Cato: Technology Makes Social Distancing Easier

 Not long ago, many people decried screen time as an epidemic. But now that humanity finds itself in the midst of an actual disease pandemic, screens are proving to be a boon to the species. Progress in digital technology has perhaps never been more evident than in this moment of widespread social distancing measures.

Without today’s technology, “social distancing” would have meant isolation. From work, education and errands to leisure activities and socializing, technology is making “social distancing” possible with minimal sacrifice compared to what previous generations would have had to endure to achieve the same degree of physical separation.

It is of course true that looking at screens for prolonged periods has its downsides and that moderation is important. But the use of technology to help people stay connected and keep society running smoothly during this pandemic is turning the narrative that digital technology threatens human interaction and happiness upside‐​down.

Widespread reports have emerged of virtual dinner parties (warranting coverage in The Washington Post) and other virtual gatherings. It has become increasingly clear that social distancing should more aptly be called physical distancing — because those practicing it can still be social.

As bars temporarily shut down to prevent potential virus transmission, virtual cocktail parties and happy hours are taking off, meriting recent articles in The New York Times and The Wall Street Journal covering the phenomenon. Happy hour gatherings, those fixtures of many young professionals’ lives, have transformed into digital social events involving split‐​screen video chats between participants as they each raise a glass from their respective locations.

Read more at https://www.cato.org/blog/technology-makes-social-distancing-easier

Cato: Expanding Pharmacists’ Scope of Practice Can Save the Lives of Children

 Yesterday Secretary of Health and Human Services Alex Azar used his emergency powers to override the restrictions that 22 states place on pharmacists vaccinating children over age 3.

As I noted in a previous post, a dangerous side effect of the COVID-19 pandemic is that many parents have not been bringing their children to the doctor’s office for their scheduled vaccinations. There are multiple contributing causes. In some cases, parents may be concerned about the expense. In others, they may be concerned that they or their children may get exposed to the virus. The timing of certain immunizations in children can be crucial and, for that reason, pediatricians and primary care practitioners have taken steps to provide immunizations in a safe, socially‐​distanced environment.

Despite an encouraging report from the Centers for Disease Control and Prevention that, as COVID-19 cases have declined in New York City, childhood vaccinations have increased, a rebound in vaccinations has not yet been detected in other parts of the country.

Read more at https://www.cato.org/blog/expanding-pharmacists-scope-practice-can-save-lives-children

Cato: Libertarianism and the Coronavirus Pandemic

 In recent days, there has been snark from some quarters about the current crisis somehow catching libertarians flat‐​footed. The argument goes that the need for a big government response disproves a political ideology that is often, though in somewhat oversimplified fashion, summarized as favoring “small government.” A better description would be a government limited in scope but sufficient to meet that scope.

Libertarianism, properly understood, encompasses certain core functions as the proper role of government. It is not the libertarian view that government should be ineffective at protecting individual rights or dysfunctionally paralyzed in the face of a massive threat to people’s lives. Government has a role to play in responding to the pandemic in much the same way it is the government’s job to prosecute murderers or defend the country from invasion.

At the same time, libertarian principles and insights can provide some guideposts for how to respond in this unprecedented global emergency.

One thing to keep in mind is that some limits on government power are even more crucial now. Emergency powers should be limited in duration and limited to directly addressing the present situation based on the facts as best we know them. Such policy responses shouldn’t be larded up with a pre‐​existing wish list of unrelated concerns. It is essential to preserve constitutional liberal democracy and resist excessive long‐​term concentration of power in the executive.

Social distancing measures should rely on voluntary compliance to the greatest degree possible, and most people have been voluntarily complying. Even when enforcement is necessary, simply breaking up gatherings without citation or prosecution is possible and preferable in many cases. A heavy‐​handed reliance on coercive enforcement might not only be unnecessary in some regards, it can also backfire by sparking protest non‐​compliance, and it might also be redundant to all the other measures already in place. With so much shut down, the only place most people have to go is to one of the essential businesses left open such as grocery stores. You don’t need to order people to stay home—except for the list of exceptions—if they already have almost nowhere to go that isn’t on that list of exceptions. For that reason, some states have so far rejected compulsory “stay at home” or “shelter in place” orders. There is no need to fuel further panic or distract police from their more important duties to worry about safe and benign activities like taking the family dog for a walk.

At the same time, many jurisdictions have moved to suspend petty arrests altogether, mostly for victimless crimes, in an effort to reduce jail populations. Also under consideration are proposals to release many of those individuals currently in jail awaiting trial for minor offenses. This is a welcome shift that should prompt us to reconsider the necessity of some of these laws, many of which have long been the target of libertarian ire.

Read more at https://www.cato.org/blog/libertarianism-coronavirus-pandemic

Cato: When the Government Destroys All but a Smidge of Your Property Value, It Should Pay Just Compensation

 Developer Bridge Aina Le‘a, LLC, purchased a huge swath of land in Hawaii on which it planned to build hundreds of new homes. Before the company ever got the chance, however, the Hawaii Land Use Commission re‐​designated the land for agricultural use, stopping residential development dead in its tracks. Bridge Aina Le‘a sued to get its money’s worth and has asserted its constitutional right against uncompensated takings of property.

The land in question, over a thousand acres “of largely vacant and barren, rocky flow land,” could hardly support agricultural use. But existing Supreme Court doctrine could be read to defeat a takings claim in this case. This is despite the Land Use Commission’s subversion of Bridge Aina Le‘a’s “distinct investment‐​backed expectations”—a crucial factor in determining whether a regulation “goes too far” (as Justice Oliver Wendell Holmes put it in 1922), violating the Fifth Amendment’s Takings Clause. That’s because in Penn Central Transportation Co. v. New York City (1978), the Court held that whether a regulation effects a taking in most cases involves “essentially ad hoc, factual inquiries.”

For over four decades, courts and developers have been left to ponder what these notoriously open‐​ended words mean. In Lucas v. South Carolina Coastal Council (1992), the Court clarified that those words were not meant to apply to regulations that resulted in a total loss of a property’s value or usefulness; that losses of that magnitude, once proved, effect per se takings of the property (regardless of whether the owner retains physical possession of the now‐​valueless or useless land). The problem with the Lucas doctrine is that even a 99% value‐​loss will not cut it—at least not for most courts. And, to add insult to injury, Lucas’s “usefulness” factor has fallen nearly completely out of vogue.

Read more at https://www.cato.org/blog/when-government-destroys-all-smidge-property-value-it-should-pay-just-compensation

Cato: COVID-19 Leads to Arrest Reductions

 As COVID-19 spreads through the U.S., cities across the country are halting arrests for nonviolent offenses and releasing low‐​risk prisoners in efforts to reduce jail crowding and prevent the spread of the disease. Prosecutors in Philadelphia, Baltimore, Los Angeles County, Portland, and Nashville – along with many other cities – are issuing statements that arrests and prosecutions for low‐​level, nonviolent crimes (including drug offenses, theft, prostitution, traffic offenses, etc.) will stop.

Over 30 prosecutors issued a joint statement calling for public health officials and community leaders to:

Adopt “cite and release policies” for offenses which pose no immediate physical threat to the community, including simple possession of controlled substances.

