Published: Tue, 25 Oct 2016 00:00:00 -0400
Last Build Date: Tue, 25 Oct 2016 08:02:14 -0400
Mon, 24 Oct 2016 00:01:00 -0400Donald Trump is a clear menace to our democratic form of government, the rule of law and my James Madison bobblehead. The teenage Ted Cruz could recite the entire Constitution from memory. Trump wouldn't know it from Two Corinthians. But it's not exactly safe to entrust your copy of the Constitution to Hillary Clinton, either. You might get it back with some parts missing or mutilated—like the First Amendment and the Second. When it comes to gun rights, Clinton has taken a position appreciably to the left of Barack Obama's. From his first presidential campaign, he has assured gun owners he respects their cherished prerogatives and would never take away their weapons. When the Supreme Court issued its landmark 2008 decision in D.C. v. Heller, he applauded it. "I have always believed that the Second Amendment protects the right of individuals to bear arms," Obama said. Not Clinton. When asked in June whether she endorses that interpretation, she conspicuously declined to do so. "For most of our history, there was a nuanced reading of the Second Amendment, until the decision by the late Justice Scalia," she groused. Asked whether she agrees "that an individual's right to bear arms is a constitutional right," Clinton replied, "If it is a constitutional right, then it, like every other constitutional right, is subject to reasonable regulations." If? In her final debate with Trump, Clinton was asked again about the Heller decision. She reiterated her opposition, insisting that "what the District of Columbia was trying to do was to protect toddlers from guns, and so they wanted people with guns to safely store them." She eventually said, "I also believe there's an individual right to bear arms." So Clinton rejects the Supreme Court decision that established constitutional protection for that right—but now agrees the right has constitutional protection? As former Federal Reserve Chairman Alan Greenspan once said, "If I seem unduly clear to you, you must have misunderstood what I said." She and Obama both favor universal background checks for gun purchases, a ban on "assault weapons" and denying guns to anyone on the federal no-fly list. But her cramped view of the Second Amendment suggests she would favor additional curbs that she knows the Supreme Court would not abide. Clinton seems to think that a new justice or two might set the Second Amendment right. On the First Amendment, however, she sees the Supreme Court as a lost cause. Her target is the 2010 Citizens United decision, which established the right of corporations and labor unions to participate in electioneering. In the debate, she said it "has undermined the election system in our country because of the way it permits dark, unaccountable money to come into our electoral system." But all the decision did was to prevent the government from suppressing speech about political matters. The justices noted that under the law it struck down, it would be a felony for the Sierra Club, within 60 days of a general election, to run an ad urging "the public to disapprove of a Congressman who favors logging in national forests." The court ruled that speech doesn't lose protection merely because it comes from corporations—a category that includes many advocacy groups. Such expression would be censored if Clinton had her way. She proposes a constitutional amendment to overturn the decision—which would alter the Bill of Rights to restrict our freedoms. The idea has drawn opposition from the American Civil Liberties Union, which says, "Our system of free expression is built on the premise that the people get to decide what speech they want to hear; it is not the role of the government to make that decision for them." Her alarms about "dark money"—contributions to politically active groups that don't have to reveal their donors—are misplaced. In the 2014 campaign, 77 percent of political spending was fully disclosed, according to the Center for Responsive Politics, up from 45 percent in 2010. What Clinton omits is that Congress could require more transparency from these group[...]
Fri, 21 Oct 2016 11:15:00 -0400
(image) Sen. Jeff Flake of Arizona has a message for his fellow Republicans. In an interview with Politico, Flake said that if Hillary Clinton wins the election next month, Senate Republicans should stop stonewalling and instead move quickly to hold hearings and a vote on Merrick Garland, the languishing Supreme Court nominee put forward by President Barack Obama back in March. "If Hillary Clinton is president-elect then we should move forward with hearings in the lame duck," Flake said. "That's what I'm encouraging my colleagues to do."
What explains Flake's thinking? In the words of Politico, "the political calculus is straightforward: Better to deal with Garland now and avoid swallowing a more liberal nominee from Hillary Clinton."
But not every Republican is on the same page as Flake. Sen. Mike Lee of Utah, for example, believes that Garland will be just as left-wing as any nominee that Clinton might offer. "I don't believe there would be a real substantive distinction, a real noticeable difference between the voting pattern of a justice who would be appointed by a President Hillary Clinton...and Merrick Garland," Lee recently said.
Meanwhile, over in the House of Representatives, Republican Congressman Justin Amash disagrees with all of the above. According to Amash, the Senate should reject Garland right now because Garland is a lousy nominee in his own right—plus, Garland may well be worse than anybody put forward by Hillary Clinton. "Odds are the next president will pick someone less extreme than the anti-libertarian Garland," Amash wrote last night on Twitter. Amash then elaborated on the point: "Garland is 'moderate' only from the view of political elites. His record is anti-civil liberties and pro-unchecked executive powers."
