The Supreme Court is finally starting to put some interesting non-First Amendment cases on this term’s docket.

Today, the Court agreed to review American Electric Power Co., Inc. v. Connecticut, in which eight states, some non-profits, and New York City are suing a number of energy companies and utilities for harms they allegedly caused by contributing to global warming.  This is the third major lawsuit to push global warming into the courts (another being Comer v. Murphy Oil USA, in which Cato also filed a brief).  It’s America, after all, where we sue to solve our problems — even apparently, taking to court the proverbial butterfly that caused a tsunami.

Mind you, you can sue your neighbor for leaking toxic water onto your land. Courts are well positioned to adjudicate such disputes because they involve only two parties and have limited (if any) effects on others. But it is a different case when, using the same legal theory by which Jones sues Smith for his toxic dumping (called “nuisance”), plaintiffs selectively sue a few targeted defendants for a (quite literally) global problem.  As I discussed with reference to a previous such case, global warming is the type of issue that should be decided by the political branches. The Second Circuit ruled, however, that this suit could go forward. (Justice Sotomayor was involved in the case at that stage and so will be recused going forward.)  

The Supreme Court has always recognized that not all problems can or should be solved in the courtroom. Thus, the issue in AEP v. Connecticut – which the Court will now decide – is whether the states meet the legal requirements necessary to have their suit heard in court, what lawyers call “standing.” Historically, issues of policy have been decided by the legislative and executive branches while “cases and controversies” have been decided by courts. Therefore, when litigants have asked courts determine matters of broad-ranging policy, the Court has often termed the cases “political questions” and dismissed them. The reasoning is that, not only do unelected courts lack the political authority to determine such questions, they also lack any meaningful standards by which the case could be decided (called “justiciability”).

Indeed, even if the plaintiffs can demonstrate causation, it is unconstitutional for courts to make complex policy decisions — and this is true regardless of the science regarding global warming. Just as it’s unconstitutional for a legislature to pass a statute punishing a particular person (bill of attainder), it’s unconstitutional — under the “political question doctrine” — for courts to determine wide-ranging policies in which numerous considerations must be weighed against each other in anything but a bilateral way.  

We pointed out in our brief supporting the defendants’ request for Supreme Court review — and will again in the brief we plan to file at this next stage — that resolving this case while avoiding those comprehensive and far-reaching implications is impossible and that the Constitution prohibits the judicial usurpation of roles assigned to the other, co-equal branches of government.   After all, global warming is a global problem purportedly caused by innumerable actors, ranging from cows to Camrys. This fact not only underscores the political nature of the question, but it has constitutional significance: In order to sue someone, your injury must be “fairly traceable” to the defendant’s actions. Suits based on “butterfly effect” reasoning should not be allowed to move forward.

Perhaps surprisingly, the federal government –which is involved because one of the defendants is the Tennessee Valley Authority — agrees with Cato . The administration aptly played its role in our constitutional system by asserting that global warming policy was a matter for the executive and legislative branches to resolve, not the judiciary. 

Hmmm, Cato and Obama on the same side in a global warming dispute… but I still won’t be holding my breath awaiting an invite to the White House Christmas party.

Supreme Court Should Tell Courts to Stay Out of Global Warming Cases is a post from Cato @ Liberty - Cato Institute Blog

As the legal battle against Obamacare continues, we got good constitutional news today in another aspect of health care law.  The Second Circuit Court of Appeals, based in New York City, ruled that statutes restricting commercial speech about prescription drug-related data gathering are unconstitutional.  The court emphasized that the First Amendment protects “[e]ven dry information, devoid of advocacy, political relevance, or artistic expression.”

The case, IMS Health v. Sorrell, concerned a Vermont law that sought to constrain various aspects of prescriber-identifiable data gathering, dissemination, and use. The state argued that such information collection and exchange could induce doctors to alter their prescribing practices in ways that impose additional costs on the state’s budget. Most notably, the law outlawed the transfer of doctors’ prescription history to facilitate drug companies’ one-on-one marketing—a practice known as “detailing” —because the state believed detailing drives up brand-name drug sales and, in turn, health care costs.  Thus, the Vermont law would have eliminated a key part of the market by hindering economic incentives to comprehensively gather the data. The state argued that the data sharing isn’t “traditional journalistic activity,” it’s not protected by the First Amendment.

Cato joined the Pacific Legal Foundation, the Progress & Freedom Foundation, and two trade associations to file an amicus brief in the case in support of the plaintiffs challenging the law. The Vermont Prescription Restraint Law (and the similar laws enacted in New Hampshire and Maine) imposed unprecedented censorship on a broad swath of socially important information. We are gratified that the Second Circuit upheld First Amendment protections here and congratulate the plaintiffs on their victory.

You can read Cato’s brief here and the Second Circuit’s decision here.

First Amendment Victory in Second Circuit is a post from Cato @ Liberty - Cato Institute Blog

One year ago today, the Supreme Court handed down its decision in District of Columbia et al. v. Heller. The decision affirmed the Second Amendment as protecting an individual right to keep and bear arms and invalidated the District of Columbia’s draconian gun control regime.

The case generated a storm of media attention. The Cato Institute filed an amicus brief, one of nearly four dozen in the case.

The Cato Institute held a forum for Brian Doherty’s book chronicling this victory for liberty, Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment. The Heller case also figured prominently in Cato multimedia from Robert A. Levy and Clark Neily.

Heller did not settle all of the questions related to the right to keep and bear arms. The incorporation of the Second Amendment against state bans and regulations is currently being litigated across the country. A three-judge panel in the Court of Appeals for the Ninth Circuit held that the Second Amendment is incorporated against the states. The Seventh Circuit and Second Circuit disagreed. Supreme Court nominee Sonia Sotomayor was on the Second Circuit panel that declined to incorporate the Second Amendment, and Roger Pilon notes that this may play into her confirmation hearings. The circuit split on incorporation sets the stage for a further appeal to the Supreme Court, and Alan Gura and the National Rifle Association have both filed petitions for a writ of certiorari. Robert A. Levy discusses this in his recent Cato podcast.

It will be interesting to see what the next year brings for the Second Amendment.

One Year After Heller is a post from Cato @ Liberty - Cato Institute Blog