• Release all individuals who are being detained solely because they can’t afford cash bail, unless they pose a serious risk to public safety.

• Reduce the prison population to minimize sharing of cells and ensure that there are sufficient medical quarantine beds, and enough staff, to promote the health and safety of staff, those incarcerated, and visitors

• Identify and release the following people immediately, unless doing so would pose a serious risk to the physical safety of the community:

○ Individuals who are elderly;

○ Populations that the CDC has classified as vulnerable (those with asthma, cancer, heart disease, lung disease, and diabetes);

○ People in local jails who are within 6 months of completing their sentence; and

○ People incarcerated due to technical violations of probation and parole.

• Put in place procedures and advocate for reforms that enable past lengthy sentences to be revisited and support release for those individuals who can safely return to the community

Read more at https://www.cato.org/blog/covid-19-leads-arrest-reductions

Cato: FDA Determined Convalescent Plasma Is Safe, Leaves Decisions on Efficacy up to Clinicians/​Patients. That’s the Way It Should Always Be

 Yesterday the Food and Drug Administration released a clinical memorandum giving Emergency Use Authorization for COVID-19 Convalescent Plasma (CCP) therapy, a previously unapproved biological product. For several months clinicians treating severely ill COVID-19 patients have transfused plasma donated by convalescing COVID-19 patients, rich with the antibodies to the virus produced by their immune system, hoping that these same antibodies can help patients suffering from active infection. Early results have been promising but, as some critics of the FDA decision have stated, more data is needed before definitive conclusions can be drawn regarding the efficacy of CCP therapy.

Using the antibodies in plasma from patients who have defeated a viral infection to treat newly infected patients is not a new idea. Clinicians and clinical researchers used it as early as the late nineteenth century to treat diphtheria and it was employed in the early twentieth century in the Spanish influenza epidemic.

By issuing the EUA allowing physicians to use convalescent plasma, the FDA didn’t make a final determination as to the treatment’s efficacy. The agency stated it “may be effective.” Importantly, it concluded that the treatment is safe. The FDA press release stated, “the known and potential benefits of the product outweigh the known and potential risks of the product.”

Read more at https://www.cato.org/blog/fda-determined-convalescent-plasma-safe-leaves-decisions-efficacy-clinicians/patients-thats

Cato: One Image to Capture the Unending Complexity of the H-2A Visa Program

 The Cato Institute published my latest Immigration Research and Policy Brief today. It provides basic facts about the H-2A visa program that farms use to hire guest workers. It contains a massive table of the 209 major H-2A rules that farmers must follow, which stretches for 14 pages in the print version, but perhaps nothing captures H-2A’s oppressive level of regulatory morass than Figure 4’s flow chart of the H-2A process.

The flow chart is a two‐​page maze of bureaucracy. It contains 69 action boxes. At every point there’s a possibility that an application or worker could be denied or delayed, upending the harvest for farmers. Its six sections represent the six government entities that conduct oversight over the H-2A program and that have the power to bar employers from hiring workers. Embedded within each step are dozens of rules and requirements. Each box represents a cost to employers and workers preparing and justifying their need to hire or work in this country.

Read more at https://www.cato.org/blog/one-image-capture-unending-complexity-h-2a-visa-program

Cato: American Courts Don’t Have Universal Jurisdiction

 Child slavery within the cocoa trade has earned global attention. Nestlé has condemned the practice and joined accords aimed at abolishing human trafficking in the region. Nonetheless, the chocolate company finds itself in a decade‐​long lawsuit over the enslavement of Malians on Ivorian plantations on the basis of the corporation’s alleged purchase of cocoa from farms that used slaves.

The Alien Tort Statute gives federal courts jurisdiction over cases brought by foreigners who allege a “violation of the law of nations or a treaty of the United States.” Passed as part of the Judiciary Act of 1789, its purpose was to assure foreign governments that the United States would provide legal remedies for breaches of international law. The Supreme Court in Kiobel v. Dutch Petroleum (2013) held that this law presumptively doesn’t apply to violations committed abroad. Then in Jesner v. Arab Bank, PLC (2018), the Court ruled that foreign corporations cannot be sued under the ATS because international norms about corporate liability are not settled.

So it would seem that a lawsuit against a U.S. company based on actions taken abroad would not be recognized under the ATS, but the U.S. Court of Appeals for the Ninth Circuit disagreed. After being dismissed in the district court, the plaintiffs have twice successfully appealed to the Ninth Circuit. On the second appeal, post‐Jesner, the court found that U.S. corporations could be sued under the ATS. Now before the Supreme Court, Nestlé is asking the Supreme Court to reverse that holding.

Read more at https://www.cato.org/blog/american-courts-dont-have-universal-jurisdiction

Cato: Austin Asks “What’s Your Sign?” Before Violating the First Amendment

 When does a local ordinance relating to commercial signage become an unconstitutional regulation of speech? That is the question before the U.S. Court of Appeals for the Fifth Circuit in Reagan National Advertising of Austin v. City of Austin—a case that, if Austin, Texas has its way, could bring a troubling course correction to existing commercial‐​speech doctrine.

Austin distinguishes “on‐​premise” from “off‐​premise” signs, prohibiting the construction of new “off‐​premise” signs—signs that advertise products or businesses located elsewhere—while at the same time allowing for new “on‐​premise” signs. The city argues that the distinction preserves the city’s aesthetic character and ensures public safety. When advertising company Reagan National (not related to the airport) applied to construct dozens of off‐​premise signs, the city denied the permit.

Reagan National sued under the First Amendment. The district court applied so‐​called intermediate scrutiny and upheld the regulation. Now, on appeal to the Fifth Circuit, Reagan National asks the court to overturn the district court and Cato filed an amicus brief in support.

At a hearing last week, the judges probed both sides’ arguments in ways that offer some clues into their thinking, suggesting they are inclined to reverse the lower court. The judges pressed Reagan National on practical workarounds to otherwise unconstitutional restrictions, including advertising off‐​premises “for a short time,” as one judge understands the ordinance, but more or less left it at that. The judges were much less forgiving in their questions to Austin. Out of the gate, they wondered aloud how regulating the words on a sign—in contrast to its color or size—can be considered anything other than content‐​based.

Read more at https://www.cato.org/blog/austin-asks-whats-sign-violating-first-amendment

Cato: “Acting” Officers Can’t Act Forever, and Their Rules Are Illegitimate

 A core component of the balance of powers between the executive and legislative branches is the Senate’s role to advise and consent to the appointment of officers. Under the Appointments Clause of Article II, federal officials are nominated by the president with the “advice and consent of the Senate.”

However, and this should come as no surprise to anyone, the Senate is not an efficient body; there are often delays with the appointment process, both due to unexpected vacancies, and general political gridlock. Knowing this, Congress enacted the Federal Vacancies Reform Act (FVRA) which allows the president to appoint “acting” officers, without the Senate’s advice and consent, so long as they are only in office for a limited time: a maximum of 210 days. This act is a narrow exception and is the only way that the president can make non‐​recess appointments which do not go through the advice and consent of the Senate. 