Amash is correct about Garland's record, which is replete with judicial deference to both law enforcement agencies and to the executive branch.
All of which raises an interesting question. If the Senate does hold hearings on the Garland nomination, how many Senate Republicans will be forced to admit that they approve of Garland's judicial passivity in these important areas of the law? Like it or not, the Senate is not exactly packed to the gills with libertarian-minded lawmakers in the vein of Justin Amash (or Rand Paul). What will traditional conservatives have to say about Garland's record on these matters? What about the so-called law and order crowd? Remember, from the standpoint of a certain type of legal conservatism, the courts should be deferential towards the actions of police and prosecutors, or should be deferential towards the "inherent" powers of the presidency. Perhaps Garland will pick up more than a few votes from those segments of the Senate GOP.
If nothing else, Senate confirmation hearings on Merrrick Garland would be a positive development because they might force conservative lawmakers to publicly air their differences on these crucial legal questions.
Thu, 20 Oct 2016 12:00:00 -0400
(image) "It's all about the Constitution," Donald Trump declared last night at the third and final presidential debate. Asked about the future of the U.S. Supreme Court by moderator Chris Wallace, Trump was seeking to explain why voters should trust him to nominate justices with "a conservative bent" who will view "the Constitution the way it was meant to be. [T]hose are the people that I will appoint."
But why should voters trust Trump to appoint constitutionally sound judges when so much of Trump's own agenda is so manifestly unconstitutional? Donald Trump may be many things, but one thing that he most certainly is not is "all about the Constitution."
What's unconstitutional about Trump's agenda? Here are a few examples:
In short, Trump's agenda bears little resemblance to "the Constitution the way it was meant to be."
Thu, 20 Oct 2016 06:30:00 -0400The next president will appoint at least one and perhaps as many as three Supreme Court justices, who in turn will have a decisive impact on the Court's jurisprudence for decades. But last night's presidential debate revealed that neither of the major-party candidates understands what Supreme Court justices are supposed to do. Moderator Chris Wallace started the discussion off on the wrong foot by asking the candidates where they "want to see the Court take the country," implying that justices are legislators in black robes, pursuing a policy agenda instead of deciding the controversies that come before them. Both candidates seemed to agree with that premise. Donald Trump promised that "the justices that I'm going to appoint will be pro-life" and will therefore vote to overturn Roe v. Wade, the 1973 ruling that discovered a right to abortion in the 14th Amendment's Due Process Clause. There are good reasons to think Roe v. Wade was wrongly decided, or at least that its constitutional rationale left much to be desired. But a justice's personal views on abortion are logically and legally distinct from the issue of Roe's soundness. A conscientious justice strives to separate his policy preferences from the question of what the Constitution allows or requires. Even if you think abortion should be banned, it does not necessarily follow that the Constitution allows states to ban it. And even if you think abortion should be legal, it does not necessarily follow that the Constitution prohibits states from banning it. A justice who ignores these distinctions is writing law instead of applying it. Hillary Clinton also promised to appoint justices who will help her achieve the policies she favors, which include speech restrictions that protect politicians like her from criticism close to an election. Clinton said her Supreme Court picks "will stand up and say no to Citizens United, a decision that has undermined the election system in our country because of the way it permits dark, unaccountable money to come into our electoral system." Clinton neglected to mention, as she always does when discussing Citizens United v. Federal Election Commission, that the case involved a movie that made her look bad. The Court concluded that a conservative group organized as a nonprofit corporation had a First Amendment right to present Hillary: The Movie on pay-per-view TV while Clinton was seeking the Democratic presidential nomination in 2008. Presumably Clinton disagrees. But instead of explaining why, she says the decision should be overturned because "it permits dark, unaccountable money to come into our electoral system." Clinton worries that these dastardly dollars are "drowning out the voices of ordinary Americans and distorting our democracy." But that is not a constitutional argument. Even if Clinton were right about the baleful impact of Citizens United, it would not follow that the First Amendment permits the sort of self-serving censorship she favors. In addition to promising Supreme Court justices who agree with her that suppressing Hillary: The Movie was consistent with freedom of speech, Clinton said her picks would "stand on the side of the American people, not on the side of the powerful corporations and the wealthy." That sounds like she thinks the Court should be biased against big businesses and rich people, a position that cannot be reconciled with the constitution or the statutes that the justices are charged with interpreting and applying. The law is supposed to provide equal protection to all Americans, regardless of their income or wealth. Clinton is also wrong when she says "the Supreme Court should represent all of us." That is what a democratically elected legislature is supposed to do. A court is supposed to apply the law, a function that does not cater to constituencies or dole out favors based on political considerations. In light of that role, Chris Wallace's other question about the Supreme Court was more apposite: "What's your vie[...]
