Posts tagged ‘supreme court’

Arrogance of the Elite

I am pretty freaking cynical about the political process, so it takes something pretty bad to catch my attention.  This attitude by Obamacare architect Jonathon Gruber, which is likely shared by most of the Administration, simply makes me sick:

An architect of the federal healthcare law said last year that a "lack of transparency" and the "stupidity of the American voter" helped Congress approve ObamaCare.

In a clip unearthed Sunday, Massachusetts Institute of Technology Professor Jonathan Gruber appears on a panel and discusses how the reform earned enough votes to pass.

He suggested that many lawmakers and voters didn't know what was in the law or how its financing worked, and that this helped it win approval.

"Lack of transparency is a huge political advantage,” Gruber said. "And basically, call it the stupidity of the American voter or whatever, but basically that was really, really critical for the thing to pass."

Gruber made the comment while discussing how the law was "written in a tortured way" to avoid a bad score from the Congressional Budget Office. He suggested that voters would have rejected ObamaCare if the penalties for going without health insurance were interpreted as taxes, either by budget analysts or the public.

"If CBO scored the [individual] mandate as taxes, the bill dies," Gruber said.

"If you had a law that made it explicit that healthy people are going to pay in and sick people are going to get subsidies, it would not have passed," he added.

By the way, Jonathon Gruber was the one in 2012 who said over and over that the limitation of subsidies to state-run exchanges was not a drafting error, but was an intentional feature meant to give incentives to states to create exchanges.  Now that it is clear that incentive did not do its job, and a case is in front of the Supreme Court attempting to enforce the plain language of the law, Gruber is now saying that he mispoke (over and over again) in 2012 and it was a typo.  Given the fact that he has now admitted he would gladly lie (and has) to the public to defend Obamacare, how much should we believe his current claims?

Libertarians are Hosed

I cannot find a single opposition statement to the Hobby Lobby decision that does not contain some variant of this:

Today, the Supreme Court ruled against women’s basic access to contraceptive healthcare. This decision opens up the door for for-profit companies to impose their personal beliefs on their employees and deny them basic contraceptive care.

Basic healthcare decisions shouldn't be subject to the whims of bosses and employers. ...

I will continue to fight for the right of every woman to make her own private medical decisions. #notmybossbusiness

It seems that a huge number of Americans, even nominally intelligent ones, cannot parse the difference between banning an activity and some third party simply refusing to pay for you to engage in that activity.  This really does not seem to be a complicated distinction, but yesterday I watched something like 40% of America fail to make it.  How is it possible to make any progress on liberty and individual rights if peoples' thinking is so sloppy?

By the way, the passage above is from the Facebook page of Hanna-Beth Jackson, a California state senator.  The reason I find her faux libertarianism initeresting is that Ms. Jackson is co-sponsor of the bill requiring explicit verbal or written consent for each sex act (and each step of the sex act) in California colleges.  A woman's body may not be her boss's business but it appears it is the California government's business, at least according to Ms. Jackson.  This is typical of the abortion and birth control issues, where supporters use libertarian-ish arguments narrowly to defend abortion and contraception rights, but then go all-in for authoritarianism everywhere else.  Jackson's bedroom regulation bill is co-sponsored by Kevin De Leon, who said yesterday "No boss should have the power to interfere with a worker’s personal health decisions."  Because that's his job, I guess.

Education and Affirmative Action and "Diversity"

I don't really have much to say about today's Supreme Court decision on affirmative action.  Given that there were 4 different opinions written, the whole issue seems to still be in much dispute.  The continuing Court opinion is, I think, that affirmative action is legal (but as expressed today, not required) in education to address diversity and other goals.

My only thought on this is one I have had a long time about colleges and diversity.  Universities are, if anything, institutions based on ideas and thought.  So it has always been amazing to me that university diversity programs focus not on having a diversity of ideas, but on have a diversity of skin pigment and reproductive plumbing.  In fact, if anything, most universities seem to be aspiring towards creating an intellectual monoculture.  Diversity of opinion, of politics, and of general outlook among prospective students are not even decision-making variables in any educational institution I know of.  And within the faculty, many institutions seem intent on purging from their ranks any single voice that diverges from the majoritarian view.  I could have probably found more diversity of political opinion in a 19th century London gentleman's club than I can today in many campus faculties.

