Drew Carey and our friends at Reason have produced a great 25 minute documentary about the Corey Maye case.
For additional background on the Maye case, go here.
George Will has another great column on threats to political speech in modern America. He reports the story of some people in Parker North, Colo., who didn’t want to be annexed to the larger town of Parker. When some residents proposed annexation, others
began trying to persuade the rest to oppose annexation. They printed lawn signs and fliers, started an online discussion group and canvassed neighbors, little knowing that they were provoking Colorado’s speech police.
One proponent of annexation sued them. This tactic — wielding campaign finance regulations to suppress opponents’ speech — is common in the America of the McCain-Feingold campaign finance law. The complaint did not just threaten the Parker Six for any “illegal activities.” It also said that anyone who had contacted them or received a lawn sign might be subjected to “investigation, scrutinization and sanctions for campaign finance violations.”
Quite a chilling effect on the speech of a few local residents. Fortunately, Will notes, the Parker Six (why not the Parker North Six? After all, Parker is what they don’t want to be part of. But who am I to question George Will?) are represented in their defense of their First Amendment rights by the Institute for Justice.
Meanwhile, in another section of the same Washington Post, a similar story is playing out in Virginia. A Democratic candidate for the U.S. House of Representatives began placing campaign signs in supporters’ yards a full year before the election. Botetourt County officials reminded people of a longstanding ordinance about how long political signs can be displayed. In this case it’s the ACLU of Virginia threatening to sue. But Botetourt (pronounced BAHT-uh-tott) officials are not deterred in their determination to protect law, order, and the Botetourt way:
“If we don’t have some semblance of order, we’d just have a libertarian society where anything goes,” said Jim Crosby, a longtime resident and former chairman of the Botetourt Republican Party.
Yep. First political signs in someone’s yard, then a bunch of competing churches, school choice, deregulation, women working outside the home, and pretty soon you’d have a libertarian society where anything goes.
Good column on the seizure of 400+ children from the FLDS ranch in Texas. (HT: Volokh).
As I said in this Cato podcast, I think it is telling that no young adult or child has been found saying “Thank you so much for rescuing me! It is nice to be in a place where I am not beaten up!” The absence of proof is now considered evidence of massive “cult” brainwashing. If a child says “I love my parents and want to go home,” it means he has been brainwashed by the “cult.” And if a child says “I like my foster parents a lot. They give me candy and the video games are awesome,” it means the child’s actual parents are unfit.
State authorities talk a lot about rape and forced marriages, but 300 children are ages 4 and below. They should be sent home because there is no evidence of abuse. All the boys should go home because there’s no evidence of abuse. As for the remaining girls, they have been held for 3 weeks already … the judge should give the police one more week to present evidence or they should be going home too. The investigation can continue, but 3+ weeks in custody is enough already.
When it comes to separating children from the parents, the burden of proof must be borne by the state.
This morning, as Pennsylvania Democrats went to the polls in the last large primary before their nominating convention, the Supreme Court heard the latest challenge to the McCain-Feingold campaign finance law: Davis v. FEC, in which Cato filed an amicus brief, questions the “Millionaires’ Amendment,” which attempts to discourage candidates for election to Congress from spending more than $350,000 from their own personal funds. It penalizes campaign spending above that threshold by enhacing the political speech of the self-financing candidate’s opponent through increased contribution limits and unlimited coordinated party expenditures. This penalty unconstitutionally chills candidates from engaging in protected political speech beyond that personal funds ceiling, and does so without serving any governmental interest that the Supreme Court has recognized. The penalty doesn’t even prevent the “corruption” that was the rationale for McCain-Feingold, because there is no threat of quid pro quo from a candidates’s expenditure of her own funds. And the Court has expressly rejected “leveling the playing field” of financial resources as an interest sufficient to justofy the infringement of First Amendment rights. Ultimately, the “Millionaires’ Amendment” is nothing more than an incumbency protection mechanism designed by Congress for its own benefit.
Based on this morning’s argument, I think the Court will issue a narrow decision striking down the Millionaires’ Amendment based on the disclosure burden, with separate concurrences on broader First Amendment grounds. The most interesting questioning, not unexpectedly, came from Justice Scalia, who, evoked the reductio ad absurdum of the “leveling” provision (which reminded me of the old Vonnegut story about equality run amock, Harrison Bergeron): “What if one candidate is more eloquent than the other one? You make him talk with pebbles in his mouth?”
Note: John Samples and I visited Capitol Hill yesterday to give a public briefing on the law and policy of self-funded campaigns.
