Archive for the ‘Law and Civil Liberties’ Category
A Property Rights Victory in the Magnolia State
One of the unambiguously good results from last Tuesday’s off-year elections came in Mississippi, the state I called home the year before I moved to D.C. By the impressive margin of 73% to 27%, voters in the Magnolia State took a stand against judicially sanctioned eminent domain abuse, specifically the government’s taking of private property in the name of so-called “economic development.”
By passing Measure 31, which prohibits most transfers of condemned land to private parties for 10 years after condemnation, Mississippi joins 44 other states in enacting legislation that strengthens property rights in the wake of the Supreme Court’s horrific ruling in Kelo v. New London. In Kelo (2005), you’ll recall, the Court held that state and local governments can condemn private property not for some sort of public project like a highway or military base nor because it is a “blight” that creates a health or safety risk, but simply to transfer to another private party who claims to put it to better economic use.
We at Cato are all in favor of economic development, of course, but not if that development comes via raw government power that treads on constitutionally protected individual rights. If a developer thinks he can put a given piece of land to a higher-value use, let him buy that property fair and square from the owner rather than effectively forcing a sale at below-market value.
Indeed, Kelo’s holding was flawed precisely because its rationale that transferring ownership of “economically blighted” property would promote economic development is bad economics. If a proposed project were actually a better use of a given property, the developer would be willing to pay a price sufficient to induce the current owners to leave.
Kelo also undermines property security, making owners less willing to invest in their property and use it productively, lest the government swoop in, declare it “blighted,” and sell it to someone else. And securing property rights is not just a good thing economically. It also helps prevent powerful private interest groups from undercutting the property rights of minorities and other groups who may be vulnerable due to prejudice or political disadvantage.
And the American people agree: Kelo turned out to be a Pyrrhic victory for developers and their public-official cronies, such that most of the country is now better protected against eminent domain abuse than it was before Kelo. Notably absent from the list of states where property rights are better off, however, is New York (see my comment on a recent instance of eminent domain abuse in the Empire State).
The judiciary’s abdication of its role as a protector of property rights is bad enough, but our elected officials haven’t done much better. Tellingly, the drivers of successful anti-Kelo legislation have tended not to be state legislators (with some exception) but rather citizen-activists. While special-interest groups, such as big car companies in Mississippi, may pressure legislators to avoid anti-Kelo legislation, even as referenda show that popular opinion is on the side of the property rights activists.
Measure 31 is not perfect, but it is a step in the right direction. The Founders took care to protect private property rights in the Constitution, and it’s heartening to see citizens taking an active role to vindicate those protections even when the Supreme Court abdicates its duty to do so.
For more commentary on the Mississippi vote, see Ilya Somin’s recent op-ed.
Legalize Drugs? Greenwald v. Walters
Best-selling author Glenn Greenwald debated former drug czar John Walters at Brown University last night before 300 students and faculty. Glenn authored Cato’s landmark study on the decriminalization of drugs in Portugal and he will be speaking at our drug conference next week.
The Foreign Corrupt Practices Act: Clarification Is Not Enough
The Foreign Corrupt Practices Act, enacted in 1977 and the subject of a high-profile federal enforcement campaign in recent years, is a feel-good piece of overcriminalization that oversteps the proper bounds of federal lawmaking in at least four distinct ways, any of which should have prevented its passage. It is extraterritorial, purporting to punish overseas misdeeds which deprive no Americans of liberty or property and whose punishment is better left in the hands of authorities elsewhere. It is vicarious, inflicting massive liability on businesses and unknowing higher-ups over the actions of rogue local subsidiaries, salespeople and facilitators. It is punitive, menacing its targets with twenty-year prison terms and inflicting huge penalties over less-than-huge misbehavior. And finally, it is vague, leaving companies to guess at the proper line between tolerated payments (e.g., gratuities to speed up visa and license issuance in developing countries) and improper “bribes,” and even such basic questions as who counts as an “official.” In the face of a mounting outcry from the business community, the Obama administration has now finally conceded that there is some validity to this last point, and Criminal Division chief Lanny Breuer says the Department of Justice will develop guidelines to provide greater clarity as to what it believes the law does and does not forbid. Better than nothing, but why not consider the case for wider reform or even repeal?
To begin with, it’s hardly as if the law has succeeded in cleaning up the climate of official corruption that afflicts so many ill-governed countries around the globe. It does, however, confer a huge competitive advantage on companies not within the reach of the U.S. Department of Justice, above all those of China, which does not even pretend to apply similar rules to its overseas enterprises, and also including Europe, which has mostly chosen to address the problem in less adversarial ways. (See, for example, this Economist editorial on Britain’s FCPA-equivalent.)