Mon, 17 Oct 2016 11:15:00 -0400Today a group of 29 leading libertarian and conservative advocates of constitutional originalism signed their names to a statement titled "Originalists Against Trump." It begins, "We, the undersigned lawyers and scholars, are committed to the original meaning of the Constitution of the United States. We write to oppose the election of Donald Trump." There are some impressive names on this list. Among them are Northwestern law professor Steven Calabresi, one of the original founders of the Federalist Society; Case Western Reserve law professor Jonathan Adler, one of the intellectual architects behind the 2015 Obamacare legal challenge in King v. Burwell; and New York University law professor Richard Epstein, author of the highly influential 1985 book Takings: Private Property and the Power of Eminent Domain. Why do they oppose Trump? Here's what they have to say: Trump's long record of statements and conduct, in his campaign and in his business career, have shown him indifferent or hostile to the Constitution's basic features—including a government of limited powers, an independent judiciary, religious liberty, freedom of speech, and due process of law. But what about the Supreme Court? We also understand the argument that Trump will nominate qualified judicial candidates who will themselves be committed to the Constitution and the rule of law. Notwithstanding those he has already named, we do not trust him to do so. More importantly, we do not trust him to respect constitutional limits in the rest of his conduct in office, of which judicial nominations are only one part. But what about Hillary Clinton? We are under no illusions about the choices posed by this election—or about whether Hillary Clinton, were she elected, would be any friend to originalism. Yet our country's commitment to its Constitution is not so fragile that it can be undone by a single administration or a single court. Originalism has faced setbacks before; it has recovered. Whoever wins in November, it will do so again. Originalism is a commitment to the Constitution, not to any one political party. And not every person who professes support for originalism is therefore prepared to be President. We happen to see Trump as uniquely unsuited to the office, and we will not be voting for him. Read the complete statement here. There is one name that I was surprised to find missing from the "Originalists Against Trump" list. That's the name of Alan Gura. Gura is perhaps the single most influential originalist lawyer at work in America today. In 2008 Gura argued and won District of Columbia v. Heller, the landmark Supreme Court case in which the Second Amendment was recognized as an individual right. Two years later, Gura argued and won McDonald v. City of Chicago, the landmark Supreme Court case in which the Second Amendment was applied against the states via the 14th Amendment. And, to say the least, Gura is no fan of Trump. Here's a snippet of what Gura recently told me about whether or not SCOTUS is a good reason to support the GOP candidate: Donald Trump has effectively identified the horrific prospect of Hillary Clinton appointing at least one and perhaps several Supreme Court justices, to say nothing of the lower courts. But shall we entrust that task to an insecure lunatic, a fascist caudillo, an autarkist, a proud ignoramous and conspiracy theorist, the aspiring leader of a "Workers' Party" who plays footsie with racists and anti-Semites and might well be a Russian agent? I have no illusions about what Hillary would do to the federal bench. Sad! But there is something deeply contradictory about the notion of electing a power-hungry strongman on the theory that he'll appoint judges that respect and enforce constitutional limits on government. Did Hugo Chavez appoint great judges? Did Putin, Mussolini, or Erdogan? Would it have mattered had they sort-of kinda suggested that they would? Related: My thoughts on why Trump can't be trust[...]