Cato scholars have increasingly been evaluating the respective policies of John McCain, Hillary Clinton, and Barack Obama. The trade shop understandably prefers McCain (see my colleague Sallie James’s new paper), as does, cautiously, our director of health and welfare studies, Michael Tanner. The foreign policy shop, meanwhile, doesn’t like McCain because he is ”wedded to perpetual war” and generally given to neoconservative tendencies.
On judges, I’ll go with the trade and health care folks: While John McCain’s views on the First Amendment are unacceptable to freedom-lovers of any stripe, he has at least promised to nominate Supreme Court justices in the mold of John Roberts and Sam Alito (who have ruled against campaign finance restrictions). Obama and Clinton, meanwhile, are in the John Paul Stevens camp of relying on empathy, international opinion, and “my own experience” as a basis for constitutional interpretation.
Indeed, while defending his vote against Chief Justice Roberts’s confirmation, Obama explained that his standard for a justice must be “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”
As Jonah Goldberg says in a devastating column, “Now that is a pure expression of the principle of judicial fiat.”
Supreme Court justices take an oath to “administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as a justice of the Supreme Court of the United States under the Constitution and laws of the United States, so help me God.” Any contention that justices must tilt toward any particular type of party — the downtrodden (or privileged), the politically unpopular (or popular), the ethnic minority (or majority) — is an argument for judicial dictatorship instead of the rule of law.
As Roberts said when Senator Richard Durbin (D-IL) asked him whether he would be “for the little guy,” if the law says the little guy wins, then the little guy should win — and if the law says the big guy wins, then it would be a miscarriage of justice to rule for the little guy. And those who don’t like that result should complain to their elected officials and get the law changed.
In a fit of either highly coincidental timing or good humor, the Supreme Court today released opinions in two tax cases. In MeadWestvaco Corp. v. Illinois Department of Revenue, the Court limited the power of states to tax the money that a company based in another state earns when it sells off an investment in a division involved in a separate line of business. In U.S. v. Clintwood Elkhorn Mining Co., the Court decided that a taxpayer seeking a refund for an invalid tax under the Constitution’s Export Clause must seek a refund from the government before bringing a lawsuit.
So the taxpayers went 1-1 today, but the cases were both technical and not worth getting into. Perhaps the only interesting thing about them — aside from this whole Tax Day thing — is that they were both unanimous. This technicality and unanimity could be further evidence of Chief Justice Roberts trying to steer the Court to take on less high-profile (typically business) cases, with narrow issues that prevent the fractured 5-4 decision-making that make the Court seem more political than it really is (or should be).
I’ve read through most of the John Yoo torture memo released last week (Part 1, Part 2 [.pdfs]). As I’d gathered from the news reports, there’s not much new here: the core of the argument has been known since at least 2004, with the release of the infamous August 1, 2002 torture memo, also drafted by Yoo. At the Justice Department’s Office of Legal Counsel from 2001 to 2003, Yoo was the key figure in advising the executive branch as to the limits–if any–to its powers. As Georgetown’s David Cole has put it, Yoo “was the right person in the right place at the right time…. Here was someone who had made his career developing arguments for unchecked power, who could cut-and-paste from his law review articles into memos that essentially told the president, ‘You can do what you want.’”
In the memo released last week, once again we see a breathtakingly narrow interpretation of what constitutes torture under US law. To rise to the level of torture, the abuse must, Yoo argues, inflict pain equivalent to that associated with “death, organ failure, or serious impairment of body functions.” Presumably, the rack qualifies under that definition, but hey, what about the thumbscrew?
Such questions ultimately don’t matter much under Yoo’s analysis, because, in his view, Congress lacks the constitutional power to prevent the president from ordering torture: “Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.” As Yoo sees it, telling the executive branch not to abuse prisoners is like telling the CINC what weapons can be used to take a hill occupied by the enemy: “Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.”
One of the problems Tim Lynch and I experienced talking about our 2006 paper on the administration’s constitutional theories is that when you describe the implications of those theories in calm, sober tones, people tend to think you’re being strident and hysterical. Luckily John Yoo is willing to serve as his own reductio ad absurdum. If you don’t have the time for an 81-page memo, try this short, cringe-inducing YouTube clip:
Federal prosecutor wants a federal judge to order citizens to stop talking to the media about a case. In extraordinary circumstances, a judge can order the attorneys in a particular case to stop talking to the media … but a censorship order to other people?! Even if the judge promptly rejects this request, we should all be troubled that this was even attempted. This prosecutor should be shown the door right away.
