime law takes a particular interest in the welfare of seafarers, and a rule that permits them to win more lawsuits advances their welfare.”
Read more at https://www.cato.org/blog/supreme-court-all-sea-asbestos-blame
I wrote about the case in December and quoted libertarian law professor Richard Epstein, who criticized the use of legal doctrine here “to serve as surrogate (and extremely costly) social insurance: ‘the bankruptcy of parties that should be liable [i.e., primary asbestos manufacturers] is no reason to impose onerous liability on parties that should not be liable.’” At the same time I noted the argument, which plaintiffs relied on heavily and seems to have influenced today’s outcome, “that [federal] maritime law takes a particular interest in the welfare of seafarers, and a rule that permits them to win more lawsuits advances their welfare.”
Read more at https://www.cato.org/blog/supreme-court-all-sea-asbestos-blame
2019-04-12
Cato: Government Can’t Team Up with Your Competitors to Deny You Just Compensation
In the late 1970s, Congress passed the Wright Amendment to encourage the development of Dallas/Fort Worth Airport by restricting a nearby airport, Love Field, to servicing final destinations only in Texas and four contiguous states. Over time, pressure began mounting to “Free Love Field” and allow more interstate air travel. Love Terminal Partners (“LTP”) owned a lease of 26.8 acres of Love Field that gave it access to the runways and the ability to offer air passenger service. In 2000, LTP built a six-gate terminal on its acreage near Lemmon Avenue. Although it could not operate profitably due to the Wright Amendment, LTP invested tens of millions of dollars in this terminal on the reasonable view that that the restrictions would eventually be lifted and cause the terminal’s value to increase significantly.
But in 2006, five interested parties—Dallas (which owned Love Field), Fort Worth, Southwest Airlines, American Airlines, and the Dallas-Fort Worth Airport Authority—joined with the federal government to rewrite the Wright Amendment and wipe out LTP as a viable competitor. Under their “Five Party Agreement,” the parties sought to reduce the total number of gates at Love Field, six of which would be removed from the Lemmon Avenue terminal. Dallas also agreed to acquire and demolish LTP’s terminal. This arrangement was codified in federal law through the Wright Amendment Reform Act (“WARA”), after which LTP stopped paying rent and the City of Dallas evicted the company and demolished its terminal.
Read more at https://www.cato.org/blog/government-cant-team-competitors-deny-you-just-compensation
But in 2006, five interested parties—Dallas (which owned Love Field), Fort Worth, Southwest Airlines, American Airlines, and the Dallas-Fort Worth Airport Authority—joined with the federal government to rewrite the Wright Amendment and wipe out LTP as a viable competitor. Under their “Five Party Agreement,” the parties sought to reduce the total number of gates at Love Field, six of which would be removed from the Lemmon Avenue terminal. Dallas also agreed to acquire and demolish LTP’s terminal. This arrangement was codified in federal law through the Wright Amendment Reform Act (“WARA”), after which LTP stopped paying rent and the City of Dallas evicted the company and demolished its terminal.
Read more at https://www.cato.org/blog/government-cant-team-competitors-deny-you-just-compensation
2019-04-11
Cato: Bump Stock Ban Bumps Up Against the Constitution
After the tragic mass shooting in Las Vegas, the phrase “bump stock” entered the public lexicon. What was, and always has been, a gun-range novelty was suddenly the subject of national discussion. In the months following the tragedy, Congress considered and ultimately rejected a law banning these devices. Eager to seize political capital, however, the Trump administration sought to ban them anyway.
The administration faced one problem, though: the Constitution. As anyone who’s seen School House Rock can tell you, only Congress has the ability to write new laws. So the administration attempted to give itself such a power by “reinterpreting” an existing law: the National Firearms Act of 1934 (NFA), which heavily regulates “machineguns.”
For decades, Congress, the executive branch, and the people shared a common understanding: the definition of “machinegun” in the NFA was clear, applying only to weapons that fired continuously from a single function. Bump stocks, which require substantial user input to fire, had never been considered “machineguns,” with precedent spanning multiple administrations. President Trump announced that his administration was changing course. The president expressly declined to go through Congress, instead directing officials to redefine bump-stock devices as “machineguns.” In turn, the Bureau of Alcohol, Tobacco, and Firearms (ATF) broke from decades of precedent and granted itself a new power to ban a widely owned firearm accessory.
Read more at https://www.cato.org/blog/bump-stock-ban-bumps-against-constitution
The administration faced one problem, though: the Constitution. As anyone who’s seen School House Rock can tell you, only Congress has the ability to write new laws. So the administration attempted to give itself such a power by “reinterpreting” an existing law: the National Firearms Act of 1934 (NFA), which heavily regulates “machineguns.”
For decades, Congress, the executive branch, and the people shared a common understanding: the definition of “machinegun” in the NFA was clear, applying only to weapons that fired continuously from a single function. Bump stocks, which require substantial user input to fire, had never been considered “machineguns,” with precedent spanning multiple administrations. President Trump announced that his administration was changing course. The president expressly declined to go through Congress, instead directing officials to redefine bump-stock devices as “machineguns.” In turn, the Bureau of Alcohol, Tobacco, and Firearms (ATF) broke from decades of precedent and granted itself a new power to ban a widely owned firearm accessory.
Read more at https://www.cato.org/blog/bump-stock-ban-bumps-against-constitution
2019-04-10
Cato: Unconscious People Can’t Consent to Police Searches
A reasonable expectation of privacy is one of the most fundamental rights people hold in a free society. Accordingly, the Fourth Amendment prohibits warrantless searches, with few exceptions. Police officers in Wisconsin violated that right when they drew Gerald Mitchell’s blood while he was unconscious—to test his blood alcohol content after a drunk-driving arrest. The state has attempted to excuse the officers by citing an implied-consent statute, which provides that simply driving on state roads constitutes consent to such searches.
The right to privacy is not absolute; police are allowed to search for evidence of a crime. But in doing so, they must follow procedures that comport with the Constitution. Before police conduct a search, Johnson v. United States (1948) indicates that the evidence should be judged by “a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” The Fourth Amendment contains a simple requirement for law enforcement that is an effective bulwark against unreasonable searches: get a warrant first.
Read more at https://www.cato.org/blog/unconscious-people-cant-consent-police-searches
The right to privacy is not absolute; police are allowed to search for evidence of a crime. But in doing so, they must follow procedures that comport with the Constitution. Before police conduct a search, Johnson v. United States (1948) indicates that the evidence should be judged by “a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” The Fourth Amendment contains a simple requirement for law enforcement that is an effective bulwark against unreasonable searches: get a warrant first.
Read more at https://www.cato.org/blog/unconscious-people-cant-consent-police-searches
2019-04-09
Cato: Even Something as Great as School Choice Should Not Be Federalized
Today, Sen. Ted Cruz (R-TX) and Rep. Bradley Byrne (R-AL), in conjunction with U.S. Secretary of Education Betsy DeVos, will unveil a bill to create a $5 billion scholarship tax credit, an unprecedented federal school choice effort. An op-ed all three have in USA Today spells out both the good of federal school choice, and inadvertently, the potential bad which makes it too dangerous to justify.
First, the good. DeVos, Cruz, and Byrne argue, quite rightly, that “education isn’t about school systems. It is about school children.” If you recognize basic reality, you’ll know that all children and families are different—different talents, values, dreams—hence it makes no sense to say all should get uniform education. But opposing school choice is de facto endorsing the idea that education should be largely uniform. One size must fit all.
They also make another crucial point, one that is starting to elicit push-back from public schooling advocates who insist that public schooling and public education are synonymous. DeVos, Cruz, and Byrne write that their proposal is not “an attack on public education.” Of course it isn’t. For one, they say their proposal would allow credit-eligible funds to be used for public school options. More broadly, just as public assistance doesn’t mean every recipient of help must go to a government grocery store, nothing about public education implies government must supply the schools. Indeed, we’ve been moving away from things like government housing projects for decades.
Read more at https://www.cato.org/blog/thanks-no-thanks-federal-school-choice
First, the good. DeVos, Cruz, and Byrne argue, quite rightly, that “education isn’t about school systems. It is about school children.” If you recognize basic reality, you’ll know that all children and families are different—different talents, values, dreams—hence it makes no sense to say all should get uniform education. But opposing school choice is de facto endorsing the idea that education should be largely uniform. One size must fit all.
They also make another crucial point, one that is starting to elicit push-back from public schooling advocates who insist that public schooling and public education are synonymous. DeVos, Cruz, and Byrne write that their proposal is not “an attack on public education.” Of course it isn’t. For one, they say their proposal would allow credit-eligible funds to be used for public school options. More broadly, just as public assistance doesn’t mean every recipient of help must go to a government grocery store, nothing about public education implies government must supply the schools. Indeed, we’ve been moving away from things like government housing projects for decades.
Read more at https://www.cato.org/blog/thanks-no-thanks-federal-school-choice
2019-03-25
Cato: A Rose by Another Name Still Merits First Amendment Protection
Barronelle Stutzman owns and operates Arlene’s Flowers, where she designs floral arrangements for a variety of occasions, including weddings. Mrs. Stutzman is also a practicing Christian; she believes that marriage is a spiritual union between a man and a woman and will not create floral arrangements for same-sex ceremonies. For this reason, when long-time clients Robert Ingersoll and Curt Freed asked Mrs. Stutzman to create floral arrangements for their wedding, she respectfully declined and referred them to several nearby florists.
To be clear, Mrs. Stutzman serves everyone. She gladly created Valentine’s Day and anniversary floral arrangements for Messrs. Ingersoll and Freed for nearly a decade before this litigation, all the while knowing they were a same-sex couple. She just has a sincere religious objection to creating her expressive floral works for same-sex weddings.
Nevertheless Ingersoll and Freed sued Stutzman, which suit was later consolidated with another one brought by the state of Washington. The state trial court ruled against Arlene’s Flowers and the state supreme court affirmed, holding that floral design did not constitute First Amendment-protected artistic expression. Stutzman took her case to the U.S. Supreme Court, which held it pending its decision in the factually similar Masterpiece Cakeshop case last year. The Supreme Court then remanded Arlene’s Flowers v. Washington back to the Washington Supreme Court for reconsideration. As it has in previous stages of this litigation, Cato has filed an amicus brief supporting Arlene’s Flowers, urging the Washington Supreme Court to revise its earlier ruling and hold that floral design is constitutionally protected expression.
Read more at https://www.cato.org/blog/rose-another-name-still-merits-first-amendment-protection
To be clear, Mrs. Stutzman serves everyone. She gladly created Valentine’s Day and anniversary floral arrangements for Messrs. Ingersoll and Freed for nearly a decade before this litigation, all the while knowing they were a same-sex couple. She just has a sincere religious objection to creating her expressive floral works for same-sex weddings.
Nevertheless Ingersoll and Freed sued Stutzman, which suit was later consolidated with another one brought by the state of Washington. The state trial court ruled against Arlene’s Flowers and the state supreme court affirmed, holding that floral design did not constitute First Amendment-protected artistic expression. Stutzman took her case to the U.S. Supreme Court, which held it pending its decision in the factually similar Masterpiece Cakeshop case last year. The Supreme Court then remanded Arlene’s Flowers v. Washington back to the Washington Supreme Court for reconsideration. As it has in previous stages of this litigation, Cato has filed an amicus brief supporting Arlene’s Flowers, urging the Washington Supreme Court to revise its earlier ruling and hold that floral design is constitutionally protected expression.
Read more at https://www.cato.org/blog/rose-another-name-still-merits-first-amendment-protection
2019-03-24
Cato: Trump Administration Proposes to Check Itself in Remarkable Kisor Brief
On Monday, the Solicitor General filed an extraordinary brief in Kisor v. Wilkie, a case in which the Supreme Court is reconsidering “Auer deference,” or binding judicial respect for an agency’s interpretation of its own regulation. The brief is remarkable, perhaps even unprecedented, because it reflects the evident desire of the president to cede significant power to another branch of government.