Nonetheless, in April 2019, Kevin McAleenan assumed the role of “acting” Secretary of the Department of Homeland Security (DHS), directly followed by Chad Wolf who assumed the position in November 2019. Not only did both of their appointments violate the FVRA by going outside of the order of succession, but by the time Wolf was appointed as acting secretary, no one was eligible to be “acting” secretary because the 210 day period had elapsed.

Read more at https://www.cato.org/blog/acting-officers-cant-act-forever-their-rules-are-illegitimate

Cato: There Is No Good Justification for the New Immigration Ban

 On January 31st, the Trump administration issued a proclamation that stopped the issuance of most green cards to citizens of Nigeria, Kyrgyzstan, Eritrea, Myanmar, Tanzania, and Sudan. If the ban applied to these countries in 2018, it would have blocked 12,313 green cards that year.

This is the second wave of ‘travel bans’ issued by the Trump administration since the initial ban of many predominately Muslim‐​majority countries in 2017. The stated justification for these bans is to protect the public from terrorist and criminal threats that could be committed by immigrants from those countries. Furthermore, they claim to target green card holders because it is more difficult to deport them than other migrants.

However, these claims are not supported by historical data about the threat of terrorist attacks on U.S. soil. Furthermore, because the administration fails to publicly release the criteria used to determine why these countries are banned, the public cannot truly know why these countries were chosen.

My own research shows that citizens of the new banned countries have not contributed significantly to terrorism. From 1975 through the end of 2017, 11 foreign‐​born terrorists from those countries attempted or committed attacks on U.S. soil. They murdered six people in their attacks. The annual chance of being murdered by a foreign‐​born terrorist from those six countries on US soil is approximately 1 in 1.9 billion per year.

Those six murders by terrorists, as tragic as they were, account for a mere 0.2 percent of the 3,037 people murdered by foreign‐​born terrorists on U.S. soil during that 43‐​year period. By those metrics, a ban on the listed countries would hardly curb terrorist attacks or do much of anything to protect Americans from the risk of attack.

The most perplexing part of the ban is that it targets green card holders, although they are even less likely to commit attacks on U.S. soil. Green cards are not the way terrorists attempt to enter the country. Only about 0.6 percent of all murders committed by foreign‐​born terrorists on U.S.-soil were committed by those who entered with green cards.

Read more at https://www.cato.org/blog/there-no-good-justification-new-immigration-ban

Cato: Quench the Fire of Partisan Judicial Politics

 The death of Justice Ruth Bader Ginsburg would be a tragedy at any time, but her death only six weeks before a rancorous presidential election has thrown a match into our already smoldering political tinderbox. At a time when inter‐​party animosity is uncomfortably high, it’s time to call upon the better angels of our nature to determine the future of our most precarious branch of government.

In the coming weeks, there will be much discussion—if not shouting—over who should choose Justice Ginsburg’s replacement and how the Senate should behave. While the constitutional questions are simple—the president has the right to nominate a justice and the Senate has the right to confirm or not—there are bigger questions of political and institutional propriety at stake. A well‐​functioning liberal democracy depends not only on determining what can be done—as in what is allowed by constitutional rules—but also what should be done.

The schismatic Trump era, and even the years before, have made the importance of institutional norms more apparent. Our Framers set up a well‐​designed constitutional framework, but that terse 4,500-word document hardly contains all the rules needed to construct a free, liberal, and tolerant society. Some norms, such as not threatening to jail your political opponents, help establish the process of a peaceful transfer of power. Other norms, such as not Borking Supreme Court nominees, were violated long ago and became the new normal.

Those constitutional virtues have not been on strong display over the past four years. Elections have been contested, diplomatic powers have been abused, and pardons have been distributed as personal and political favors. Meanwhile, armed protestors have taken to the streets and actually fought and murdered their political opponents.

Read more at https://www.cato.org/blog/quench-fire-partisan-judicial-politics

Cato: The Coming Battle Over Exclusive Representation

 Labor unions have always had a difficult time with those who don’t want the union’s representation. Those who crossed the picket line or those who were hired during a strike were called “scabs,” and unions sometimes employed violence or threats of violence against those who didn’t follow the union’s commands. One solution to this problem was the system of exclusive representation. Under exclusive representation, which was established by the National Labor Relations Act of 1935, if a majority of workers in a bargaining unit vote for a union, then that union becomes the exclusive representative for all the workers, even those who didn’t vote for it. Thereafter, workers are prohibited from bargaining on their own behalf.

Although exclusive representation is held up by some as a cornerstone of unionism, it is an antiquated practice that has many critics among labor union supporters. Union organizers and labor activists have written that exclusive representation was “designed to fit the immobile facilities and monolithic corporations that were at the heart of Fordist mass production, the system makes little sense in today’s world of fissured workplaces and flexible production.” Moreover, after the Supreme Court’s decision in Janus v. AFSCME, public‐​sector unions are no longer allowed to compel payments from nonmembers. Yet they still exclusively represent those nonmembers and owe a “duty of fair representation” even to those who aren’t contributing. 

It was thus no surprise that, after Janus, many people thought representation would be next on the Supreme Court’s chopping block, and a new case is asking the Court to extend its ruling in Janus to exclusive representation.

Read more at https://www.cato.org/blog/coming-battle-over-exclusive-representation

Cato: Breonna Taylor Is Another Victim of the War on Drugs

 Yesterday Kentucky Attorney General Daniel Cameron announced charges against one of the three officers who killed Breonna Taylor, an emergency medical worker who was shot when police raided her apartment on the suspicion that her ex‐​boyfriend, Jamarcus Glover, had received shipments of drugs at her address. The charges, three counts of wanton endangerment, were not for shooting and killing Ms. Taylor in her own home but for firing three stray rounds through a curtained window. Whether the charges, or lack thereof, are the appropriate legal response lies outside of our particular expertise, but widespread protests in the wake of the announcement show that many people do not feel justice has been served.

The Drug War killed Breonna Taylor. Former Detective Brett Hankinson, Sergeant Jonathan Mattingly, and Detective Myles Cosgrove may have pulled the trigger, but they carried out this raid because of our misguided, ineffective, and racist drug laws. Since President Nixon first declared a “War on Drugs” in 1971, Black Americans have been arrested, jailed, and killed for frequently minor or nonviolent drug offenses. No‐​knock raids, in which police are authorized to enter a property without notifying the residents, have become a favorite tool of law enforcement, with tens of thousands executed each year.

Read more at https://www.cato.org/blog/breonna-taylor-another-victim-war-drugs

Cato: How to Make Congress Great Again

 As I’ve argued repeatedly, Congress is a shell of its former self.

In last Sunday’s Washington Post, Paul Kane made the same point specifically with respect to Congress’s upper chamber. He wrote:

"The Senate tasked with holding President Trump’s impeachment trial would be unrecognizable to most of its predecessors … By almost every measure, today’s Senate is the least deliberative in the modern era of a chamber that bills itself as the world’s greatest deliberative body."

Congress’s weakness threatens liberty because it reflects a breakdown of the Constitution’s structural check on overbearing government. In modern America, policy flows from regulatory agencies known in the aggregate as the “administrative state.” From 1995 to 2017, the executive branch issued over 92,000 rules, compared to 4,400 laws enacted by Congress.