I just finished Steven Teles’s important new book, The Rise of the Conservative Legal Movement. As far as legal nonfiction goes, this is not going to be the bestseller that Jeffrey Toobin’s or Jan Crawford Greenburg’s recent tomes on the Supreme Court have become, let alone Clarence Thomas’s memoirs. In part this is because more people are interested in the intense Kremlinology of the least public branch of government – the nine black-robed magistrates in their marble palace at One First Street — than in the nuts and bolts of the reaction to the left-wing excesses of the legal academy.
But more than that, this worthy study will fly under the radar more than it otherwise should because it is an academic book, written with the research methodology and citation practices of a social scientist investigating a particular phenomenon. It is to Teles’s great credit that he avoided (for the most part) the political science jargon in which such a project could have gotten swallowed, but a journalistic narrative this ain’t. Perhaps to even greater credit, Teles managed to write this book without once resorting to the often confusing and usually superfluous empirical models and regression analyses that are now demanded by practitioners of the “soft” sciences — probably because he already has tenure.
Teles ably takes us through the development of law and economics — the only way to get alternative voices into law schools resistant to anti-New Deal, anti-Warren Court views – and two generations of libertarian/conservative public interest law, as well as cataloguing the wealth of archival materials from what the Clintons considered the heart of the vast right-wing conspiracy, the Federalist Society. Curiously, the only mentions of Cato are in a footnote describing Charles Koch as one of our founders and a brief reference to my boss, Roger Pilon, “fuming in his Washington office when the [Harriet] Miers [Supreme Court] nomination was announced.”
In any event, I do recommend the book to those interested in the successes, failures, and false starts of a broad movement to save the law — and consequently legal practice and the courts — from the radicalization that beset academia and public interest organizations in the 1960s. Is it better to set up law & econ outposts in hostile institutions (Yale, Harvard) or takeover law schools wholesale (George Mason)? Is it better to have businessmen (Mountain States Legal Foundation) or idealists (Institute for Justice) running a public interest litigation shop? What sorts of cases are best taken up by the likes of IJ so as to have maximum long-term effect on the legal culture? These are the sorts of questions Teles analyzes, providing some interesting answers and leaving, as one expects from an academic tract, room for further research.
In an interesting side-note to the Medellin decision, the case’s convoluted procedural history made for some rather strange political bed fellows. The Court’s decision, anchored by the “conservative wing” (Roberts, Scalia, Thomas, Alito) and joined by the “moderate” Kennedy and (writing separately) the “liberal” Stevens effectively clears the last remaining roadblock to Texas’s imposition of the death penalty on the murderer Jose Erenesto Medellin. Consequently, Tuesday’s result disappointed death penalty abolitionists, who join on the losing side those who want international law to have direct applicability in the United States. That’s right, by ruling against President Bush’s executive overreach — which at least three members of the Court’s “liberal” wing implicitly ratified — the Court angered cosmopolitan liberals. Go figure.
Yesterday, in addition to announcing its decision in the Medellin case (which I blogged about here), the Supreme Court heard argument in two cases relating to the War on Terror.
First, in Munaf v. Geren, two U.S. citizens (also citizens of Jordan and Iraq, respectively) held captive in Iraq by U.S. forces — as part of Multi-National Force-Iraq, which may but should be a key determinant – challenged their detention and potential transfer to Iraqi authorities for what they fear will be torture as part of criminal prosecution in Iraqi courts. This seems to be an easier case than Boumediene, a case argued in December wherein Guantanamo detainees challenge their containment and the military commissions by which they are to be tried. (My colleague Tim Lynch blogged about that case here and here, and also filed an amicus brief.)
Whatever hope the detainees had was probably dashed by the incoherent presentation made by Northwestern Law School Clinical Professor Joseph Margulies on their behalf. As Lyle Denniston of SCOTUSblog put it, “when several Justices of the Supreme Court tell an attorney they do not understand his argument, and they do so because the argument was, indeed, fundamentally confusing, the chances of winning may be significantly reduced.” Ouch. Margulies turned what should be relatively straightforward issues into a convoluted maze, and those of us in the audience were not the only ones shaking our heads.
The second argument, and the one relating to the title of this blog post, involved the prosecution of the guy who was caught smuggling explosives into the U.S. from Canada in an attempt to blow up LAX at the turn of the century. (Is it ok to use that expression for the 1999-2000 period yet?) In United States v. Ressam, Attorney General Mukasey exercised the AG’s historical (but not much used of late) prerogative to argue before the high court, defending the 10-year additional prison term slapped on the Milennial bomber for “carrying an explosive” while “committing a felony” — the felony being lying to the border guard. Having learned from Margulies’s example, Mukasey did a workmanlike job and sat down with 14 minutes remaining in his allotted time. The case will turn on some rather technical statutory analysis which I’ll spare you, but it was refreshing to see an appellate advocate who was clearly not there to hear his own voice.