Fri, 14 Oct 2016 14:50:00 -0400For nearly seven months now Republican Senators have refused to either hold hearings or hold a vote on President Barack Obama's nomination of Judge Merrick Garland to the U.S. Supreme Court. But what happens after next month's presidential election? More specifically, what happens to the Garland nomination if Hillary Clinton wins? Will Republican Senators move to confirm Garland in a lame-duck session on the theory that Clinton will throw Garland under the bus and nominate a more aggressive liberal jurist of her own choosing early next year? According to Republican Sen. Mike Lee of Utah, the answer to that last question seems to be a firm no. As The Washington Post reports, Lee rejects the idea that Garland is any sort of moderate compromise. Lee thinks that Garland will prove to be just as liberal as any Hillary Clinton SCOTUS pick. Here's what Lee had to say this week after a debate at Brigham Young University, via the Post: "Make no mistake: As a former law clerk . . . I don't believe there would be a real substantive distinction, a real noticeable difference between the voting pattern of a justice who would be appointed by a President Hillary Clinton . . . and Merrick Garland," he told reporters after the debate. "I just don't think there is much, if any, difference." Lee argued that "the last Democratic nominee to the Supreme Court . . . who voted independently" was Byron White, appointed by John F. Kennedy in 1962. "Not a single Democratic nominee to the U.S. Supreme Court since then has voted independently on those matters. Not one," Lee said. "Republicans have been all over the map, all over the spectrum. Democrats vote in lock step. . . . That is how it works. I don't think Merrick Garland would be any different. The only difference is his age." It's generally true that we see more lock-step voting from the Court's liberals than we see from the Court's conservatives. In part that's due to the fact that some of the most significant legal debates that are happening right now are happening on the broadly defined legal right (i.e., among libertarians and conservatives) and those debates are playing out among the Court's right-leaning justices. But the legal left has its divisions, too, and those divisions are likely to become more pronounced on the Supreme Court in the years to come. For example, consider those cases that deal with the criminal justice system and the Fourth Amendment. When it comes to that area of the law, Merrick Garland has a record of judicial deference to police and prosecutors. In that regard, Garland most closely resembles liberal Justice Stephen Breyer, whose own record is marked by extremely deferential votes in favor of law enforcement in divided Fourth Amendment cases. But we should not lose sight of the fact that Breyer's approach is not the only approach favored by liberal judges. There is also the approach of Justice Sonia Sotomayor, who "is fast becoming the Supreme Court's biggest defender of the Fourth Amendment," as I detailed back in July. Unlike Breyer and Garland, Sotomayor has little interest in tipping the scales in favor of police and prosecutors. As she told one Justice Department lawyer during the 2015 oral arguments in Rodriguez v. United States, "we can't keep bending the Fourth Amendment to the resources of law enforcement." I suspect that if Merrick Garland ever ends up on SCOTUS, he is not going to vote in lock step with opinions like that.[...]
Wed, 12 Oct 2016 15:00:00 -0400Many conservatives and libertarians are openly flirting with voting for Donald Trump because they fear ceding control of the Supreme Court to liberals. They reckon that Hillary Clinton's judicial appointments are guaranteed to be awful. Trump, on the other hand, despite all his flaws, has no reason to oppose originalist jurists committed to protecting limited government and constitutional checks and balances. If it were any other candidate, this would be a reasonable argument. But this is Donald J. Trump we are talking about. There is no doubt that Trump's list of potential justices—shrewdly released to calm conservatives jittery over his many heterodoxies—is a good one. It includes judges such as 7th Circuit's Diane Sykes, who wrote a stellar opinion defending the First Amendment right of Americans to record police officers in public, and 10th Circuit's Neil Gorsuch, who attacked judicial deference to unconstitutional executive edicts. My personal favorite (for sentimental reasons) is Michigan Supreme Court Justice Robert Young, who married my husband and me, and authored a fantastic opinion overturning the notorious Poletown ruling that permitted Detroit authorities to use the city's eminent domain powers to bulldoze a flourishing neighborhood to make room for a GM factory. Still, it would be a mistake to put too much stock in Trump's list—and not only because he is an ignoramus who thinks judges "sign bills." Or because his word is worth less than his bankrupt Atlantic City casinos. Or because his temperamental and character flaws are too great to be offset by a good court. It is because a Trump presidency will have a transformative effect on the GOP itself. Indeed, by the time he's done, the GOP will have little use for originalism or limited government. Whatever the external threat a Clinton presidency represents to these ideas, the internal threat that Trump poses is far greater. It is unclear how many justices the next president will appoint, but if Clinton only fills the late Justice Antonin Scalia's vacant seat, she'll tip the Supreme Court in a liberal direction. That still does not justify the apocalyptic tone that some conservatives strike, notes Ian Tuttle of the National Review, far from a lefty rag. That's because setting aside the high-profile cases that both sides use to rally their base, on a day-to-day basis, partisan disagreements don't affect the court all that much. Tuttle notes that between January 2012 and June 2014, the Supreme Court ruled against the Obama administration unanimously 13 times—on everything from recess appointments to abortion clinic "buffer zones." Nor was this an anomaly. Since 1995, more than 40 percent of cases were settled unanimously by the court. Despite their ideological disagreements, justices are far more united than divided on the law. And presidents, by and large, have respected the independence of the judiciary and left the court alone to settle cases as it sees fit—with some notorious exceptions like FDR. He famously threatened to force justices who struck down the New Deal into retirement and "pack the court" with more pliant ones. Trump would be FDR on steroids. He savaged Judge Gonzalo Curiel's "Mexican" heritage because the judge didn't dismiss the case against Trump University. If something as low stakes as this can set Trump off, imagine what he'll do if the Supreme Court takes up a challenge to a signature issue of his presidency? A Trump presidency is likely to be a rolling wave of one manufactured constitutional crisis after another. That, however, isn't likely to be President Trump's worst damage. To the extent that Trump has a vision for the GOP, it is along the lines of Europe-style workers' parties (his term) such as France's National Front. This is an authoritarian, nationalistic, right-wing party whose main goal is to aggressively realign the economy around the interest of domestic[...]