Chicago-Kent law professor Andy Spalding has argued that the FCPA in fact amounts to a form of unintended economic sanctions against developing countries, sometimes with “tragic” and anti-humanitarian results. Guest-posting at PrawfsBlawg, Spalding offered the example of India, where a poor rural population stands in desperate need of roads:
India lacks the financial and administrative (or authoritarian?) capacity to build the needed roads, so it has aggressively solicited outside investors. Nonetheless, of all public requests for road construction proposals in India, almost half receive absolutely no bids. No one is willing to build these roads, at any price. Why aren’t more U.S. construction companies seizing this profit opportunity? Answer: corruption. The infrastructure sector is notoriously corrupt; the FCPA risks are far too high.
Query: if the criminal penalties now associated with FCPA enforcement have made the costs of building roads in developing countries prohibitive, such that roads aren’t built, farmers can’t sell, and kids can’t eat, have we done the right thing?
More on FCPA at Overlawyered and at my former website Point of Law.
Broadcast Media Deserve Better Than Second-Class First Amendment Protection
Who controls the content of TV and radio broadcasts, parents or the FCC? In the 1978 case of FCC v. Pacifica Foundation, the Supreme Court held that, because over-the-air broadcast media is like an “unwanted intruder” in the home that is uniquely accessible to children, the FCC has a role in maintaining the cleanliness of the transmissions. Because of these unique characteristics, the regulation of broadcast media was held to a lesser constitutional standard than other types of media. That ruling was largely based on the technology of the time: three channels, little cable, and no VCRs, much less Internet, DVDs, and satellite TV.
Since that time, the FCC has regulated broadcasts under that lower constitutional standard, including fining stations for so-called “fleeting expletives” uttered by celebrities on live awards shows, the infraction from which this case springs (it was Bono, then Cher, then Paris Hilton and Nicole Richie). This case is visiting the Supreme Court for the second time. In 2009, the Court ruled that an FCC rule against “fleeting expletives” was not an unlawful under administrative law, the law governing executive agencies’ power. On remand, the Second Circuit struck down the rule on First Amendment grounds, largely on the reasoning that Pacifica had been obviated by technological change.
Cato has joined forces on an amicus brief with a wide range of groups advocating freedom in technology policy — the Electronic Frontier Foundation, the Center for Democracy & Technology, Public Knowledge, and TechFreedom — to underscore for the Court just how different the world is today from 1978. While the groups joining the brief do not necessarily agree with each other all the time, we agree on this fundamental truth: broadcast media (the most prominent way we become informed) should not receive watered-down First Amendment protection. We point out how the existence of Video-On-Demand services like Netflix, DVRs, Internet sites like Hulu, as well as massive access to DVDs, has radically transformed how we consume media. Broadcast media is no longer an “unwanted intruder,” but more like an invited guest. Moreover, with the existence of parental control mechanisms like the V-Chip, parental locks included in cable and satellite boxes, and even services like “TV Guardian” — which filters live TV based on the closed-captioning signal — parents have all the tools at their disposal to ensure that children aren’t exposed to fleeting expletives or anything else unwanted. So why does the FCC need a vague and overbroad rule that could not pass heightened scrutiny and can only survive under a watered-down First Amendment standard? We live in a world that few could have imagined in 1978. It’s time for a new rule that gives broadcast media the same level of speech protection as any other kind.
The Court is expected to hear argument in FCC v. Fox Television Stations in January.
Obamacare’s Footnote Four
This post was co-authored by Cato legal associate Chaim Gordon.
Freedom-loving lawyers everywhere recoil in horror at the mere mention of “footnote four.” In that infamous citation in the 1938 case of Carolene Products, the Supreme Court officially renounced judicial review of laws that infringe on economic liberty. This week, in his dissent from the D.C. Circuit opinion that upheld the individual mandate on Commerce Clause grounds, Judge Brett Kavanaugh added his own dubious “footnote four.”