Over the last forty years, alas, Congress abandoned oversight of the agencies it had legislated into existence. Meanwhile, the president’s grip over administrative policymaking tightened with each successive administration.

With Congress M.I.A., the president has become the policymaker‐​in‐​chief at the head of the administrative state. Indeed, the presidency has become so powerful that one of the two parties in Congress—roughly half the legislature—loses interest in executive overreach whenever “their guy” occupies the White House.

Read more at https://www.cato.org/blog/how-make-congress-great-again

Cato: Officials Misled Congress to Ignore Asylum Law & Set Up Family Separations

 In 2018, the Department of Homeland Security (DHS) instituted a policy of capping the number of asylum seekers that it would process at southwest ports of entry in direct violation of the law, which states that officers “shall refer” aliens arriving in the United States “for an interview by an asylum officer.” In December 2018, DHS Secretary Kirstjen Nielsen defended this “metering” policy and told Rep. Zoe Lofgren in sworn testimony that the agency lacked the “capacity” to follow the law or even to increase at all the processing of people who arrive “without papers.”

In response to Freedom of Information Act (FOIA) requests, we now know this was an indefensible statement. DHS both had more agents than ever at the southwest border and had double the detention capacity than it was using in December 2018. It simply chose to ignore the law. The true purpose behind “metering” was to stop people from making asylum claims legally at the ports—as one DHS official admitted at the time—and force them into Border Patrol’s family separation machine.

This is how it played out: DHS set the caps on asylum at ports so low that families were stranded in squalid and dangerous conditions in Mexico. Facing destitution, homelessness, and crime, asylum seeking families crossed illegally around the ports in order to apply for asylum as the law allows. Border Patrol arrested those families and, from April to June 2018, separated the children from their parents in order to refer the parents for criminal prosecution for crossing illegally.

Nielsen never explained what she meant by the ports lacking processing “capacity,” but FOIA responses from Customs and Border Protection Office of Field Operations (CBP-OFO), the DHS component that handles admissions at ports of entry, show that it had more agents at its field offices along the southwest border than in 2016 when the agency processed more immigrants.

Read more at https://www.cato.org/blog/officials-misled-congress-ignore-asylum-law-set-family-separations

Cato: Trump the Decider

 The MQ-9 Reaper attack that took out Iranian General Qassim Suleimani was a drone strike for peace, President Trump explained last week: we took action “to stop a war. We did not take action to start a war.” That’s a theory, and it’s going to be put to the test. “All is well!” the president tweeted last night as a salvo of Iranian missiles fell on U.S. positions in Iraq: “So far, so good!”

Trump’s decision to target Suleimani—a figure described as the Iranian equivalent of “an American Vice President, chairman of the Joint Chiefs and CIA director rolled into one”—wasn’t the first time the U.S. government has aimed lethal force at a top government official. There’s the checkered—and occasionally absurd—history of the CIA’s Cold War assassination attempts, including the Kennedys’ efforts to kill Fidel Castro. But we’ve also gone after legitimate targets in congressionally authorized wars: the downing of Admiral Yamamoto’s plane in WWII and the attempted decapitation strike against Saddam Hussein at the start of the Iraq War.

The Suleimani killing was something new under the sun. It marked the first time an American president has publicly ordered the assassination of a top government official for a country we’re not legally at war with.

This is where you’re supposed to acknowledge that the Quds Force commandant was an evil guy who got what he deserved. Done. But that’s got nothing to do with whether the move was wise or constitutionally permissible.

U.S. forces took out Suleimani “at the direction of the President,” per the Pentagon’s announcement. On what authority, exactly? For now, the official rationale is classified. In terms of public justification, all we have is some hand‐​waving by Trump’s national security adviser about the president’s “constitutional authorities as commander in chief to defend our nation” and the 17‐​year old Authorization for the Use of Military Force in Iraq (2002 AUMF). Neither comes close to vesting the president with the power to set off a whole new war.

Read more at https://www.cato.org/blog/trump-decider

Cato: Colleges Shouldn’t Be Able to Get Away with Violating Student Speech Rights

 College is a time to think, to learn, to challenge others’ ideas, and to have your ideas challenged in turn. So thought Chike Uzuegbunam when he attempted to share his religious ideas with fellow students and ran into Georgia Gwinnett College’s “speech zone” policy.

Chike decided to share his beliefs, through one‐​on‐​one conversations and handouts, in a large plaza outside the library. Campus police ordered him to stop. They informed him that he could only speak in designated “speech zones.” Chike applied for permission to use a zone, but could only speak briefly before campus police again accosted him. This time he was told that his speech was “disorderly conduct,” which is any speech that causes discomfort, as judged subjectively by whoever might be listening. The police threatened Chike with prosecution and he was frightened into silence.

As a public college, Georgia Gwinnett is bound by the First Amendment not to abridge speech. But the school cordoned off the “free and open expression of divergent points of view” into two miniscule areas of campus, which were only available a few hours a day on weekdays and required a three‐​day advanced reservation. The college had unfettered discretion in approving who may speak and when and how.

Not stymied, Chike and Joseph Bradford—another student discouraged from speaking by the speech code—traded their soapboxes for jury boxes and took the school to court. When challenging unconstitutional speech policies, students may ask for two things: an injunction preventing the school from enforcing the policy against them going forward and money damages for the harm the policy has already done to them.

Read more at https://www.cato.org/blog/colleges-shouldnt-be-able-get-away-violating-student-speech-rights

Cato: Put an End to Unaccountable Fourth and Fifth Branches of Government

 One of the Constitution’s chief protections for liberty is the separation of powers. The legislative power is granted to Congress, the judicial power to the courts, and the executive power to the president. This division cannot be altered by anything short of a constitutional amendment. Still, since the beginning of the 20th century, Congress has enjoyed considerable success in limiting the president’s executive power through the creation of what are known as “independent agencies.”

One of the main differences between independent agencies and traditional executive departments is that while officers of the latter serve at the pleasure of the president, the heads of independent agencies are insulated from presidential removal except “for cause.” This structure denies the president the ability to exert control over independent agencies, even though they exercise significant executive power by enforcing laws and pursuing investigations.

In 2010, Congress added another independent agency to the ever‐​expanding administrative state: the Consumer Financial Protection Bureau. The CFPB is even less accountable to the democratically elected branches because, unlike every independent agency created in the 20th century, all of which are headed by multi‐​member commissions, the CFPB is headed by a single director, removable only for cause. The CFPB director has near‐​unilateral authority to enforce 19 federal laws, without answering to anyone. This is a problem.

Supporters of the CFPB’s constitutionality—a group that doesn’t now include the CFPB itself, as the Trump administration has changed sides—seek refuge in a 1935 Supreme Court case called Humphrey’s Executor. In that case, the Court, flying in the face of history and precedent, declared that limitations on the president’s ability to remove the heads of independent agencies were constitutional.