Mon, 10 Oct 2016 17:30:00 -0400
(image) Libertarian presidential candidate Gary Johnson recently paid a visit to the editorial board of The Wall Street Journal. Here is how Johnson responded to a question about the U.S. Supreme Court, according to the Journal's Joseph Rago:
Asked about his ideal Supreme Court justice, Mr. Johnson names Anthony Kennedy, "I guess." But what about Kelo v. New London, the 5-4 decision in 2005 that held eminent domain is more or less unlimited authority to confiscate private property—with Justice Kennedy writing for the majority? [Note: Kennedy did not write for the majority. He joined the majority and wrote a concurrence.] "That was horrible," Mr. Johnson says. "I didn't realize that Kennedy actually was part of that."
Good grief. Just last month Johnson described Kelo as a case that "really stands out as a litmus test" for judicial nominees. Assuming that Rago's account here is accurate, Johnson's failure to identify one of the justices who voted the wrong way in that case is not exactly inspiring.
On the other hand, unlike Donald Trump, Johnson at least knows that Kelo was wrongly decided.
Fri, 07 Oct 2016 11:36:00 -0400
As election day approaches, many conservatives and even libertarians I'm running into are trying to overcome their aversion to Donald Trump and vote for him anyway because they can't bear(image) the thought of handing over the Supreme Court to liberals for the next generation. With Hillary, they think, there is no hope of getting originalist justices but with Trump there is.
But I note in my column at The Week this morning that this is a triumph of hope over reality.
Trump may not have a completely worked out judicial philosophy right now. But that doesn't mean he'll be a cypher for GOP's preferences. Once he's in office, he'll naturally gravitate toward one that is consistent with his agenda. And what is his agenda? It ain't anything to do with the GOP's alleged commitment to limited government, checks and balances, and individual liberties. It is the opposite: Using the heavy hand of government to turn America into a worker's paradise along the lines of France's National Front, a xenophobic, protectionist, right-wing authoritarian entity.
With Trump at the helm, the GOP will inevitably get sucked into his vision, rather than vice versa, and it'll have no use for originalism or limited government or Scalia or Thomas.
Voting for Trump out of concern for the Supreme Court and originalism then is like handing the keys of your church to an arsonist clutching a can of gasoline in one hand and matches in the other — and hoping that somehow he'd spare the inner sanctum and the holy book. He won't.
Go here to read the whole thing.
Wed, 05 Oct 2016 14:00:00 -0400It looks like Judge Richard Posner's ruling will stand in Backpage's lawsuit against Cook County Sheriff Tom Dart. That means the classified-advertising website can keep doing business with Visa and Mastercard, which had temporarily stopped serving the site under threat of sanction from the Illinois sheriff. On October 3, the Supreme Court announced that it wouldn't hear Sheriff Dart's appeal of Posner's decision for the U.S. Court of Appeals for the 7th Circuit. That decision (which cited the Reason Foundation and Cato Institute) held that "Sheriff Dart, his office, and all employees, agents, or others who are acting or have acted for or on behalf of him, shall take no actions, formal or informal, to coerce or threaten credit card companies, processors, financial institutions, or other third parties with sanctions intended to ban credit card or other financial services from being provided to Backpage.com." Last month, the Supreme Court also declined an appeal from Backpage Chief Executive Officer Carl Ferrer related to subpoenas from a U.S. Senate subcommittee. The committee, led by Sens. Rob Portman (R-Ohio) and Claire McCaskill (D-Missouri), is conducting its own crusade against Backpage.com, which it claims facilitates sex trafficking. In August, U.S. District Judge Rosemary Collyer denied Backpage's motion to stay enforcement of the subpoenas, which demand various information about Backpage's business practices, and Backpage appealed to the Supreme Court. Chief Justice John Roberts initially issued a halt on the district court's decision. But on September 13, SCOTUS issued an order that said only this: "The application for stay, presented to The Chief Justice and by him referred to the Court, is denied. The order heretofore entered by The Chief Justice is vacated. Justice Alito took no part in the consideration or decision of this application." George Washington University law professor Jonathan Turley called the Supreme Court's decision not to consider the Backpage CEO's appeal "a sweeping reaffirmation of congressional subpoena authority." Backpage and Ferrer had launched "a broad-scale constitutional attack on the Senate subpoena," as Reuters legal editor Alison Frankel described it. After losing on those grounds, they were told by the government that was their one shot at protecting any corporate communications. Correspondence between Backpage lawyers and corporate officials must be turned over to the subcommittee, as lawyers had not asserted attorney-client privilege or prepared a log of protected documents when contesting the Senate's orders, so they no longer had a right to expect any such privileges. On September 16, Judge Collyer agreed, ordering Backpage to turn over the documents by October 10. "One broader worry is how all of this might erode Section 230—and alter the internet," noted Bloomberg Businessweek. Santa Clara University School law professor Eric Goldman told Bloomberg: "We're seeing some judges who are just so concerned about harm to victims online that they'll twist law in whatever direction it needs to be twisted."[...]