Under Auer’s canonical formulation, an agency’s regulatory interpretation is “controlling unless plainly erroneous or inconsistent with the regulation.” The problem is that, in practice, Auer allows agencies to bind the public with putatively nonbinding advisories, and thereby evade procedural safeguards.
Astonishingly, the government’s brief recognizes the harms engendered by Auer. In a forthright section titled “Overly broad deference to agency interpretations can have harmful practical consequences,” the Solicitor General concedes that “[Auer] deference can discourage agencies from engaging in notice-and-comment rulemaking.” More importantly, the government proposes to mitigate these concerns by narrowing the doctrine.
To this end, the brief argues that Auer deference is appropriate only if the regulatory text involves a “genuine ambiguity.” While this may seem obvious, reasonable minds often disagree about “how clear is clear?” The Solicitor General intimates that courts have been too quick to defer–that is, they’ve been too easily satisfied the regulatory text is ambiguous–when the brief claims that “[a] rigorous application of the tools of construction would obviate any need for [Auer] deference in many cases.” Here, the government borrowed from the late Justice Scalia, who made the same point about judicial deference to an agency’s statutory interpretations.
Even if the regulatory text is genuinely ambiguous, the government argues that “the agency’s interpretation should be given [Auer] deference only if certain threshold requirements are satisfied.”
Read more at https://www.cato.org/blog/trump-administration-proposes-check-itself-remarkable-kisor-brief
Under Auer’s canonical formulation, an agency’s regulatory interpretation is “controlling unless plainly erroneous or inconsistent with the regulation.” The problem is that, in practice, Auer allows agencies to bind the public with putatively nonbinding advisories, and thereby evade procedural safeguards.
Astonishingly, the government’s brief recognizes the harms engendered by Auer. In a forthright section titled “Overly broad deference to agency interpretations can have harmful practical consequences,” the Solicitor General concedes that “[Auer] deference can discourage agencies from engaging in notice-and-comment rulemaking.” More importantly, the government proposes to mitigate these concerns by narrowing the doctrine.
To this end, the brief argues that Auer deference is appropriate only if the regulatory text involves a “genuine ambiguity.” While this may seem obvious, reasonable minds often disagree about “how clear is clear?” The Solicitor General intimates that courts have been too quick to defer–that is, they’ve been too easily satisfied the regulatory text is ambiguous–when the brief claims that “[a] rigorous application of the tools of construction would obviate any need for [Auer] deference in many cases.” Here, the government borrowed from the late Justice Scalia, who made the same point about judicial deference to an agency’s statutory interpretations.
Even if the regulatory text is genuinely ambiguous, the government argues that “the agency’s interpretation should be given [Auer] deference only if certain threshold requirements are satisfied.”
Read more at https://www.cato.org/blog/trump-administration-proposes-check-itself-remarkable-kisor-brief
2019-03-23
Cato: Media Misses: Worrisome International Flashpoints
It is no secret that Americans tend to focus more on domestic news stories than on the coverage of international affairs. Media priorities also reflect the perception that, unless the United States is about to enter a major war or is already mired in one, readers and viewers care primarily about issues at home. Unfortunately, that situation can cause Americans to be blindsided by dangerous overseas developments.
While recent coverage has focused on such issues as the fight over President Trump’s border wall and Michael Cohen’s testimony before the House Oversight Committee, two worrisome foreign crises are brewing. One is a clash between Pakistani and Indian warplanes that led to the loss of two Indian aircraft, and the capture of one pilot. It was the most serious military incident between the two countries since their full-scale war in 1971. The escalation of tensions involving two nuclear-armed powers is—or at least should be—a matter of grave concern to the entire world.
Yet most American media outlets seem to be paying, at most, modest attention. For example, the top five items in the February 27 “Post Most”—the Washington’s Post daily summary of the most popular and important articles in its pages—were about Cohen’s impending testimony. The armed clash between India and Pakistan was only the sixth item listed. Such treatment suggests questionable priorities by both the Post’s editors and readers.
The other international flashpoint is the alarming deterioration of relations between Taiwan and Mainland China. As I discuss in a new article in China-U.S. Focus, that situation has been worsening for the past two years. The latest incident is an effort by Taiwanese hardliners under the banner of the Formosa Alliance to push President Tsai Ing-wen’s government to hold a referendum on formal independence. Chinese leaders have made it clear on several occasions that any move toward the goal of independence is unacceptable and would cross a clear red line. Even some long-time pro-Taiwan partisans are cautioning Tsai not to go down that path.
Read more at https://www.cato.org/blog/media-misses-worrisome-international-flashpoints
While recent coverage has focused on such issues as the fight over President Trump’s border wall and Michael Cohen’s testimony before the House Oversight Committee, two worrisome foreign crises are brewing. One is a clash between Pakistani and Indian warplanes that led to the loss of two Indian aircraft, and the capture of one pilot. It was the most serious military incident between the two countries since their full-scale war in 1971. The escalation of tensions involving two nuclear-armed powers is—or at least should be—a matter of grave concern to the entire world.
Yet most American media outlets seem to be paying, at most, modest attention. For example, the top five items in the February 27 “Post Most”—the Washington’s Post daily summary of the most popular and important articles in its pages—were about Cohen’s impending testimony. The armed clash between India and Pakistan was only the sixth item listed. Such treatment suggests questionable priorities by both the Post’s editors and readers.
The other international flashpoint is the alarming deterioration of relations between Taiwan and Mainland China. As I discuss in a new article in China-U.S. Focus, that situation has been worsening for the past two years. The latest incident is an effort by Taiwanese hardliners under the banner of the Formosa Alliance to push President Tsai Ing-wen’s government to hold a referendum on formal independence. Chinese leaders have made it clear on several occasions that any move toward the goal of independence is unacceptable and would cross a clear red line. Even some long-time pro-Taiwan partisans are cautioning Tsai not to go down that path.
Read more at https://www.cato.org/blog/media-misses-worrisome-international-flashpoints
2019-03-22
Cato: Judicial Sanity on Occupational Licensing and the First Amendment
States often impose costly licensing restrictions on professionals who want to engage in certain businesses. Mississippi, however, has taken this practice to an absurd level in an attempt to regulate not only a profession, but also the definition of a commonly used word. A Magnolia State statute prevents anyone from using the term “engineer” commercially unless licensed by the state as an engineer.
Express Oil Change and Tire Engineers, a business that provides tire repair, maintenance, and replacement services, has a long-standing trademark on the term “Tire Engineers.” Express has refused to change the term, arguing that the First Amendment protects its use. Much is at stake for Express: the penalties for violating the statute include severe punishments like imprisonment, all for “misusing” a phrase that it had trademarked. Mississippi sued Express and won in district court, before losing last week before the U.S. Court of Appeals for the Fifth Circuit. The case is Express Oil Change v. Mississippi Board of Licensure for Professional Engineers & Surveyors.
The First Amendment guarantees that speech—even when done for money—is constitutionally protected. But such speech is subject to government regulation, the contours of which were defined by the U.S. Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission (1980). First, the speech itself “must concern lawful activity and not be misleading” to receive protection. To justify regulating the speech, a court asks if “the asserted governmental interest is substantial.” Finally, a court must establish “whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.”
Read more at https://www.cato.org/blog/judicial-sanity-occupational-licensing-first-amendment
Express Oil Change and Tire Engineers, a business that provides tire repair, maintenance, and replacement services, has a long-standing trademark on the term “Tire Engineers.” Express has refused to change the term, arguing that the First Amendment protects its use. Much is at stake for Express: the penalties for violating the statute include severe punishments like imprisonment, all for “misusing” a phrase that it had trademarked. Mississippi sued Express and won in district court, before losing last week before the U.S. Court of Appeals for the Fifth Circuit. The case is Express Oil Change v. Mississippi Board of Licensure for Professional Engineers & Surveyors.
The First Amendment guarantees that speech—even when done for money—is constitutionally protected. But such speech is subject to government regulation, the contours of which were defined by the U.S. Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission (1980). First, the speech itself “must concern lawful activity and not be misleading” to receive protection. To justify regulating the speech, a court asks if “the asserted governmental interest is substantial.” Finally, a court must establish “whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.”
Read more at https://www.cato.org/blog/judicial-sanity-occupational-licensing-first-amendment
2019-03-21
Cato: Unanimous Supreme Court Upholds Right to Be Free of Excessive Fines
It’s gratifying that the Supreme Court unanimously agreed that the Eighth Amendment’s Excessive Fines Clause applies to the states, meaning that states can’t fine you in a way that’s wholly disproportionate to the offense you commit. As one of the long-established natural rights in the Anglo-American legal tradition, there’s no reason it wouldn’t be and the debates over the Fourteenth Amendment’s ratification support this conclusion. (Here’s Cato’s brief in Timbs v. Indiana.)
At the same time, it’s disappointing that Justices Neil Gorsuch and Clarence Thomas were the only ones who explained, in separate concurrences, that the Fourteenth Amendment’s Privileges or Immunities Clause is the more constitutionally faithful way of extending rights as against state infringement. (Justice Ruth Bader Ginsburg’s majority opinion, joined by all but Justice Thomas, used the Due Process Clause.)
We’ll have to wait for some more difficult/less clear case to see if anyone else joins that originalist refrain. For practical purposes, it may not matter which clause of the Fourteenth Amendment provides the mechanism by which the Excessive Fines Clause is applied to the states. But it certainly matters for unenumerated rights (those not listed in the Bill of Rights), the jurisprudence regarding is confusing and controversial. If the Fourteenth Amendment ratification debates elucidate which such rights are covered under which clause, that would be important.
Read more at https://www.cato.org/blog/unanimous-supreme-court-upholds-right-be-free-excessive-fines
At the same time, it’s disappointing that Justices Neil Gorsuch and Clarence Thomas were the only ones who explained, in separate concurrences, that the Fourteenth Amendment’s Privileges or Immunities Clause is the more constitutionally faithful way of extending rights as against state infringement. (Justice Ruth Bader Ginsburg’s majority opinion, joined by all but Justice Thomas, used the Due Process Clause.)
We’ll have to wait for some more difficult/less clear case to see if anyone else joins that originalist refrain. For practical purposes, it may not matter which clause of the Fourteenth Amendment provides the mechanism by which the Excessive Fines Clause is applied to the states. But it certainly matters for unenumerated rights (those not listed in the Bill of Rights), the jurisprudence regarding is confusing and controversial. If the Fourteenth Amendment ratification debates elucidate which such rights are covered under which clause, that would be important.
Read more at https://www.cato.org/blog/unanimous-supreme-court-upholds-right-be-free-excessive-fines
2019-03-09
Cato: States Can’t Engage in Protectionism by Labeling It Environmentalism
The Commerce Clause was designed not only to give Congress the authority to regulate interstate commerce, but also to ensure that states don’t disrupt the flow of goods and services over state lines. States cannot prefer in-state producers, sellers, or buyers over out-of-state ones, or regulate conduct outside the state. This is a fundamental principle of federalism that prevents states from gaining advantage over others when it comes to trade.
Despite that anti-protectionist mechanism, Oregon enacted its Low Carbon Fuel Standard, which caps emissions not just from the use of fuels, but also from their production and transportation. It uses a methodology called “life cycle analysis” to include these factors. But a life cycle analysis that includes transportation penalizes out-of-state producers—who often have to travel much further than in-state producers—forcing them to buy credits, while allowing Oregon producers to generate credits much more easily.
The U.S. Court of Appeals for the Ninth Circuit upheld an identical California law in Rocky Mountain Farmers Union v. Corey(2013). No doubt Oregon saw Rocky Mountain as a green light to enact its policy, and a Ninth Circuit panel here likewise upheld the Oregon law.