Tuesday the Supreme Court slipped the Gordian knot of a case that could have come straight from a law school exam, involving federalism, treaty interpretation, the scope of executive power, criminal procedure, and conflicts between international and domestic law. The issues in Medellin v. Texas boiled down to: 1) Whether a particular decision of the International Court of Justice is automatically binding on Texas courts and, if not, 2) Whether President Bush made it binding by issuing a memorandum to then-Attorney General Alberto Gonzales. The Court answered in the negative on both counts by a 6-3 margin.
The result of this decision is that neither the ICJ (the so-called “World Court”) nor the president acting alone can force states to review criminal cases involving foreign nationals. The underlying treaty at issue – which gives foreign nationals accused of a crime the right to meet with consular officials – is not enforceable in the absence of implementing legislation from Congress. The ICJ ruling is similarly not self-executing, and does not gain legal effect merely because the president tells the states to abide by it.
The Supreme Court has thus protected America’s carefully calibrated system of federalism and checks and balances by preventing an international court from overriding a state’s duly enacted (and constitutionally sound) law. Just as importantly, the Court correctly rejected the argument that the president has the power to enforce against the states a treaty that is, in the absence of congressional action, enforceable only by diplomatic means. Telling state courts how to do their jobs is simply not among the powers of the nation’s chief executive.
The new Newseum opens April 11th, and its an impressive project in many respects.
It’s a striking but tasteful modern building, with the text of the First Amendment inscribed on its front. The location on Pennsylvania Avenue close to the Capitol has a defiant quality that I admire.
As I walked past yesterday, I observed its display along the sidewalk of current front pages from newspapers around the country and world. It’s a tribute to the importance and vibrancy of the newsgathering enterprise and free speech. Tourists were gathered along the front of the building taking in the headlines.
But I don’t read newspapers. I get my news from a wide array of sources almost entirely online. Sooner or later, I thought as I walked, some state is going to punch a hole in the Newseum’s display, as the state will no longer have a newspaper. Soon enough, most people will get their news in new formats - as I do - from sources and in media of all kinds: blogs, email, traditional news outlets’ online editions, and so on.
Will the decline of the newspaper mislead people into thinking that our vibrant tradition of newsgathering and reporting is on the wane? It’s something to think about.
The “founding partners” of the Newseum are some of the oldest of the old-school establishment media figures. (Good for them, by the way, for supporting this worthy venture.) They and the Newseum’s leadership may think that things are changing for the worse when they’re changing for the better - when news is all around us, in dozens of different formats, provided by tens of thousands of subject-matter experts and on-scene reporters with true local knowledge.
The Newseum’s planned exhibits include room for new media, but by and large they lean toward exalting the newsgathering industry. That industry has had an important role, no question, but I think it is a role that will diminish over time. I hope the Newseum will actively pursue reporting on all the news, not just the news that’s fit to print.
I just came across this letter I wrote to the editor of the Washington Post. Sadly, the editor declined to publish it. Since the Supreme Court just heard oral arguments about the D.C. gun ban and the meaning of the Second Amendment in District of Columbia v. Heller, it remains relevant:
On January 5, we learned that District officials filed a brief with the Supreme Court [”Gun Law Prevents Harm, D.C. Argues,” Jan. 5] defending the city’s gun ban on the grounds that: the Second Amendment does not protect an individual right to keep and bear arms; the ban “does not deprive the people of reasonable means to defend themselves;” and “less restrictive approaches would not be adequate.”
Fifteen pages later, Colbert I. King [”Outfoxed In the District,” Jan. 5] wrote of the “conditions that threaten the quality of life of all who live in this city: criminals roaming the streets in search of human prey; an apathetic and complacent government workforce; nonproducers ensconced in high places; and elected leaders who fall for snow jobs.”
Draw your own conclusions.
The New York Times Magazine’s most recent issue (March 16, 2008) simultaneously features a shariah apologetic and an accusation that the Supreme Court is in the pocket of big business.
In the former, Harvard law professor Noah Feldman prescribes the election of Islamist parties and entrenchment of Allah’s law (as interpreted by a council of scholars) as the cure to the Muslim world’s ailments. In the latter, GW law professor Jeffrey Rosen contends that liberal and conservative elites — like NYT readers? — have colluded to do in the common man. There is so much wrong with these analyses, one hardly knows where to begin. (For a point-by-point takedown of the Rosen piece, see Eric Posner’s post on Slate’s new legal blog.)
