The three-week battle over Obamacare’s contraceptive-abortifacient ruling isn’t letting up. Catholics for Choice has a full-page ad in this morning’s Washington Post, urging the president to stay firm. And it’s the lead story today on NPR’s Morning Edition, which in printed form devotes fully 2 of 16 paragraphs—the last 2—to the other side (not bad for NPR). The gist of the piece is, what’s the big deal? “The only truly novel part of the plan is the ‘no cost’ bit,” says NPR’s Julie Rovner.

Now millions more women and families are going to have access to essential health care coverage at a cost that they can afford,” says Sarah Lipton-Lubet, policy counsel with the ACLU. “But as a legal matter, a constitutional matter, it’s completely unremarkable.

Unfortunately, they’re right: our modern anti-discrimination law has been so extended that today it undermines religious liberty on many fronts. Two terms ago, for example, a bitterly divided Supreme Court ruled that the Christian Legal Society, a student group at the Hastings Law School, had to admit “all comers,” not only as members but as officers. (See Cato’s amicus brief defending the group’s right to discriminate in the name of religious liberty and freedom of association.)

Here, the federal Equal Employment Opportunity Commission ruled in 2000 that failure to provide contraceptive coverage violates the 1978 Pregnancy Discrimination Act, an amendment to Title VII of the 1964 Civil Rights Act that outlaws, among other things, discrimination based on gender. And 26 states today have similar “contraceptive equity” laws on the books, Rovner reports, which state courts have upheld in suits brought by Catholic Charities and others. She quotes from the 2006 decision of New York State’s top court:

When a religious organization chooses to hire non-believers, it must, at least to some degree, be prepared to accept neutral regulations imposed to protect those employees’ legitimate interests in doing what their own beliefs permit.

Right there, of course, is the problem. As I wrote over the past two days, no one on the other side is asking employees to do anything contrary to their religious beliefs—or not do “what their own beliefs permit.” Employers are not “imposing their religious beliefs” on their employees, as some have argued. Those employees are still perfectly free to use contraceptives and abortifacients. They just shouldn’t expect their employers, through the group health insurance plans the employers offer, to provide and pay for such measures if doing so violates their religious beliefs. But that would be to discriminate against women, the courts have held, since only women get pregnant. Thus does our antidiscrimination law, as found in statutes, trump religious liberty, as once protected by the Constitution. “To each his own” falls by the wayside when “we’re all in this together,” as Obamacare requires us to be.

Under Obamacare, Anti-Discrimination Law Trumps Religious Liberty is a post from Cato @ Liberty - Cato Institute Blog

Cato’s third Supreme Court brief in the Obamacare litigation concerns the issue of whether the federal tax Anti-Injunction Act prevents federal courts from timely reviewing Congress’s most egregious attempt to exceed its power to regulate interstate commerce. The AIA bars courts from enjoining “any tax” before that tax is assessed or collected.

One would think that such a law would have no application to the penalty that enforces the individual health insurance mandate, which is not a tax but rather a punishment for not complying with the mandate. Accordingly, most of the courts to consider the issue have found the AIA to be inapplicable to individual mandate challenges. Moreover, the government itself has long conceded that the AIA does not bar these suits.

A Fourth Circuit majority and the dissenting Judge Brett Kavanaugh in the D.C. Circuit, however, reached a contrary conclusion, reasoning that the AIA applies to all exactions assessed under the Internal Revenue Code, including “penalties.” Out of an abundance of caution, and because the AIA may be a jurisdictional bar, the Supreme Court appointed an amicus curiae to argue for the position that the AIA bars these suits.

The plaintiffs here — the 26 states, the National Federation of Independent Business, and several individuals — have advanced several strong arguments for why the AIA doesn’t apply. Cato’s brief expands on one of those arguments: that the words “any tax” in the AIA do not include “penalties” simply because they may be codified in the Code.

First, we demonstrate that the Supreme Court has always held that “taxes” and “penalties” are not interchangeable for AIA purposes. Second, we show that, with one exception, all of the cases cited in the amicus briefs filed by two former IRS commissioners, Mortimer Caplin and Sheldon Cohen — which appear to have heavily influenced the Fourth Circuit and Judge Kavanaugh — concerned penalties that were statutorily defined as taxes. This refutes the commissioners’ erroneous claim that those cases concerned penalties that were not defined as taxes. As we say in our brief, “the influence of Amici Caplin & Cohen’s [D.C. Circuit] brief is surpassed only by its misdirection.” The one exception is the Mobile Republican case (Eleventh Circuit 2003), which we explain is properly understood as applying the AIA to penalties that enforce substantive tax provisions.

In short, the AIA cannot bar suits to enjoin the individual mandate penalty because that penalty neither is defined as a tax nor enforces a substantive tax provision.

Thanks very much to Cato legal associate Chaim Gordon for taking the lead in drafting this brief and helping me with this blogpost.

Obamacare Challenge Not Barred By a Weird Technicality is a post from Cato @ Liberty - Cato Institute Blog

We’ve often deplored the continued push of criminal prosecution into matters that were once considered more suitable for regulation or for the operation of civil law. A little-noted report a few weeks back in the Los Angeles Times may indicate the next milestone in overcriminalization:

The U.S. attorney has launched a fraud investigation to determine whether Los Angeles city officials ignored federal laws designed to protect the disabled when building or fixing up housing. …

The investigation spans January 2001 to the present, the letters said. If violations are uncovered, city agencies that used federal housing funds could face financial penalties, lose out on future grants or possibly become the subject of a criminal investigation, said [city official] Bill Carter…

Disabled activists sought an investigation because, to quote the LAT again,

In testimony and in person, activists alleged that doors were sometimes too heavy for wheelchair users to open, elevators were not working in at least one city-funded building, and managers either refused to rent to wheelchair users or did not have apartments available for them, [advocate Becky] Dennison said.