Read more at https://www.cato.org/blog/states-cant-engage-protectionism-labeling-it-environmentalism
Despite that anti-protectionist mechanism, Oregon enacted its Low Carbon Fuel Standard, which caps emissions not just from the use of fuels, but also from their production and transportation. It uses a methodology called “life cycle analysis” to include these factors. But a life cycle analysis that includes transportation penalizes out-of-state producers—who often have to travel much further than in-state producers—forcing them to buy credits, while allowing Oregon producers to generate credits much more easily.
The U.S. Court of Appeals for the Ninth Circuit upheld an identical California law in Rocky Mountain Farmers Union v. Corey(2013). No doubt Oregon saw Rocky Mountain as a green light to enact its policy, and a Ninth Circuit panel here likewise upheld the Oregon law.
Read more at https://www.cato.org/blog/states-cant-engage-protectionism-labeling-it-environmentalism
2019-03-08
Cato: Testing the Effects of Auer Deference
Libertarians are no fans of the administrative state. It consists of agencies with the power to generate rules that are binding on citizens. Congress, the branch of government that our founders anticipated would “necessarily predominate” in a republican form of government, first arrogated to itself vast powers beyond their contemplation, and then delegated these powers to the executive branch. The courts have, through a series of key cases, abided this abdication of responsibility. Moreover, the courts have derelicted their own duty to dispositively rule on the acceptable interpretations of an agency’s authorizing statute, a doctrine known as Chevron deference. So too have courts allowed agencies to interpret their own formal rules, a doctrine known as Auer deference. While this latter practice dates to a 1945 case (Bowles v. Seminole Rock), it was not explicitly condoned until the Auer case in 1997. (For a very good summary of Auer and a compelling argument as to why it should be overturned, please see my Cato colleagues’ amicus brief).
These two doctrines allow for administrative agencies to exercise considerable discretion within the ambiguity – intentional or otherwise – of a statutory or regulatory text. An agency has maximum interpretive latitude when it is acting pursuant to a vaguely worded statute, but it is up to Congress to give it this long leash. Yet an agency does control the specificity of the rules which it promulgates via APA-mandated notice-and-comment procedures. In order to maximize their subsequent room to maneuver, agencies might seek to craft rules that capaciously allow for creative construal down the road. But their willingness to do so is constrained by their expectation that their interpretation will be challenged, and potentially overturned, in court. Auer, alleges it critics, gives agencies a green light to “self-delegate” via promulgating vague rules with the foreknowledge that subsequent interpretations will not be overturned by the courts.
Read more at https://www.cato.org/blog/testing-effects-auer-deference
These two doctrines allow for administrative agencies to exercise considerable discretion within the ambiguity – intentional or otherwise – of a statutory or regulatory text. An agency has maximum interpretive latitude when it is acting pursuant to a vaguely worded statute, but it is up to Congress to give it this long leash. Yet an agency does control the specificity of the rules which it promulgates via APA-mandated notice-and-comment procedures. In order to maximize their subsequent room to maneuver, agencies might seek to craft rules that capaciously allow for creative construal down the road. But their willingness to do so is constrained by their expectation that their interpretation will be challenged, and potentially overturned, in court. Auer, alleges it critics, gives agencies a green light to “self-delegate” via promulgating vague rules with the foreknowledge that subsequent interpretations will not be overturned by the courts.
Read more at https://www.cato.org/blog/testing-effects-auer-deference
2019-03-07
Cato: Is That an Alchemist’s License in Your Pocket or Are You Just Happy to See Me?
Everyone knows the government can’t ban political speech, but what about putting conditions on it? The Supreme Court has (for better or for worse) upheld noise ordinances and restrictions on the time, place, and manner of speech, but what if a state banned political speech with an exception for those who could successfully turn lead into gold? Would this be a complete ban? Or would the impossible alchemists’ exception mean it could somehow be squared with the First Amendment?
That hypothetical might sound absurd, but is effectively how California currently treats handguns. California’s Crime Gun Identification Act of 2007 was the first piece of legislation to require firearms in the United States to contain “microstamping” technology. It requires that any new semiautomatic handgun sold in California must stamp each fired casing in two locations with “a microscopic array of characters that identify the make, model, and serial number of the pistol.”
There are a number of problems with this law, but one stood out to us: the technology to do what California demands does not exist. While a patent exists and prototypes were tested, the concept remains “unreliable, easily defeated and simply impossible to implement.” Because of this, no gunmaker has been able to introduce a new firearm to California since 2013.
Read more at https://www.cato.org/blog/alchemists-license-pocket-or-are-you-just-happy-see-me
That hypothetical might sound absurd, but is effectively how California currently treats handguns. California’s Crime Gun Identification Act of 2007 was the first piece of legislation to require firearms in the United States to contain “microstamping” technology. It requires that any new semiautomatic handgun sold in California must stamp each fired casing in two locations with “a microscopic array of characters that identify the make, model, and serial number of the pistol.”
There are a number of problems with this law, but one stood out to us: the technology to do what California demands does not exist. While a patent exists and prototypes were tested, the concept remains “unreliable, easily defeated and simply impossible to implement.” Because of this, no gunmaker has been able to introduce a new firearm to California since 2013.
Read more at https://www.cato.org/blog/alchemists-license-pocket-or-are-you-just-happy-see-me
2019-03-06
Cato: Courts Must Reassert Control Over Administrative Agencies
Those who hold the reins of political power will not always be benevolent, self-restrained public servants—and the procedural safeguards that seem frustrating and counterproductive in one instance may very well be necessary bulwarks in another. Those safeguards are undermined by the Supreme Court’s requirement that courts give deference to a regulatory agency’s interpretation of its own rules. Under this principle, most recently enunciated in Auer v. Robbins (1997), agencies can change their minds on how to enforce the law without so much as giving the public notice.
Consider James Kisor, a Vietnam veteran whose claim for disability benefits hinged on the interpretation of the term “relevant” in the Board of Veterans Appeals rules of procedure. The Department of Veterans Affairs last amended its rules in a more formal notice-and-comment proceeding in the mid-2000s. During such a process, agencies seek input from the public on proposed rules. During that rulemaking, the VA could have defined evidentiary “relevance,” but it declined to do so. Only when the board denied Kisor’s full claim—eight years later—did the agency announce its interpretation unprompted and without having been briefed on the matter. Obviously, Kisor was given no advance notice of the new “rule”—which was really just a new semantic wrinkle—much less the opportunity to participate in the formulation of regulations that ultimately would curtail his rights.
Read more at https://www.cato.org/blog/courts-must-reassert-control-over-administrative-agencies
Consider James Kisor, a Vietnam veteran whose claim for disability benefits hinged on the interpretation of the term “relevant” in the Board of Veterans Appeals rules of procedure. The Department of Veterans Affairs last amended its rules in a more formal notice-and-comment proceeding in the mid-2000s. During such a process, agencies seek input from the public on proposed rules. During that rulemaking, the VA could have defined evidentiary “relevance,” but it declined to do so. Only when the board denied Kisor’s full claim—eight years later—did the agency announce its interpretation unprompted and without having been briefed on the matter. Obviously, Kisor was given no advance notice of the new “rule”—which was really just a new semantic wrinkle—much less the opportunity to participate in the formulation of regulations that ultimately would curtail his rights.
Read more at https://www.cato.org/blog/courts-must-reassert-control-over-administrative-agencies
2019-03-05
Cato: Fences Made Crossings Deadlier—Asylum Made Them Much Less So
Following the deaths of two children in Border Patrol custody, President Trump made his pitch on how to solve the humanitarian crisis at the U.S.-Mexico border. He spoke about “the dangerous trek up through Mexico” and pledged to end “the cycle of human suffering” at the border. His solutions were a border wall and ending the chance to apply for asylum, which he called a “loophole.” Yet the evidence indicates that border fences have made the journey far more dangerous—even deadly—and that asylum made the border safer.
In fact, asylum and other humanitarian relief programs appear to have already saved about 1,300 lives along the border since 2013. By contrast, increased enforcement—including the fence—appears to have resulted in about 4,600 more deaths from 1999 to 2019.
The Rise of Border Deaths
Border Patrol reports the number of dead bodies and other deaths of migrants that it finds along the border. Overall, Border Patrol has recorded 7,529 deaths from FY 1998 to FY 2019. This death count excludes hundreds of people who local authorities discover, according to separate investigations by CNN and the Arizona Republic. This means that overall Border Patrol figures are undercounts, but the general trends up or down from year to year are still useful to determine whether more migrants are dying in the harsh conditions along the border.
Figure 1 shows the official number of deaths identified by Border Patrol each year. The grey bars show total deaths, and the black line shows the number of deaths per 100,000 apprehensions—a proxy measure for how likely any particular crosser was to die crossing the border in that year. The absolute number of deaths increased from 263 to a peak of 492 in 2005, and it remained at about that level until 2013, after which it fell back to the lowest levels since the 1990s. The rate of death per 100,000 apprehensions, however, underwent an even greater eight-fold increase from 17.3 in 1998 to 132 in 2012 before dropping back to just 25.5 so far in FY 2019—the lowest level since 2000.
Read more at https://www.cato.org/blog/fences-made-crossings-deadlier-asylum-made-them-much-less-so
In fact, asylum and other humanitarian relief programs appear to have already saved about 1,300 lives along the border since 2013. By contrast, increased enforcement—including the fence—appears to have resulted in about 4,600 more deaths from 1999 to 2019.
The Rise of Border Deaths
Border Patrol reports the number of dead bodies and other deaths of migrants that it finds along the border. Overall, Border Patrol has recorded 7,529 deaths from FY 1998 to FY 2019. This death count excludes hundreds of people who local authorities discover, according to separate investigations by CNN and the Arizona Republic. This means that overall Border Patrol figures are undercounts, but the general trends up or down from year to year are still useful to determine whether more migrants are dying in the harsh conditions along the border.
Figure 1 shows the official number of deaths identified by Border Patrol each year. The grey bars show total deaths, and the black line shows the number of deaths per 100,000 apprehensions—a proxy measure for how likely any particular crosser was to die crossing the border in that year. The absolute number of deaths increased from 263 to a peak of 492 in 2005, and it remained at about that level until 2013, after which it fell back to the lowest levels since the 1990s. The rate of death per 100,000 apprehensions, however, underwent an even greater eight-fold increase from 17.3 in 1998 to 132 in 2012 before dropping back to just 25.5 so far in FY 2019—the lowest level since 2000.
Read more at https://www.cato.org/blog/fences-made-crossings-deadlier-asylum-made-them-much-less-so
Cato: Pay for Federal Government Workers
With the backdrop of the shutdown and federal workers going unpaid, the New York Times published a backgrounder last week on federal compensation. It was a fair and balanced piece and highlighted themes discussed in this study on government workers.
The NYT charts government and private sector wage growth. Average federal wages soared during the 1990s and 2000s but have grown more slowly this decade. However, overall federal compensation including benefits has grown briskly in recent years, as I chart below.
Read more at https://www.cato.org/blog/pay-federal-government-workers
The NYT charts government and private sector wage growth. Average federal wages soared during the 1990s and 2000s but have grown more slowly this decade. However, overall federal compensation including benefits has grown briskly in recent years, as I chart below.
Read more at https://www.cato.org/blog/pay-federal-government-workers
2019-03-04
Cato: Senate GOP Bill Doesn’t Extend TPS. It Guts It
President Trump announced on Saturday that he had a new plan to open government that includes “a three-year extension of temporary protected status or TPS.” But as in the case of DACA—for reasons I explained here—the actual legislation that Senate Majority Leader Mitch McConnell introduced to implement his proposal does not extend TPS. Rather, it ends it as it exists now, and replaces with an entirely different program with much more restrictive criteria.