Feldman, who “had a small role advising the Iraqi [constitutional] drafters,” sees shariah as both a proto-aspirational document somewhat akin to our Declaration of Independence and a source of law more legitimate than duly constituted (secular) legal codes. But both of these things cannot be: Either shariah is the law of God as strictly interpreted (on what authority?) by man or it is a non-binding sentiment, much like American politicians’ references to America’s Judeo-Christian values. Advocates of shariah would be the first to admit that if you’re going in for God’s law, you can’t summarily ignore its anachronisms. Let people live under shariah if they so desire, but be wary of its negative externalities.
Rosen, meanwhile, sees a conspiracy involving anyone who has ever studied the “economic analysis of law” (and uses phrases like “negative externalities”) while holding up as a paragon of judicial virtue a jurist who said he was “ready to bend the law … against the corporations.” At the same time, Rosen posits that the Chamber of Commerce destroyed Ralph Nader’s noble crusade to help the consumer and hoodwinked the Court — even, at times, that model of “liberal judicial restraint,” Justice Ruth Bader Ginsburg — by hiring a bunch of rich lawyers (presumably not the same rich lawyers who reap all the punitive damages from the state tort claims that Rosen lauds). These sentiments distort legal history and misunderstand the proper role of the judiciary; to paraphrase a salient point then-nominee John Roberts made at his confirmation hearings, the little guy should win when the law is on his side, and the big corporation should win when the law is on its side.
In short, those of us who believe in the rule of law rather than men and in a Constitution that circumscribes the powers of government are heartened by both the outcry against Rowan Williams and the Supreme Court’s near-unanimous view that corporations are people too (indeed, they are, but legal persons composed of human directors, officers, employees, and investors). But then perhaps we are all in on the conspiracy.
A California woman was shot to death as she pleaded with emergency dispatchers to come and help her. Her death will not make the network news programs this evening, but this is the latest reminder that we must take responsibility for our own safety and not rely on the police.
Bill Masters, a libertarian and sheriff of a Colorado county tells the residents of his county, “It is your responsibility to protect yourself and your family from criminals. If you rely on the government for protection, you are going to be at least disappointed and at worst injured or killed.”
Gun control puts honest citizens in the position of having to choose between protecting their lives or respecting the law. What kind of government would do such a thing?
Imagine that you do business in California. Maybe you’re in construction, or health care, or auto repair. Now imagine some or all of your income comes from state contracts; using the above examples, perhaps you build schools, or take care of patients on Medi-Cal, or fix broken-down LAPD squad cars. Now imagine that the state comes in and says, aha, because we pay your bills — again, on contracts relating to construction, health care, auto repair, etc. — and we love unions, you can’t talk to your employees about any negative aspects of unionization. Ridiculous, right? Who is a customer to tell you what to do with money that’s already in your pocket?
Well, that’s precisely what the great state of California is trying to do with a new statute that small businesses are challenging in the case of Chamber of Commerce v. Brown. It’s a little bit more complicated than I outline above because the case implicates highly technical provisions of the National Labor Relations Act (and previous Supreme Court interpretations thereof), but the gist is that California is attempting to silence employers by tying speech restrictions to unrelated state spending. For reasons that the petitioners ably present in their briefs and that I summarize in a podcast and in Cato’s own amicus brief, the Supreme Court should strike down this statute.
In any event, that’s the background to my trip to the Court to hear argument in Chamber v. Brown today. (The plaza in front of the courthouse steps was remarkably free of demonstrators after yesterday’s hoopla surrounding the DC Gun Ban case.) I’ll save you the detailed summary of the argument, but suffice it to say that the outcome will almost certainly go against California. It’s always dicey predicting the scorecard, but based on oral argument it will probably be 7-2, 6-3, or maybe 6-1-2. On one side, Justices Scalia and Alito and Chief Justice Roberts were safely on the side of free speech; Justices Justice Souter surprisingly led the charge against California’s interpretation of labor law; Justice Breyer, though skeptical, will likely write his own opinion agreeing in the Court’s opinion for separate reasons or possibly calling for remand rather than strict reversal; and Justice Thomas was silent but is expected to join the majority. On the other side, Justices Stevens and Ginsberg seem to have no problem with California’s regulation. On his own side as usual, Justice Kennedy’s vote seems to be up for grabs, but – based on his decisions in previous labor and regulatory preemption cases – I would bet on him siding with the majority.