The activists also felt ignored because various management recommendations they made to local officials had been ignored. They already have a right to file civil suits over their grievances: indeed, shortly after the U.S. Attorney’s investigation came to light three advocacy groups did file a civil suit against the city.

There are very real problems of fraud — plain old graft and money-raking — on the L.A. public housing scene. But the idea of redefining fraud to include ADA noncompliance is a different matter. If taken seriously, it would mean exposing ordinary as well as dishonest local officials across the country to the specter of criminal liability. It’s notoriously hard to assure that either new or renovated buildings are 100% compliant with ambitious interpretations of the law; a design fix that satisfies three ADA consultants may displease a fourth. Criminal liability should arise from very clear, preannounced standards of conduct. That’s not the ADA.

Maybe the U.S. Attorney’s office is just raising the criminal issue as a bit of bravado to please its friends in the advocacy world and strong-arm the city into settling. But as playwrights know, if a shotgun is shown above the fireplace in Act I, by the middle of Act III a shot will ring out. This misguided extension of federal fraud law is worth challenging now.

Prison Terms for Not Installing ADA Ramps? is a post from Cato @ Liberty - Cato Institute Blog

Today the Obama administration will announce, according to early press reports, that ten states (of eleven that applied) will be receiving waivers from key provisions of the No Child Left Behind Act. That’s right, the 2002 education law passed by Congress and signed by President Bush that absurdly insisted that all children will be proficient in mathematics and reading by 2014. Now President Obama, unilaterally, is telling states that they can forget all that as long as they adopt — or at least have ”plans” to adopt – reforms to his liking, such as national curriculum standards and teacher evaluations based on student standardized testing progress.

At this point, it is almost impossible to keep track of the federal savaging of the Constitution in supposed service of education. First there was the federal expenditure of money, allowed by none of the enumerated powers, largely starting in the 1960s. Then there was the growing attachment of controls to that money — again, with no Constitutional authority — culminating in NCLB. Now there is the blatant disregard for the separation of  powers by a President who just decided he didn’t like waiting for Congress to reauthorize the law, and a Congress that exhibits no spine whatsoever when it comes to this power grab because, well, no one seems to like NCLB.

Within this fiasco is all the evidence anyone should need to see why the Feds must be extracted from education. While Washington can drop humongous sacks of taxpayer dough on states and districts, and impose lots of bureaucratic rules and regulations, it can’t actually make education much better. Indeed, the whole point of NCLB was to end decades of Washington spending billions for no return. And what happened? Exactly what state, district, and school-level bureaucrats and unions expected: “accountability” swerved off the road before the 2014 deadline. It took longer than expected — it was a slightly more nerve-wracking game of political chicken than usual — but in the end the entrenched interests won because they’re the most motivated to bring the political pain. After all, their very livelihoods are at stake.

Aside from desegregation — which it has Constitutional authority to compel — the federal government has done no meaningful good in education. Why? Because the special interest-driven reality of politics ensures it can’t do any good. Yet we not only let it continue to trample the Constitution by meddling in education, we are allowing it to shred the Constitution into ever-smaller bits in order to “fix” the destruction it has wrought. And for this, all who turn a blind eye to the Constitution in the name of “the children” are to blame.

Waiving Goodbye to the Constitution is a post from Cato @ Liberty - Cato Institute Blog

FantasySCOTUS.net, a project of the Constitution-educating Harlan Institute (on whose non-profit board I sit), has been tracking its 12,000+ members’ predictions in the Obamacare case before the Supreme Court.  You can read more in-depth about the current state of the prediction market — with fancy graphs! – but here’s a summary:

• 90.6% predict that the lawsuit can proceed, overcoming the Anti-Injunction Act;
• 51.7% predict that the Court will strike down the individual mandate;
• 73.5% predict that the Court will then sever the mandate from the rest of the legislation (though this response isn’t very meaningful becuase the severability issue, unlike the others, isn’t a binary up-down choice for the justices);
• 77.2% predict that the Court will uphold the constitutionality of the Medicaid expansion.

The FantasySCOTUS managers caution that these predictions are still preliminary, particularly because most members don’t offer predictions until after oral arguments.  To learn more about FantasySCOTUS and its crowdsourcing techniques (“wisdom of the crowds”), see this recent article from the Northwestern Journal of Technology and Intellectual Property.

And if you want to get in on the predicting, you can sign up here.

The Wise Crowds Say Individual Mandate Is Unconstitutional is a post from Cato @ Liberty - Cato Institute Blog

Some libertarians boycott CPAC because it’s “too conservative,” others embrace it to try to steer the conservative movement in a more liberty-minded direction (on which, see Reason.tv’s excellent interview of Sen. Jim DeMint).  I have no principled feelings on the subject.  I’ve never attended – wasn’t really on my radar in college, couldn’t make it to DC during grad/law school, then was too busy lawyering, and now it would feel odd just to hang out rather than be part of the program — but I know lots of folks who enjoy it.

One thing I noticed about this year’s program — other than that my colleague Neal McCluskey is on an education policy panel at 10:30am on Friday — is that there’s a panel on the constitutionality of Obamacare (1:25 on Friday).  Curiously, there aren’t any lawyers on this panel.  C’mon, CPAC, I know this isn’t a Federalist Society convention, but it would seem useful to have people actually grappling with the legal issues educating your attendees about it.  Not all of us have problems communicating with non-JDs; do I have to issue another Obamacare debate challenge?

CPAC Panel on the Constitutionality of Obamacare Has No Lawyers is a post from Cato @ Liberty - Cato Institute Blog

What is due process?