Mon, 03 Oct 2016 09:30:00 -0400Two in three Americans think employers should be required to provide birth control to employees through their health insurance plans, even if the business owner has religious objections to doing so, Pew Research Center reported last week. This is troubling, in part because it shows people supporting a policy that we know violates others' constitutional rights. That's not just my opinion—this is a question the Supreme Court has already ruled on. In its Hobby Lobby decision, a majority of the justices found that at least one class of private employers could not be forced by the government to provide contraceptive coverage if the employer objects on religious grounds to doing so. The Court sat, heard arguments, deliberated, and ultimately concluded that the government doesn't have that authority—that the mandate as applied to closely held businesses was invalid. Let's set aside the Supreme Court ruling for now, however. It's remarkable that so many people think all employers should be forced to cover their employees' contraception, no matter what, because it suggests that people think birth control is special such that no woman should ever have to pay for it herself. Recall that the government argued in Zubik that it has a compelling interest in ensuring that contraceptives are available at no cost whatsoever to the patient. If a woman has to so much as sign up for a separate insurance plan to get her free contraception, even if that insurance plan is also free, the government says her rights have been violated. The requirement was the result of a recommendation from the Institute of Medicine (now the "National Academy of Medicine") that women have access to "the full range of Food and Drug Administration-approved contraceptive methods [and] sterilization procedures." The Department of Health and Human Services (HHS) parlayed that into a mandate that most insurance plans cover all contraceptives, including the morning-after pill, without a co-pay or deductible. But why is it necessary that contraceptives be not just widely available but also free and provided by a woman's employer? As Nancy Northup, president and CEO of the Center for Reproductive Rights, put it, "access to affordable contraception is essential to women's equality and economic security." Yet there are many things that are important—even crucial—to surviving and thriving the the modern world that people are nonetheless expected to pay for themselves. Perhaps the most obvious is food. Surely it's at least as true that "access to affordable sustenance is essential to people's equality and economic security." If I don't eat, I will die. So why shouldn't my employer be required to pay for my meals, above and beyond my base wages, the same way my employer is now required to cover my birth control? After all, I can't make it through the work day without at least one meal. But paying for lunches during the week can cost upwards of a hundred dollars a month; if I have special dietary needs, as many people do, the price tag could be several times more than that. This is a significant burden. Moreoever, there's a preventive nature to eating: If I do it, I'm far less likely to need to be hospitalized for malnutrition or any of the other medical complications that can result from not having access to food. So why hasn't the federal government passed a law requiring all employers to at least cover one meal per workday? Some employers do voluntarily subsidize people's meals. The American Enterprise Institute famously boasts that its employees get access to a "gourmet dining room, with a three-course lunch available daily at a nominal cost." It's one of the ways the D.C. think tank attracts top talent. Many big companies have cafeterias on the premises featuring low-cost meal options. Others do m[...]
Sun, 02 Oct 2016 06:00:00 -0400On March 18, 2011, an Illinois man named Elijah Manuel was asleep in the passenger seat of his car while his brother was driving when their vehicle was stopped by Joliet police for allegedly failing to signal. Here is how the U.S. Court of Appeals for the 7th Circuit summarized Manuel's allegations about what happened next: A police officer detected an odor of burnt cannabis from inside the car. Without warning, the officer flung open the passenger's door and dragged Manuel out. The officer pushed Manuel to the ground, handcuffed him, and then punched and kicked him. The officer then patted down Manuel, and in one pocket found a bottle of pills. The pills were then tested by officers who had arrived at the scene, and these officers falsified the results to show that the pills were ecstasy. Based on these results, Manuel was arrested. In grand jury proceedings on March 31, the police continued to lie about the test results. On April 1 the Illinois State Police Laboratory confirmed that the pills did not contain ecstasy; the lab further confirmed that the pills did not contain any other controlled substances. Yet the state's attorney's office was apparently not informed about the those test results because Manuel continued to remain incarcerated and then, on April 8, he was arraigned on felony drug charges. It was not until May 4, in response to a request from Manuel's public defender seeking the results of any such lab tests, that the prosecution finally moved to dismiss all charges. After spending 48 days in jail based on bogus accusations about non-existent illegal drugs, Manuel was finally set free on May 5. This Wednesday