In short, California employers will live to speak another day.
Here is an excerpt from today’s Washington Post regarding the arguments at the Supreme Court yesterday:
A majority of the Supreme Court indicated a readiness yesterday to settle decades of constitutional debate over the meaning of the Second Amendment by declaring that it provides an individual right to own a gun for self-defense.
Such a finding could doom the District of Columbia’s ban on private handgun possession, the country’s toughest gun-control law, and significantly change the tone and direction of the nation’s political battles over gun control.
During oral arguments that drew spectators who had waited for days to be in the courtroom, there was far more skepticism among the justices about the constitutionality of the District’s ban on private handgun possession than defense of it.
Read the whole thing. Cato Senior Fellow Bob Levy, Alan Gura, and Clark Neily did a superb job of advocacy–with their legal brief, the oral argument, and in media interviews.
Only one problem. They have so thoroughly demolished the notion that the right to keep and bear arms only pertains to persons serving in the militia or National Guard that most people will not truly appreciate their achievement. In two years (less?) people will say “wasn’t it always so?”
I expect a favorable ruling in the Heller case but I also expect DC Mayor Adrian Fenty to obstruct the ruling as much as he possibly can. So, if I’m right, the way in which to view this case is as an important victory in an on-going struggle.
This morning the Supreme Court will be hearing oral arguments in the landmark Second Amendment case, DC v. Heller. People started getting in line last night. (HT: Volokh Conspiracy). Here’s the story from today’s Washington Post. An audio of the argument will be released around 11:30 am EST for those of us who could not attend the live event. The attorneys who present the arguments must be prepared for three scenarios. Scenario I is a “cold bench” — which means few questions. In that scenario, the attorney must be ready to speak persuasively for about 30 minutes. Scenario II is the “hot bench” — which means lots of questions. In that scenario, the attorney must be ready for a barrage of questions and just hope that he/she can make a strong opening and closing without interruption. Scenario III is somewhere in between the two extremes. Everyone expects a hot bench today. Should be very interesting.
In a new plan to combat crime on the streets of our fair city, Mayor Adrian Fenty and Police Chief Cathy Lanier are encouraging residents to submit to voluntary searches of their homes in exchange for amnesty if the residents have illegal guns (or drugs). (”Excuse me, ma’am, mind if I take a look around… “)
Well, this isn’t illegal — consent is, after all, one of the exceptions to the warrant requirement — but it is head-scratchingly poor public policy. Those who don’t want to give up their contraband won’t consent to searches, those who want to get rid of it will find a way to do that without signaling “check here again next week,” and the police will waste their resources rifling through the homes of people with nothing to hide.
Maybe D.C. should pass a law outlawing gun ownership. Oh wait, they already did that and are fighting to keep it in the face of, um, the Second Amendment. (The Supreme Court hears argument in D.C. v. Heller next Tuesday.)
The bottom line is that voluntary home searches, like outright gun prohibitions, only hurt law-abiding citizens. Those who have already chosen to engage in crime will not be deterred merely because their actions violate gun-related ordinances in addition to the laws against robbery, rape, murder, etc. The only guns swept up in this “amnesty” will be those kept by people trying to protect their families from the criminals the police fail to catch.
Cato associate policy analyst Dave Kopel has some observations about Harvard Law Professor Laurence Tribe and the Second Amendment case pending before the Supreme Court.
Go here to read the Cato amicus brief in the case. More here.
Federal agents investigate, arrest, and prosecute local law enforcement agents on a fairly regular basis. Unfortunately, state and local police rarely investigate, arrest, and prosecute federal agents. I suspect the locals are just intimidated by the FBI, Secret Service, IRS, etc. When something suspicious or questionable happens, the feds tell the locals something to the effect of “Back off. We’ll handle this ourselves-internally.”
So Arizona officials deserve some credit for pressing ahead and treating Border Patrol Agent Nicholas Corbett like any other suspect. According to the local prosecutor, Corbett’s story does not hold up and sufficient evidence points toward his guilt. If that is indeed the situation, this case should be simple: Prosecute. The fact that the victim didn’t have a visa in his pocket does not matter. It also does not matter that Corbett had a federal badge in his wallet.
The Arizona officials did mess up one important aspect of this case. Why is this matter in federal court? Well, I already know why because this typically happens in these rare circumstances when a federal agent is prosecuted. The more precise question is: Why didn’t the Arizona officials object to the transfer to federal court? One news story alludes to juror bias, but that does not hold up. Where are the jurors in federal court coming from? Rhode Island? The issue isn’t really rural vs. big city either because, again, if you name any big city in Arizona, there are going to be Arizona courts there!