The Progressive View of the First Ammendment

I didn't really pay all that much attention to the Supreme Court's election speech case yesterday.   But as I learn the reasoning that is driving the dissent by the four Justices on the Left, I am left deeply worried about the future of speech rights.

I really haven't put much time in understanding how Progressives justify strong speech protections for non-political activity (e.g. pornography) while eschewing them for political speech (in the form of multiple types of limits on the amount and timing of speech one is allowed prior to an election).  Justice Breyer, in writing for the minority in in McCutcheon, lays out what I suppose is the Progressive position.

First up, here is David Bernstein

But how can liberals, who so expansively interpret other constitutional provisions, narrow the First Amendment so that campaign finance no longer gets protection?

Justice Breyer’s dissent today shows the way, as he revives the old Progressive conception of freedom of speech as serving instrumental purposes (which he calls “First Amendment interests”), rather than protecting individual rights or reining in potential government abuses.  And once we identify those “First Amendment interests,” we must limit freedom of speech to ensure that they are advanced.

Thus, Justice Breyer, writes, “Consider at least one reason why the First Amendment protects political speech. Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented ‘marketplace of ideas’ seeks to form a public opinion that can and will influence elected representatives.”  Just to make sure he’s not being too subtle, Breyer goes back to the source, Justice Brandeis, citing his opinion in Whitney for the proposition that freedom of speech is protected because it’s ”essential to effective democracy.”

Further showing off his affinity for the Progressive statism of a century ago (noted by Josh Blackman and me here), Breyer turns constitutional history on its head, by declaring that the purpose of the First Amendment was not to prevent government abuses, but to ensure ”public opinion could be channeled into effective governmental action.”  ...

Breyer adds that “corruption,” by which he means individuals engaging in too much freedom of speech via campaign donations, ”derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point.”

This strikes me as both tortured and dangerous.  Once one posits that that there is some ill-defined, un-measurable value like "promotion of positive government action" can be balanced against free speech, then the government gets a nearly unlimited ability to limit speech.

James Taranto also highlights parts of the decision

In making the case for the constitutionality of restrictions on campaign contributions, Breyer advances an instrumental view of the First Amendment. He quotes Justice Louis Brandeis, who in 1927 "wrote that the First Amendment's protection of speech was 'essential to effective democracy,' " and Brandeis's contemporary Chief Justice Charles Evans Hughes, who in 1931 argued that " 'a fundamental principle of our constitutional system' is the 'maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people" (emphasis Breyer's).

After citing Jean-Jacques Rousseau's (!) views on the shortcomings of representative democracy, Breyer quotes James Wilson, one of the Founding Fathers, who argued in a 1792 commentary that the First Amendment's purpose was to establish a "chain of communication between the people, and those, to whom they have committed the exercise of the powers of government." Again quoting Wilson, Breyer elaborates: "This 'chain' would establish the necessary 'communion of interests and sympathy of sentiments' between the people and their representatives, so that public opinion could be channeled into effective governmental action."

And here's how Breyer sums it all up: "Accordingly, the First Amendment advances not only the individual's right to engage in political speech, but also the public's interest in preserving a democratic order in which collective speech matters."

What is democratic "order"?  What the hell is "collective" speech?  This is the kind of thing I would expect dictators-masquerading-as-elected-officials to spout as an excuse for suppressing dissent.  After all, doesn't dissent interfere with order?  How can we have collective speech when there are these folks out there disagreeing so much?   Again from Taranto:

It's important to note that when Breyer refers to "collective" rights, what he does not have in mind is individuals exercising their rights by voluntarily collecting themselves into organizations. In fact, the prevailing left-liberal view, most notably with respect to Citizens United v. FEC (2010), is that collections of individuals, at least when they take corporate form, have (or should have) no rights.

The only "collective" that matters to Breyer is the one from which you cannot opt out except by the extreme measure of renouncing your citizenship: "the people" or "the public" as a whole. In Breyer's view, the purpose of the First Amendment is to see that (in Chief Justice Hughes's words) "the will of the people" is done. Individual rights are but a means to that end. To the extent they frustrate it, they ought to be curtailed. You will be assimilated.

Making Fun of the Supreme Court in a Supreme Court Brief

The PJ O'Rourke / Cato Supreme Court amicus brief that is making the rounds is well worth your time.  A lot of it is funny, like this footnote:

While President Obama isn’t from Kenya, he is a Keynesian—so you can see where the confusion arises.