Temporary protective status, or TPS, is granted to nationals of country where the government feels it could not, at one time or another, send people back to due to a crisis in those countries, such as a war or natural disaster. Cribbing a lot from what I’ve already written about the DACA provisions of this bill, here is a list of the changes to TPS in the bill:
1 - Ends TPS for 5 of the 9 TPS countries: Under President Trump, the government has terminated TPS for Nepal, Sierre Leone, Liberia, Guinea, Sudan, El Salvador, Haiti, Honduras, and Nicaragua. Yet only the last four nationalities will benefit from this bill at all (p. 1256). To treat this bill as if it reverses Trump’s decisions is incorrect. It maintains the majority of them—notably for Africans who President Trump denigrated in a White House meeting last year.
2 - TPS recipients will lose their jobs: TPS extensions of work authorization are automatically extended but p. 1271 of this bill requires TPS recipients to apply for an entirely new work authorization (p. 1277), meaning that unless courts protect them, there will be a major gap in work eligibility. This is especially true because the government can take a year to enact this new program, virtually guaranteeing that everyone with TPS right now will lose their jobs.
3 - TPS recipients must reapply for initial status: When the government extends TPS, renewals of status are free. But this legislation requires a fee to apply to continue in status (p. 1265). Reapplying for initial status also requires that they reprove their eligibility, which is a costly process and often requires hiring an attorney.
4 - Much higher evidentiary burden: Reapplying will become even more onerous because p. 1256 increases the evidentiary standard to prove eligibility to receive TPS from a “preponderance of the evidence” to “clear and convincing.” The only higher standard of proof in the law is “beyond a reasonable doubt.” People win multi-million judgments based on the preponderance of the evidence standard. Clear and convincing is often used for cases like withdrawing life support. In the immigration context, USCIS explains that preponderance of the evidence is usually the standard—meaning that “even if the director has some doubt as to the truth,” he should approve “if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is ‘probably true’ or ‘more likely than not.’” Clear and convincing is used rarely for cases like “to rebut the presumption of a prior fraudulent marriage” (i.e. for applicants the government has reason to be suspicious of). TPS recipients proving that they entered before 2011 or that they resided continuously, for example, just became much more difficult under this legislation.
5 - Massively Increases TPS Application Cost: P. 1243 contains a fine or penalty but rebrands it as a $500 “security fee” to pay for Trump’s “wall.” This is despite the fact that many TPS recipients entered legally and were stranded after hurricanes or earthquakes hit their home countries. This fine comes on top of the normal fees for processing the application, and it essentially increases the cost of the $50 application for TPS status by tenfold. It basically doubles the $495 cost of an extension of TPS work authorization.
Read more at https://www.cato.org/blog/senate-gop-bill-doesnt-extend-tps-it-guts-it
Temporary protective status, or TPS, is granted to nationals of country where the government feels it could not, at one time or another, send people back to due to a crisis in those countries, such as a war or natural disaster. Cribbing a lot from what I’ve already written about the DACA provisions of this bill, here is a list of the changes to TPS in the bill:
1 - Ends TPS for 5 of the 9 TPS countries: Under President Trump, the government has terminated TPS for Nepal, Sierre Leone, Liberia, Guinea, Sudan, El Salvador, Haiti, Honduras, and Nicaragua. Yet only the last four nationalities will benefit from this bill at all (p. 1256). To treat this bill as if it reverses Trump’s decisions is incorrect. It maintains the majority of them—notably for Africans who President Trump denigrated in a White House meeting last year.
2 - TPS recipients will lose their jobs: TPS extensions of work authorization are automatically extended but p. 1271 of this bill requires TPS recipients to apply for an entirely new work authorization (p. 1277), meaning that unless courts protect them, there will be a major gap in work eligibility. This is especially true because the government can take a year to enact this new program, virtually guaranteeing that everyone with TPS right now will lose their jobs.
3 - TPS recipients must reapply for initial status: When the government extends TPS, renewals of status are free. But this legislation requires a fee to apply to continue in status (p. 1265). Reapplying for initial status also requires that they reprove their eligibility, which is a costly process and often requires hiring an attorney.
4 - Much higher evidentiary burden: Reapplying will become even more onerous because p. 1256 increases the evidentiary standard to prove eligibility to receive TPS from a “preponderance of the evidence” to “clear and convincing.” The only higher standard of proof in the law is “beyond a reasonable doubt.” People win multi-million judgments based on the preponderance of the evidence standard. Clear and convincing is often used for cases like withdrawing life support. In the immigration context, USCIS explains that preponderance of the evidence is usually the standard—meaning that “even if the director has some doubt as to the truth,” he should approve “if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is ‘probably true’ or ‘more likely than not.’” Clear and convincing is used rarely for cases like “to rebut the presumption of a prior fraudulent marriage” (i.e. for applicants the government has reason to be suspicious of). TPS recipients proving that they entered before 2011 or that they resided continuously, for example, just became much more difficult under this legislation.
5 - Massively Increases TPS Application Cost: P. 1243 contains a fine or penalty but rebrands it as a $500 “security fee” to pay for Trump’s “wall.” This is despite the fact that many TPS recipients entered legally and were stranded after hurricanes or earthquakes hit their home countries. This fine comes on top of the normal fees for processing the application, and it essentially increases the cost of the $50 application for TPS status by tenfold. It basically doubles the $495 cost of an extension of TPS work authorization.
Read more at https://www.cato.org/blog/senate-gop-bill-doesnt-extend-tps-it-guts-it
Cato: Senate GOP Bill Doesn’t Extend DACA. It Guts It
This weekend, President Trump promised to an “extension” of DACA for the “700,000 DACA recipients brought here unlawfully by their parents at a young age many years ago.” But the Senate bill that Senate Majority Leader Mitch McConnell introduced to implement his deal does not extend DACA but rather replaces it with a totally different program that will exclude untold thousands of Dreamers who would have been eligible under DACA. It is important to remember that all of these requirements are for less than 3 years of relief from deportation and work authorization, not a pathway to citizenship.
Here is a list of some of the changes:
1 - Requires Dreamers to reapply: P. 1235 requires Dreamers already in good standing in DACA to reapply for status, even though DACA would have allowed them simply to renew their status without refiling all of their paperwork and evidence. This requirement is a substantial burden, and most applicants will end up having to hire immigration attorneys to fulfill it.
2 - Much higher evidentiary burden: P. 1235 increases the evidentiary standard for Dreamers to prove their eligibility to receive DACA from a “preponderance of the evidence” to “clear and convincing.” The only higher standard of proof in the law is “beyond a reasonable doubt.” People win multi-million judgments based on the preponderance of the evidence standard. Clear and convincing is often used for cases like withdrawing life support. In the immigration context, USCIS explains that preponderance of the evidence is usually the standard—meaning that “even if the director has some doubt as to the truth,” he should approve “if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is ‘probably true’ or ‘more likely than not.’” Clear and convincing is used rarely for cases like “to rebut the presumption of a prior fraudulent marriage” (i.e. for applicants the government has reason to be suspicious of). Dreamers proving that they entered before June 2007 or that they resided continuously, for example, just became much more difficult under this legislation.
3 - Imposes a Monetary Fine/Doubles Application Cost: DACA, the Dream Act, and other proposals to legalize Dreamers have usually left off the monetary fine for being in the country illegally that proposals to legalize other immigrants have customarily had. This is because no one—including Trump—blames Dreamers for being in the country illegally. They were brought here as children. Yet this bill does contain a fine or penalty but rebrands it as a $500 “security fee” (p. 1243). This fine comes on top of the normal fees for processing the application, and it essentially doubles the cost of the currently $495 application. According to the Migration Policy Institute’s analysis of why eligible Dreamers didn’t apply for DACA, not having $500 cash was the number 1 reason. Anecdotes from Dreamers themselves support this.
4 - “Public charge” rule: P. 1238 applies the public charge ground of inadmissibility in INA 212(a)(4) to Dreamers—something DACA did not require. While DACA recipients are currently ineligible, and would remain ineligible under this bill, for almost all federal benefits, the Trump administration’s pending public charge rule would ban anyone who is even 5 percent dependent on any level of government, even state or local aid, from receiving legal status. This could include numerous Dreamers in states such as California and New York, which offer state benefits to Dreamers. Dreamers in DACA have grown up in America since a very young age and have lived in the country for over a decade. They are Americans. Treating them as if they are new immigrants does not represent the view of most Americans.
5 - Minimum income requirement: P. 1239 would further require that Dreamers prove—again by clear and convincing evidence—that, unless they are a student, they can maintain an income of at least 125 percent of the poverty level during their time in the United States. DACA had no such requirement, and it would result in banning numerous Dreamers currently in DACA.
Read more at https://www.cato.org/blog/senate-gop-bill-doesnt-extend-daca-it-guts-it
Here is a list of some of the changes:
1 - Requires Dreamers to reapply: P. 1235 requires Dreamers already in good standing in DACA to reapply for status, even though DACA would have allowed them simply to renew their status without refiling all of their paperwork and evidence. This requirement is a substantial burden, and most applicants will end up having to hire immigration attorneys to fulfill it.
2 - Much higher evidentiary burden: P. 1235 increases the evidentiary standard for Dreamers to prove their eligibility to receive DACA from a “preponderance of the evidence” to “clear and convincing.” The only higher standard of proof in the law is “beyond a reasonable doubt.” People win multi-million judgments based on the preponderance of the evidence standard. Clear and convincing is often used for cases like withdrawing life support. In the immigration context, USCIS explains that preponderance of the evidence is usually the standard—meaning that “even if the director has some doubt as to the truth,” he should approve “if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is ‘probably true’ or ‘more likely than not.’” Clear and convincing is used rarely for cases like “to rebut the presumption of a prior fraudulent marriage” (i.e. for applicants the government has reason to be suspicious of). Dreamers proving that they entered before June 2007 or that they resided continuously, for example, just became much more difficult under this legislation.
3 - Imposes a Monetary Fine/Doubles Application Cost: DACA, the Dream Act, and other proposals to legalize Dreamers have usually left off the monetary fine for being in the country illegally that proposals to legalize other immigrants have customarily had. This is because no one—including Trump—blames Dreamers for being in the country illegally. They were brought here as children. Yet this bill does contain a fine or penalty but rebrands it as a $500 “security fee” (p. 1243). This fine comes on top of the normal fees for processing the application, and it essentially doubles the cost of the currently $495 application. According to the Migration Policy Institute’s analysis of why eligible Dreamers didn’t apply for DACA, not having $500 cash was the number 1 reason. Anecdotes from Dreamers themselves support this.
4 - “Public charge” rule: P. 1238 applies the public charge ground of inadmissibility in INA 212(a)(4) to Dreamers—something DACA did not require. While DACA recipients are currently ineligible, and would remain ineligible under this bill, for almost all federal benefits, the Trump administration’s pending public charge rule would ban anyone who is even 5 percent dependent on any level of government, even state or local aid, from receiving legal status. This could include numerous Dreamers in states such as California and New York, which offer state benefits to Dreamers. Dreamers in DACA have grown up in America since a very young age and have lived in the country for over a decade. They are Americans. Treating them as if they are new immigrants does not represent the view of most Americans.
5 - Minimum income requirement: P. 1239 would further require that Dreamers prove—again by clear and convincing evidence—that, unless they are a student, they can maintain an income of at least 125 percent of the poverty level during their time in the United States. DACA had no such requirement, and it would result in banning numerous Dreamers currently in DACA.
Read more at https://www.cato.org/blog/senate-gop-bill-doesnt-extend-daca-it-guts-it
2019-03-03
Cato: Supreme Court Finally Takes Up Second Amendment Case
Yesterday morning, the Supreme Court agreed to hear New York State Rifle & Pistol Association v. New York City, which challenges the city’s ban on transferring even licensed, unloaded guns anywhere outside the city – including to weekend homes or shooting ranges.
