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.

A Misimpression of Constitutional Moment is a post from Cato @ Liberty - Cato Institute Blog

That the Supreme Court declined to take up the Obamacare litigation before even a single appellate court had ruled on it is neither surprising nor game-changing.

Virginia Attorney General Ken Cuccinelli’s cert petition, whatever its merits (which were several), was a long-shot to begin with as a matter of practice and procedure.  Cato, like all other interested parties, has continued filing briefs in and commenting on the various cases on appeal around the country. 

The only noteworthy point here is that Justice Elena Kagan apparently participated in the consideration of the petition, which indicates that she won’t be recused when one of these cases does hit the Court.  This too isn’t terribly surprising: I’m still digging through the documents regarding her involvement (or lack thereof) in discussions about the litigation when she was solicitor general, but there does not as yet seem to be a “smoking gun” requiring recusal.

In any event, see you in Richmond on May 10 for the Fourth Circuit argument in the two Virginia lawsuits.

Supreme Court Denies Expedited Obamacare Review is a post from Cato @ Liberty - Cato Institute Blog

As Andrew and Adam have already explained, today’s decision in ACSTO v. Winn, though grounded in the technical legal doctrine of “standing,” is a big win for school choice and state flexibility in education reform.  Even more importantly, it makes clear that there is a difference between tax credits and government spending; to find that tax money was used for unconstitutional ends here would have assumed that all income is government property until the state allows taxpayers to keep a portion of it.  That is not, to put it mildly, how we think of private property.

Of course, even had the Court found that Arizona’s scholarship scheme involved the use of state funds, the program would have been insulated from Establishment Clause challenge because it offered the “genuine and independent choice” that the Court has long required in such cases (most notably the 2002 school voucher case of Zelman v. Simmons-Harris). Many layers of private, individual decisionmaking separate the alleged entanglement of taxpayer funds with religious activities: the choice to set up a scholarship tuition organization (STO), the choice by an STO to provide scholarships for use at religious schools, the choice to donate to such an STO, the choice to apply for a scholarship, and the choice to award a scholarship to a particular student.  

Far from being an impediment to parental control over their children’s education or an endorsement of religious schooling, the autonomy Arizona grants taxpayers and STOs ultimately expands freedom for all concerned.  For more on that, see Cato’s amicus brief.

Also interesting about the case is that it offers us Justice Elena Kagan’s first significant opinion, for the dissenting four justices.  While not surprising that she would be in dissent here, in a “conventional” 5-4 split — although the “conservatives” adopted the position advocated by the Obama administration – there do appear to be some eyebrow-raising turns of phrase.  I won’t comment until I finish reading the opinion, but Ed Whelan offers an initial reaction at NRO’s Bench Memos blog.

Government Can Tax Your Income, But It Doesn’t Own It in the First Place is a post from Cato @ Liberty - Cato Institute Blog

The latest federal judge to declare ObamaCare constitutional claimed that Congress can regulate “mental activity,” like the mental activity of choosing not to purchase health insurance.  Or shoes and ships and sealing wax.  Or my book.

National Review editor Rich Lowry has an excellent column explaining why this latest, ahem, legal victory for ObamaCare “delivered a more telling blow against the law in the course of ruling it constitutional than critics have in assailing it as a travesty…It’s the most self-undermining defense of the constitutionality of a dubious statute since then–solicitor general Elena Kagan told the Supreme Court that under campaign-finance reform, the government could ban certain pamphlets.”

I’m Not So Sure I Like Your Mental Activity is a post from Cato @ Liberty - Cato Institute Blog

Today is the first Monday in October, the traditional start of the Supreme Court term.  While we have yet to see as many blockbuster constitutional cases on the docket as we did last term—which, despite the high profile 5-4 splits in McDonald v. Chicago and Citizens United actually produced fewer dissents than any in recent memory—we do look forward to:

• Two big free speech challenges, one over a statute prohibiting the sale of violent video games to minors, another the offensive protesting of a fallen soldier’s funeral;
• An Establishment Clause lawsuit against Arizona’s tax credit for private tuition funds (an alternative to educational voucher programs);
• Regulatory federalism (or “preemption”) cases involving:
  • safety standards for seatbelts;
  • an Arizona statute regarding the hiring of illegal aliens; and
  • the forbidding of class-arbitration waivers as unconscionable components of arbitration agreements;
• Important ERISA and copyright cases;
• A case examining privacy concerns attending the federal government’s background checks for contractors; and
• A criminal procedure dispute regarding access to DNA testing that may support a claim of innocence.

Cato has filed amicus briefs in several of these cases—and in various others which the Court may decide to review later this year—so I will be paying extra-close attention.