But my favorite is footnote 15 where they make fun of the Supreme Court

Driehaus voted for Obamacare, which the Susan B. Anthony List said was the equivalent of voting for taxpayer- funded abortion. Amici are unsure how true the allegation is given that the healthcare law seems to change daily, but it certainly isn’t as truthy as calling a mandate a tax.

For the Left, Do Asians "Count"?

I was filling out my EEO-1 forms the other day (that is a distasteful exercise where the government is leading us towards a post-racial society via mandatory reporting on the race of each of my employees).  For each employee there are five non-white categories:  Black, native American, native Hawaiian, Hispanic, and Asian.  I started to think how interesting it is that the Left supports numerous government interventions in support of the first four, but never mentions Asians.

This can't be solely due to lack of past discrimination.   Watch a movie from the 1930's or 1940's and you will see Asians shamelessly stereotyped** as badly as any other race.  And generations who lived and fought WWII had many members, even a majority, that harbored absolute hatred against one Asian people, the Japanese.  We only sent one group to concentration camps in the 20th century, and it was not blacks or Hispanics.  Of course "Asians" is an awfully broad categorization.  It includes Chinese, with whom we have had a complicated relationship, and Indians, for whom most Americans until recently probably have had little opinion at all one way or another.

One problem for many on the Left is the fact that Asians are considered a serious threat (both as immigrants and as exporters) to the Left's traditional blue collar union base.  Another is that they are an emerging threat to their little darlings trying to get into Harvard.  I have heard the squeakiest-clean, most politically correct liberals utter to me the most outrageous things about Asian kids.  Which is why I was not really surprised that white parents in California who claim to support merit-based college admissions immediately change their tune when they find out that this will mean that far more Asia kids will get in.

I have been working with some data on state voting and voter registration patterns by race in the wake of the recent Supreme Court decision vis a vis the Voting Rights Act.  The Left went nuts, saying that blacks and Hispanics would again be discriminated against in the South, and the Obama Administration vowed to get on the case, saying that it would begin with Texas.

By the way, Texas may make perfect sense politically for Obama but is an odd choice based on the data.  Minority voter registration and voting rates as compared to the white population are usually used as an indicator of their election participation and access.  In the last election, according to the Census Bureau in table 4B, blacks in Texas both registered and voted at a higher rate than whites.  In Massachusetts, by contrast, in that same election blacks registered at a rate 10 percentage points lower than whites and voted at a rate about 7 points lower.

But if you really want something interesting in the data, look at the data and tell me what group, if we accept that low participation rates equate to some sort of covert discrimination, deserves the most attention (from the same table linked above):

US Voter Registration Rates (Citizens Only)

White:    71.9%

Black:    73.1%

Hispanic:     58.7%

Asian:     56.3%

US Voting Rates (Citizens Only, last Presidential election)

White:    62.2%

Black:    66.2%

Hispanic:    48.0%

Asian:    47.3%

 

** Postscript:  I am not an expert on discrimination, but I watch a lot of old movies and read a lot of history.  To my eye, stereotyping of Asians has been more similar to anti-Semitic portrayal of Jews than to stereotyping of blacks or Hispanics.  Blacks and Hispanics have most often been stereotyped as lazy and unintelligent.  Asians and Jews are more frequently stereotyped as scheming, plotting, and intelligent-but-evil.  Frank Capra, who directed a lot of good movies also directed a series of heavy-handed propaganda movies for the government during the war.  The one on Japan is interesting -- your gardener's quiet mien is actually masking a nefarious scheme.  Even in the 1940's Japan was portrayed as economically frightening to us.

Update:  Over the last couple of elections, Asians have shifted to voting fairly heavily Democratic.  So a cynical person would suggest that they might suddenly "discover" this group.  We shall see.

Citizen's Initiatives Dealt A Significant Blow

Since I am part of a group working to pass a ballot initiative in Arizona to allow same sex marriage in this state, I was obviously pleased with the decision to strike down DOMA yesterday.

However, the decision not to rule based on lack of standing on the Prop 8 suit creates a real mess above and beyond any implications for same-sex marriage.