The thinly veiled reason for the removal procedure is that the state process is supposedly rigged/biased against the federal agent. Arizona officials should have recognized this and defended their justice system instead of just rolling over.
Agent Corbett has a right to a trial — like any other person accused of a crime. The point here is that he would have had the opportunity to argue self-defense in the Arizona state courts. And if he is convicted but thinks his trial was unfair, he can appeal and try to persuade a higher court with specifics. This case belongs in state court, not federal court.
President Bush and Attorney General Michael Mukasey owe the Supreme Court an explanation. Four years ago, one of Bush’s top lawyers, Solicitor General Paul Clement, told the Supreme Court that the administration did not use coercive methods on prisoners to extract information. Given the recent admission by CIA Director Michael Hayden that three prisoners were waterboarded, we now know that the Supreme Court was misled. If Mukasey hopes to get the Justice Department back on track, he must find out how this happened and take corrective action.
In the spring of 2004, the Bush administration was advancing its sweeping vision of executive power before the Supreme Court. An American citizen, Jose Padilla, a suspected terrorist, had been arrested at Chicago’s O’Hare airport. Padilla was then moved to a military brig where he was held in solitary confinement for two years. The government refused to allow Padilla to meet with anyone, including his lawyer. According to the Bush administration, once a prisoner is designated an “enemy combatant,” he loses the legal protections of the American Constitution—even if the prisoner is an American citizen arrested in the United States. Because of the grave issues involved, the Supreme Court decided to hear Padilla’s constitutional objections and rule on the controversy.
Although the central issue in the Padilla case concerned the president’s power to imprison American citizens, the Supreme Court wanted to examine the breadth of the Bush administration’s legal claims. Solicitor General Clement argued that America was at war and that the president, as commander-in-chief, could not have his military decisions “second-guessed” by the judiciary. A pivotal moment in the Padilla oral argument came when Clement was asked about torture (pdf)(pp. 20-23). Testing the limits of Clement’s logic, the Supreme Court justices wanted to know if there was any legal check on the executive power to coerce prisoners to obtain military intelligence. Clement tried to talk around the question, but then a member of the Court asked this blunt question, “Suppose the executive says mild torture we think will help get this information. It’s not a soldier who does something against the Code of Military Justice, but it’s an executive command. Some [foreign governments] do that to get information.”
This was supposed to be the moment of truth, but the White House representative faltered by saying, “Well, our executive doesn’t.”
That was doubletalk. Four years later, the White House is telling a different story, albeit in dribs and drabs. Waterboarding is not the same as water torture. Only the CIA does it. Only a few prisoners.
The cover story of this week’s Washington Post Magazine offers a fantastic look at how lobbyists make a living by helping some people take from others. Every citizen should read it. Casual observers of government may be surprised (and nauseated) to see how elaborate, expensive, and disingenuous such efforts have become. (Students of public choice economics will not be.) As author Jeffrey H. Birnbaum notes, it’s usually the wealthy who are trying to do the taking.
The article is about the travel industry trying to force taxpayers to fund the industry’s advertising campaigns. (Birnbaum includes such gems as: “One thing everyone agreed on: The travel industry did not want to pay for the ads itself.”) But the story could have been written about nearly any of the countless lobbying shops littering the D.C. landscape:
The explosion in the size of K Street, the locus of the lobbying industry, is an extension of the growth and reach of government. The ballooning federal budget has its tentacles in every aspect of American life and commerce. No serious industry or interest can function without monitoring, and at least trying to manipulate, Washington’s decision makers. The penalty for ignoring the federal government can run into the billions of dollars. Just ask Microsoft. The software giant was hit with an antitrust lawsuit by the Justice Department in the late 1990s and, in 2001, agreed to alter the way it packaged its computer operating system. Before then, it had mostly ignored the nation’s capital.
Bad mistake. Chastened by its defeat, Microsoft has built a powerhouse presence in Washington, as have scores of other companies and industries. Lobbyists argue that it’s a relatively cheap investment. The Carmen Group, a mid-size lobbying firm, regularly compares its clients’ costs with the benefits it says they receive from lobbying. In its latest internal assessment, Carmen said it collected $15 million in fees from about 70 clients and delivered $1.5 billion in assistance — measured both in benefits received and in burdens avoided — a return ratio of roughly 1 to 100. Most clients still part with their lobbying dollars grudgingly. But they do part with them, which is why new buildings are going up all the time to accommodate the industry’s growth. Want a former senator to guarantee a meeting with a current senator? No problem. Half the senators who leave Congress for the private sector register to lobby. Need to know the history of a tax law and whom best to ask to change it? Easy. At least half a dozen consulting firms are composed of nothing but former congressional tax aides and Treasury Department officials who know as much as, and probably more than, the current people inside.