Perhaps more importantly, we again have a new justice—and, as Justice White often said, a new justice makes a new Court.  While her confirmation was never in any serious doubt, Elena Kagan faced strong criticism (including from me) on a variety of issues—most importantly on her refusal to “grade” past Court decisions or identify any specific limits to government power.  The 37 votes against Kagan were the most ever for a successful Democratic nominee, which is emblematic of a turbulent political environment in which the Constitution and the basic question of where government derives its power figure prominently.  

Given Kagan’s political and professional background, it is safe to assume that she’s not the second coming of Clarence Thomas.  And because she replaces the “liberal lion” Justice Stevens, her elevation from “tenth justice” (as the solicitor general is known) to ninth is unlikely to cause an immediate change in issues that most divide the Court—particularly because she is recused from nearly half the cases this term.  She could, however, add an interesting and nuanced perspective on a variety of lower-profile issues.  Only time will tell what kind of justice Kagan will be now that she is, seemingly for the first time in her ambitious life, unconstrained to speak her mind.

Here’s to another interesting, varied, and (hopefully) liberty-enhancing year!

Another New Supreme Court Term, Another New Justice is a post from Cato @ Liberty - Cato Institute Blog

Elena Kagan’s confirmation represents a victory for big government and a view of the Constitution as a document whose meaning changes with the times.  Based on what we learned the last few months, it is clear that Kagan holds an expansive view of federal power — refusing to identify, for example, any specific actions Congress cannot take under the Commerce Clause.  She will rarely be a friend of liberty on the Court.

It is thus telling that Kagan received the fewest votes of any Democratic nominee to the Supreme Court in history, beating the record set only last year by Sonia Sotomayor.  Even several senators who had voted for Sotomayor voted against Kagan, including Democrat Ben Nelson — as did Scott Brown, the darling of these high-profile Senate votes.

It was Scott Brown’s election, after all, that signaled that last year’s elections in Virginia and New Jersey were no fluke, that whether people lived in a Red, Blue, or Purple state, they were tired of bailouts, “stimulus,” re-regulation, and, especially, the government takeover of one-sixth of our economy.  This anger has only grown since then, making itself felt most recently in Missouri voters’ overwhelming (71-29) rejection of the individual health insurance mandate.

“Where does the government get the constitutional authority to do this?” the cry goes up across the land.  Elena Kagan won’t give a satisfactory answer but the American people are right to continue asking.

Kagan’s Confirmation Could Be High-Water Mark for Big Government is a post from Cato @ Liberty - Cato Institute Blog

Last Monday, the New York Times ran an editorial, “The Republicans and the Constitution,” lamenting how Elena Kagan’s nomination ”has become a flashpoint for a much larger debate about the fundamental role of American government.”  (I, of course, was hoping that this was the direction the debate would go.)  The Old Gray Lady was particularly aghast that Congress’s expansive use of the Commerce Clause was being maligned.  Don’t those retrograde obstructionists know that as long as the government passes laws the progressive elite — especially the New York Times editorial board — deigns beneficial, no silly constitutional arguments can possibly be germane?

As you could expect, I found quite a bit to quibble with here, so I wrote a letter to the editor.  My letter wasn’t published, but you can still read it here:

Your editorial  stumbles onto an inconvenient truth: The debate over Elena Kagan’s nomination is indeed one about the “fundamental role of American government.”  That’s a good thing!  The opposition to Kagan is not based on petty partisanship or the politics of personal destruction but instead on principled concerns about whether the nominee sees any constitutional limits on federal power.

You rightly focus on the Commerce Clause aspect of this issue because so many federal excesses have been perpetrated in that provision’s name.  But if Congress can, under the guise of regulating activities that “substantially affect interstate commerce,” tell farmers what to grow in their backyards—as the Supreme Court said in the 1942 Wickard v. Filburn case—is it really so “silly” for Senator Coburn to ask a judicial nominee whether, in the name of lowering healthcare costs, Congress can require that we all eat nutritious foods?

You’re also correct that the Court recently approved Congress’s ability to confine sex offenders—but it did so, narrowly, under the Necessary and Proper Clause, after Solicitor General Kagan abandoned the Commerce Clause argument that had been wholly rejected in the lower courts.

And so, as you say, a vote against Kagan is indeed about more than her or President Obama—but that doesn’t mean it’s a vote against various statutes that you like.  There are good reasons for arguing that some of these laws weren’t good ideas, but that’s beside the point.  The point is that there’s a difference between law and policy and that raising the issue of constitutionality is not an “ideological fuss” or “excuse” but goes to the core of this nation’s first principles. 

The Constitution creates a government of delegated and enumerated—and therefore limited—powers, and so much of the discontent in the country is about the basic question of where the government gets the power to do whatever it wants.  Let the debate continue!