Proposition 8, a California initiative to ban same-sex marriage that likely would not pass today, was introduced and passed five years ago because the authors of the initiative knew it was a step legislators would never take but that they thought (correctly at the time) that the voters would support.  In fact, in a nutshell, this is exactly what the initiative process was meant to achieve.  If citizens think the legislative process is broken on a particular issue (e.g. taxes, where legislators have entirely different incentives vis a vis raising taxes than do taxpayers), they can do an end-run.  In a sense, this is exactly what we are doing in Arizona with our Equal Marriage initiative, though of course with the opposite desired end result from Prop 8.  But just as in that case, we do not have high hopes of the current legislator passing such a Constitutional Amendment, so we are doing it through citizens initiative.

The problem in the Prop 8 case was that when the law was challenged in court, neither the governor nor the legislature was willing to defend it in court (remember, that it was passed over their opposition).  Given the very nature of ballot propositions and the reasons for them discussed above, this is likely a common occurrence.  But the Supreme Court refused to rule on the case because, as I understand their argument, only the administrative or legislative branch of the state government has standing to bring the appeal (ie defend the original law that was overturned by a local Federal court).

This is a really bad precedent.  It means that any initiative passed by citizens that is opposed by the current state government is enormously vulnerable to attack in courts.  If the government officials are the only ones who have standing, and they refuse to defend the law, then it will lose in court almost by summary judgement.

There has got to be some process where courts can grant citizens groups who filed and passed such initiatives standing to defend it in court.  Certainly there could be some judicial process for this, almost like the process for certifying a class and its official representative in a class action suit.  Without this, citizens initiatives are going to lose a lot of their power.

Update:  Scott Shackford at Reason writes

So should we be worried? Could the reverse – voters approve gay marriage recognition only to have the state refuse to back it – happen? What if the voters approved term limits for state legislators and they just ignored it?

The majority decision was not unsympathetic to the argument (incidentally, it’s interesting to see how polite these arguments are when you end up with such an unusual combination of justices on each side) but firm in that: 1) Getting a ballot initiative passed does not make you an agent of the state with standing; and 2) If you aren’t an agent of the state who is expected to defend the law, then you have to have proof of a personal harm and the proponents do not. Arguably, if the situation were reversed (the state refusing to defend an initiative recognizing gay marriage), it’s easy to see how they could allow standing and the outcry that would cause. A person denied a marriage license from a same-sex ballot initiative may be able to prove harms from discriminatory policies and earn standing.

I had not thought of it that way, but it is interesting that the Court could not find any demonstrated harm to straight petitioners from the legality of same-sex marriage.  I suppose that is a good sign.

The Complete Klutz

I was down at the Arizona capitol first thing  this morning to do some live TV interviews on reaction to the Supreme Court DOMA decision  (as Chair of Equal Marriage Arizona, which has a ballot initiative in the works to allow same-sex marriage, we wanted to get our initiative close tied to the story today).

Once the decision came down around 7:10 AM local time, the networks wanted an immediate reaction.  I told them I needed to read for 5 minutes to make sure the decisions were what we expected (they were).  So I leaned up against a palm tree to stay in the shade and read my iPad.  Well, it turns out the tree trunk was crawling with ants.  So as I began my live TV interviews, I could feel them crawling all over my back and starting to bite.  I am not sure how coherent I was in the interviews.  I am pretty sure the reporters were confused about my ripping off my jacket and shirt once the interviews were over.  Maybe they thought it was some sort of Brandi Chastain celebration.

On a related note, having tangentially been involved now in the media rush around a Supreme Court decision, I found this analysis of the running of the interns quite entertaining.

Trying to Make My Job Impossible

Walter Olson has an article on three recent 5-4 decisions where we narrowly avoided Supreme Court rulings that would have further separated liability as a business owner from actual bad actions.  This one in particular resonates with me:

Vance raised the question of who counts as a “supervisor” for purposes of harassment liability. Under existing Court precedent, employers are more or less automatically liable when a “supervisor” engages in harassment. When it’s a co-worker, they are still frequently liable – e.g., if they have received a complaint about it but not fixed things, or if they have negligently allowed the situation to develop – but liability isn’t as close to automatic. As all Justices recognized, however, the old model of a workplace with a military-like chain of command is fast giving way to newer models in which it is extremely hard to tell who is supervising whom, and in particular work orders (“Here, do this for me.”) can issue in multiple directions, not just from “up” to “down.” The four liberal justices were happy to blur the lines by saying that the more people are doing supervisor-like things, the more employees’ misconduct will be imputed automatically to the employer with no chance for it to raise counterarguments that it had acted properly. The majority led by Justice Alito more reasonably recognized that the ability to take tangible employment actions against a co-worker is a better test of “supervisor” than the ability to ask them to undertake some work responsibility.