Read more at https://www.cato.org/blog/put-end-unaccountable-fourth-fifth-branches-government

Cato: A Flawed Proposal for Presidential Disability

 Speaker of the House Nancy Pelosi, together with Rep. Jamie Raskin (D-MD), held a press conference on Friday to introduce a bill to create a new body with an unwieldy name: the Commission on Presidential Capacity to Discharge the Powers and Duties of Office. Widely perceived as a largely symbolic action to highlight President Trump’s muddled handling of his recent COVID-19 diagnosis, this bill would invoke Congress’s power under the Twenty‐​fifth Amendment. In spite of the obvious timing, Pelosi insisted this bill is not about the current president. Raskin has proposed similar legislation earlier in Trump’s term, and the idea has come up sporadically over the decades.

President Trump’s fitness and immediate politics aside, is this bill a good idea? First, it’s important to understand the mechanics of the Twenty‐​fifth Amendment. Among other provisions, this amendment—passed in the wake of the Kennedy assassination and previous presidential health crises—allows the president to temporarily transfer power to the vice president, correcting a dangerous oversight in the original Constitution. This provision, in Section 3 of the amendment, has been invoked on occasion when presidents underwent medical procedures requiring sedation.

Section 4 is designed to handle the possibility of a president who is incapacitated before he or she is able to voluntarily transfer power. This requires invocation by the vice president, who together with “a majority of either the principal officers of the executive departments [i.e. the Cabinet] or of such other body as Congress may by law provide” may transfer power. The amendment then sets up a procedure for Congress to decide the matter if the president disputes his claimed inability.

Since the Twenty‐​fifth Amendment was ratified, Congress has never provided for “such other body,” leaving the decision with the fifteen members of the Cabinet. Raskin’s bill would change that by creating a bipartisan commission consisting of a mix of medical professionals and former senior executive branch officials.

Read more at https://www.cato.org/blog/flawed-proposal-presidential-disability

Cato: Keeping Impeachment Simple

 Last night, the House Judiciary Committee began debate on the two articles of impeachment unveiled earlier this week by HJC chairman Rep. Jerrold Nadler (D-NY). Despite recent talk about cluttering the articles with Emoluments Clause and Mueller probe accusations, in the end the Democratic leadership decided none of those charges sparked joy. The articles set for markup today focus exclusively on the Ukraine affair and President Trump’s response to the impeachment inquiry it launched.

The decision to Keep Impeachment Simple, Stupid was a smart call. The two articles confine the case against Trump to a digestible set of facts. Equally important, they avoid framing the president’s conduct in criminal‐​law, focusing instead on misuse of official power and violations of public trust.

The first article, on “Abuse of Power,” accuses Trump of conditioning a state visit and delivery of military aid on the Ukrainians announcing an investigation of his 2020 rival Joe Biden. In so doing, Article I charges, Trump misused the powers of his office “for corrupt purposes in pursuit of personal political benefit.”

I could have done without the far‐​fetched and irrelevant claim that Trump “compromised the national security of the United States” by holding up aid. But Article I does better at avoiding what I’ve called the “Overcriminalization of Impeachment.” Trying to shoehorn Trump’s conduct into one or more federal statutes invites a hypertechnical debate over federal bribery, extortion, and campaign‐​finance statutes that’s quite beside the point. The president doesn’t have to violate the law to commit an impeachable abuse of power. Historically, according to a comprehensive report by the Nixon‐​era House Judiciary Committee, “allegations that the officer has violated his duties or his oath or seriously undermined public confidence in his ability to perform his official functions” have been far more common than allegations of federal crimes.

Read more at https://www.cato.org/blog/keeping-impeachment-simple

Cato: You Shouldn’t Get Sued for Petitioning the Government

 It is the right of all citizens to petition the government without fear of punishment or retaliation. This is not only an essential individual right, but often necessary for the government to remain informed and make better decisions. Yet, when Maggie Hurchalla reached out to her county commissioners about a development plan and expressed her environmental concerns about the project, she was hit with a lawsuit.

Ms. Hurchalla is an environmental activist in Florida. She heard that the Lake Point development project may not be meeting environmental standards and emailed the county commission responsible for supervising the project. The county had already heard similar concerns and had initiated an investigation, which ultimately ended the project. In response, Lake Point sued everyone. The developer sued the county for stopping the development and Ms. Hurchalla for “tortious interference” in its business. The suit dragged on for years in Florida courts, culminating in a multimillion‐​dollar judgment against Ms. Hurchalla.

The case should not have gotten that far. This was a Strategic Lawsuit Against Public Participation (SLAPP) suit. Under the First Amendment, citizens have a right to petition the government for redress of grievances without fear of retaliation. The petitioning action does not need to be accurate, articulate or relevant. Private parties, however, often have vested interest in certain speech not being heard. SLAPP suits are tools that use the power of the courts to discourage speech.

Read more at https://www.cato.org/blog/you-shouldnt-get-sued-petitioning-government

Cato: The Second Amendment Returns to SCOTUS

 Based on today’s argument in New York Rifle & Pistol Association, the unconstitutionality of New York City’s obscure transportation restriction on licensed handguns seems to be a foregone conclusion, with the only real question being how the Supreme Court will respond to the City’s strategic attempt to moot the case by repealing the law before a ruling could be handed down.

On that question, the justices appear divided along predictable ideological lines, with Justices Ginsburg and Sotomayor taking a hard line in their questioning that the case is moot, and Justices Alito and Gorsuch pushing back with equal force for the proposition that the controversy remains live and the city should not be rewarded for its blatant efforts to frustrate Supreme Court review of its now abandoned policy.

The mootness issue is particularly significant in this case because it involves such a clear attempt by a government litigant to obtain favorable rulings in the lower courts (which have been generally—but not uniformly—supportive of gun regulations in Second Amendment challenges) while denying the Supreme Court the opportunity to reverse those rulings and order the lower courts to stop rubber‐​stamping gun regulations and apply a more searching level of judicial scrutiny.

Read more at https://www.cato.org/blog/second-amendment-returns-scotus

Cato: Jurisprudence Questions for Judicial Nominees That Are Actually Interesting

 So far, the Amy Coney Barrett confirmation hearings are proceeding in the way most people probably expected. Judge Barrett is confidently and calmly discussing her approach to judging, ably explaining past comments and decisions, and -- in accordance with the long-standing practice of prior nominees -- refusing to give commitments or comments about particular issues or cases. And the Senators are largely using the hearing to make political speeches. Democrats have mostly made policy arguments in support of the Affordable Care Act, criticized President Trump, and asked case-specific questions they knew Judge Barrett would never answer. Republicans, in turn, have asserted that religious liberty is important and asked fairly banal questions that mostly amount to "Judge Barrett, do you agree judges should interpret the law as written, or should they ignore the law and impose their own policy preferences?"

Given this state of affairs, I tend to agree with my colleague Ilya Shapiro that confirmation hearings no longer serve any valuable purpose, and they should probably be abandoned. While these hearings haven't been as bad as they could have been -- Democrats have, to their credit, mostly avoided character-driven attacks on Judge Barrett's faith -- they're not providing any useful information we didn't already know. And given the case- and issue-specific questions that dominate these hearings, I imagine they undermine judicial independence itself, by exacerbating the misperception that judges simply decide cases based on results they like.