Judge Kavanaugh’s 65-page dissent was devoted to his parsimonious reading of various provisions in the Internal Revenue Code, culminating in the conclusion that the Anti-Injunction Act robbed federal courts of jurisdiction to hear the case until the mandate penalty is actually enforced. As Judge Kavanaugh noted, “the Tax Code is never a walk in the park.” But the Tax Code is even more grueling when you are given lousy legal advice. And that is why footnote four — in which Judge Kavanaugh inexplicably decides to publicly thank former IRS commissioners Mortimer Caplin and Sheldon Cohen and their counsel for their amicus brief – is so troubling. Here is his footnote four:
Both sides before us want this case decided now and contend that the Anti-Injunction Act does not bar this suit. The amicus brief of former IRS Commissioners Mortimer Caplin and Sheldon Cohen, submitted by able counsel Alan Morrison, cogently argued the opposite position. The Court is grateful to amici and counsel for their assistance.
But it is entirely unclear why Commissioners Caplin and Cohen and Counsel Morrison deserve the court’s thanks. For starters, the Caplin and Cohen brief was not advocating either of Judge Kavanaugh’s nuanced readings — be they correct or not – of various provisions in the Internal Revenue Code. (It did, however, make one of Kavanaugh’s main arguments in response to one of the government’s arguments toards the end of the brief.) Rather, the Caplin and Cohen brief broadly asserts that the AIA “prevents courts from reviewing all claims involving payments under the Code, not just those labeled taxes.”
The problem is that, in support of this broad, sweeping assertion, the Caplin and Cohen brief misleadingly cites cases that do not support its claim. That is, almost all the cases cited by the Caplin and Cohen brief specifically relied upon the fact that the penalties at issue were found in chapter 68 of the IRC or were part of a larger taxing scheme (as in the Mobile Republican case). But you would not know that from reading the Caplin and Cohen brief.
Take, for example, the Caplin and Cohen brief’s citation to Shaw v. United States and Botta v. Scanlon as “perhaps the best illustration of the breadth of the applicability of” the AIA. What the Caplin and Cohen brief does not say is that both of these cases specifically rely upon provisions in the IRC that define the penalty at issue in those cases (under section 6672) as taxes for the purposes of the AIA. Those provisions, by their own terms, only apply to penalties under chapter 68 of the Code, and the penalty for violating the individual mandate is in chapter 48.
This is really green-eyshade stuff, we know, but that’s what this litigation has come to — and it’s why tax lawyers are not suffering the higher rates of unemployment of their peers in other specialties.
To make matters worse, Caplin and Cohen filed essentially the same amicus brief with the Supreme Court in one of the cases that the Court will take up at its cert petition conference this week. This is especially alarming because the government has urged the Court to appoint an amicus counsel to argue for the position that the AIA applies to the penalty for violating the individual mandate (even though the government now agrees with the mandate’s challengers that the AIA does not apply).
We think the justices’ clerks are fully capable of advising their bosses on the pro-AIA arguments, which in any event does not apply to the 26 state plaintiffs in the Eleventh Circuit case. Plus the Court has the Fourth Circuit’s and now Judge Kavanaugh’s thorough “briefs.” If the Court does decide to appoint an amicus to argue that issue, however, let’s hope that it receives better legal advice than the D.C. Circuit got from Caplin and Cohen.
A Misimpression of Constitutional Moment
A little bit of errant security information made its way into the Supreme Court’s oral argument in U.S. v. Jones this week. Justices Ginsburg, Kagan, and Breyer were testing the fairly narrow limits of the position advocated by Jones’ counsel. He focused on invasion of Jones’ “possessory interest” in his car when the government placed a GPS device on it.
If the Court were to find that attachment of a device invaded Jones’ Fourth Amendment interests, this wouldn’t protect him from a system of cameras that developed much the same information, noted Justice Ginsburg. Justice Kagan continued:
What is the difference really? I’m told — maybe this is wrong, but I’m told that if somebody goes to London, almost every place that person goes there is a camera taking pictures, so that the police can put together snapshots of where everybody is all the time. So why is this different from that.
Justice Breyer continued down this line:
And in fact, those cameras in London actually enabled them, if you watched them, I got the impression, to track the bomber who was going to blow up the airport in Glasgow and to stop him before he did. So there are many people who will say that that kind of surveillance is worthwhile, and there are others like you who will say, no, that’s a bad thing.
I’ve spent a lot of time examining terrorism incidents, and the scenario described by Justice Breyer does not sound familiar to me. There was an attack on the Glasgow airport in 2007. That attack was a qualified success—heavily qualified: one of the attackers incinerated himself in the course of causing minor injuries to a few standers-by and only modestly damaging the airport. I’ve found no report that surveillance cameras were involved in monitoring or apprehending the attackers—much less stopping the attack—or in stopping any similar-sounding attack.