Last year I got sucked into a lawsuit where an ex-employee, after her termination, sued our company for allegedly racist remarks another employee made about her husband.  The lawsuit was the first we ever heard about the alleged incident -- it was never reported to me or any other manager or employee, it was behavior that was banned by our policies and training, and we never (obviously) had a chance to make any corrections.  The litigant tried to argue that the person who made the alleged remarks was "supervisory" because she had sometimes been asked to draft a shift schedule for the manager.

We eventually had this dismissed, but it cost us $25,000 in legal fees to make it go away.   It was particularly frustrating given that if this had ever been raised as an issue to me, it would have been investigated and heads would have rolled if necessary.  This whole notion of having liability even when operating to the highest standards is just terrifying.  And four Supreme Court justices tried to make all this irrelevant, essentially linking my liability to the standards and intelligence of whoever is my weakest employee.

An Insane Theory of Product Liability

Via the WSJ today:

Can a drug company be held liable for damages caused by generic drugs it didn't produce? That's the expansive new theory of "innovator liability" on parade in Alabama, where a recent ruling by the state Supreme Court could do damage throughout the U.S. economy.

In Wyeth Inc. et al., v. Danny Weeks et al., Mr. Weeks says he suffered from side effects from taking the generic version of an acid-reflux drug called Reglan. He sued Wyeth for fraud and misrepresentation, though the company didn't make the drug he took and had exited the Reglan market in 2002, five years before he took it. The court ruled 8-1 that Wyeth could be held liable for injuries because the generic manufacturer couldn't change the warnings on the product it copied.

First, this is nuts -- being held liable for problems with a product you did not make, simply because you invented it years before.   Are we going to start suing the estate of Thomas Edison every time someone buys a bad lightbulb?

But second, note how helpless Wyeth is now.  Drug makers are used to insane law suits that drain all the profit from helping millions of people to pay off a few folks who had adverse side effects (this same process literally destroyed the vaccination business until the government gave them special liability protection).

But let's accept the court victory - perhaps the drug really has a problem that has been discovered.  If the maker was being sued, he could just pull the drug from the market (as has happened any number of times after adverse suits) either forever or until the FDA will approve new warning language.

But in this case, Wyeth can't do this.  The generic drug makers will keep on selling the product - after all, they are not getting sued, and Wyeth will keep paying.  Wyeth does not even have standing to try to get the FDA to change the warnings on the drug.  If Wyeth tries to buy out the generic maker and shut it down, and new seller will simply takes its place.    If this case stands, Wyeth can be steadily bled to death and there is nothing they can do to stop it.

Finally, I don't want to get away without a mention of just how broken the FDA drug regulation regime is.  The original Supreme Court decision that led to the generic maker being immune to suits really turned on the impossibility of getting the FDA to change even one word on a drug's warning label.

Arguing Against Personal Interest

The best time to argue for general principles is when they work against one's own interest, to firmly establish that they are indeed principles rather than political opportunism.  Two examples:

First, from a topic rife with political opportunism, the Supreme Court a three-judge panel recently ruled Obama's NLRB not-really-recess appointments were unconstitutional.  I think that was the right decision,  but a President has got to be able to get an up or down vote in a timely manner on appointments.  As much as I would love to see all of Obama's appointments languish for, oh, four years or so, and as much as I really don't like his activist NLRB, having to resort to procedural hacks of this sort just to fill administrative positions is not good government.  The Senate rules (or traditions as the case may be) that even one Senator may put a hold on confirmations is simply insane.  While I am a supporter of the filibuster, I think the filibuster should not apply to certain Constitutionally mandated activities.  Specifically:  passing a budget and appointment confirmations.

Second, readers of this blog know how much I dislike our sheriff Joe Arpaio.  He was unfortunately re-elected a couple of months ago, though the vote was closer than usual.  This week, an Arizona group who also does not like Joe has announced it is going to seek a recall election against him.  Again, as much as I would like to see Arpaio ride off into the sunset, this practice of gearing up for recall elections just days after the election is over is just insane.  It is a total waste of money and resources.  While I don't like to do anything that helps incumbents, there has to be some sort of waiting period (perhaps 1/4 of the office term) before we start this silliness.