Here are some related thoughts from Cato adjunct scholar Tim Sandefur, reacting to the same editorial.

New York Times vs. the Constitution is a post from Cato @ Liberty - Cato Institute Blog

Elana Kagan has just sailed through the Senate Judiciary Committee on a party-line vote (except Lindsey Graham, of course, who maintained his respectable but — to my mind – overly deferential “elections have consequences” line).  This vote comes as no surprise to anyone who’s been keeping half an eye on the Kagan nomination.  The only senator whose position wasn’t obvious after the confirmation hearings was Arlen Specter, who continued his self-serving ways in criticizing the nominee for the majority of an op-ed before announcing that her approval for televised Supreme Court hearings and Thurgood Marshall constituted “just enough” to win his vote.  (This is clearly an attempt to curry favor with the administration and become an envoy to Syria—call it a conversion on the road to Damascus.) 

The statements made by those opposing Kagan show that this opposition is based not on petty partisanship or the politics of personal destruction but on principled concerns over the nominee’s being a rubberstamp for any assertion of congressional authority.  Senator Hatch particularly stands out as someone who’s struggled with the choice before him and honorably decided that Elena Kagan was a bridge too far.  Senator Coburn also continued the sound line of reasoning that led his “fruit-and-vegetable” questioning to be the highlight of the confirmation hearings. 

Kagan is eminently qualified but it is not at all clear that she sees any constitutional limits on government power.

Judiciary Committee Approves Big-Government Advocate is a post from Cato @ Liberty - Cato Institute Blog

As it often does, The Wall Street Journal this morning offers us an op-ed with which it surely must disagree, entitled “Journalism Needs Government Help” – bringing to mind the fabled knock on the door: “Hi. I’m from the IRS and I’m here to help.” The author is no less than Lee Bollinger, former dean of the law school at the University of Michigan and now president of Columbia University, my undergraduate alma mater. As with many an academic, Bollinger has long been a friend of public-private partnerships: indeed, one could say he has lived by them. But the partnership at issue here is so fraught with peril that one wonders how it can be advanced as uncritically as it is in this little piece.

The argument, in essence, is this. The communications revolution has decimated media budgets. Indeed, “the proliferation of communications outlets has fractured the base of advertising and readers,” leading to shrunken newsrooms, especially in foreign bureaus. Thus the FCC and FTC are now studying the idea of enhanced public funding for journalism. Not to worry, Bollinger assures us, since “we already have a hybrid system of private enterprise and public support” – to wit, public regulation of the broadcast news industry and the Corporation for Public Broadcasting. And the most compelling example of state support not translating into official control, he continues, can be found in our public and private research universities, which receive billions of government dollars annually with no apparent problem.

Really? Try getting your hands on some of those funds, or an appointment in one of those departments, if you have reservations about global warming. Or do we need any better example than the case of Elena Kagan, now before us. When the good dean took her principled stand against admitting military recruiters to the Harvard Law School, the larger university community reminded her of the government funds that were thus put in jeopardy, and she adjusted her position accordingly.

But here comes the kicker: Like those who imagine that there’d be no art without the National Endowment for the Arts, Bollinger tells us that “trusting the market alone to provide all the news coverage we need would mean venturing into the unknown—a risky proposition with a vital public institution hanging in the balance.” Was there no news before the invention of NPR, all things considered? And back on the academic analogy, he adds, “Indeed, the most problematic funding issues in academic research come from alliances with the corporate sector. This reinforces the point that all media systems, whether advertiser-based or governmental, come with potential editorial risks.” True, but government is categorically different than private businesses, of which there is no shortage. Yet those who fail to notice that difference, or discount it, are forever drawn to government because it is, as we say, so easy to get in bed with.

On the Separation of Press and State is a post from Cato @ Liberty - Cato Institute Blog

Back in May, I suggested:

Senate Judiciary Committee members should be sure to ask Solicitor General and Supreme Court nominee Elena Kagan, during her upcoming confirmation hearings, whether she or her office played any part in crafting ObamaCare or the administration’s defense to the lawsuits challenging that law. If Kagan helped to craft either, that would present a conflict of interest: when those lawsuits reach the Supreme Court, she would be sitting in judgment over a case in which she had already taken sides…

If Kagan played a role in drafting ObamaCare or formulating the administration’s legal defense, and is confirmed by the Senate, propriety would dictate that she recuse herself from any challenges to that law that reach the high court.

Committee members didn’t ask her those questions during the hearings, as The Wall Street Journal explains. Fortunately, a letter to Kagan from all seven Republicans on the committee has (exhaustively) remedied that oversight.