Virtually everyone would agree that “due process” refers to a set of judicial procedures that create at least a strong tendency toward fair results.

But why do we have these procedures and not some others? Why do we have trial by jury, and not trial by fire? Why not just flip a coin? In this month’s Cato Unbound, our lead essayist, Timothy Sandefur, says that we have the procedures we do for one very simple reason: We recognize them as fair.

In other words, “due process” ultimately points back at a larger — and much thornier — legal and philosophical issue, that of fair treatment itself. If it didn’t, “due process” would just guarantee some empty (or possibly harmful) rituals.

So far, so good. Sandefur doesn’t stop there, however. He adds that the Fifth and Fourteenth Amendments’ guarantees of due process mean “not only that government must take certain procedural steps (hearings, trials, and so forth) when it imposes a deprivation, but also that some acts are off limits for government, “regardless of the fairness of the procedures used to implement them.”

In other words, due process is a check both on the procedure of the judiciary and on the substance of legislation. Some kinds of laws, Sandefur argues, cannot be implemented by any fair process — there’s no good reason for them, and there’s no lipstick enough for pigs like these. In such cases, the guarantee of due process is either a mockery of itself — or it’s enough to strike down the law. Sandefur picks the latter.

Is he right? Professor Lawrence Rosenthal of Chapman University disagrees, writing:

Deciding whether a law is supported by “good reason” is the essence of policymaking. Our Constitution guarantees a republican form of government, and in a republic, policy is made by those who are politically accountable for their decisions. Sandefur’s conception of due process of law, however, creates a judicial platonic guardianship that must approve every policy decision.

One side risks judicial overreach. The other side risks the tyranny of the majority. Which one is right? Stay tuned for the rest of this month’s Cato Unbound, which will also feature commentary by legal scholars Ryan Williams of the University of Pennsylvania and Gary Lawson of Boston University. Legal scholars will also want to review Sandefur’s paper in the Harvard Journal of Law and Public Policy (pdf), which develops the argument in fuller detail.

This Month’s Cato Unbound: What Is Due Process? is a post from Cato @ Liberty - Cato Institute Blog

The right answer to the same-sex marriage question is to remove government from the marriage business altogether.  That’s a legislative matter, however, and not something the courts should decree. Until then, because state and federal laws confer benefits based on marital status, the equal protection provisions of the Fifth and Fourteenth Amendments require that same-sex couples not be subject to discrimination in receipt of those benefits. But that issue was not addressed by the U.S. Court of Appeals in California—a state that permits gay unions and does not discriminate against such unions in conferring “marital” benefits. The specific issue the court decided was whether the label “marriage” could attach to heterosexual but not homosexual partnerships. Quite properly, the court ruled that it could not. That’s a narrow but important step in the right direction. But it does not settle the more significant question whether states may grant benefits to heterosexual couples while granting less or no benefits to homosexual couples.

In fact, there’s a negative aspect of the court’s ruling, which essentially declared Prop 8 unconstitutional because California went further than other states in allowing civil unions. The court held there’s no rational basis for allowing such unions but requiring that they carry a different label. That’s quite different from invoking the Equal Protection Clause to forbid a state from denying gays a right to the benefits of marriage. That issue didn’t arise because California grants such benefits to gays. Regrettably, other states may be dissuaded from following the California civil union model because their voters wish to limit the definition of “marriage” to exclude gays. In this instance, the better may become the enemy of the good.

Gay Marriage Still Has an Uphill Climb is a post from Cato @ Liberty - Cato Institute Blog

Today’s victory for equal liberty was narrow, but important nonetheless. 

All that Prop 8 did was to deny gay couples the right to have their relationships labeled “marriage,” without any effect on the rights, privileges, and responsibilities attending that marital designation (which legal incidents California had already granted to gays who entered into civil unions).  As the court noted, there is no purpose in denying the use of the word “marriage” other than “to lessen the status and human dignity of gays and lesbians in California.”

Unfortunately, this technically good result might create perverse incentives for states who wish to give gay people substantive but not symbolic equality: the court did not say whether government can still give limited or no rights to gay unions, as long as it doesn’t give everything except the word “marriage.” 

But that just goes to highlight the messiness inherent in government involvement in a given policy area: were government out of the marriage business altogether, courts wouldn’t have to split hairs and legislatures wouldn’t have to gnash teeth.  

Let people decide for themselves how they want to live and whose recognition they value.  In the meantime, this case may be complete — the already hesitant Supreme Court may refrain from reviewing such a narrow ruling (which the Ninth Circuit could still take up en banc) – but the controversy will not soon end.

Appeals Court Upholds Gay Marriage, Sort Of is a post from Cato @ Liberty - Cato Institute Blog

Is the Constitution out of date? That’s the impression that comes across from an article in yesterday’s New York Times, written by the paper’s crack Supreme Court reporter, Adam Liptak. It comes in turn from an article he points to by two law professors, David S. Law at Washington University in St. Louis and Mila Versteeg at the University of Virginia, scheduled for the June New York University Law Review. In it the authors conclude that the Constitution appears to be losing its appeal as a model for constitution drafters in other countries, despite its having served that role up until as recently as 1987, the year of its bicentennial. So what’s changed over the past quarter century?

Unfortunately, from the Times article we don’t get a clear picture of just how it is that the constitutions other countries have drafted in recent years differ from our own, except for the emphasis throughout the piece on rights. Yet right there is a clue about what’s going on. On that score, in fact, Liptak cites striking comments Justice Ruth Bader Ginsburg made in a television interview during a visit to Egypt last week:

“I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

Liptak then notes, not entirely accurately, that “the rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber.”