Obama's Total Failure

Forget about the economy -- libertarians expect Democrats to be horrible statists in economic matters.  But we hope to get some protection of civil liberties in exchange.  But Obama has been simply awful in this area as well -- prosecuting marijuana sellers that are legal under state law, claiming assassination powers, the drone war, wiretapping, failure to address gay marriage, etc.

Here is but one example - the Orwellian defense of warrantless wiretapping.  You can't sue us unless we tell you there is a wiretap, and we are not going to tell you.

As part of its concerted campaign to prosecute whistleblowers and to classify state secrets, the Obama administration has taken a position in Clapper that makes the Bush administration pro-secrecy campaign seem pale in comparison: namely, that no one can challenge warrantless surveillance unless the government tells you in advance that you’re being surveilled—which national security interests prevent it from doing. When Bush administration offered milder versions of the same arguments, the civil liberties community rose up in protest. Verrilli, for his part, was met by vigorous skepticism from the Supreme Court’s liberal justices.

It’s unfortunate enough that the administration asked the Court to hear the surveillance case in the first place, after the U.S. Court of Appeals for the Second Circuit had ruledthat the plaintiffs —lawyers and human rights and media organizations whose work requires them to communicate with clients, sources, and victims of human rights abroad—had legal standing to bring the case. Although they couldn’t be 100 percent sure that their telephone communications were being monitored, the appellate held that there was a “realistic danger” that their telephone communications were being monitored under the FISA Amendments Act of 2008 (FAA), passed by Congress to codify some of the worst excesses of the Bush administration’s warrantless wiretapping program. This led the journalists and lawyers to suffer tangible injuries—such as having to fly to the Middle East to communicate with clients rather than talking by telephone, for example, or being more circumspect in talking to Middle Eastern sources, as journalists such as Naomi Klein and Chris Hedges alleged.

In his Supreme Court brief and in the oral argument yesterday, however, Verrilli alleged that these harms were too speculative to create legal standing to challenge the law, since the lawyers and journalists couldn’t be sure they were being surveilled under the FAA rather than under some other warrantless wiretapping authority. Essentially, the Obama administration was arguing that targets of surveillance could only challenge the law after they knew they were being surveilled, though the government would never tell them they were being surveilled before bringing a case against them.

I am sure we would all like a ruling that we cannot be sued unless we give the plaintiff permission to do so, essentially what the Obama Administration is claiming here.

Update:  From the Washington Times:

Bloomberg News reported on October 17 that Attorney General Eric Holder “prosecuted more government officials for alleged leaks under the World War I-era Espionage Act than all his predecessors combined, including law-and-order Republicans John Mitchell, Edwin Meese and John Ashcroft.” :

The Justice Department said that there are established avenues for government employees to follow if they want to report misdeeds. The agency “does not target whistle-blowers in leak cases or any other cases,” Dean Boyd, a department spokesman, said.“An individual in authorized possession of classified information has no authority or right to unilaterally determine that it should be made public or otherwise disclose it,” he said.

However, when leaks to the press benefit the administration, prosecutions from the Jusitce Department are absent. For example, AG Holder was not prosecuting anyone over who leaked information about the killing of Oasma bin Laden. The Justice Department has yet to charge anyone over leaking information regarding the U.S. involvement in cyberattacks on Iran as well as an al Qaida plan to blow up a U.S. bound airplane. In fact, the Justice Department ended up appointing one of two attorneys to the cyberattacks investigation who was an Obama donor.

Part of the problem is that if this (or any other) Administration has its way, information that embarrasses the Administration get's classified, on the dubious logic that embarrassing the Administration embarrasses America.  With this definition, all whistle-blowing becomes "espionage".

Update 2:  More on Wiretapping from the EFF

To the contrary, there’s no indication that the still-active warrantless wiretapping program—which includes a warrantless dragnet on millions of innocent Americans’ communications—has significantly changed from the day Obama took office. With regard to the FISA Amendments Act, the Obama Administration has actively opposed all proposed safeguards in Congress. All the while, his Administration has been even more aggressive than President Bush in trying to prevent warrantless wiretapping victims from having their day in court and hascontinued building the massive national security infrastructure needed to support it. ...

Some have suggested it’s possible when Obama said “safeguards” on the Daily Show, he is referring to some unspecified secret administrative rules he has put into place. Yet if these “safeguards” exist, they have been kept completely secret from the American public, and at the same, the administration is refusing to codify them into the law or create any visible chain of accountability if they are violated. But given the ample evidence of Constitutional violations since Obama took office (see: herehere, and here), these secret safeguards we don’t know exist are clearly inconsequential.