Kagan has already told the committee she would recuse herself from any case in which she “participated in formulating the government’s litigating position.”  Given that she appears to take an expansive view of Congress’ power to regulate interstate commerce, the best possible outcome for opponents of ObamaCare would probably be for Kagan to join the Court but recuse herself from cases challenging that law.

That would also be the worst possible outcome for the administration.  In fact, universal coverage is so important to the Left that if Kagan would leave them with one less pro-ObamaCare vote on the Court, I wouldn’t be surprised to see President Obama withdraw her nomination.  He could then appoint someone as ideologically reliable as Kagan, but who could actually defend the president’s signature accomplishment.

This could get interesting.

Senators (Finally) Press Kagan about ObamaCare is a post from Cato @ Liberty - Cato Institute Blog

I agree with Jillian Bandes’s characterization of the Democrats’ “bottom of the order” questioning (the committee being stacked 12-7, the day began with the junior Dems) and indeed was dreading having to sit through all sorts of parochial bloviations.  Even Al Franken wasn’t too exciting, just making the point Justice Kennedy was wrong not to consider in legislative history in arbitration cases and expounding at length on the theme that money in politics is bad and so therefore was Citizens United.  Kagan responded that “Congress’s intent is the only thing that matters [to statutory interpretation]”—a position sure to infuriate her future would-be colleague Justice Scalia—but also that the Court “should not re-write the law,” instead allowing Congress to correct unsatisfying judgments based on flawed legislative draftsmanship.  From this exchange I didn’t learn much about Kagan but did conclude that I wouldn’t ever vote for Franken for anything, except maybe the People’s Choice Awards should he ever return to show business.

The most memorable part of today’s first session of questioning (9am till after 1pm) was undoubtedly Arlen Specter pressing the nominee to answer questions about various lawsuits of special concern to him and which he detailed in several letters to Kagan about the questions he would ask.  One was a Holocaust survivors’ suit, one was by families of the victims of 9/11, and one regarded the Bush-era Terrorist Surveillance Program.  The first is at the cert petition stage before the Supreme Court, in the second Kagan as SG recommended that the Court deny review, and the third eventually will be seeking review of the lower court’s dismissal on standing grounds.  Kagan agreed that standing and other jurisdictional doctrines are important but would not discuss whether she would vote that the Court hear the cases or reverse the lower-court decisions.  Kagan pushed back repeatedly, saying “you wouldn’t want a judge who says she will reverse a decision without reading the briefs and hearing argument.”  Specter was extremely dissatisfied, to the point where his vote is legitimately in doubt.  Indeed, I would say now that Lindsey Graham is much more likely to vote for Kagan than Specter is.  Of course, Specter had voted against Kagan when she was nominated to be solicitor general last year—but he was a Republican at the time.

CP at Townhall

Will Specter Vote Against Kagan? is a post from Cato @ Liberty - Cato Institute Blog

More highlights from Day 2 of the Kagan confirmation hearings:

•  In addition to backing away from President Obama’s empathy standard, Elena Kagan, under questioning by Senator Grassley, backs away from her “judicial hero” Aharon Barak, saying that she does not share his judicial philosophy, which involves judges making policy decisions and affirmatively shaping society.  This is an important concession.  Grassley also elicits the statement that only the president and Congress should worry about American influence in the world.

•  The wily Arlen Specter, in his last Supreme Court hearing (unless Justice Ginsburg retires over the summer), treats his questioning as a prosecutor would.  Technical questions and cutting off responses when Kagan begins to expound on the current state of the law, when what he really wants to know is what she thinks about the law.  Unfortunately, Specter accepts Kagan’s statements that she respects Congress but does not press her right when the next question would demand an actual opinion on Citizens United or on Morrison (an important case in which the Court struck down the Violence Against Women Act as beyond Congress’s powers to regulate interstate commerce).  Kagan admits that Citizens United was a “jolt to the system” because states had relied on the pre-existing campaign finance regime.  Unfortunately, this is again an empirical statement rather than a normative one.

•  Kagan does express a firm opinion in favor of televising Supreme Court proceedings (this is one of Specter’s bugaboos).  “I guess I’ll have to have my hair done more often,” she says.

•  Lindsey Graham is definitely worth the price of admission.  First he prompts Kagan to admit that “my political views are generally progressive” after she declined to characterize herself in anyway in response to previous senators’ queries.  Then he gets her to endorse her classmate Miguel Estrada for the Supreme Court (which may be of interest to General Petraeus, who testified before another Senate committee today).  Finally, in questioning regarding the Christmas Day bomber, he provokes an ethnic love-in after his question about where Kagan was on Christmas Day elicits the response, “well, like all Jews, I was probably at a Chinese restaurant.”  As he did with Sotomayor, Graham makes clear that he is likely to disagree with many of Kagan’s judicial decisions, but will vote for her regardless.