To be sure, the rights enumerated in our Constitution and in the amendments that were added later, including in the Bill of Rights, are few in number. But numbers alone, like rights alone, tell only part of our constitutional story. To tell the story more fully and accurately, we have to step back a bit.

It’s true that our Framers, unlike many others, especially more recently, did not focus their attention on rights. Instead, they focused on powers— and for good reason. Because we have an infinite number of rights, depending on how they’re defined, the Framers knew that they couldn’t possibly enumerate all of them. But they could enumerate the government’s powers, which they did. Thus, given that they wanted to create a limited government, leaving most of life to be lived freely in the private sector rather than through public programs of the kind we have today, the theory of the Constitution was simple and straightforward: where there is no power there is a right, belonging either to the states or to the people. The Tenth Amendment makes that crystal clear. Rights were thus implicit in the very idea of a government of limited powers. That’s the idea that’s altogether absent from the modern approach to constitutionalism—with its push for far reaching “active” government—about which more in a moment.

During the ratification debates in the states, however, opponents of the new Constitution, fearing that it gave the national government too much power, insisted that, as a condition of ratification, a bill of rights be added—for extra caution. But that raised a problem: by ordinary principles of legal reasoning, the failure to enumerate all of our rights, which again was impossible to do, would be construed as meaning that only those that were enumerated were meant to be protected. To address that problem, therefore, the Ninth Amendment was written, which reads: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Over the years, unfortunately, that amendment has been misunderstood  and largely ignored; but it was meant to make clear that the people “retained” a vast number of rights beyond those expressly enumerated in the document.

Thus, the rights expressly enumerated in the Constitution may be “parsimonious,” but understood in light of the larger theory of the document, they are not. Neither, moreover, are they “frozen in amber,” because the courts are called on regularly to interpret and apply them in the varying factual contexts that surround the cases or controversies that are brought before them. Thus, the right to freedom of speech has been read to entail the right to desecrate the flag, and the right to liberty has been read to entail the right to engage in sexual practices that others may dislike. Judges may sometimes fail to draw the proper inferences, of course, or draw inferences not entailed. But that says nothing about the Constitution itself.

The idea, then, that our Constitution is terse and old and guarantees relatively few rights—a point Liptak draws from the authors of the article and the people he interviews—does not explain the decline in the document’s heuristic power abroad. Nor does “the commitment of some members of the Supreme Court to interpreting the Constitution according to its original meaning in the 18th century” explain its fall from favor. Rather, it’s the kind of rights our Constitution protects, and its strategy for protecting them, that distinguishes it from the constitutional trends of recent years. First, as Liptak notes, “we are an outlier in prohibiting government establishment of religion,” and we recognize the right to a speedy and public trial and the right to keep and bear arms. But second, and far more fundamentally, our Constitution is out of step in its failure to protect “entitlements” to governmentally “guaranteed” goods and services like education, housing, health care, and “periodic holidays with pay” (Article 24 of the UN Universal Declaration of Human Rights). And right there, of course, is the great divide, and the heart of the matter.

The modern view, which we too have followed, at least statutorily if not constitutionally, is to recognize all manner of “entitlements” of a kind that can be provided only through massive governmental institutions that engage in material and regulatory redistribution. We are constitutionally out of step in that, to be sure. Countries like Greece, Italy, Spain, and Portugal are far ahead of us.

Our Constitution Is Out of Step with the Rest of the World is a post from Cato @ Liberty - Cato Institute Blog

A three-judge panel of the Ninth Circuit Court of Appeals has ruled that California’s ban on same-sex marriage — enacted in 2008 in a popular vote on Proposition 8 — violates the constitutional right to equal protection. The court’s decision upheld a 2010 decision by former Judge R. Vaughn Walker, a Reagan-Bush appointee, that found marriage to be a fundamental right protected by the Constitution, and that the proposition “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.” Proponents of Proposition 8 will likely appeal the decision either to the full Ninth Circuit or directly to the Supreme Court.

The American Foundation for Equal Rights is the sponsor of the case, Perry v. Brown (originally Perry v. Schwarzenegger). Cato Institute chairman Robert A. Levy is co-chairman of AFER’s Advisory Board. He and co-chair John Podesta wrote in the Washington Post in 2010:

Nearly a century after the 14th Amendment was ratified in 1868, the Supreme Court unanimously affirmed that “marriage is one of the ‘basic civil rights of man.’ ” That 1967 case, Loving v. Virginia, ended bans on interracial marriage in the 16 states that still had such laws.

Now, 43 years after Loving, the courts are once again grappling with denial of equal marriage rights — this time to gay couples. We believe that a society respectful of individual liberty must end this unequal treatment under the law…. The principle of equality before the law transcends the left-right divide and cuts to the core of our nation’s character. This is not about politics; it’s about an indispensable right vested in all Americans.

Levy and Podesta, along with AFER’s lawyers Ted Olson and David Boies, spoke at this Cato Institute forum. And Levy also wrote about the case in this New York Daily News column.

In this 7-minute video Levy, Podesta, Olson, and Boies make the case for equality in marriage law:

The Circuit Court Ruling on Proposition 8 is a post from Cato @ Liberty - Cato Institute Blog

A Milwaukee man only recently acquired his permit to carry a concealed handgun and then found himself in the middle of an armed robbery.   As the robber threatened a store clerk with a shotgun, the permit holder was able to draw his weapon and shoot the culprit.  The Milwaukee District Attorney said: “He disrupted an act that potentially exposed himself and others to great bodily harm.”

Last week, Cato released a new study concerning the frequency with which citizens use guns in self-defense, along with a map to track such events.  We’ve already received many suggestions from readers all over the web and we’ll be updating our map regularly.