Security cameras and surveillance generally are over-rated as preventives of crime and terrorism. They are some help in discovering information about crime after the fact. No help is needed when a major incident turns the eyes of an entire city or nation toward discovering what happened.
I doubt that the case will turn on Justice Breyer’s apparent error, but it clearly influences his thinking, and he shared it with other members of the Court. The people he counts as saying surveillance is worthwhile do not have prevention of an airport bombing in Glasgow to back them up.
High Tech Surveillance: Where to Draw the Line?
As Jim Harper noted yesterday, the questioning during yesterday’s oral arguments in United States v. Antoine Jones suggested to most observers that the Supreme Court is acutely concerned about the dangers of leaving police use of location tracking technology completely unregulated by the Fourth Amendment. “If you win this case,” Justice Stephen Breyer told the government’s lawyer, “then there is nothing to prevent the police or government from monitoring, 24 hours a day, the public movement of every citizen of the United States…. You produce what sounds like Nineteen Eighty-Four.” Yet, as I observed in a previous post, the Court has a wide array of rationales to choose from if it decides to rule in favor of Antoine Jones, and each has different implications for the larger question of how the Constitution will limit a whole array of location tracking technologies.
The simplest and narrowest ruling against the government here — one that seemed to appeal to Justice Scalia — would focus not on the monitoring, but only on the physical intrusion on property involved in the installation of the tracking device. That is, I think, absolutely right as far as it goes, but would only prolong the deeper questions, since there are many high-tech ways to track someone without physically attaching anything to their property, from the cell-phone tracking already in widespread use, to robotic surveillance insects in the foreseeable future. Many on the Court would seemingly prefer to avoid a game of technological whack-a-mole, and find a principle to regulate location monitoring itself. The appeals court in this case relied on what’s come to be called the Mosaic Theory, which holds that prolonged monitoring may invade privacy, even if all the specific journeys — all the tiles in the “mosaic” — are public when considered in isolation.
The Longhorn Mismatch: Too Much Racial Preference, Too Little Success
Last week the Supreme Court asked the University of Texas to respond to a cert petition raising an issue that in any non-Obamacare year would be the most explosive part of the Court’s docket: racial preferences in higher education. (UT had for some inexplicable reason failed even to file a waiver, which is customary in cases where the respondent feels no need to file an actual brief.)
The case was brought by Abigail Fisher, a white Texan denied admission to UT-Austin even though her academic credentials exceeded those of admitted minority students. The district court granted summary judgment to the university and the Fifth Circuit panel affirmed because a divided Supreme Court in the 2003 case of Grutter v. Bollinger (the University of Michigan case) found narrowly tailored racial preferences to be constitutionally justified for the sake of diversity. Judge Emilio Garza wrote an electrifying concurrence — starting at page 58 here — agreeing that the ruling was correct under Grutter but that Grutter itself, and the regime of “soft” racial preferences (i.e., not quotas) it created, is incompatible with the Equal Protection Clause.
The Fifth Circuit then denied en banc rehearing by a vote of 7-9, over a sharp dissent by Chief Judge Edith Jones. (Full disclosure: The judge I clerked for lo those years ago, E. Grady Jolly, joined Chief Judge Jones’s dissent.)
Fisher’s cert petition objects to the wide discretion the Fifth Circuit would grant UT in administrating its racially preferential admissions paradigm, arguing that affording deference to the university extends Grutter and cannot be consistent with the “strict scrutiny” Grutter requires. Indeed, rather than working to phase out public university race preferences consistent with the expectations the Court articulated in Grutter – Justice O’Connor famously wrote that the diversity rationale would only suffice for about 25 years – the Fifth Circuit provides a veritable roadmap for discriminatory state action.
Now, it would be ideal if all nine justices were courageous enough to uphold constitutional protections for all citizens by refusing to legitimize racially discriminatory state action, regardless of the good-faith motives or other political atmospherics surrounding that action. Progressive legal theory being what it is, however, such a result, where people are judged on the content of their character/qualifications rather than the color of their skin, is unfortunately still a dream. There is, however, an argument that might sway even those members of the Court who support affirmative action as a policy matter: race preferences hurt those they are intended to help.