•  John Cornyn is the first senator to push the size and scope of government as a major line of questioning.  He asks her one of my pet questions: What limits are there on government?”  Kagan replies by reciting the Commerce Clause standards set forth in existing precedent, that Congress cannot touch activity that is not economic or that is left traditionally to state power. Well, that’s progress, but of course it raises the question of whether forcing someone to buy health insurance involves regulating economic activity and whether health care regulation is a traditional state responsibility.

•  Tom Coburn picks up where Cornyn left off, proposing a hypothetical bill requiring everyone to eat three fruits and three vegetables per day.  Kagan considers that a “dumb law” but says that “courts would be wrong to strike down laws simply because they are senseless.”  Well, ok, but is that particular senseless law unconstitutional?  Kagan seems pained (in real psychic discomfort) but Coburn lets her off the hook in reading from the Federalist Papers—a nice edition that should make for a good picture in the Oklahoma papers—and talking about the explosive growth of government.  Kagan shrugs off this discursion by citing Marbury v. Madison—“the role of the courts is to say what the law is”—and concluding that deficits aren’t a problem courts can resolve, at which point Coburn’s time runs out.  We will revisit this issue.

In short, Kagan is without doubt smarter, wittier, and more collegial than Sonia Sotomayor.  Unfortunately, that means she is likely to be more dangerous, a true “liberal Scalia.”  We now know that two of the catchphrases from these hearings will be that “I’m not going to grade cases”—why not?—and that everything the Court has ever decided is “well-settled law.”  In my mind, Kagan has not yet met the burden of persuasion regarding constitutional limits on government, which is my focus at these hearings.  I would look for Senators Sessions, Cornyn, and Coburn to hit this issue hard on the next go-around.

CP at Townhall

Kagan May Well Become “The Liberal Scalia” is a post from Cato @ Liberty - Cato Institute Blog

Here’s what you have missed if you don’t have the luxury of watching C-SPAN all day:

• Senator Sessions went after Kagan hard on the Military-Recruiting-at-Harvard imbroglio.  I don’t think he did any damage—which I’ll define as convincing someone on the fence to go against her—but the thing to keep in mind here is that the Don’t Ask Don’t Tell policy that so enraged then-Dean Kagan was federal law, not military policy.  Punishing the military for an act of Congress you disagree with—one on which you advised President Clinton—is disingenuous at best.  And I say this even though Cato supports ending DADT and filed a brief against the Defense Department in the Rumsfeld v. FAIR case involving denial of federal funds to schools who hamper military recruitment (we argued that private schools, like Harvard, should have more freedom to design their policies than public schools; in no way did we support the tenuous statutory claims made by Kagan, which the Court rejected 8-0).  There are policy differences and legal advocacy, and then there’s the rule of law.
• Kagan’s attempts to walk away from her “Confirmation Messes” law review article are simply unconvincing.  In that article, she said among other things that “[w]hen the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.”  Now Kagan says she can’t even talk about whether past cases were correctly decided because they’re all “settled law.”  She can get away with this because of the sizeable Democratic majority in the Senate, but there is simply no principled way anyone can argue that what Kagan wrote in 1995 is now somehow wrong.  Yes, nominees should not be forced to pre-judge cases—Kagan will be fully justified in refusing to opine on the constitutionality of the individual health care mandate—but how are we to get to know a nominee’s judicial philosophy if she declines to answer questions about that philosophy?
• In her response to Senator Kohl about whether she’s an originalist like Justice Scalia or a critic of originalism like Justice Souter, Kagan kept referencing the “original intent” of the Founders.  This line of analysis is completely wrong.  It’s not the intent of the Founders (or Framers, or authors of the Federalist Papers, or anyone else) that matters but the original public meaning of the constitutional provision at issue in any given case.  So it seems that Kagan either doesn’t understand originalism or doesn’t take it seriously.  Indeed, she followed-up by saying that original intent was sometimes useful for interpreting the Constitution and sometimes not, that there are many tools for interpreting the Constitution.   I take this to mean that when originalism suits Kagan’s desired result, she will pay it lip service.  Otherwise, well, ya gotta do what ya gotta do to achieve your preferred position.
•  Whether it be campaign finance, abortion, executive detention, or anything else, Kagan is tending to answer questions by reference to existing precedent rather than an affirmative statement by her of the law.  This is good strategy—she shows she’s knowledgeable without tipping her hand on what she actually thinks—but fails to meet the Kagan Standard for candor from nominees.  She’s no longer auditioning to be a constitutional law professor or the government’s advocate: it is completely fair to ask her to give us some actual opinions of what she thinks about the state of the law, not just describe it.
• At times, Kagan manages to engage in some cordial rapport and even jokes with several senators.