(H/T Ann Althouse)

Milwaukee Man Shoots Armed Robber is a post from Cato @ Liberty - Cato Institute Blog

E.J. Dionne was in high dudgeon at the Washington Post this morning over Citizens United, the Supreme Court’s January 2010 campaign finance decision that ever since has driven the Left into fits of apoplexy. Taking his cue from Obama’s infamous State-of-the-Union condemnation of the Court shortly after the decision came down, plus the class warfare meme at the core of Obama’s reelection campaign, Dionne attacks not only the Court’s wisdom but its motives:

A more troubling interpretation [than “naiveté”] is that a conservative majority knew exactly what it was doing: that it set out to remake our political system by fiat in order to strengthen the hand of corporations and the wealthy. Seen this way, Citizens United was an attempt by five justices to push future electoral outcomes in a direction that would entrench their approach to governance.

Indeed, the Court’s decision “should be seen as part of a larger initiative by moneyed conservatives to rig the electoral system against their opponents,” Dionne continues. Pointing to recent state legislation aimed at ensuring electoral integrity, such as voter ID laws, he charges that “conservatives are strengthening the hand of the rich at one end of the system and weakening the voting power of the poor at the other.”

Reading this screed you’d think that the moneyed classes, including corporations, were all on the Right. Yet as the Post itself reported last fall, “despite frosty relations with the titans of Wall Street, President Obama has still managed to raise far more money this year from the financial and banking sector than Mitt Romney or any other Republican presidential candidate.” Indeed, “Obama has outdone Romney on his own turf, collecting $76,600 from Bain Capital employees through September – and he needed only three donors to do it.”

So let’s get that white-hat/black-hat silliness out of the way and turn to the charge that the Court “set out to remake our political system by fiat.” The charge, if you read the majority’s opinion, is preposterous on its face. Only Justice Stevens has clung to the idea that money is not speech. (Want proof that it is? How much speech have you heard from the presidential campaign of former Louisiana Governor Buddy Roemer, who accepts no contributions over $100?) Well if money is speech, then the First Amendment tells us, straightforwardly, that “Congress shall make no law abridging the freedom of speech.”

Regrettably, despite that simple imperative, the Court has allowed numerous restrictions on the contributions side of the campaign finance ledger. But in Citizens United it opened the door to those who speak through their corporations or unions (the Left’s outrage is directed only to the corporations side of the decision, of course), provided the spending is not coordinated with the candidate. Thus, far from having torn down “a century’s worth of law” – Dionne alludes to the 1907 Tillman Act, which banned corporations from giving directly to candidates – Citizens United simply repealed a provision of the 1947 Taft-Hartley Act that prohibited corporate and union expenditures on independent, non-candidate coordinated campaigns.

But Dionne’s confusion doesn’t end there. Like almost every other Leftist, he attributes the rise of super PACs, his main target, to the decision in Citizens United. But it was the March 2010 DC Circuit’s decision in Speech Now v. FEC that brought about those entities. And almost all super PACs are funded by individuals, not corporations or unions. What Speech Now did was lift the ban on individual contributions of more than $5,000 when individuals get together to speak through Political Action Committees that are independent of candidates.

Dionne abhors those PACs, of course. So do the candidates, because they have no control over what “their” PACs say. (“Save me from my friends!”) Far better it would be if contributors were able to give directly to a candidate’s campaign. This is a big country, with over 300 million people and millions of corporations and unions. Are we really to believe, with so many potential contributors, that candidates for federal office would be easily bought and sold if that were allowed? Well in states with few campaign finance restrictions for state offices – where the number of potential contributors is substantially smaller – the evidence simply does not support the wild charges of corruption that so animate the Dionnes of the world. But what is evidence when your real agenda is class warfare?

E.J. Dionne on Campaign Finance as Class Warfare is a post from Cato @ Liberty - Cato Institute Blog

Those who advocate for more restrictions on campaign finance generally practice a populist politics. They fulminate against the influence of money, demonize donors, and ascribe all the nation’s problems to Citizens United. Once you have read an example such reformist rhetoric, you have read all of them. (But if you must read more, here’s E.J. Dionne’s recent, especially over-the-top offering in the genre).

But not all critics of campaign finance are so intellectually empty. Consider the recent op-ed by liberal law professor Geoffrey Stone. He addresses the question: “Is money speech?” For the conventional reformer, of course, money is not speech. Some even wish to amend the Constitution to recognize what they take to be the obvious truth that money is not speech. Stone shows why they are wrong. He remarks, “Not a single justice of the United States Supreme Court who has voted in any of the more than a dozen cases involving the constitutionality of campaign finance regulations, regardless of which way he or she came out in the case, has ever embraced the position that money is not speech.”

Stone says the correct question to ask is “When should the government be allowed to regulate political contributions and expenditures — even if they are speech?”

Regarding expenditures, the Supreme Court has for some time answered this question with “never.” Limits on spending abridge the freedom of speech. That answer makes sense. If any speech implicates “the freedom of speech,” political speech does. If spending funds political speech, the “make no law” admonition in the First Amendment applies to such spending.

The Court has also been especially hostile to government regulations of the content of speech. But campaign finance regulations are always content-based. Most seek to advance a partisan cause expressed in speech. Others seek to suppress speech critical of current officeholders. The rest hope to cut funding to speech that they see as ideologically “incorrect.”

Let’s face it: few would care about campaign finance regulations if such rules did not give hope of suppressing speech they disdain and thereby the triumph of a cause they hold dear. Campaign finance regulations should always be suspect in a nation that values in fact as well as words “the freedom of speech.”