And why wouldn’t ex-lawmakers and aides gravitate to K Street? Lobbying jobs pay at least twice and sometimes three times government salaries. Serving in government is now viewed by many on Capitol Hill as a steppingstone to a lucrative career in bending government to the whims of paying clients. In many ways, lobbying now mimics the government it targets. It has become a bureaucracy, with its own language, its own peculiar ways of doing business and, most important, its own instinct to survive.
Indeed, the last thing any lobbyist wants is to win everything his or her client is seeking. That would mean an end to a retainer, the closing of the feedbag. Success for a lobbyist is not outright victory but, rather, just enough progress to justify the creation of an elaborate and well-funded lobbying apparatus. Even outright failure can underscore the need to lobby harder.
Lobbying is Washington’s version of a perpetual motion machine. Once it gets revved up, it rarely stops running. In fact, it tends to grow.
All of which raises this question: why don’t we see more such stories? Whatever the reason, Birnbaum deserves kudos for inspecting this small corner of the sausage factory.
Of course, the solution is not to restrict the people’s ability to lobby Congress. All that sleazy lobbying is nothing more than “petition[ing] the government for a redress of grievances” — a constitutionally protected activity. The solution, conveniently enough, is to respect the rest of the Constitution too. Were the People to do that, those sleazy lobbyists wouldn’t get anywhere.
This week, the U.S. Court of Appeals for the Fifth Circuit, which is based in New Orleans and covers Texas, Louisiana, and Mississippi, struck down a Texas statute that criminalized the promotion and sale of sex toys. The Fifth Circuit — where I clerked my first year out of law school — thus became the first and only jurisdiction in the country to recognize the individual right to bear both arms (in the 2001 case of U.S. v. Emerson) and dildoes. (Yes, the statute actually uses the word “dildo” as an example of a prohibited ”obscene device,” which is otherwise defined as a device “designed or marketed as useful primarily for the stimulation of human genital organs.”)
The Fifth Circuit’s analysis correctly rests on the Supreme Court’s 2003 decision Lawrence v. Texas, which found that Texas’s anti-homosexual sodomy statute violated the Fourteenth Amendment right to engage in private intimate conduct free from government intrusion. Put simply, there is no state interest compelling enough to overcome the individual right to freedom in the bedroom.
Besides Texas, only three states have a similar obscene devices statute: Mississippi, Alabama, and Virginia. The Mississippi Supreme Court has upheld its state’s statute, while neither the Alabama nor Virginia Supreme Courts have entertained such challenges. The legislatures of Louisiana, Kansas, and Colorado had also enacted obscene-device bans, but the laws did not survive review by their respective state supreme courts.
The Eleventh Circuit (covering Alabama, Georgia, and Florida), however, just last year rejected a similar Fourteenth Amendment challenge to the Alabama statute. While the U.S. Supreme Court declined to review that ruling, the Fifth Circuit’s decision now squarely opens up a “circuit split,” which means the issue is ripe for the Court to take up next term.
The Court has not wanted to touch sex toys cases with, um, a 10-foot pole. But it now has the opportunity to enforce this particular individual right in the same year it (fingers crossed) throws out the D.C. gun ban.
Cato founder/president/CEO Ed Crane and Board member/senior fellow Bob Levy take on “the president’s bogus claims of limitless executive power” in his battle with Congress over the Terrorist Surveillance Program:
Abiding by the Constitution will not always shield us from bad laws. Nonetheless, even if the Constitution is not a sufficient guidepost, it is certainly a necessary guidepost.
For many years, we were at risk of losing important civil liberties through unchecked transgressions by the executive branch. Maybe we are still at risk. But thanks to the media, the courts and — belatedly — an energized opposition in Congress, the administration has finally resigned itself to a semblance of congressional oversight, even if judicial scrutiny remains inadequate.
The president’s bogus claims of limitless executive power are, for now, on hold. That’s the right constitutional precedent even if it ultimately produces the wrong policy outcomes. Longer term, the precedent is more important than temporal policy judgments. Justice Sandra Day O’Connor’s plurality opinion in the Hamdi case nicely captured the key principle: “Whatever power the U.S. Constitution envisions for the Executive … in time of conflict, it most assuredly envisions a role for all three branches of government when individual civil liberties are at stake.”