Finally! In the decade since the Supreme Court ruled in D.C. v. Heller that the Second Amendment protects an individual right to keep and bear arms, it has declined to take any cases regarding the scope of that right – until now. Matt Larosiere and I made the case a few weeks ago in the pages of the Wall Street Journal that the Court was neglecting its duty to say what the law is by abdicating its responsibility to resolve important controversies regarding various gun regulations. “The federal circuits can’t even agree on how to evaluate Second Amendment challenges, let alone what the result should be.”
Read more at https://www.cato.org/blog/supreme-court-finally-takes-second-amendment-case
Finally! In the decade since the Supreme Court ruled in D.C. v. Heller that the Second Amendment protects an individual right to keep and bear arms, it has declined to take any cases regarding the scope of that right – until now. Matt Larosiere and I made the case a few weeks ago in the pages of the Wall Street Journal that the Court was neglecting its duty to say what the law is by abdicating its responsibility to resolve important controversies regarding various gun regulations. “The federal circuits can’t even agree on how to evaluate Second Amendment challenges, let alone what the result should be.”
Read more at https://www.cato.org/blog/supreme-court-finally-takes-second-amendment-case
Cato: What’s That Buzzing Overhead? It’s An OSHA Drone
“That buzzing noise over a construction site could be an OSHA drone searching for safety violations,” notes Littler Mendelson lawyer Tammy McCutchen in a piece for the Federalist Society. Quoting a U.S. Department of Labor memorandum from May of last year obtained by Bloomberg Law, McCutchen writes that “your friendly neighborhood OSHA inspector is now authorized by the Labor Department ‘to use camera-carrying drones as part of their inspections of outdoor workplaces.’”
What about the Fourth Amendment, you may ask? Well, court review is unlikely because current procedures call for the agency to obtain employer consent before sending the spycams aloft. Which makes everything okay, right?
Not really. As McCutchen writes, employers who refuse such consent “risk the ire of the DOL, with serious consequences. Nothing is more likely to put a target on an employer’s back for multiple and frequent future investigations than sending a DOL investigator away from your doors. Refusing consent will label you at the DOL as a bad faith employer that deserves closer scrutiny. This I know through experience practicing before DOL and as a former Administrator of DOL’s Wage & Hour Division.”
Read more at https://www.cato.org/blog/look-overhead-its-osha-drone
What about the Fourth Amendment, you may ask? Well, court review is unlikely because current procedures call for the agency to obtain employer consent before sending the spycams aloft. Which makes everything okay, right?
Not really. As McCutchen writes, employers who refuse such consent “risk the ire of the DOL, with serious consequences. Nothing is more likely to put a target on an employer’s back for multiple and frequent future investigations than sending a DOL investigator away from your doors. Refusing consent will label you at the DOL as a bad faith employer that deserves closer scrutiny. This I know through experience practicing before DOL and as a former Administrator of DOL’s Wage & Hour Division.”
Read more at https://www.cato.org/blog/look-overhead-its-osha-drone
2019-03-02
Cato: The ATF Attempts to Deny Non-Binary and Trans Americans Guns
At the end of January, someone at the National Shooting Sports Federation asked the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) about non-binary people purchasing firearms. The ATF responded that, despite gender non-binary licenses being acceptable identification, the individual must still select either “male” or “female” on the standard firearm transfer form 4473.
The ATF’s rigid, unreasoned response makes it clear there’s a huge disconnect between the purpose of the form, and the ATF’s interpretation. Form 4473, which everyone must fill out when they purchase a firearm from a federally licensed dealer, is intended to identify the purchaser of the firearm, have them confirm they are legally eligible to receive the firearm, and give enough identifying information to run a background check.
How can forcing a prospective gun owner to select “male” or “female” make any difference in identifying them when they have already provided a driver’s license, a home address, place of birth, full name, and even social security number? When a form has so much information, it’s clear that someone’s sex adds little to its ability to properly identify them. Even in the odd situation where completely filling out the form would still yield multiple results, the ATF offers the creation of Unique Personal Identification Numbers (UPIN’s). Still, even with all these avenues of precisely identifying a person, the ATF insists that dealers may not transfer a firearm to a purchaser who refuses to “check the box.”
Read more at https://www.cato.org/blog/atf-attempts-deny-non-binary-trans-americans-guns
The ATF’s rigid, unreasoned response makes it clear there’s a huge disconnect between the purpose of the form, and the ATF’s interpretation. Form 4473, which everyone must fill out when they purchase a firearm from a federally licensed dealer, is intended to identify the purchaser of the firearm, have them confirm they are legally eligible to receive the firearm, and give enough identifying information to run a background check.
How can forcing a prospective gun owner to select “male” or “female” make any difference in identifying them when they have already provided a driver’s license, a home address, place of birth, full name, and even social security number? When a form has so much information, it’s clear that someone’s sex adds little to its ability to properly identify them. Even in the odd situation where completely filling out the form would still yield multiple results, the ATF offers the creation of Unique Personal Identification Numbers (UPIN’s). Still, even with all these avenues of precisely identifying a person, the ATF insists that dealers may not transfer a firearm to a purchaser who refuses to “check the box.”
Read more at https://www.cato.org/blog/atf-attempts-deny-non-binary-trans-americans-guns
Cato: Cato Sues SEC Over Gag Orders
Earlier today, Cato sued the Securities and Exchange Commission in federal court challenging the SEC’s policy of imposing perpetual gag orders on settling defendants in civil enforcement actions. The clear point of that policy is to prevent people with the best understanding of how the SEC uses its vast enforcement powers from sharing that knowledge with others. But silencing potential critics is not an appropriate use of government power and, as explained in Cato’s complaint, it plainly violates the First Amendment’s protections of free speech and a free press.
The case began when a well-known law professor introduced us to a former businessman who wanted to publish a memoir he had written about his experience being sued by the SEC and prosecuted by DOJ in connection with a business he created and ran for several years before the 2008 financial crisis. The memoir explains in compelling detail how both agencies fundamentally misconceived the author’s business model—absurdly accusing him of operating a Ponzi scheme and sticking with that theory even after it fell to pieces as the investigation unfolded—and ultimately coerced him into settling the SEC’s meritless civil suit and pleading guilty in DOJ’s baseless criminal prosecution after being threatened with life in prison if he refused.
The author now wants to tell his side of the story, and Cato wants to publish it as a book—but both are prevented from doing so by a provision in the SEC settlement agreement that forbids the author from “mak[ing] any public statement denying, directly or indirectly, any allegation in the [SEC’s] complaint or creating the impression that the complaint is without factual basis.” This provision appears to be standard not only in SEC settlements, but with the CFTC, the CFPB, and possibly other regulatory agencies as well. Thus, when the federal government unleashes its immense financial regulatory power in a civil enforcement action, the price of settling—as the vast majority of cases do—is a perpetual gag order that prohibits the defendant from ever telling his or her side of the story.
Read more at https://www.cato.org/blog/cato-sues-sec-over-gag-orders
The case began when a well-known law professor introduced us to a former businessman who wanted to publish a memoir he had written about his experience being sued by the SEC and prosecuted by DOJ in connection with a business he created and ran for several years before the 2008 financial crisis. The memoir explains in compelling detail how both agencies fundamentally misconceived the author’s business model—absurdly accusing him of operating a Ponzi scheme and sticking with that theory even after it fell to pieces as the investigation unfolded—and ultimately coerced him into settling the SEC’s meritless civil suit and pleading guilty in DOJ’s baseless criminal prosecution after being threatened with life in prison if he refused.
The author now wants to tell his side of the story, and Cato wants to publish it as a book—but both are prevented from doing so by a provision in the SEC settlement agreement that forbids the author from “mak[ing] any public statement denying, directly or indirectly, any allegation in the [SEC’s] complaint or creating the impression that the complaint is without factual basis.” This provision appears to be standard not only in SEC settlements, but with the CFTC, the CFPB, and possibly other regulatory agencies as well. Thus, when the federal government unleashes its immense financial regulatory power in a civil enforcement action, the price of settling—as the vast majority of cases do—is a perpetual gag order that prohibits the defendant from ever telling his or her side of the story.
Read more at https://www.cato.org/blog/cato-sues-sec-over-gag-orders
2019-03-01
Cato: You Can’t Make This Up: A Speech Code that Investigates Students for Discussing the Freedom of Speech
Public university campuses, once bastions of free thought, have become increasingly hostile toward the freedom of speech. Although students greatly benefit from expressing and being exposed to a wide variety of ideas, administrators often prevent this from happening. An increasing number of universities have even instituted speech codes that subject students to burdensome investigations merely for exercising their First Amendment rights.
Two student organizations at the University of South Carolina ran afoul of campus speech codes when, in promoting a pro-free speech event, they displayed posters and handouts that referred to censorship at other colleges. Although the students obeyed the school’s regulations about handing out materials, several people filed harassment charges because they didn’t like what the handouts said. In a bizarre turn of events, the students were questioned and investigated by school officials—for talking about incidents where other students were likewise questioned and investigated for exercising their First Amendment rights. To make matters worse, the university refused to clarify its policies and essentially imposed a gag order on one student, forbidding him from discussing this incident with the faculty or student body.
Read more at https://www.cato.org/blog/you-cant-make-speech-code-investigates-students-discussing-freedom-speech
Two student organizations at the University of South Carolina ran afoul of campus speech codes when, in promoting a pro-free speech event, they displayed posters and handouts that referred to censorship at other colleges. Although the students obeyed the school’s regulations about handing out materials, several people filed harassment charges because they didn’t like what the handouts said. In a bizarre turn of events, the students were questioned and investigated by school officials—for talking about incidents where other students were likewise questioned and investigated for exercising their First Amendment rights. To make matters worse, the university refused to clarify its policies and essentially imposed a gag order on one student, forbidding him from discussing this incident with the faculty or student body.
Read more at https://www.cato.org/blog/you-cant-make-speech-code-investigates-students-discussing-freedom-speech
Cato: Supreme Court Shouldn’t Let Agencies Get Away with Animal House Rules
Businesses in regulated industries rely on the advice of the regulating agency when making decisions. But, with so many businesses asking the agency for advice, sometimes the agency will need its professional staff (rather than the commissioners or other principals) to help answering questions. If a staff member issues advice, should that be considered the agency’s advice? If not—and if it can neither be relied upon for legal purposes nor be subject to judicial review—isn’t it worse than not getting any advice at all?
Soundboard Association, an industry group representing call centers and others using new phone-dialing technology, wants to know the answer to those questions. In 2009, a Federal Trade Commission staff member sent a letter to a telemarketing company that used soundboard technology. The letter stated that soundboard technology was not subject to regulation under the Telemarketing Sales Rule, which prohibits, with some exceptions, making phone calls that deliver a pre-recorded message. Although soundboard technology does deliver pre-recorded messages, a live operator selects which audio file to play in response to the customer’s answers. The staff member said that, because this made calls using soundboard technology “virtually indistinguishable” from calls between two people, they were not subject to the rule.
In 2016, seven years after that letter, the same staff member sent another letter to the telemarketing company. This letter said that, because the FTC had received complaints about soundboard calls, the technology would now be subject to the Telemarketing Sales Rule. The letter demanded that companies cease using the technology until the technology improved. But if the FTC wants to change its mind on a rule, there’s a process for that—the scope of judicial deference to agency reinterpretations is a live legal debate—and regardless, regulatory determinations are supposed to be subject to judicial review, if they’re final.
Read more at https://www.cato.org/blog/supreme-court-shouldnt-let-agencies-get-away-animal-house-rules
Soundboard Association, an industry group representing call centers and others using new phone-dialing technology, wants to know the answer to those questions. In 2009, a Federal Trade Commission staff member sent a letter to a telemarketing company that used soundboard technology. The letter stated that soundboard technology was not subject to regulation under the Telemarketing Sales Rule, which prohibits, with some exceptions, making phone calls that deliver a pre-recorded message. Although soundboard technology does deliver pre-recorded messages, a live operator selects which audio file to play in response to the customer’s answers. The staff member said that, because this made calls using soundboard technology “virtually indistinguishable” from calls between two people, they were not subject to the rule.