As It Turns Out, Money Is Speech is a post from Cato @ Liberty - Cato Institute Blog

One of our oldest laws, the Alien Tort Statute (1789), grants federal courts jurisdiction over lawsuits brought by aliens for actions “in violation of the law of nations.” Courts have differed in their method of interpreting this “law of nations” — an old way of saying “international law” – and thus in their decisions on what behavior violates it and the types of defendants who may be liable. Recent ATS litigation has thus ignited a debate over the role of judges in applying international law.

Kiobel v. Royal Dutch Petroleum presents the question of whether, under the ATS, the law of nations can be applied against an entity that is not a natural person: a corporation. In this case, 12 Nigerians sued Royal Dutch and its Shell subsidiaries, alleging that Nigerian soldiers committed human rights abuses on the companies’ behalf between 1992 and 1995, purportedly in response to demonstrations against oil exploration.

The district court dismissed most of the claims but let certain others proceed. The Second Circuit dismissed the case entirely, holding that the ATS’s jurisdictional grant does not extend to cases against corporations, which are not liable for crimes under the law of nations. The Supreme Court agreed to review the case.

Cato has now filed a brief arguing that the ATS must be interpreted in a manner consistent with Congress’s original jurisdictional grant. This interpretation, supporting the Second Circuit’s ruling, maintains the Constitution’s separation of powers — which gives Congress the power to determine the scope of federal courts’ jurisdiction. Allowing courts to expand their jurisdiction without Congress’s consent would create a “democracy gap” that would be particularly serious here, where the case involves issues of foreign affairs that are appropriately the province of the political branches.

The Supreme Court made clear in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc. (1999) that evolving methods of interpreting international law do not inform the ATS’s jurisdictional reach, which has not changed since 1789. Nonetheless, lower courts are split on whether corporations may be liable for the sorts of violations at issue here, largely due to their varied interpretive methods.

In our brief, we urge the Court to clarify the proper method of interpreting the law of nations under the ATS. We argue that Judge José Cabranes, a leading international law jurist (and Justice Sonia Sotomayor’s mentor) who authored the Second Circuit’s Kiobel decision, set out the correct interpretive method in an earlier case, Flores v. Southern Peru Copper Corp. (2003). Judge Cabranes’s reasoning in Flores embodied both the guidance that the Supreme Court would give in Sosa v. Alvarez-Machain (2004) and the teachings of classical theorists like Grotius, by defining customary international law as “composed only of those rules that States [countries] universally abide by, or accede to, out of a sense of legal obligation and mutual concern.”

Judge Cabranes used as relevant evidence the States’ formal lawmaking actions, such as international conventions that “establish[] rules expressly recognized by the contesting states” and international custom where the States adhere “out of a sense of legal obligation.” He further acknowledged that the method used in 1789 to interpret what comprised the law of nations defined both the claims and the parties cognizable under international law. By looking to the proper sources, Judge Cabranes correctly concluded that corporations cannot be held liable for violations of international law for ATS purposes, and in so doing recognized the constitutional checks that prevent courts from expanding their own jurisdiction.

The Supreme Court will hear oral argument in Kiobel v. Royal Dutch Petroleum on February 28.

Thanks to legal associate Anastasia Killian for her help with this blogpost.

The ‘Law of Nations’ Is What It Was in 1789 is a post from Cato @ Liberty - Cato Institute Blog

Today, Cato is releasing a new study, Tough Targets: When Criminals Face Armed Resistance from Citizens, by Clayton Cramer and David Burnett.  The paper makes use of a news report-gathering project to explore in more detail how Americans use guns in self-defense.

The paper makes many excellent points, but I’ll mention just three here.  First, the average person tends to imagine that these self-defense situations involve criminals getting shot.  Such cases do occur, but the overwhelming number of self-defense cases involve situations where the gun is never fired.  

The second point relates to the first.  The average person usually does not hear about defensive gun cases because news media organizations do not consider the incidents worthy of coverage.  If a burglar runs away from a break-in when he discovers that someone is at the home and is armed, it may only garner a terse mention in the paper, if it makes the newspaper at all.  With no shot fired, no injuries, and no suspect in custody, newspeople typically decline coverage.  The point here is not to criticize the news media’s handling of such incidents–rather it is just to remind readers that we tend to hear about criminals using guns to perpetrate crimes, but we do not hear about many self-defense cases.  In this milieu, it is understandable why many people would develop negative opinions about guns.

Third, when a gun owner does shoot a rapist or is able to hold a burglar at gunpoint until the police arrive on the scene, it is very likely that more than one crime has been prevented.  That’s because had the culprit not been stopped, he very likely would have targeted other people as well.

Gun control proponents stress the idea of harm reduction.  They say the enactment of  firearm regulations will reduce accidents and the criminal use of guns.  But if policymakers are truly interested in harm reduction, they must consider the number of crimes that are thwarted by gun owners.  Each year gun owners prevent a great deal of criminal mayhem–murders, rapes, batteries, and robberies.  Tough Targets gathers dozens and dozens of examples of ordinary people using guns to stop criminal attacks.  The defensive use of guns happens much more often than most people realize.

In addition to the paper itself, we have a new page on the Cato web site that will track, to the extent we can, defensive gun cases around the country.

For more information, listen to a podcast interview with co-author Clayton Cramer, or see related Cato scholarship.

New Cato Study: Tough Targets is a post from Cato @ Liberty - Cato Institute Blog

Panama is in turmoil due to the efforts of President Ricardo Martinelli to resurrect a defunct specialized court within the Supreme Court that would allow him to pack that body and possibly pave the way for his reelection.

First, some context: The nine-Justice Panamanian Supreme Court is divided in four specialized courts dealing with specific areas of the law (civil, criminal, administrative and general government business). The first three specialized courts have 3 justices each, while the fourth one (dealing with general government business) is formed by the presidents of each of the three other specialized courts.