As highlighted in Richard Sander and Stuart Taylor’s amicus brief, a growing body of research suggests that when the capabilities of a student’s peers exceed their own, the student performs worse than when surrounded by peers with objectively similar capacities. Sander (a UCLA economist and law professor) and Taylor (a lawyer and journalist who has long covered civil rights issues) utilize this “mismatch theory” to discredit the assumption underlying race preference programs — that they benefit minorities — and demonstrate that the opposite is true. They further point out that racial preferences have failed to have their intended effects; namely, preventing racial balancing, fostering diversity, and making universities more attractive to minorities.
Three U.S. Civil Rights Commissioners also filed an amicus brief presenting evidence that racial preferences produce the opposite of their intended effect; they discourage rather than facilitate the entry of minorities into prestigious careers by incentivizing elite public universities to admit students they would not admit if admissions were race-blind. They argue that racial preferences place students in environments that do not optimize to their learning. Citing robust statistics, they conclude that this effect actually discourages minorities from entering science and engineering careers and becoming college professors, and decreases the number of minority students accepted to law schools who actually earn JDs and pass the bar exam.
The well-intentioned advocates of race-conscious public university admissions got it wrong under the Constitution. These briefs further illustrate the detriment everyone in society suffers when state action based on race rather than merit dictates the paths of young Americans.
Under the Court’s request for a response, the university has until the end of the month to file, unless it asks for and is granted an extension. If the university’s response arrives by January, the case — if the Supreme Court takes it – should be on schedule for argument and decision this term. For more on Fisher v. University of Texas, see the case’s SCOTUSblog page.
Thanks to Cato legal associate (and UT alumna) Anna Mackin for help with this blogpost.
The Christmas Tree Tax Is a Microcosm of What’s Wrong with Constitutional Law
Jim Harper beat me to the punch on the new Christmas tree tax — probably because I initially thought it was a joke — but there’s actually much more to say here beyond the USDA’s claim that it’s not a tax and the general absurdity of the situation. Three quick things:
First, there are obvious Free Exercise and Equal Protection issues here. That is, unless we consider Christmas trees to be wholly secular, this is an obvious burden on the free exercise of Christianity, and one that no other religion faces. Even if it might be reasonable to see Christmas trees as not particularly religious – pine trees played no role in The Greatest Story Ever Told and, e.g., my secular Jewish family always had a traditional Russian New Year’s Tree (which has no ties to Russian Orthodox Christianity) – but do we want courts drawing lines between, say, creches/crucifixes and trees/Santa?
Second, and probably even more important given the times in which we live, where in the Constitution does the federal government get the power to tax the sale of a local agricultural product? Setting aside trees trucked in from out-of-state, there’s no interstate commerce here to regulate. And if it’s a tax (which, again, Ag officials deny) — presumably an excise, which is specified in the Constitution and which courts have construed to be a tax on transactions or privileges – how does assessing it to promote the general welfare or common defense? The administration cites the Commodity Promotion, Research and Information Act of 1996, under which the tax mandatory fee funds a new program to ”enhance the image of Christmas trees and the Christmas tree industry in the United States.” That’s what passes for the general welfare?
Third, even if the tax is a lawful use of federal power, shouldn’t Congress be the body levying it, rather than an agency of the USDA?
I could go on, but this little 15-cent tree tax is a microcosm of what’s wrong with constitutional law, evermore divorced from the Constitution as it is. Yes, under modern doctrine, the Christmas tree tax can be probably justified under either the Commerce Clause or the General Welfare Clause — and Congress can delegate to bureaucrats the power to levy certain “assessments” – but is that the kind of government we signed up for?
h/t Cato legal associate Chaim Gordon
U.S. v. Jones: The Court’s Search for a Rationale
I attended the Supreme Court’s oral argument in U.S. v. Jones today, the case dealing with the Fourth Amendment constitutionality of using GPS to track individuals’ movements without a warrant. Predicting outcomes is fraught, and you’re getting your money’s worth from the following free observations.
It seemed to me that most members of the Court want to rule that the government does not have free reign to attach GPS devices to cars. Justices Kennedy, Breyer, and Sotomayor, for example, noted the vast consequences if the government were to win the case. Law enforcement could attach tracking devices to people’s overcoats, for example, and monitor their movements throughout society without implicating the Fourth Amendment. Voluble as he often is, Justice Scalia did not say that the Fourth Amendment doesn’t reach GPS because GPS data wasn’t around for the Framers to insulate from government access.
Justice Alito’s thinking seemed to venture the furthest. He noted how insufficient it would be if the Court were to decide the case based on the narrow ground that attaching a GPS device to a car is an unreasonable seizure. Doing so would not account for the vast amount of personal data the government might access without attaching something to a car, clothing, or other property. If not in this case, the Court will soon have to face the (pernicious) third-party doctrine, which holds that a person has no Fourth Amendment interests in information shared with others.