This is unfortunate, however, because despite the caricatured nature of the questions both Republicans and Democrats tend to ask, there actually are interesting, challenging questions about judicial philosophy we could be exploring in these hearings. Judge Barrett has given a pretty standard defense of textualism, originalism, and the more general principle that judges should say what the law is, not what it should be. And Senate Democrats, by focusing nearly all their questions on policy arguments for case-specific outcomes, seem to be trying to do everything within their power to convince people that they actually do just want judges to be "super legislators," as it were.

But the reality is, at least at the level of generality that's been discussed so far, Judge Barrett's jurisprudence is typical not just for Republican nominees, but for the entire federal judiciary. It was, after all, Justice Kagan who famously said in 2015 "we're all textualists now," and who said at her confirmation hearing that, with respect to the nature of deciding cases, "it's law all the way down." Basically all judges agree the job of judging is to apply the law as it exists, not to impose their own value judgments, and basically all judges agree the words of legal texts, whether statutory or constitutional, should be interpreted as written, and given their ordinary meaning as it would have been understood by the people that passed it. While these ideas might once have been controversial in the judiciary, this just isn't where the interesting, challenging disagreements among judges actually are today.

So, it's discouraging that Democrats keep asking judicial nominees about case-specific policy issues, but it's also pretty cringey to hear Republicans talk as if judges appointed by Democrats actually embrace the idea that they should be "super legislators," or that simply being a textualist and originalist is enough to resolve difficult legal questions. As it turns out, judges can agree on abstract jurisprudential theories and nevertheless disagree on how to apply them in particular cases. Why? What explains those differences? What makes a case difficult, even for a textualist and originalist? Why are there certain areas where judicial decisions seem to overlap with political disagreements?

These are large, difficult questions, and I don't presume to have a grand unified theory answering them. But if we are going to have judicial confirmation hearings in an era of bitter partisanship, and if we expect those hearings to be at all informative, those are the sorts of questions we should be exploring.

Read more at https://www.cato.org/blog/interesting-jurisprudential-questions-judicial-nominees

Cato: Is Amtrak Guilty of Securities Fraud?

 A press release issued by Amtrak last week would, if it were published by publicly traded firm, be a violation of securities laws and regulations. The press release claimed that Amtrak’s FY 2019 annual financial report, which has yet to be published, would show that passenger revenues covered 99 percent of operating costs. Amtrak officials further projected that the company would show a profit for the first time in its history in 2020.

Neither of these claims are true because they grossly misrepresent what the annual report will say in two ways. Most important, the annual report will identify depreciation as one of Amtrak’s biggest costs, amounting to nearly 20 percent of its budget. Depreciation was $807 million in Amtrak’s 2018 annual report, and is projected to be around $50 million more in 2019.

Last week’s press release and other of Amtrak’s public statements pretend that depreciation doesn’t count. Yet depreciation is more than just a tax deduction: it is an actual measure of the wear‐​and‐​tear on infrastructure and equipment that must eventually be replaced.

The second problem is that Amtrak counts more than $225 million in tax subsidies from 18 states as “passenger revenues.” The vast majority of taxpayers who pay these subsidies never ride Amtrak trains, so they can hardly be considered passenger revenues.

Read more at https://www.cato.org/blog/amtrak-guilty-securities-fraud

Cato: Searching for Monopolies

 The Justice Department announced Tuesday that it was launching an antitrust lawsuit against Google alleging that the search giant’s deals with browser and operating system developers to make Google a default search engine amounted to anticompetitive behavior. The suit bears all the hallmarks of a political stunt—an unnecessary government intervention in the online search market that has little chance of yielding any meaningful benefit to consumers.

Oddly, the suit does not target Google’s dominance in the online advertising space, which has often been the focus of critics, but Internet searches, where it seems least plausible to claim the company enjoys anything like a monopoly. Internet users have a wide variety of easily‐​accessible options for online searches: While Google is the default search engine for most browsers and mobile operating systems in the United States, users can elect to use competitors such as Yahoo, Bing, and DuckDuckGo with almost no effort, either by manually visiting those pages, or by taking a few seconds to change their default engine settings. Though Google commands the lion’s share of search traffic, it is hard to seriously claim this is because consumers lack for choices—which would normally be a precondition of claiming a company enjoys a “monopoly.”

Just as Google itself rapidly displaced many older search engines like AltaVista and AskJeeves—which had become defaults for users in the 1990s—the company would quickly lose its dominant position if most users found that competitors yielded more relevant results, just as users routinely download and install apps that provide superior functionality to those already installed on their devices. Moreover, Google’s arrangements with operating system and browser developers are not materially different from, or more “anticompetitive” than, analogous deals for prominent product placement in stores familiar from brick‐​and‐​mortar markets. Indeed, those arrangements may produce consumer benefits by subsidizing the production of software that is free to the user. Nor is it credible to claim, as DOJ does that Google has established a stranglehold on search defaults by dint of its deep pockets: Its primary rival in competitive bids to be “default search engine” is the not‐​exactly‐​penurious Microsoft.

Read more at https://www.cato.org/blog/searching-monopolies

Cato: Supreme Court Should Review Ninth Circuit Error Regarding Alien Tort Statute

The Alien Tort Statute, passed as part of the Judiciary Act of 1789, gives federal courts the power to hear cases brought by foreigners who allege “a violation of the law of nations or a treaty of the United States.” The Supreme Court in Kiobel v. Royal Dutch Petroleum (2013) held that this law presumptively doesn’t apply to violations committed abroad—though that presumption can be overcome when claims “touch and concern the territory of the United States … with sufficient force.”

Then in Jesner v. Arab Bank, PLC (2018), the Court ruled that foreign corporations cannot be sued under the ATS because international norms about corporate liability are not settled. A lawsuit against a U.S. corporation based on actions taken abroad would thus seem to be a long shot, but the U.S. Court of Appeals for the Ninth Circuit has obliged with just that eventuality, in a case over atrocities committed in Côte d’Ivoire.

The underlying crimes around which this controversy revolves make up part of an ongoing series of human rights abuses in West Africa. The use of child slavery has garnered international attention and focused scrutiny on the cocoa trade from which abusive plantations draw their revenue. Nestlé, known for its chocolate among other foods and beverages, has condemned the modern slave trade and joined accords aimed at eliminating human trafficking in the region. But Nestlé U.S.A. and its Swiss parent find themselves in a long‐​running suit over the enslavement of a number of Malians on Ivorian plantations, on the basis of the corporations’ alleged purchase of cocoa on farms that used slaves.

Read more at https://www.cato.org/blog/supreme-court-should-review-ninth-circuit-error-regarding-alien-tort-statute 

Cato: Are Ideological Differences the Only Reason Republicans and Democrats Can’t Agree?

 Political polarization is rapidly becoming one of the greatest public issues of our time. As the Pew Research Center has found, fewer Americans are taking centrist views while more are shifting toward the extremes. The consequences are dire: the Pew Research Center found that 73% of Americans say Republicans and Democrats “not only disagree over plans and policies, but also cannot agree on basic facts.” And animus has turned personal; one PRRI study found that 35% of Republicans and 45% of Democrats would be very unhappy if their child married someone from the opposing party.

What accounts for this polarization? Are Americans just more divided over policies, like tax rates, abortion, and immigration? Or are we living in a more tribal era in which political attitudes are driven by partisan loyalties and animus toward opponents—regardless of the policy?