In 2016, seven years after that letter, the same staff member sent another letter to the telemarketing company. This letter said that, because the FTC had received complaints about soundboard calls, the technology would now be subject to the Telemarketing Sales Rule. The letter demanded that companies cease using the technology until the technology improved. But if the FTC wants to change its mind on a rule, there’s a process for that—the scope of judicial deference to agency reinterpretations is a live legal debate—and regardless, regulatory determinations are supposed to be subject to judicial review, if they’re final.
Read more at https://www.cato.org/blog/supreme-court-shouldnt-let-agencies-get-away-animal-house-rules
2019-02-28
Cato: The Supreme Court Really Needs to Start Defining the Scope of the Second Amendment
You can find just about any kind of restaurant imaginable in our nation’s capital, but what you won’t find, no matter how hard you look, is a gun store. D.C. residents who want to buy guns, like Tracey and Andrew Hanson, have to leave the district to get them. D.C. law specifically allows residents to buy firearms from outside the District.
So the Hansons visited Frederic Mance, a federally licensed gun dealer in Texas. D.C. law had no problem with the Hansons buying a gun from Mance, and the law of Texas allowed Mance to sell to the Hansons. The Hansons agreed to buy handguns from Mance in what would be an otherwise entirely lawful transaction, but there was a problem: the federal government (of course).
Federal law categorically forbids firearms dealers from selling handguns to anyone not a resident of the state in which the dealer does business. The purported justification for this restriction is that the government doesn’t believe licensed dealers can handle complying with the laws of the purchaser’s state—even though they are required to do just that should the customer want something like a bolt-action rifle, shotgun, or even (heavily restricted) machine guns.
Read more at https://www.cato.org/blog/supreme-court-really-needs-start-defining-scope-second-amendment
So the Hansons visited Frederic Mance, a federally licensed gun dealer in Texas. D.C. law had no problem with the Hansons buying a gun from Mance, and the law of Texas allowed Mance to sell to the Hansons. The Hansons agreed to buy handguns from Mance in what would be an otherwise entirely lawful transaction, but there was a problem: the federal government (of course).
Federal law categorically forbids firearms dealers from selling handguns to anyone not a resident of the state in which the dealer does business. The purported justification for this restriction is that the government doesn’t believe licensed dealers can handle complying with the laws of the purchaser’s state—even though they are required to do just that should the customer want something like a bolt-action rifle, shotgun, or even (heavily restricted) machine guns.
Read more at https://www.cato.org/blog/supreme-court-really-needs-start-defining-scope-second-amendment
Cato: MPD’s NEAR Act Implementation: The Wrong Way to Do the Right Thing
In 2016, the D.C. City Council unanimously passed the Neighborhood Engagement Achieves Results (NEAR) Act, partly based on a pilot program in Richmond, California, that sought to implement a holistic approach to crime fighting. Recently, the ACLU of the District of Columbia (ACLU DC) filed suit against the Metropolitan Police Department (MPD) to implement the component of the NEAR Act that requires police to track demographic and other relevant data of individuals who police stop and frisk for weapons or otherwise search. MPD Chief Peter Newsham has admitted the department has not yet been able to comply with the law’s data collection requirement and recently a federal judge indicated that he was preparing an injunction in ACLU DC’s favor to compel the department to produce and publish the data.
As a policing researcher, the value of new empirical data is high, because, until recent decades, we haven’t had much of it. For just one example, this paucity of reliable policing data led the federal government to underestimate the number of persons shot and killed by police in the United States by about 150 percent every year. Thanks to the researchers at the Washington Post, we now know that police officers fatally shoot an average near 1,000 individuals every year instead of the roughly 400 that were annually reported by the FBI. Data is particularly helpful when trying to measure the racial and ethnic impacts of intrusive policies like stop and frisk because claims of racial bias are nearly impossible to prove in a single circumstance, but data can support or undermine claims of racial bias depending on population and other variables. While numbers by themselves cannot tell the whole story of any given policy, well-cultivated data can show where and in what circumstances disparities arise, giving researchers information to explain what is happening.
Read more at https://www.cato.org/blog/mpds-near-act-implementation-wrong-way-do-right-thing
As a policing researcher, the value of new empirical data is high, because, until recent decades, we haven’t had much of it. For just one example, this paucity of reliable policing data led the federal government to underestimate the number of persons shot and killed by police in the United States by about 150 percent every year. Thanks to the researchers at the Washington Post, we now know that police officers fatally shoot an average near 1,000 individuals every year instead of the roughly 400 that were annually reported by the FBI. Data is particularly helpful when trying to measure the racial and ethnic impacts of intrusive policies like stop and frisk because claims of racial bias are nearly impossible to prove in a single circumstance, but data can support or undermine claims of racial bias depending on population and other variables. While numbers by themselves cannot tell the whole story of any given policy, well-cultivated data can show where and in what circumstances disparities arise, giving researchers information to explain what is happening.
Read more at https://www.cato.org/blog/mpds-near-act-implementation-wrong-way-do-right-thing
2019-02-27
Cato: The First Amendment Allows You to Draw Your Own Conclusion on Same-Sex Marriage
Earlier this year in Masterpiece Cakeshop, the Supreme Court contended with the issue of whether cake-baking is protected speech under the First Amendment, and thus whether a Christian baker could refuse to design a wedding cake for a same-sex ceremony. The Court ended up punting on the case’s major questions, but now the Arizona Supreme Court is facing a similar issue, this time with calligraphers instead of bakers.
Artists Joanna Duka and Breanna Koski are practicing Christians who own and operate Brush & Nib, an art studio in Phoenix, Arizona. In addition to designing wedding invitations using calligraphy, they produce recreations of wedding vows and other custom artistic works. Phoenix’s public accommodation law would require them to design invitations and vows for every ceremony—even those that conflict with their sincerely held faith. The city imposes draconian punishments for failing to comply with this law; Joanna and Breanna could face fines of $2,500 per day, or up to six months in jail. It seems that in Phoenix, Christian artists who oppose same-sex marriage must choose between practicing their faith and running a business if they want to avoid both bankruptcy and jail time.
Cato of course has a long history of supporting both gay rights and the First Amendment. We were the only organization in the entire country to have filed briefs supporting the petitioners in both Masterpiece Cakeshop and the marriage cases that ended in Obergefell v. Hodges (2015). Now, joined by professors Dale Carpenter and Eugene Volokh—who differed on Masterpiece Cakeshop because they consider cakemaking not sufficiently expressive for the First Amendment to apply—Cato has filed an amicus brief arguing that expressive small businesses (including calligraphers) are indeed protected from speech compulsions.
Read more at https://www.cato.org/blog/first-amendment-allows-you-draw-own-conclusion-same-sex-marriage
Artists Joanna Duka and Breanna Koski are practicing Christians who own and operate Brush & Nib, an art studio in Phoenix, Arizona. In addition to designing wedding invitations using calligraphy, they produce recreations of wedding vows and other custom artistic works. Phoenix’s public accommodation law would require them to design invitations and vows for every ceremony—even those that conflict with their sincerely held faith. The city imposes draconian punishments for failing to comply with this law; Joanna and Breanna could face fines of $2,500 per day, or up to six months in jail. It seems that in Phoenix, Christian artists who oppose same-sex marriage must choose between practicing their faith and running a business if they want to avoid both bankruptcy and jail time.
Cato of course has a long history of supporting both gay rights and the First Amendment. We were the only organization in the entire country to have filed briefs supporting the petitioners in both Masterpiece Cakeshop and the marriage cases that ended in Obergefell v. Hodges (2015). Now, joined by professors Dale Carpenter and Eugene Volokh—who differed on Masterpiece Cakeshop because they consider cakemaking not sufficiently expressive for the First Amendment to apply—Cato has filed an amicus brief arguing that expressive small businesses (including calligraphers) are indeed protected from speech compulsions.
Read more at https://www.cato.org/blog/first-amendment-allows-you-draw-own-conclusion-same-sex-marriage
Cato: A Double Win in the Dusky Gopher Frog Case
By a vote of 8-0 (Justice Kavanaugh did not participate), the Supreme Court today gave a rational reading of both the Endangered Species Act (ESA) and its own power to review administrative agency actions. The decision in Weyerhaeuser v. U.S. Fish & Wildlife Service is an important win for property owners against arbitrary agency decisions. See Cato’s amicus brief here.
The case arose when the Fish and Wildlife Service (FWS), which administers the ESA on behalf of the Secretary of the Interior, designated a large parcel of land in Louisiana owned by Weyerhaeuser and a group of family landowners as critical habitat for the endangered dusky gopher frog, a small population of which lives today in Mississippi. The problem, however, was that the frog had not lived in Louisiana for decades and, worse still, the land in question, far from being critical habitat, was no habitat at all since it was unsuitable for sustaining the frog’s life cycles. On appeal, FWS did not dispute that critical habitat must be habitat; it argued instead that habitat includes areas that would require “some degree of modification” to support a sustainable population of a given species. In her dissent from the Fifth Circuit’s decision, Judge Priscilla Owen nicely summarized the immense practical implications of that view: “If the Endangered Species Act permitted the actions taken by the Government in this case, then vast portions of the United States would be designated as ‘critical habitat’ because it is theoretically possible, even if not probable, that land could be modified to sustain the introduction or reintroduction of an endangered species.”
Read more at https://www.cato.org/blog/double-win-dusky-gopher-frog-case
The case arose when the Fish and Wildlife Service (FWS), which administers the ESA on behalf of the Secretary of the Interior, designated a large parcel of land in Louisiana owned by Weyerhaeuser and a group of family landowners as critical habitat for the endangered dusky gopher frog, a small population of which lives today in Mississippi. The problem, however, was that the frog had not lived in Louisiana for decades and, worse still, the land in question, far from being critical habitat, was no habitat at all since it was unsuitable for sustaining the frog’s life cycles. On appeal, FWS did not dispute that critical habitat must be habitat; it argued instead that habitat includes areas that would require “some degree of modification” to support a sustainable population of a given species. In her dissent from the Fifth Circuit’s decision, Judge Priscilla Owen nicely summarized the immense practical implications of that view: “If the Endangered Species Act permitted the actions taken by the Government in this case, then vast portions of the United States would be designated as ‘critical habitat’ because it is theoretically possible, even if not probable, that land could be modified to sustain the introduction or reintroduction of an endangered species.”
Read more at https://www.cato.org/blog/double-win-dusky-gopher-frog-case
2019-02-26
Cato: Defending a Court’s Discretion To Allow Arguments for Conscientious Acquittal
Throughout the entire Anglo-American legal tradition, the independence of citizen juries has been understood to be an indispensable structural check on executive and legislative power. This independence has traditionally implied that jurors would both understand the consequences of a conviction, and that they would possess the power of conscientious acquittal, or “jury nullification”—that is, the inherent prerogative to decline to convict a defendant, even if factual guilt is shown beyond a reasonable doubt, when convicting would work a manifest injustice. Nevertheless, modern courts generally do not protect a defendant’s right to make such arguments directly to a jury, nor even to inform a jury about the consequences of conviction. A fascinating case now pending before the Second Circuit illustrates the tensions in modern case law on the subject, and raises the crucial question of whether district courts may, at the very least, permit such arguments in appropriate cases.
Yehudi Manzano, a 31-year-old man, made the regrettable decision to get involved in a romantic relationship with a 15-year-old girl. While their sexual relationship was impermissible under Connecticut age-of-consent laws, there was no indication that any instance of sex was coerced. On one occasion, Mr. Manzano took a video on his cell phone of the two of them having sex, which he then deleted. But the video was uploaded to the cloud, federal prosecutors ultimately became aware of the recording, and they charged Mr. Manzano with both production and distribution of child pornography, which respectively carry mandatory minimum sentences of fifteen and five years.