There used to be a Fifth Court dealing with constitutional issues. However, in 1999 Congress passed a law that abolished that body. Now, constitutional cases are dealt by the nine-Justice Supreme Court as a whole.

Last year the Supreme Court, whose chief justice is a close associate of Martinelli, ruled that the law abolishing the Fifth Court was illegal. This created a legal vacuum since nobody knows for sure whether that means that the old Fifth Court should be reinstated or a new one should be created.

Martinelli seized on the controversial ruling by the Supreme Court and introduced a bill in Congress that would create a Fifth Court. If approved, the new court would have three new justices (appointed by Martinelli) and would deal with constitutional issues, one of them being the constitutionality of presidential term limits. The Panamanian Constitution currently bars a sitting president from running for a consecutive term. The president has to step out for two terms before running again for office. Many in Panama fear that Martinelli’s ultimate goal with the Fifth Court is to get rid of term limits.

Let’s not forget that a similar ploy was recently used by Daniel Ortega in Nicaragua to run for reelection despite the Constitution explicitly barring him from doing it. There, a friendly Supreme Court ruled that presidential term limits were unconstitutional and thus enabled Ortega to run again (and win the election).

Despite enjoying a large majority in Congress, where Martinelli has bought off many lawmakers, the opposition was able to filibuster the bill creating the Fifth Court. However, thanks to the nebulous ruling by the Supreme Court last year, Martinelli is now threatening with appointing the 3 new justices even without a law passed by Congress. A constitutional crisis seems inevitable.

A recent poll published by the daily La Prensa showed that 70 percent of Panamanians regarded Martinelli as “authoritarian” and 73 percent were concerned for the future of democracy their country. Amid strong criticism for his autocratic tendencies, for his attacks against freedom of speech, and for using tax audits to persecute his political opponents, the Fifth Court affair certainly shows that Ricardo Martinelli is the most dangerous man for democracy and rule of law in Central America after Nicaragua’s Daniel Ortega.

A Brewing Institutional Crisis in Panama is a post from Cato @ Liberty - Cato Institute Blog

News that incautious comments on “tweeter” got British tourists excluded from the United States had Twitter alight yesterday. (Paperwork given to one of the two, on display in this news story, refers to the popular social networking site as a “Tweeter website account,” betraying some ignorance of what Twitter is.)

It’s a good chance to review how suspicion is properly—and, here, improperly—generated.

The Department of Homeland Security has been vague as yet about what actually happened. It may have been some kind of “social media analysis” like this that turned up “suspicious” Tweets leading to the exclusion, though the betting is running toward a suspicious-activity tipline. (What “turned up” the Tweets doesn’t affect my analysis here.) The boastful young Britons Tweeted about going to “destroy America” on the trip—destroy alcoholic beverages in America was almost certainly the import of that line—and dig up the grave of Marilyn Monroe.

Profoundly stilted literalism took this to be threatening language. And a failure of even brief investigation prevented DHS officials from discovering the absurdity of that literalism. It would be impossible to “dig up” Marilyn Monroe’s body, which is in a crypt at Westwood Memorial Park in Los Angeles.

I testified to the Senate Judiciary Committee in 2007 about how one might mine data for terrorists and terrorism planning, in terms that apply equally well to Twitter banter and to any criminality or wrongdoing. For valid suspicion to arise, the information collected must satisfy two criteria:

(1) It is consistent with bad behavior, such as terrorism planning or crime; and (2) it is inconsistent with innocent behavior. In . . . the classic Fourth Amendment case, Terry v. Ohio, . . .  a police officer saw Terry walking past a store multiple times, looking in furtively. This was (1) consistent with criminal planning (“casing” the store for robbery), and (2) inconsistent with innocent behavior — it didn’t look like shopping, curiosity, or unrequited love of a store clerk. The officer’s “hunch” in Terry can be described as a successful use of pattern analysis before the age of databases.

Similarly, using the phrase “destroy America” is consistent with planning to destroy America. (You want to be literal? Let’s be literal!) But it’s also consistent with talking smack, which is innocent behavior. These Tweets fail the second criterion for generating suspicion.

Twitter is nothing if not an unreliable source of people’s thinking and intentions. It’s a hotbed of irony, humor, and inside jokes. Witness this Tweet of mine from yesterday, which failed to garner the social media guffaw I sought (which is why I link to it here). Things said on Twitter will almost never be suspicious enough to justify even the briefest interrogation.

Other facts could combine with Twitter commentary to create a suspicious circumstance on extremely rare occasions, but for proper suspicion to arise, the Tweet or Tweets and all other facts must be consistent with criminal planning and inconsistent with lawful behavior. No information so far available suggests that the DHS did anything other than take Tweets literally in the face of plausible explanations by their authors that they were using hyperbole and irony. This is simple investigative incompetence.

If indeed it is a “social media analysis” program that produced this incident, the U.S. government is paying money to cause U.S. government officials to waste their time on making the United States an unattractive place to visit. That’s a cost-trifecta in the face of essentially zero prospect for any security benefit. I slept no more soundly last night knowing that some Brits were denied a chance to paint the town red in L.A.

In case it needs explaining, “paint the town red” is archaic slang. It does not imply an intention or plan to apply pigments to any building or infrastructure in Los Angeles, whether by brush, roller, or spray can.

‘Destroy America’ = Suspicion Fail is a post from Cato @ Liberty - Cato Institute Blog

Pietro Ichino, a professor of labor law at the University of Milan and a senator in the Italian legislature, is known as the author of several “neoliberal” books and studies recommending that the Italian government relax its extraordinarily stringent regulation of employers’ hiring and firing decisions. As Bloomberg Business Week reports, that means that Prof. Ichino must fear for his life: “For the past 10 years, the academic and parliamentarian has lived under armed escort, traveling exclusively by armored car, and almost never without the company of two plainclothes policemen. The protection is provided by the Italian government, which has reason to believe that people want to murder Ichino for his views.”