The more I watch Elena Kagan, the more I’m liking her personally and the more I’m concerned about what she’d be like on the bench.

CP at Townhall

Kagan the Tight-Lipped, Fair-Weather Originalist is a post from Cato @ Liberty - Cato Institute Blog

The Center for Competitive Politics has sponsored an analysis by Allison Hayward of Elena Kagan’s writings on campaign finance regulation. It should be read widely, not least by the Senators trying to discern her fitness for the Court. Here’s a taste of Allison’s analysis:

In Kagan’s 1996 article, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, she “explicitly recognized that ‘campaign finance laws… easily can serve as incumbent-protection devices’ and when applied to certain speakers ‘the danger of illicit motive becomes even greater.’ It is impossible to square Kagan’s analysis in this article with her recent comments that the Supreme Court should have deferred to Congress in Citizens United.  Americans deserve to know which version of Kagan’s views will receive a lifetime platform on the bench of the Supreme Court.”

Kagan Contra Kagan? is a post from Cato @ Liberty - Cato Institute Blog

Today Politico Arena asks:

What are the political implications for Democrats and for the Kagan hearings of today’s Supreme Court gun decision?

My response:

The Supreme Court’s decision today that the Second Amendment applies against the states cannot be helpful to Democrats in the upcoming elections or to Elena Kagan in her confirmation hearings. Most Court-watchers expected the decision to come out as it did, yet the dissent by the Court’s four liberals speaks volumes. How could other rights in the Bill of Rights be good against the states, but not this right? Given the quality of their argument, the conclusion that the Court’s liberals are picking and choosing their rights on political grounds is inescapable.

And that issue will arise in the Kagan hearings, given some of her past statements about the Second Amendment. Will it block her confirmation? Probably not, given the numbers. But the discussion should illuminate the issue for the voters, and that’s good.

Democrats, Kagan, and the Second Amendment is a post from Cato @ Liberty - Cato Institute Blog

George Will has some excellent questions for Supreme Court nominee Elena Kagan. 

Here’s an excerpt:

• The government having decided that Chrysler’s survival is an urgent national necessity, could it decide that Cash for Clunkers is too indirect a subsidy and instead mandate that people buy Chrysler products?

• If Congress concludes that ignorance has a substantial impact on interstate commerce, can it constitutionally require students to do three hours of homework nightly? If not, why not?

• Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce? If courts reflexively defer to that congressional pretense, in what sense do we have limited government?

• In Federalist 45, James Madison said: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.” What did the Father of the Constitution not understand about the Constitution? Are you a Madisonian? Does the doctrine of enumerated powers impose any limits on the federal government? Can you cite some things that, because of that doctrine, the federal government has no constitutional power to do?

It is unfortunate that Will’s column did not make the hard copy of today’s Washington Post.  (The column is dated today, but it’ll likely appear in his regular Sunday space.) Senators on the Judiciary Committee need to read this stuff.

George Will Has Questions for Elena Kagan is a post from Cato @ Liberty - Cato Institute Blog

From the first round of Clinton Library documents regarding Elena Kagan’s White House service, we can now all be shocked – shocked! – that President Obama’s Supreme Court nominee is a liberal.  It’s a mystery why the punditocracy thought someone who despaired at Ronald Reagan’s election, staffed the Michael Dukakis campaign, clerked for Thurgood Marshall, and advised Bill Clinton would be anything else.  But this is what passes for news in Washington these days.

We already knew that the solicitor general was a genial but cautious careerist, rarely expressing her own opinions but forever strategizing over the next rung on the ladder that would take her to her high school dream of sitting on the Supreme Court.  And we knew that she was a moderate legal academic – meaning she sits comfortably to the left of the country as a whole.  Well, now we know that Kagan is a technocrat who is for abortion rights, affirmative action, and campaign finance regulations, but against guns.

Some conservatives may see this as an “a-ha” moment, and rabid progressives may be breathing a sigh of relief.  But really these so-called revelations are not going to change the story, either in terms of the final confirmation vote or in the court of public opinion.

What the media should be asking, and what the American people deserve to know, is how Kagan views the Constitution – especially what limits it places on an out-of-control federal government.  In a prophetic 1995 book review, the nominee expressed frustration at the “vapid and hollow charade” that the confirmation process had become and demanded that both senators and judicial nominees engage in more substantive discussions.  Let’s see if the Kagan hearings meet that Kagan standard.