Some may recall when the Jimmy Kimmel show asked Hillary Clinton voters in 2016 if they supported a plan to cut corporate and estate taxes while telling them the plan was Clinton’s idea. The interviewees dutifully agreed, only to be told later that it was actually proposed by Trump rather than Clinton. Kimmel concluded, “It seems to me most people pick a candidate and go along with whatever that candidate says.”

Read more at https://www.cato.org/blog/are-ideological-differences-only-reason-republicans-democrats-cant-agree

Cato: You Can’t Copyright the Law

 Georgia gives the legal resource database Lexis an exclusive copyright to publish the Official Code of Georgia Annotated (OCGA), thus restricting its citizens’ ability to access and understand the laws that bind them. Pub​lic​.Resource​.org (PRO) is a nonprofit dedicated to improving the public’s access to government records and primary legal materials. PRO purchased all 186 printed volumes of the OCGA, scanned them, and uploaded them to their website to be freely accessed. The Georgia Code Revision Commission sent letters to PRO demanding that they take the OCGA down, but PRO refused, prompting a lawsuit.

PRO argued that the general rule that government codes and judicial opinions can’t be copyrighted should also apply to annotated codes. They won in the Eleventh Circuit, but Georgia appealed to the Supreme Court and the Court agreed to hear the case. Cato, joined by the Center for Democracy and Technology, has filed a brief in support of Pub​lic​.Resource​.org. We argue that the logic behind copyright does not apply to codes of law that bind the public, even if the code has annotations.

An exclusive copyright over the product of normal legislative deliberation is a violation of the public’s trust. The people fund the government, including legislators’ salaries, in exchange for the enactment of laws designed to ensure public safety and order. Lawmakers certainly do not need copyright protection to incentivize creating laws. Georgia argues that the annotations—various cross references, commentaries, case notations, editor’s notes, excerpts from law review articles, etc.—are deserving of copyright, and Lexis does provide free access to the unannotated Georgia Code. But the annotations are vital to understanding the law and are created by the Code Revision Commission. Like the code itself, the annotations are, in the words of the Eleventh Circuit, “an exercise of sovereign power.”

Read more at https://www.cato.org/blog/you-cant-copyright-law

Cato: Get a Warrant

 Last week, the Supreme Court granted cert in a Fourth Amendment case, Lange v. California, that asks whether a police officer in "hot pursuit" of a suspected misdemeanant must get a warrant before entering the suspect's home. That question turns out to be momentous for several reasons, two of which are obvious and one of which is less so but may be even more profound.

First, the vast majority of arrests in this country are for misdemeanors. Citing our friend Alexandra Natapoff, Lange's cert petition notes that "[r]oughly thirteen million misdemeanor cases are filed each year, outnumbering felonies by four to one." Indeed, as Prof. Natapoff documents in her wonderful book, Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal and in this interview, "[t]he misdemeanor system represents 80 percent of the state criminal dockets in this country." Thus, contrary to Justice Souter's misperception in one of the Supeme Court's most important misdemeanor cases, Atwater v. City of Lago, we certainly are "confronting . . . an epidemic of unnecessary minor-offense arrests." Moreover, as Prof. Natapoff and others have documented, arrests for even minor offenses can have devestating effects on people's lives. Among other things, misdemeanors "are moneymakers for local jurisdictions," and the fines, court fees, and other monetary penalties they impose can result in crushing debt and a cascading financial crisis from which it becomes impossible for many people to escape. Besides the direct financial implications, a misdemeanor conviction can have serious collateral consequences, including loss of employement, housing, and eligibility for various government benefits. In short, contrary to what you—or, perhaps more to the point, many judges—might think, a misdemeanor arrest is a really big deal.

Second, allowing police officers to storm into people's houses unexpectedly is a terrible idea, as at least some judges have understood for several hundred years. As recounted in an amicus brief filed by the National Assocation of Criminal Defense Lawyers (NACDL), a 1757 case from England involved “a murder conviction of a man who reacted to a peace officer’s entry into his friend’s workshop by striking the officer dead with an ax." As the judge in that case recognized, occupants must be told whether an officer barging into a home or office "cometh as not as a mere trespasser, but claiming to act under proper authority." Fast forward two centuries to a case where an American plainclothes detective pried open the window of a rooming house to investigate a suspicious noise, startling the landlady, and we see Justice Robert Jackson presciently warning that “[m]any home-owners in this crime-beset city doubtless are armed. When a woman sees a strange man, in plain clothes, prying up her bedroom window and climbing in, her natural impulse would be to shoot [him].” If anything, this concern has only grown more acute as police have become more militarized and more people have chosen to exercise their constitutional right to own a gun at home for self defense. Underscoring that point, the NACDL's amicus brief describes a number of hairraising incidents where police barged into a home without a warrant in "hot pursuit" of supsected misdemeanants—including a young man who relieved himself on a corner of his girlfriend's outdoor patio—with sometimes tragic results. In short, there have always been compelling reasons to be extraordinarily careful about allowing armed agents of the state to come storming into people's homes unannounced, even if they conflict with the government's strong preference for volume and efficiency in the administration of criminal justice.

Read more at https://www.cato.org/blog/get-warrant

Cato: Another Unnecessary Police Killing

 Thanks to the work of the Washington Post, we know that American police fatally shoot roughly 1,000 people every year. Many of these people are armed, some are certainly dangerous, and most of the shootings will be found to be “justified.” Justified can mean many things, particularly because most state laws and federal judicial precedent give police officers extraordinary discretion to use lethal force.

Indeed, the legal standard for an officer to use lethal force—nicknamed the “reasonably scared cop rule” by defense attorney Scott Greenfield—is so broad that almost every unjustified shooting must be plainly egregious. Atatiana Jefferson, 28, was killed in one such unjustified shooting this past weekend in Fort Worth, Texas.

Fort Worth police officers responded to a call for service at Jefferson’s home because a neighbor reported that the door to the house was open, and that was unusual for late night/early morning hours. One of the officers, Aaron Dean, walked around the house to investigate the area and do a “welfare check,” a police term for making sure everything is OK.

The body camera footage released by Fort Worth Police Department shows the moment when Dean suddenly turns toward the window, shouted “Put your hands up, show me your hands!,” and then shoots through the window of the home. Jefferson was killed in front of her eight-year-old nephew, with whom she had just been playing video games.

Read more at https://www.cato.org/blog/another-unnecessary-police-killing

Cato: Judge: Seattle’s Aid To Protest Zone Might Have Been a Taking

 Ordinarily you can’t sue the government for failing to protect you from private criminal actors. But a federal judge has allowed a suit to go forward filed by business owners against the city of Seattle over injuries done by far‐​left activists who seized 16 blocks this June and proclaimed a weeks‐​long “autonomous zone” (CHOP or CHAZ).

Law professor Ilya Somin writes that he initially approached the case with skepticism, but was surprised to find it stronger than expected. The reason: the plaintiffs argue that the city did not merely stand by passively, but assisted the occupiers by letting them use city property such as street barriers which hindered the plaintiffs from enjoying free access to their businesses and homes. Because the city government had taken many affirmative steps to assist the occupation, as contrasted with omissions, the episode could be interpreted as a temporary taking of property for which compensation is due. (The judge also allowed two due process claims to proceed.) 