If the Court desires to rule against the government, the one thing it lacks is a rationale for doing so. When it was time for Jones’s counsel to argue, the Justices seemed frustrated not to have a principle on which to base a decision.
Justice Scalia early-on declared his concern with GPS tracking and his dismay that the “reasonable expectation of privacy” test from Katz v. United States (1967) might shrink the zone of privacy the Framers sought to protect in the Fourth Amendment. But he later retreated into a sort of catch-all posture: the Congress can control GPS tracking if it wants. (Jones’s counsel cleverly suggested that there were 535 reasons not to do that.)
Other Justices’ questions danced awkwardly with the “reasonable expectation of privacy” test. Justice Kennedy was equivocal once about whether it would apply. Chief Justice Roberts seemed acutely aware of the Court’s incompetence to make judgments of such broad societal sweep. This is for good reason: there is no way to determine what society thinks, or what is “reasonable” in terms of privacy, when new technologies are applied new ways.
The solution to this conundrum can be found in the Cato Institute’s amicus brief in the Jones case. The Court should not use the “reasonable expectation of privacy” test from Justice Harlan’s Katz concurrence. Rather, it should follow the majority holding, which accorded Fourth Amendment protection to information that Katz had kept private using physical and legal arrangements. The government stands in the same shoes as the general public when it comes to private information—that is, information that can’t be accessed legally or with ordinary perception. When the government accesses information that was otherwise private, those searches and seizures must be reasonable and must almost always be based upon a warrant.
This way of administering the Fourth Amendment is not a snap of the fingers. There will be details to hash out when the Court eventually finds that having a Fourth Amendment interest in information turns on a factual question: whether someone has concealed information about him- or herself.
The biggest impediment to adoption of this rule may be getting lawyers to realize that “reasonable expectation of” is not a prefix required every time they use the word “privacy.”
Reefer Madness Here and Abroad
In the New York Times, Ethan Nadelmann takes aim at the “reefer madness” of the Obama administration, which despite promises and expectations has stepped up the war on marijuana:
But over the past year, federal authorities appear to have done everything in their power to undermine state and local regulation of medical marijuana and to create uncertainty, fear and confusion among those in the industry. The president needs to reassert himself to ensure that his original policy is implemented.
The Treasury Department has forced banks to close accounts of medical marijuana businesses operating legally under state law. The Internal Revenue Service has required dispensary owners to pay punitive taxes required of no other businesses. The Bureau of Alcohol, Tobacco, Firearms and Explosives recently ruled that state-sanctioned medical marijuana patients can not purchase firearms.
United States attorneys have also sent letters to local officials, coinciding with the adoption or implementation of state medical marijuana regulatory legislation, stressing their authority to prosecute all marijuana offenses. Prosecutors have threatened to seize the property of landlords and put them behind bars for renting to marijuana dispensaries. The United States attorney in San Diego, Laura E. Duffy, has promised to start targeting media outlets that run dispensaries’ ads.
President Obama has not publicly announced a shift in his views on medical marijuana, but his administration seems to be declaring one by fiat.
As bad as the drug war is in the United States, it’s wreaking far more havoc in Mexico and Latin America. That’s why the Cato Institute is holding an all-day conference next week, “Ending the War on Drugs,” featuring:
- the former president of Brazil
- the former drug czar of India
- the former foreign minister of Mexico
- the author of Cato’s study on decriminalization in Portugal
- the Speaker of the House in Uruguay
- plus video presentations by former Secretary of State George Shultz and former Mexican President Vicente Fox.
Check it out. And be there November 15.
Of Presumptions and Principles
Having quickly read the D.C. Circuit’s ObamaCare decision that came down this morning upholding the statute’s individual mandate, I’m struck by this line from Judge Laurence Silberman’s majority opinion:
No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.
I should think that in a free society, living under a Constitution of enumerated and thus limited powers, that the point should be stated precisely the other way around, namely:
No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority reaches individuals who are not presently engaging in an activity involving, or substantially affecting, interstate commerce.
In other words, is America’s fundamental political principle “everything that is not given (to the government) is retained,” or is it rather “everything that is not retained is given”? What is the presumption, and who has the burden of proof? Since the New Deal Court’s “constitutional revolution,” of course, we’ve lived, unfortunately, under the latter, and paid the price.
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