FLASH: Liberal White House Nominates Liberal Judge! is a post from Cato @ Liberty - Cato Institute Blog

Since I first issued my challenge to debate “anyone anytime anywhere” on the (un)constitutionality of Obamacare, a lot has happened.  For one thing, Randy Barnett and Richard Epstein, among many others, have published provoctive articles looking at issues beyond the Commerce Clause justification for the individual mandate — such as the argument that Congress’s tax power justifies the mandate penalty and that the new Medicaid arrangement amounts to a coercive federal-state bargain.  (Look for to a longish article from yours truly due to come out in next month’s issue of Health Affairs.)  For another, as Michael Cannon noted, seven more states — plus the National Federation of Independent Business and two individuals – have joined the Florida-led lawsuit against Obamacare.  Perhaps most importantly, such legal challenges are gaining mainstream credibility.

Here’s a brief look at some important legal filings from the past 10 days:

1. On May 11, the U.S. government filed a response to the Thomas More Center’s lawsuit asking a federal court in Michigan to enjoin Obamacare on various grounds, including, distinct from other suits I’ve seen, religious liberty violations from having to pay for abortions.  The government argues that the plaintiffs lack standing because it’s unclear whether the individual mandate will harm them and in any event this provision doesn’t go into effect until 2014 at the earliest. The government also predictably argues that the mandate is a valid exercise of Congress’s power to regulate interstate commerce and to provide for the general welfare.  There is nothing surprising here and we now await the court’s preliminary ruling.
2. On May 12, the U.S. Citizens Association (a conservative group) and five individuals filed a new suit in Ohio, as Jacob Sullum notes.  In addition to the government powers arguments that are being made in most Obamacare lawsuits (most notably the state suits), this suit claims a violation of: the First Amendment freedom of association (the government forces people to associate with insurers); individual liberty interests under the Fifth Amendment; and the right to privacy under the Fifth Amendment’s liberty provision, Ninth Amendment retained rights, and the rights emanating from the First, Third, Fourth, Fifth, and Ninth Amendments (such is the Court’s convoluted jurisprudence in this area).  I’ll add that the attorney filing this suit, Jonathan Emord, worked for Cato over 20 years ago.
3. On May 14, Florida filed an amended complaint that, along with adding seven states, two individuals, and the NFIB — so all potential standing bases are covered — beefs up relevant factual allegations and, most importantly, shores up a few legal insufficiencies to the previous claims.  This is a solid complaint, and alleges the following counts: (1) the individual mandate/penalty exceeds Congress’s power under both the Commerce Clause and taxing power and, as such, violate the Ninth and Tenth Amendments; (2) the mandate violate’s the Fifth Amendment’s Due Process Clause; (3) the mandate penalty is an unconstitutional capitation or direct tax because it is unapportioned; (4) the Medicare expansion constitutes a coercive federal-state bargain that commandeers state officials; (5) a different formulation of coercion/commandeering; and (6) interference with state sovereignty and functions under the Tenth Amendment.   After further briefing, oral arguments on the government’s expected motion to dismiss are scheduled for September 14 in Pensacola.
4. At least one enterprising analyst has determined that the 2,400-page bill lacks a severability clause.  This means that if one part of the bill is struck down as unconstitutional, the whole thing falls! — and would mean that the drafters committed legal malpractice of the highest order.  I guess it goes to show that nobody has read the whole thing.

Finally, if anybody is reading this is in Seattle, I’ll be debating Obamacare at the University of Washington Law School next Thursday, May 27 at 4:30pm.  This debate, sponsored by a number of groups, including the law school itself and the Federalist Society, is free and open to the public.  For those interested in other subjects, I’ll be giving a different talk to the Puget Sound Federalist Society Lawyers Chapter the day before at 6:30pm at the Washington Athletic Club ($25, rsvp to Michael Bindas at mbindas@ij.org).  The title of that one is “Justice Elena Kagan?  What the President’s Choice Tells Us About the Modern Court and Confirmation Process.”  Please do introduce yourself to me if you attend either event.

Update on the Legal Challenges to Obamacare is a post from Cato @ Liberty - Cato Institute Blog

Just as Tuesday’s primary elections were good news for libertarians, they were bad news for Elena Kagan.  Now that Arlen Specter (D-R-D-PA) will never again face an electorate, we will be able to see his true colors, whatever they are – this should be interesting! — on the Senate Judiciary Committee.  Blanche Lincoln (D-AR), assuming she wins her June 8 primary run-off (having to tack left to do so), will be a possible vote against Kagan so she can show skeptical Arkansans that she’s not an Obama-Reid-Pelosi rubber stamp.  And Rand Paul’s trouncing of establishment candidate Trey Grayson in the Republican primary should strike fear into the hearts of all senators running for re-election this fall (or even 2012) such that they refuse to accept pablum from a judicial nominee’s testimony.