Maybe Another Reason To Vote Romney

OK, there are lots of reasons to get Obama out of office.  The problem is, that for most of them, I have no reasonable hope that Romney will be any better.  Corporatism?  CEO as Venture-Capitalist-in-Chief?  Indefinite detentions?  Lack of Transparency?  The Drug War?   Obamacare, which was modeled on Romneycare?  What are the odds that any of these improve under Romney, and at least under Obama they are not being done by someone who wraps himself in the mantle of small government and free markets, helping to corrupt the public understanding of those terms.

So I am pretty sure I cannot vote for Romey.  I really like Gary Johnson and I am pretty sure he will get my vote.  Republican friends get all over me for wasting my vote, saying it will just help Obama win.  So be it -- I see both candidates undertaking roughly the same actions and I would rather that bad statist actions be taken in the name of Progressives rather than in the name of someone who purports to be free market.

To test my own position, I have been scrounging for reasons to vote for Romney.  I have two so far:

1.  Less likely to bail out Illinois when its pension system goes broke in the next few years

2.  I might marginally prefer his Supreme Court nominees to Obama's

That is about all I have.  Stretching today, I have come up with a third:

3.  If we have a Republican in the White House, the press will start doing its job and dig into the facts about drone strikes and warrant-less wiretapping.

You know the press are in full defense mode protecting their guy in office when the only press that reports on the ACLU's accusation about sky-rocketing wire tapping under Obama are the libertarians at Reason and the Marxists at the World Socialist Web site.  Four years ago the New York Times would have milked this for about a dozen articles.  It may take a Republican President to get the media to kick back into accountability mode over expansions of executive power.

Judicial Review

There is an argument going around, mainly on the Left, that the Supreme Court cannot overturn the PPACA (aka Obamacare) because it is just too major and significant.  It's sort of OK to overturn minor legislation at the margins, but if Congress does something really big, it deserved the Court's respect and acquiescence.

But it strikes me that the larger and more comprehensive a piece of legislation is, the more likely it is to run afoul of Constitutional restrictions.  And this is the case no matter what theory one holds about the Constitution.

I am not a Constitutional scholar nor a lawyer, but I would describe two schools of thought on the Constitution.  The first is that the Constitution gives the Federal government certain enumerated, defined powers beyond which it may not stray.  The second is that the Constitution gives citizens a number of enumerated, defined rights (e.g.  First Amendment freedom of speech) such that the Federal government can do most anything it wants as long as it does not trample on these defined rights.   (I would argue that the first interpretation was the clear meaning of its authors, and the second interpretation is probably the majority view today of average Americans today).

But under either interpretation, larger, more sweeping legislation is more rather than less likely to cross a boundary that circumscribes Federal power.  Whether such a boundary has been crossed by this legislation is another matter, but the argument that large legislation per se should be exempt from the possibility of being overturned on Constitutional grounds does not hold water.

It's Constitutional Because We Really, Really Want It

The game the Left is playing with the Supreme Court is interesting.  Their argument going into last week's Supreme Court frackas boiled down either to, "this is really needed so it must be Constitutional" or something like "we thought the Federal government could do anything."  By the way, while I find the latter depressing and it should be wrong, I can understand after decisions like Raich why one might come to that conclusion.

After getting pummeled in court this week, the Left has a couple of new takes.  The first is that while their side's lawyers did not offer any good arguments, particularly vis a vis limiting principles, it's the Court's obligation to do it for them.  The second is an interesting sort of brinksmanship.  It says that this is so big, so massive, so important a legislation, that the Supreme Court basically does not have the cojones to overturn it on a 5-4.  The extreme example of this argument, which I am seeing more and more, is that its so big a piece of legislation that it is wrong for the Supreme Court to overturn it whatever the vote, the implication being that Constitutional muster can be passed merely by making legislation comprehensive enough.

Kevin Drum has been taking both these tacks, and included this gem in one post:

So what will the court do? If they don't want a rerun of the 1930s, which did a lot of damage to the court's prestige, but they do want to put firmer limits on Congress's interstate commerce power, the answer is: find a limiting principle of their own. But find one that puts Obamacare just barely on the constitutional side of their new principle. This would avoid a firestorm of criticism about the court's legitimacy — that they're acting as legislators instead of judges — but it would satisfy their urge to hand down a landmark decision that puts firm limits on further expansion of congressional power. Liberals would be so relieved that Obamacare survived that they'd probably accept the new rules without too much fuss, and conservatives, though disappointed, would be thrilled at the idea that the court had finally set down clear limits on Congress's interstate commerce power.