the U.S. Supreme Court will hear oral arguments in a case arising from Manuel's ordeal. At issue in Manuel v. City of Joliet is whether a federal "malicious prosecution" claim filed by Manuel is recognizable under the Fourth Amendment. Manuel filed suit in April 2013 against multiple Joliet officers, as well as against the city, charging them with malicious prosecution and illegal pretrial detention in violation of his Fourth Amendment rights. Specifically, Manuel filed suit under Section 1983 of Title 42 of the U.S. Code, which provides a federal cause of action against any state or local official, including a police officer, who "subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." Unfortunately for Manuel, his federal suit was rejected by the U.S. Court of Appeals for the 7th Circuit. In December 2015 that court ruled against Manuel on the grounds that "federal claims of malicious prosecution are founded on the right to due process, not the Fourth Amendment." Furthermore, "there is no malicious prosecution claim under federal law if, as here, state law provides a similar cause of action." In short, the 7th Circuit slammed the federal courthouse doors in Manuel's face. This week's oral arguments at the U.S. Supreme Court will focus on whether or not the 7th Circuit got it right. There is good reason to think that the 7th Circuit got it wrong. For starters, that court is an outlier on this issue. Nine other federal appellate courts have ruled that malicious prosecution claims are recognizable under the Fourth Amendment. As the U.S. Court of Appeals for the 10th Circuit noted in Becker v. Kroll (2007), "We have repeatedly recognized in this circuit that, at least prior to trial, the relevant constitutional underpinning for a claim of malicious prosecution under [Section 1983] must be 'the Fourth Amendment's right to be free from unreasonable seizures.'" Had Elijah Manuel been detained in the 10th Circuit, or in any one of eight other federal [...]
Mon, 26 Sep 2016 14:27:00 -0400
(image) In May Donald Trump released a list featuring the names of 11 federal and state judges that he said he would consider nominating to the U.S. Supreme Court if he's elected president. On Friday Trump expanded that list, adding 10 more names to the mix. According to Trump, "this list is definitive and I will choose only from it in picking future Justices of the United States Supreme Court."
From the standpoint of the conservative legal movement, it's a solid list. It's also not bad from the standpoint of the libertarian legal movement, as it contains such names as 7th Circuit Judge Diane Sykes, the author of an important opinion protecting the First Amendment right to record police officers in public; 10th Circuit Judge Neil Gorsuch, the author of a recent dissent attacking judicial deference to government regulatory agencies; and Texas Supreme Court Justice Don Willett, the author of what I've described as "one of the most libertarian legal decisions I've ever read."
But since this is Donald Trump we're discussing here, the real issue is not the caliber of the list. The real issue is whether or not Trump can be trusted to keep his word and actually stick to the list if he's elected. Can Trump be trusted? Let me put it this way. Throughout U.S. history, presidents have overwhelmingly nominated the sort of justices that they think will vote to uphold their respective agendas. Thus Franklin Roosevelt nominated friends of the New Deal while George W. Bush nominated friends of the so-called war on terror.
What is Trump's agenda? Among other things, Trump has come out in favor of the government censoring the internet, shuttering houses of worship, depriving religious minorities of due process and equal protection, forcibly confiscating private property, gutting libel laws in order to make it easier to silence journalists, ordering U.S. forces to commit torture and other war crimes, and imposing a nationwide "stop and frisk" scheme in order to "take the gun away." For those of you keeping score at home, that means that Trump—at a minimum—has endorsed government infringements on the principles contained in the First Amendment, the Second Amendment, the Fifth Amendment, the Eighth Amendment, the 10th Amendment, and the constitutional doctrine of limited and enumerated executive powers.
Now consider Trump's SCOTUS list. The most impressive names on that list are all judges who have distinguished themselves by voting to enforce constitutional and/or statutory limits against illegitimate and overreaching government power. Is Trump likely to nominate the sort of justices who will enforce such limits against Trump's own power? I sure wouldn't bet on that.
Thu, 22 Sep 2016 12:50:00 -0400
In the state of Missouri it is illegal to offer African-style hair-braiding services to paying customers without first obtaining a cosmetology license. To obtain that license, would-be African-style hair-braiders must spend thousands of dollars and complete over 1,500 hours of state-sanctioned education. However, none of the state's licensed cosmetology schools actually teach anything about African-style hair-braiding. In other words, the licensing requirement is an arbitrary and unnecessary obstacle that prevents would-be African-style hair-braiders from earning a living in a totally harmless occupation. By contrast, to become a licensed emergency medical technician in Missouri, a job that legitimately impacts public health and safety, it requires just 100 hours of education.