Read more at https://www.cato.org/blog/defending-courts-discretion-allow-arguments-conscientious-acquittal
Yehudi Manzano, a 31-year-old man, made the regrettable decision to get involved in a romantic relationship with a 15-year-old girl. While their sexual relationship was impermissible under Connecticut age-of-consent laws, there was no indication that any instance of sex was coerced. On one occasion, Mr. Manzano took a video on his cell phone of the two of them having sex, which he then deleted. But the video was uploaded to the cloud, federal prosecutors ultimately became aware of the recording, and they charged Mr. Manzano with both production and distribution of child pornography, which respectively carry mandatory minimum sentences of fifteen and five years.
Read more at https://www.cato.org/blog/defending-courts-discretion-allow-arguments-conscientious-acquittal
Cato: The Supreme Court Should Take Another Slice of Wedding Cake
Is cake-baking art, and if so, can someone be compelled to bake one in violation of his or her religious beliefs? More specifically, can a Christian baker refuse to design a wedding cake for a same-sex couple due to her sincere religious objections to same-sex marriage?
Wait, didn’t the Supreme Court already resolve these questions in the Masterpiece Cakeshop case earlier this year? Actually no; the Court declined to answer these and related important issues, instead ruling narrowly in the baker’s favor because the state civil rights commission displayed animus toward his religious beliefs. There was even unresolved disagreement over whether the baker refused to sell the couple a custom cake or any cake. In short, the Court’s decision was really a minor work, not a masterpiece.
But the Court’s punt, to mix metaphors, didn’t kick the can very far down the road. While the Washington Supreme Court is going through the motions of reconsidering the Arlene’s Flowers case in light of Masterpiece, an Oregon case involving another baker has reached the Supreme Court’s doorstep. Melissa and Aaron Klein are practicing Christians who owned and operated a bakery where they made and sold custom wedding cakes. An administrative law judge fined them $135,000 (!) for refusing to make a wedding cake for a same-sex couple, putting them out of business. Even though the Kleins had gladly served the couple in the past, and merely objected to helping celebrate this particular ceremony, Oregon state appellate court upheld the fine.
Read more at https://www.cato.org/blog/supreme-court-should-take-another-slice-wedding-cake
Wait, didn’t the Supreme Court already resolve these questions in the Masterpiece Cakeshop case earlier this year? Actually no; the Court declined to answer these and related important issues, instead ruling narrowly in the baker’s favor because the state civil rights commission displayed animus toward his religious beliefs. There was even unresolved disagreement over whether the baker refused to sell the couple a custom cake or any cake. In short, the Court’s decision was really a minor work, not a masterpiece.
But the Court’s punt, to mix metaphors, didn’t kick the can very far down the road. While the Washington Supreme Court is going through the motions of reconsidering the Arlene’s Flowers case in light of Masterpiece, an Oregon case involving another baker has reached the Supreme Court’s doorstep. Melissa and Aaron Klein are practicing Christians who owned and operated a bakery where they made and sold custom wedding cakes. An administrative law judge fined them $135,000 (!) for refusing to make a wedding cake for a same-sex couple, putting them out of business. Even though the Kleins had gladly served the couple in the past, and merely objected to helping celebrate this particular ceremony, Oregon state appellate court upheld the fine.
Read more at https://www.cato.org/blog/supreme-court-should-take-another-slice-wedding-cake
2019-02-25
Cato: The First Amendment Protects Boozy Talk
A restriction of free speech by any other name is still unconstitutional. No matter how much the Missouri government wants to regulate alcohol it may not do so by restricting the freedom of speech. Cato joins the ACLU and the Freedom Center of Missouri on an amicus brief supporting a challenge to a Missouri law prohibiting alcohol producers from advertising alcohol prices unless the prices are displayed inside a retailer—and they may not advertise who their retail partners are unless they list more than one. This both limits and compels speech.
The government argues that advertising is “commercial speech” and therefore not afforded the same protections under the First Amendment as every other type of speech. The “commercial speech” doctrine traces back to Valentine v. Chrestensen, an infamous case from the 1940s in which the Court arbitrarily decided commercial advertising wasn’t constitutionally protected. The Court has slowly been hacking away at this arbitrary rule, eventually creating an intermediate protection for commercial speech in under the Central Hudson Gas & Electric Corp. v. Public Service Commission (1980), where courts must balance four factors before deciding whether to nullify a restriction on commercial speech.
Read more at https://www.cato.org/blog/first-amendment-protects-boozy-talk
The government argues that advertising is “commercial speech” and therefore not afforded the same protections under the First Amendment as every other type of speech. The “commercial speech” doctrine traces back to Valentine v. Chrestensen, an infamous case from the 1940s in which the Court arbitrarily decided commercial advertising wasn’t constitutionally protected. The Court has slowly been hacking away at this arbitrary rule, eventually creating an intermediate protection for commercial speech in under the Central Hudson Gas & Electric Corp. v. Public Service Commission (1980), where courts must balance four factors before deciding whether to nullify a restriction on commercial speech.
Read more at https://www.cato.org/blog/first-amendment-protects-boozy-talk
Cato: A Taking by Any Other Name Still Smells Rotten
The state of Indiana wanted to expand beach property available to the public along the shoreline of Lake Michigan. Much to its irritation, the beach property was already owed by many other people, as natural extensions of their homes. Indiana could have used its power of eminent domain to pay for this property. Instead, the state attempted to take the beach property without just compensation by abusing the common-law doctrine of “public trust.”
In Gunderson v. Indiana, Cato now joins the National Association of Reversionary Property Owners and two other organizations on an amicus brief supporting the property owners’ request that the Supreme Court review this practice.
The “public trust” mechanism for Indiana’s machinations was once used by kings to control public waterways. In ye olden days, kings would assume authority over waterways abutting private property to ensure that navigation and fishing could continue at a relatively uniform pace. The Indiana bureaucracy and courts reformulated the rule to extend the “trust” upwards from any actual water to the “high water mark” on the sand. This meant that even if a house had a private section of beach behind it, if the water had at some time risen upward, the property was now forfeit to the government.
Read more at https://www.cato.org/blog/taking-any-other-name-still-smells-rotten
In Gunderson v. Indiana, Cato now joins the National Association of Reversionary Property Owners and two other organizations on an amicus brief supporting the property owners’ request that the Supreme Court review this practice.
The “public trust” mechanism for Indiana’s machinations was once used by kings to control public waterways. In ye olden days, kings would assume authority over waterways abutting private property to ensure that navigation and fishing could continue at a relatively uniform pace. The Indiana bureaucracy and courts reformulated the rule to extend the “trust” upwards from any actual water to the “high water mark” on the sand. This meant that even if a house had a private section of beach behind it, if the water had at some time risen upward, the property was now forfeit to the government.
Read more at https://www.cato.org/blog/taking-any-other-name-still-smells-rotten
2019-02-24
Cato: Your Constitution Is in the Mail
Return Mail, Inc. is a small technological company that developed a and patented a system for processing returned mail after a failed delivery attempt, using optical scanners, computer databases, and other mechanisms. When it sought to enforce its patent against the United States Post Service (USPS), it knew that in the wake of the 2011 America Invents Act (AIA), the U.S. Patent and Trademark Office (PTO) could change its mind and conclude that the patent was granted in error and should have no further force. It also knew, however—or so it thought—that once the government made a decision regarding a patent, the government would be expected to speak with one voice. Instead, two different governmental agencies came to different conclusions and attempted to argue amongst themselves over Return Mail’s rights.
Article II of the Constitution vests the executive power in the president alone because the president is uniquely accountable to the entire American public. Yet the USPS, although part of the government, operates independently of direct presidential control and is able to take legal positions that conflict with presidential directives and priorities. The Supreme Court has permitted the creation of such agencies, but it has never sanctioned these agencies to directly contradict presidential decisions and to seek the resolution of such disputes in the judiciary branch.
Read more at https://www.cato.org/blog/constitution-mail
Article II of the Constitution vests the executive power in the president alone because the president is uniquely accountable to the entire American public. Yet the USPS, although part of the government, operates independently of direct presidential control and is able to take legal positions that conflict with presidential directives and priorities. The Supreme Court has permitted the creation of such agencies, but it has never sanctioned these agencies to directly contradict presidential decisions and to seek the resolution of such disputes in the judiciary branch.
Read more at https://www.cato.org/blog/constitution-mail
Cato: Hacking the Appointments Clause
The naming of Matthew Whitaker as acting head of the Department of Justice, following the forced resignation of Attorney General Jeff Sessions, has kicked off a mini-debate between legal scholars over the propriety of his appointment. On Thursday, Neal Katyal and George Conway argued in The New York Times that Whitaker’s elevation ran afoul of the Constitution’s Appointments Clause, which requires that the president appoint “principal officers” of the United States, such as the Attorney General, only with the “advice and consent” of the Senate. John Yoo, a conservative legal scholar who served at DOJ under the Bush Administration, told Axios he agreed, and that the Federal Vacancies Reform Act, which purports to authorize the appointment of unconfirmed interim officers to fill vacancies, was unconstitutional as applied to such “principal” offices. Supreme Court Justice Clarence Thomas expressed a similar view in an opinion just last year. On the other side, we have Steve Vladeck, a law professor at the University of Texas, who notes that the Supreme Court blessed temporary appointments without confirmation back in 1898, in United States v. Eaton.
Read more at https://www.cato.org/blog/hacking-appointments-clause
Read more at https://www.cato.org/blog/hacking-appointments-clause
2019-02-23
Cato: Ruling Striking Down Obamacare Comes Six Years Late and a Dollar Short
Late Friday afternoon, a federal judge in Fort Worth ruled that, because the individual mandate could no longer be upheld as a tax (because Congress in 2017 eliminated the monetary assessment for noncompliance), it was unconstitutional – and that it couldn’t be severed from the rest of the Affordable Care Act, so all of Obamacare is invalid. Fantastic, right? This is what I and many others have been working for since the law was signed in March 2010 and, while it took a while, we finally reached to the mountaintop – a second bite at the apple to undo John Roberts’s betrayal, right?
Well, not quite. Much as Judge Reed O’Connor’s ruling seemed to parallel the ruling by Judge Roger Vinson nearly eight years ago, in the litigation that culminated NFIB v. Sebelius in 2012 – Josh Blackman even evoked that early decision in a clever allusion to Groundhog Day – this time around there are different statutory facts being evaluated and so a different legal posture.
Mind you, it’s absolutely correct that a “shared responsibility payment” that is $0 can no longer be justified as a tax, even under Chief Justice Roberts’s twistification. That is, a bare command to buy insurance is unconstitutional because it goes beyond federal power under the Commerce Clause and Necessary and Proper Clause (so ruled a majority of the Supreme Court, including Roberts).
Read more at https://www.cato.org/blog/ruling-striking-down-obamacare-comes-six-years-late-dollar-short
Well, not quite. Much as Judge Reed O’Connor’s ruling seemed to parallel the ruling by Judge Roger Vinson nearly eight years ago, in the litigation that culminated NFIB v. Sebelius in 2012 – Josh Blackman even evoked that early decision in a clever allusion to Groundhog Day – this time around there are different statutory facts being evaluated and so a different legal posture.
Mind you, it’s absolutely correct that a “shared responsibility payment” that is $0 can no longer be justified as a tax, even under Chief Justice Roberts’s twistification. That is, a bare command to buy insurance is unconstitutional because it goes beyond federal power under the Commerce Clause and Necessary and Proper Clause (so ruled a majority of the Supreme Court, including Roberts).