Read more at https://www.cato.org/blog/judge-seattles-aid-protest-zone-might-have-been-taking

Cato: Supreme Court Should Decide the “Expressive Wedding Vendor” Issue Once and for All

 Arlene’s Flowers, run by Barronelle Stutzman in the southeastern Washington town of Richland, designs and sells floral arrangements for many occasions in Richland, Washington. Mrs. Stutzman, for religious reasons, believes that marriage is a spiritual union between a man and a woman and doesn’t create floral arrangements same‐​sex weddings. This case began when long‐​time clients Robert Ingersoll and Curt Freed asked Mrs. Stutzman to create the floral arrangements for their wedding. She respectfully declined and referred them to several nearby florists.

To be clear, Mrs. Stutzman serves everyone regardless of sexual orientation or any other category. For nearly a decade, Messrs. Ingersoll and Freed used Mrs. Stutzman for their anniversary and Valentine’s Day needs, for example. Nevertheless, Mrs. Stutzman’s conscience won’t allow her to provide flowers to celebrate a same‐​sex marriage, even for long‐​time friends and customers.

Mr. Freed’s Facebook posts expressing disappointment at the situation gained media attention, which caused the couple to receive enough free floral arrangement offers to have 20 weddings. Additionally, the Washington attorney general personally reached out to the couple. Both the couple and the state ended up suing Mrs. Stutzman for violating Washington’s antidiscrimination law.

The 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. The U.S. Supreme Court remanded the case for reconsideration in the light of its 2018 ruling in a similar context (except a baker instead of a florist) in Masterpiece Cakeshop v. Colorado Civil Rights Commission that state officials displayed anti‐​religious animus and thus could not enforce their law. In the absence of similar anti‐​religious red flags, it’s probably not surprising that the state supreme court reinstated its previous opinion almost verbatim.

Read more at https://www.cato.org/blog/supreme-court-should-decide-expressive-wedding-vendor-issue-once-all

Cato: SCOTUS Decides That Inhumane Treatment of a Prisoner Violated “Clearly Established Law”

 Qualified immunity is a judicial doctrine that protects public officials from liability when they violate people’s constitutional rights, unless those rights were “clearly established” at the time of their violation. Since the Supreme Court invented this “clearly established law” standard in 1982, it has issued 32 qualified immunity decisions, and only twice found that a defendant’s conduct actually violated “clearly established law” (and these two cases were decided nearly two decades ago). Thus, the practical effect of the Court’s decisions has been to make “clearly established law” more and more difficult for plaintiffs to show; today, many lower courts effectively require plaintiffs to find a prior case with nearly identical facts before they will hold that the law was clearly established. 

But this morning, for the first time in sixteen years, the Supreme Court issued a qualified immunity decision in which it held that the defendants’ actions violated “clearly established law.” The case is Taylor v. Riojas, in which the Fifth Circuit upheld a grant of immunity to prison officials who subjected Trent Taylor to horrific and inhumane prison conditions. Taylor was kept for several days in a cell that was covered floor to ceiling with the feces of the previous occupant, and where feces was packed into the water faucets, preventing him from drinking. He was then moved to a second cell, which was kept at freezing temperatures, and where a clogged drain on the floor caused raw sewage to flood the cell, forcing him to sleep in sewage. The prison officials were well aware of these conditions, and at one point laughed that Taylor was “going to have a long weekend.” Notwithstanding this obviously inhumane treatment, the Fifth Circuit granted immunity to these officials, because while “the law was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end,” it had not previously held that confinement in human waste for six days violated the Constitution.

Read more at https://www.cato.org/blog/scotus-decides-inhuman-treatment-prisoner-violated-clearly-established-law

Cato: Supreme Court May Be Preparing to Consider Several Major Cases on Qualified Immunity

 For the last couple of years, the Cato Institute, along with other public interest groups, academics, and lower court judges from across the ideological spectrum, has been urging the Supreme Court to reconsider the doctrine of qualified immunity. This atextual, ahistorical doctrine — which shields public officials from liability, even when they break the law — was essentially invented out of whole cloth by the Supreme Court in 1967. And the modern version of the doctrine, in addition to being unjust and unlawful, has proven incapable of consistent, principled application in the lower courts. There is thus every reason for the Court to reconsider its precedent on this subject, as many of the Justices themselves have already suggested. And now, with several major qualified immunity cases on the horizon, it appears the Court may finally be preparing to take up the matter.

The main reason for my suspicion here has to do with recent developments in Baxter v. Bracey. This is the case where the Sixth Circuit granted qualified immunity to two officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up. A prior case had held that it was unlawful to use a police dog without warning against an unarmed suspect laying on the ground with his hands at his sides. But despite the apparent similarity, the Sixth Circuit found this precedent insufficient to overcome qualified immunity because “Baxter does not point us to any case law suggesting that raising his hands, on its own, is enough to put [the defendant] on notice that a canine apprehension was unlawful in these circumstances” (emphasis added). In other words, prior case law holding unlawful the use of police dogs against non‐​threatening suspects who surrendered by laying on the ground did not clearly establish that it was unlawful to deploy police dogs against non‐​threatening suspects who surrendered by sitting on the ground with their hands up.

The ACLU filed a cert petition on behalf of Mr. Baxter, asking the Supreme Court to consider whether “the judge‐​made doctrine of qualified immunity” should “be narrowed or abolished.” The Cato Institute filed a brief in support of this petition, as did a vast, cross‐​ideological array of other public interest groups and leading scholars of qualified immunity. The petition was originally set to be considered at the Supreme Court’s long conference on October 1st — that is, the first conference of the term, where the Justices resolve a large number of petitions that were submitted over the summer recess. Emma Andersson (one of the ACLU attorneys on the case) and I wrote a joint op‐​ed discussing the case back in July, and Law360 recently ran a detailed story on Baxter, asking “Could A Dog Bite Bring An End To Qualified Immunity?” All of us were holding our breath as the Supreme Court prepared to start its new term…

Read more at https://www.cato.org/blog/supreme-court-may-be-preparing-consider-several-major-cases-qualified-immunity

Cato: Biden Appoints Congestion Supporters

 Phillip Washington, the transit executive who thinks Los Angeles isn’t congested enough, has been named the leader of Biden’s transition team in charge of the Department of Transportation and Amtrak. Washington is the CEO of Los Angeles Metro, the main transit agency in Los Angeles County.

A year ago, as Los Angeles bus ridership was collapsing due to LA Metro’s insistence on building costly light rail, Washington blamed the loss of bus riders instead on Los Angeles’ famously uncongested freeways. “It’s too easy to drive in this city,” he told the Wall Street Journal. To restore bus ridership, the city has to “make driving harder.”

“Sometimes you have to tell people what’s good for them,” Washington also told the Journal. He will clearly fit right in to Biden’s top‐​down view of how the world should work. Washington’s support for obsolete light‐​rail transit will go hand‐​in‐​hand with Biden’s support for obsolete intercity passenger trains.

Read more at https://www.cato.org/blog/biden-appoints-congestion-supporter