The above races, combined even more notably with Scott Brown’s victory in Massachusetts in January, reinforce that voters are upset with Washington and they ain’t gonna take it any more.  Put simply, this fall’s election is shaping up to be a repeat of 1994 — except now we have protesters, the Tea Party movement, actively opposing every type of government expansion, bloat, and “stimulus” emanating from the federal government.  Elena Kagan will still get confirmed but she will face tough questions about the limits on government power; a 59-seat majority is nothing to sneeze at, but her confirmation margin is eroding every day.

Turning to one aspect of Kagan’s record that will get some attention in coming weeks, Ken Klukowski of the American Civil Rights Union argues that the nominee “confirms that President Obama’s gun-control agenda is to create a Supreme Court that will ‘reinterpret’ the Second Amendment until that amendment means nothing at all.”  Now, even though Ken and I have tangled before, I have no doubt that Obama is not the best president ever for the defense of the natural right to keep and bear arms for self-defense.  Still, Ken’s claim here that Kagan’s decision not to file a brief on behalf of the United States in McDonald v. City of Chicago indicates that she is anti-gun rights is specious.

Doug Kendall of the Constitutional Accountability Center — a progressive group that nevertheless has the intellectual integrity to support the application of the right to keep and bear arms via the Privileges or Immunities Clause — has a detailed refutation to these allegations:

As one of two lawyers who met with General Kagan on behalf of the petitioner, Otis McDonald, to request that she file a brief in support of McDonald, I can say first hand that this assertion is nonsense.  It is also worth pointing out, as I do below, that Klukowski’s post has important factual distortions in it.

As has been reported in the press, I joined McDonald’s lead counsel, Alan Gura, in a meeting with General Kagan and her staff to ask the Solicitor General to file a brief in support of McDonald and incorporation, against the City of Chicago.

From the outset, it was clear to me that McDonald was a difficult case for the Obama Administration, and that we therefore faced a decidedly uphill battle in seeking support from the United States.

On the incorporation question, there is also the fact that the Solicitor General’s Office has a tradition of not weighing in on incorporation cases at all, regardless of where it may stand on the merits of the case.  As former Solicitor General Erwin Griswold explained in a 1970 Supreme Court brief, the outcome of incorporation cases is rarely of direct interest to the federal government, while “fundamental considerations of federalism militate against executive intrusion into the area of State criminal law.”  Noting that incorporation cases often arise from questions surrounding state criminal procedure, Griswold indicated that the Solicitor General’s Office was particularly wary of getting involved in a potentially vast number of cases in which criminal defendants sought to expand the procedural protections of the federal Due Process Clause.

General Kagan gave us an entirely fair opportunity to state our case, and the decision by her office to refrain from filing a friend-of-the-court brief in this case tells us nothing meaningful about Kagan’s views on the Second Amendment.

In short, as Josh Blackman says, Kagan had plenty of reasons not to file a brief in McDonald and her decision not to says absolutely nothing about her views on the right to keep and bear arms. Again, I have no doubt that Elena Kagan, being a standard modern liberal, is no friend of the Second Amendment.  But the evidence Ken Klukowski purports to marshal is no evidence at all.

Elena Kagan, Super Tuesday, Tea Parties, Guns is a post from Cato @ Liberty - Cato Institute Blog

As you know from reading Roger’s and Ilya’s posts, this has been a pretty dreadful news day for libertarians at the U.S. Supreme Court. (And we haven’t even gotten into Justice Kennedy’s use of supposed international consensus in devising new Constitutional standards on excessive sentencing, despite a Cato amicus brief [pdf] urging the contrary). For whatever comfort it provides, which may not be much, here’s more reporting and speculation on the often hard-to-pin-down views of the newest nominee:

• Her participation in Clinton Administration gun-control initiatives doesn’t (to put it mildly) suggest an expansive view of individual rights under the Second Amendment [Brian Darling via David Kopel]
• On Kelo and eminent domain, will she share Justice Stevens’s property-rights-unfriendly views? [James Ely via Ilya Somin]
• Be advised, Prof. Wagner, that despite her flair for protean mask-shifting, it is lacking in dignity to refer to the nominee as “Lady KaGa“.
• Stuart Taylor, Jr. offers a semi-defense of her “inherited and largely symbolic” stand on military recruiters at Harvard (earlier here, here, and here).
• From his lips to God’s ears: Marvin Ammori at Balkinization offers an argument (via ABA Journal) as to why, contrary to all expectations, Kagan might wind up coming out on the free-speech side of Citizens United after all. Ira Stoll wonders how effectively critics can raise the free-speech-in-campaigning issue at the hearings anyway: “it’s a bit much for Republicans, having watched President Bush sign BCRA [the Bipartisan Campaign Reform Act of 2002] into law, now to oppose putting Elena Kagan on the court because she defended its constitutionality.”

Kagan Nomination, Day 8 is a post from Cato @ Liberty - Cato Institute Blog