Read more at https://www.cato.org/blog/ruling-striking-down-obamacare-comes-six-years-late-dollar-short
Cato: “You Didn’t Build That”
Ronald Reagan’s legacy-defining tax cuts passed through Congress in 1981 and 1986 with broad Democratic support. The Tax Cuts and Jobs Act of 2017 on the other hand, failed to garner a single Democratic vote before President Trump signed it into law. In the latter case, the lack of concomitant spending cuts might allow one to frame this opposition as an act of fiscal prudence on the part of the Democrats. But the counterfactual - that if the legislation had also included a scaling back of Medicare benefits and a partial Social Security privatization then the Democrats would have leaped on board - strains credulity.
More likely, Democratic opposition is motivated, at least in part, by an increasingly ideological commitment to a European style social welfare state. Many Western European governments collect 40% or more of their GDP in taxes, while the United States collects just over half of that figure. In urging us to emulate the European model, the progressive left wing of the Democratic party not only downplays the perverse economic effects of higher taxes, they have taken to morally justifying progressive taxation as the “fair share” owed to society by those who have been successful in the private sector, on account of the government-provided goods and services which undoubtedly necessary to that success.
Read more at https://www.cato.org/blog/you-didnt-build
More likely, Democratic opposition is motivated, at least in part, by an increasingly ideological commitment to a European style social welfare state. Many Western European governments collect 40% or more of their GDP in taxes, while the United States collects just over half of that figure. In urging us to emulate the European model, the progressive left wing of the Democratic party not only downplays the perverse economic effects of higher taxes, they have taken to morally justifying progressive taxation as the “fair share” owed to society by those who have been successful in the private sector, on account of the government-provided goods and services which undoubtedly necessary to that success.
Read more at https://www.cato.org/blog/you-didnt-build
2019-02-22
Cato: Farm Bill Socialism in Senate
Republicans have criticized the socialism of Democrats such as Rep. Alexandria Ocasio-Cortez, but they should reflect on their own party’s socialist vote in the Senate yesterday. The upper chamber voted 87-13 for the bloated monstrosity known as the farm bill, which funds farm subsidies and food stamps. Republicans in the Senate voted in favor 38-13.
It is not hyperbole to call the farm bill “socialism.” It will spend $867 billion over the next decade, thus pushing up government debt and taxes. It includes large-scale wealth redistribution in the form of food stamps. At its core is central planning, which is obvious when you consider that the bill is 807 pages of legalese laying out excruciating details on crop prices, acres, yields, and other micromanagement. Furthermore, the bill lines the pockets of wealthy elites (landowners), which is a central feature of socialism in practice around the world.
The bill does not represent incremental reform toward smaller government. It is an extension and expansion of big government programs.
Read more at https://www.cato.org/blog/farm-bill-socialism-senate
It is not hyperbole to call the farm bill “socialism.” It will spend $867 billion over the next decade, thus pushing up government debt and taxes. It includes large-scale wealth redistribution in the form of food stamps. At its core is central planning, which is obvious when you consider that the bill is 807 pages of legalese laying out excruciating details on crop prices, acres, yields, and other micromanagement. Furthermore, the bill lines the pockets of wealthy elites (landowners), which is a central feature of socialism in practice around the world.
The bill does not represent incremental reform toward smaller government. It is an extension and expansion of big government programs.
Read more at https://www.cato.org/blog/farm-bill-socialism-senate
Cato: The Trump Administration’s Latest Trade Move
The latest attack on international institutions by the Trump administration distinguishes itself by being quite obscure: It’s about postage. It also may have more of a basis than most of the administration’s complaints about trade.
The administration is concerned about the Universal Postal Union (UPU), a specialized agency of the UN. The UPU was established by the Berne Treaty of 1874 and became a UN agency in 1948. The administration has taken issue with the “terminal dues” rates issued by the UPU, under which, the administration argues, the United States has been subsidizing the shipping costs of foreign suppliers in certain countries, including China, when they send goods to the United States. The basic story is as follows (some good background is here).
When companies or individuals ship goods abroad, they use their domestic postal service to send the item. When that item arrives in the foreign country, the postal service of the shipping country makes a payment to the postal service of the destination country in the form of “terminal dues.” These “terminal dues” are set by the UPU and are designed to cover the destination country’s portion of the transportation costs – basically an agreed upon reimbursement rate to transport the item to the recipient.
Read more at https://www.cato.org/blog/trump-administration-trade-move
The administration is concerned about the Universal Postal Union (UPU), a specialized agency of the UN. The UPU was established by the Berne Treaty of 1874 and became a UN agency in 1948. The administration has taken issue with the “terminal dues” rates issued by the UPU, under which, the administration argues, the United States has been subsidizing the shipping costs of foreign suppliers in certain countries, including China, when they send goods to the United States. The basic story is as follows (some good background is here).
When companies or individuals ship goods abroad, they use their domestic postal service to send the item. When that item arrives in the foreign country, the postal service of the shipping country makes a payment to the postal service of the destination country in the form of “terminal dues.” These “terminal dues” are set by the UPU and are designed to cover the destination country’s portion of the transportation costs – basically an agreed upon reimbursement rate to transport the item to the recipient.
Read more at https://www.cato.org/blog/trump-administration-trade-move
2019-02-21
Cato: Are the Per-Country Limits Necessary to Promote “Diversity”?
The most popular piece of legislation in the House of Representatives—with 329 cosponsors—would phase out and eliminate the per-country limits for employment-based green cards, while doubling the limits for family-based immigrants. These per-country limits discriminate against nationals of countries with high demand for green cards. For employment-based immigrants, immigrants from India receiving green cards in 2018 waited a decade, Chinese immigrants waited 3 years, while everyone else waited less than a year.
It is fundamentally unfair to make equally qualified employees of U.S. businesses wait ten times as long based on their birthplace. Rather than selecting employees solely on who has the best resume, employers now also have to consider who has the right home country. Moreover, the wait times distort the market and keep immigrants with more experience and higher wage offers from receiving green cards. My analysis earlier this year showed that the per-country limits artificially suppress the average wage offer for most employer-sponsored immigrants by $11,592.
In August, however, Director of U.S. Citizenship and Immigration Services Francis Cissna who runs the legal immigration bureaucracy for the Trump administration appeared to criticize the change for undermining the “diversity” of immigrants. “It would indeed ameliorate the situation of Indian nationals,” he said. “But it would also have other effects on the diversity or flow more generally – and national representation amongst the employment-based immigration pool.”
Read more at https://www.cato.org/blog/are-country-limits-necessary-promote-diversity
It is fundamentally unfair to make equally qualified employees of U.S. businesses wait ten times as long based on their birthplace. Rather than selecting employees solely on who has the best resume, employers now also have to consider who has the right home country. Moreover, the wait times distort the market and keep immigrants with more experience and higher wage offers from receiving green cards. My analysis earlier this year showed that the per-country limits artificially suppress the average wage offer for most employer-sponsored immigrants by $11,592.
In August, however, Director of U.S. Citizenship and Immigration Services Francis Cissna who runs the legal immigration bureaucracy for the Trump administration appeared to criticize the change for undermining the “diversity” of immigrants. “It would indeed ameliorate the situation of Indian nationals,” he said. “But it would also have other effects on the diversity or flow more generally – and national representation amongst the employment-based immigration pool.”
Read more at https://www.cato.org/blog/are-country-limits-necessary-promote-diversity
Cato: Judge Thapar Can Handle the Truth about the Fourth Amendment and Due Process
Before President Trump nominated now-Justice Brett Kavanaugh to fill Justice Anthony Kennedy’s Supreme Court seat, I wrote a piece about Judge Amul Thapar, a top contender for the seat who may yet find his way onto the Court. Thapar is on the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit and is a judge who has displayed a deep understanding of our founding principles. He’s also a clear writer with a fondness for movie references. Two of his recent opinions illustrate his commitment to individual liberty and due process through a nuanced, contextualized view of the Constitution.
Morgan v. Fairfield County concerned a “knock and talk,” where county policy involved forming a police perimeter around a suspect’s house while one officer attempts to talk to the residents. One of the perimeter officers behind the house saw marijuana plants on a balcony, pursuant to which the police eventually secured a search warrant. The majority found that the county’s “knock and talk” policy directed the officers to conduct a warrantless search – that forming the perimeter involved invading the “curtilage” of someone’s house – and so the county could be held liable for a Fourth Amendment violation (though the officers had qualified immunity because they were just following standard policy).
Read more at https://www.cato.org/blog/judge-thapar-can-handle-truth-about-fourth-amendment-due-process
Morgan v. Fairfield County concerned a “knock and talk,” where county policy involved forming a police perimeter around a suspect’s house while one officer attempts to talk to the residents. One of the perimeter officers behind the house saw marijuana plants on a balcony, pursuant to which the police eventually secured a search warrant. The majority found that the county’s “knock and talk” policy directed the officers to conduct a warrantless search – that forming the perimeter involved invading the “curtilage” of someone’s house – and so the county could be held liable for a Fourth Amendment violation (though the officers had qualified immunity because they were just following standard policy).
Read more at https://www.cato.org/blog/judge-thapar-can-handle-truth-about-fourth-amendment-due-process
2019-02-20
Cato: Three Basic Principles for Immigration Reform
I have previously described in detail the reforms that America’s immigration system needs. In this post, I want to highlight what I think the general principles behind those reforms should be. Three basic principles should guide immigration reform: openness, equal treatment, and flexibility. Reform should make America more open to immigrants, should treat all immigrants equally as individuals, and should be flexible enough to respond automatically to changes in the economy or society.
1) Openness to new immigrants. Reform should make it easier to immigrate legally, not more difficult. This pillar protects the rights of Americans to associate, contract, and trade with people born in other countries. These people might be their family members, friends, employees, or employers, but ultimately, restrictions on immigration are restriction on the liberty of Americans. Reform should recognize the presumptive right—overcome only for very good reasons—of Americans to freely interact with foreigners on U.S. soil.
Of course, the freedom to associate across borders also benefits Americans—even those who don’t participate directly with the immigration system—by expanding the pool of employees, consumers, investors, and entrepreneurs who produce goods and provide services that improve the quality of life of all Americans. The social capital that immigrants bring with them makes America a stronger, safer country. Immigrants marry, have children, and participate in religious groups at higher rates than the U.S.-born population, and it is precisely for these reasons that they have much lower rates of criminality.
As a practical matter, there are many ways to move toward a more open immigration system. My list of reforms gives specific examples. But here is a general blueprint: grant indefinite work visas to anyone with a job in the United States, confer legal permanent residency on anyone who works for 5 years, and remove the quotas on green cards for immediate family members—adult children and siblings of U.S. citizens as well as spouses and minor children of legal permanent residents.
Read more at https://www.cato.org/blog/three-basic-principles-immigration-reform
1) Openness to new immigrants. Reform should make it easier to immigrate legally, not more difficult. This pillar protects the rights of Americans to associate, contract, and trade with people born in other countries. These people might be their family members, friends, employees, or employers, but ultimately, restrictions on immigration are restriction on the liberty of Americans. Reform should recognize the presumptive right—overcome only for very good reasons—of Americans to freely interact with foreigners on U.S. soil.
Of course, the freedom to associate across borders also benefits Americans—even those who don’t participate directly with the immigration system—by expanding the pool of employees, consumers, investors, and entrepreneurs who produce goods and provide services that improve the quality of life of all Americans. The social capital that immigrants bring with them makes America a stronger, safer country. Immigrants marry, have children, and participate in religious groups at higher rates than the U.S.-born population, and it is precisely for these reasons that they have much lower rates of criminality.
As a practical matter, there are many ways to move toward a more open immigration system. My list of reforms gives specific examples. But here is a general blueprint: grant indefinite work visas to anyone with a job in the United States, confer legal permanent residency on anyone who works for 5 years, and remove the quotas on green cards for immediate family members—adult children and siblings of U.S. citizens as well as spouses and minor children of legal permanent residents.
Read more at https://www.cato.org/blog/three-basic-principles-immigration-reform
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