Unfortunately, none of that mattered this week when Judge John M. Bodenhausen of the U.S. District Court for the Eastern District of Missouri issued an opinion upholding Missouri's ban on unlicensed African-style hair-braiding. "This case," Judge Bodenhausen declared, "illustrates the great deference that federal courts must show to government regulations under the rational basis standard."
The rational-basis standard, also known as the rational-basis test, has its origins in the great vogue for judicial deference that swept the courts during the Progressive and New Deal periods. In the 1933 case of Nebbia v. New York, for example, the Supreme Court upheld the conviction of a New York grocer named Leo Nebbia. His crime? Selling milk during the Great Depression for less money than the minimum price set by the state's Milk Control Board. "A state is free to adopt whatever economic policy may reasonably be deemed to promote the public welfare," declared the majority opinion of Justice Owen Roberts. Never mind whether or not the regulation in question actually protects or serves the health, welfare, or safety of the public. What matters is that the government says that it does. So long as "the laws passed are seen to have a reasonable relation to a proper legislative purpose," Roberts said, the courts should defer to that regulation and assume that "the requirements of due process are satisfied." Put differently, if lawmakers and government lawywers claim to have a "rational basis" for the regulation, the courts are supposed to whip out the rubber stamp.
The problem with this approach is that it violates the original meaning of the Constitution. Specifically, it violates the original meaning of the 14th Amendment, which was enacted to prevent state officials from violating economic liberty in precisely this sort of fashion. As Republican Rep. John Bingham of Ohio, the primary author of Section One of the 14th Amendment, told the House of Representatives, the amendment was enacted in part to protect "the constitutional liberty...to work in an honest calling and contribute by your toil in some sort to the support of your self, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil." Judicial deference turns that constitutional safeguard on its head.
The time is long overdue for the federal courts to heed Bingham's words and stop deferring to nonsensical economic regulations in the name of the misguided rational-basis test.
Wed, 21 Sep 2016 00:01:00 -0400Hillary Clinton and her fellow progressives shout things like "Health care is a right!" They've also said that education, decent housing and child care are "rights." The United Nations goes further. Its bureaucrats declared that every person has a "right" to rest and leisure, food, clothing, housing, "necessary" social services, free education, periodic holidays with pay and protection from unemployment. Wow. I guess Abe Lincoln, Thomas Edison and Mark Zuckerberg were denied basic human rights. Clinton and the U.N. busybodies are wrong. Health care, housing and food are not "rights." They are "gifts" bestowed by politicians. These "gifts" violate other people's rights because politicians take from people to give to favored groups. When America's founders talked about rights, they had something else in mind. In the Bill of Rights, each right is a right to not be meddled with, a right to be free from government—the right not to have your speech abridged, your religion banned, your guns taken or your property searched without a warrant. The founders were tired of kings and dictators bossing them around. In their new country, they wanted to vote for presidents and other officials. But they also knew that over time even elected officials lust for more power. So they wanted clear limits on what those officials could do. They created three branches of government—to check each other. "Gridlock is a feature, not a bug," says Ilya Shapiro, editor-in-chief of the Cato Institute's Supreme Court Review journal. "The founding system was not to make government more efficient. It was meant to pass policies that have large agreement that's sustained across time." Because presidents think Congress is failing when it doesn't pass legislation they like, they nominate Supreme Court justices who may give them leeway. Franklin Roosevelt tried to increase the size of the Court to squeeze in more justices who supported his programs. George W. Bush nominated his own White House Counsel. The media call President Obama's current nominee, Merrick Garland, "a centrist." But he is "centrist" only in that he sides with Democrats who want to ban guns and Republicans who want government left free to do most anything in Guantanamo Bay. Garland repeatedly supports increased government power—and fewer checks. Shapiro went to Chicago Law School when Obama was a professor there. He says Obama understands the limits the Constitution places on presidents but ignores them. He ignores them so often that the Supreme Court has overruled Obama unanimously more often than any modern president. When Congress rejected Obama's immigration plan, he just imposed it via executive order. The Supreme Court overturned that, but the final vote blocking it was close, 4-4. But what will the next court do? I hope Hillary Clinton doesn't get to replace Justice Scalia because she sounds a lot like President Obama. On her website, she says things like, "If Congress won't act, I will ask the Treasury Department... to use its regulatory authority!" Donald Trump is no better. He says he'll impose the death penalty on anyone who kills a cop. "But the executive has no say over that," points out Shapiro. Presidents cannot pass laws. They execute laws passed by Congress. Congress is supposed to reject legislation it doesn't like. That's its job. Most legislation is bad. Former New Mexico governor Gary Johnson understands that. The Libertarian presidential candidate promises to only appoint judges who will ask whether any power or program proposed by the government can be found in the Constitution. One judge he mentions as a possible Supreme Court pick is Fox commentator, Judge Andrew Napolitano. "I'm flatter[...]