They’re not just being alarmist. In 1999 and 2002 leftist gunmen associated with the Red Brigades murdered two other reformist labor law professors, Massimo D’Antona and Mario Biagi. (Details here.) Prof. Biagi, a well-known figure nationally, was shot as he arrived at his Bologna home and dismounted his bicycle. While five members of the Red Brigades are serving prison sentences for his murder, sympathizers remain at large, and Ichino’s name appears on a Brigades hit list. A few years back, reports Bloomberg, police broke up a plot on his life that they said involved two students in his own department. Last year another reformist labor law professor, Carlo Dell’Aringa, “received a death threat, written in red ink on the wall of his university’s bathroom.”

Like his slain colleague Biagi, Ichino started out as a man of the Left — a Communist parliamentarian, in fact — who became convinced that the state-enforced equivalent of lifetime job security actually worked against the interests of ordinary young workers, who were increasingly frozen out from being offered jobs in the first place. Increasingly, moderate European opinion is coming to see that view as persuasive — even if few show as much courage as Prof. Ichino in voicing it. Reports Bloomberg: “For those promoting changes to Italy’s labor laws, the day of Biagi’s shooting has become a rallying point. Sympathizers gather every March 19 to ride their bicycles from the train station to the dead man’s house.”

Labor Law Professors Defy Death Threats in Italy is a post from Cato @ Liberty - Cato Institute Blog

Leftists want higher tax rates and they want greater tax compliance. But they have a hard time understanding that those goals are inconsistent.

Simply stated, people respond to incentives. When tax rates are punitive, folks earn and report less taxable income, and vice-versa.

• When tax rates increase, sometimes they engage in tax avoidance, lowering their tax liabilities legally.
• When tax rates change, sometimes they choose to alter their levels of work, saving, and investment.
• And when tax rates go up, sometimes they resort to illegal steps to protect themselves from the tax authority.

In a previous post, I quoted an article from the International Monetary Fund, which unambiguously concluded that high tax burdens are the main reason people don’t fully comply with tax regimes.

Macroeconomic and microeconomic modeling studies based on data for several countries suggest that the major driving forces behind the size and growth of the shadow economy are an increasing burden of tax and social security payments… The bigger the difference between the total cost of labor in the official economy and the after-tax earnings from work, the greater the incentive for employers and employees to avoid this difference and participate in the shadow economy. …Several studies have found strong evidence that the tax regime influences the shadow economy.

Indeed, it’s worth noting that international studies find that the jurisdictions with the highest rates of tax compliance are the ones with reasonable tax systems, such as Hong Kong, Switzerland, and Singapore.

Now there’s a new study confirming these findings. Authored by two economists, one from the University of Wisconsin and the other from Jacksonville University, the new research cites the impact of tax burdens as well as other key variables.

Here are some key findings from the study.

According to the results provided in Table 2, the coefficient on the average effective federal income tax variable (AET) is positive in all three estimates and statistically significant for the overall study periods (1960-2008) at beyond the five percent level and statistically significant at the one percent level for the two sub-periods (1970-2007 and 1980-2008). Thus, as expected, the higher the average effective federal income tax rate, the greater the expected benefits of tax evasion may be and hence the greater the extent of that income tax evasion. This finding is consistent with most previous studies of income tax evasion using official data… In all three estimates, [the audit variable] exhibits the expected negative sign; however, in all three estimates it fails to be statistically significant at the five percent level. Indeed, these three coefficients are statistically significant at barely the 10 percent level. Thus it appears the audit rate (AUDIT) variable, of an in itself, may not be viewed as a strong deterrent to federal personal income taxation [evasion].

Translating from economic jargon, the study concludes that higher tax burdens lead to more evasion. Statists usually claim that this can be addressed by giving the IRS more power, but the researchers found that audit rates have a very weak effect.

The obvious conclusion, as I’ve noted before, is that lower tax rates and tax reform are the best way to improve tax compliance – not more power for the IRS.

Incidentally, this new study also finds that evasion increases when the unemployment rate increases. Given his proposals for higher tax rates and his poor track record on jobs, it almost makes one think Obama is trying to set a record for tax evasion.

The study also finds that dissatisfaction with government is correlated with tax evasion. And since Obama’s White House has been wasting money on corrupt green energy programs and a failed stimulus, that also suggests that the Administration wants more tax evasion.

Indeed, this last finding is consistent with some research from the Bank of Italy that I cited in 2010.

…the coefficient of public spending inefficiency remains negative and highly significant. …We find that tax morale is higher when the taxpayer perceives and observes that the government is efficient; that is, it provides a fair output with respect to the revenues.

And I imagine that “tax morale” in the United States is further undermined by an internal revenue code that has metastasized into a 72,000-page monstrosity of corruption and sleaze.

On the other hand, tax evasion apparently is correlated with real per-capita gross domestic product. And since the economy has suffered from anemic performance over the past three years, that blows a hole in the conspiratorial theory that Obama wants more evasion.

All joking aside, I’m sure the President wants more tax compliance and more prosperity. And since I’m a nice guy, I’m going to help him out. Mr. President, this video outlines a plan that would achieve both of those goals.

Given his class-warfare rhetoric, I’m not holding my breath in anticipation that he will follow my sage advice.

New Academic Study Confirms Previous IMF Analysis, Shows that Lower Tax Rates Are the Best Way to Reduce Tax Evasion is a post from Cato @ Liberty - Cato Institute Blog