You can see both arguments here - the proposition that the Court owes it to the defense attorney to make up a better argument for him, as well as the notion that the stakes are too high to overturn the legislation.

By the way, maybe I just went to some right-wing fascist school, but I sure don't remember any discussion of a loss of prestige by the Court as they overruled large swaths of the New Deal, particularly since their decisions were pretty consistent with past precedent.  I always considered it was FDR who lost prestige with this authoritarian impulse to pack the Court to get the Constitutional answer he wanted.  And taking the 1930's as an example, it sure seems both Left and Right are wildly hypocritical and inconsistent on when they are in favor and against Court activism.

There Be Crazy People Here

Yes, our Arizona legislature keeps cranking out the hits

In what has to be the most hilariously unconstitutional piece of legislation that I've seen in quite some time, senators in the Arizona state legislature have introduced a bill that would require all educational institutions in the state -- including state universities -- to suspend or fire professors who say or do things that aren't allowed on network TV. Yes, you read that right: at the same time the Supreme Court is poised to decide if FCC-imposed limits on "indecent" content in broadcast media are an anachronism from a bygone era, Arizona state legislators want to limit what college professors say and do to only what is fit for a Disney movie (excluding, of course, the Pirates of the Caribbeanfranchise. After all, those films are PG-13!).

Amazing.  I had thought the nominal reason for the FCC standards was because non-adults might watch TV and hear a bad word that they likely hear 20 times a day at school.  But college kids are generally adults.  This is just bizarre.

The Huffpo article did not mention the bill's sponsor, but how much do you want to be its a Conservative who has in the past lamented political correctness on campus?  [update: sponsors here]

Real Rights vs. Fake Rights

Good stuff from Roger Pilon at Cato:

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 limitedgovernment, 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....

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 kindof 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.

Corn Farmers and Hollywood Studios

What do corn farmers and Hollywood studios have in common?  They both have an uncanny ability to force self-serving legislation through Congress.  This week's bit of sucking up to Hollywood is the PROTECT IP act, currently under consideration in Congress:

An ideologically diverse group of 90 law professors has signed a letter opposing the PROTECT IP Act, the Hollywood-backed copyright enforcement/Internet blacklist legislation now working its way through Congress. The letter argues that its domain-blocking provisions amount to Internet censorship that is barred by the First Amendment.

Jointly authored by Mark Lemley, David Levine, and David Post, the letter is signed not only by prominent liberals like Larry Lessig and Yochai Benkler, but also by libertarians like Post and Glenn "Instapundit"Reynolds.

"The Act would allow courts to order any Internet service to stop recognizing [a] site even on a temporary restraining order... issued the same day the complaint is filed," they write. Such a restraining order, which they describe as "the equivalent of an Internet death penalty," raises serious constitutional questions.

The Supreme Court has held that it's unconstitutional to suppress speech without an "adversary proceeding." That is, a speaker must, at a minimum, be given the opportunity to tell his side of the story to a judge before his speech can be suppressed.

Yet under PIPA, a judge decides whether to block a domain after hearing only from the government. Overseas domain owners (and the speakers who might make use of their websites) aren't offered the opportunity to either participate in the legal process or appeal the decision after the fact. (Affected domain owners may file a separate lawsuit after the fact.) This, the professors say, "falls far short of what the Constitution requires before speech can be eliminated from public circulation."

 

The Administration's War on Due Process

Obama's Department of Education has been issuing a series of new rules to colleges that accept government funds (ie pretty much all of them) that going forward, they will be required to

  • Expand the definition of sexual harassment, forcing it to include even Constitutionally-protected speech.  Sexual harassment will essentially be redefined as "somehow offending a female."
  • Eliminate traditional protections for those accused of sexual harassment under these new definitions.  The presumption of innocence, beyond a reasonable doubt guilt standards, the ability to face and cross-examine one's accuser, and the right of appeal are among centuries old common law traditions that the DOE is seeking to eliminate in colleges.

Unfortunately, this is a really hard threat to tackle.  Most of those concerned with civil rights protections outside our small libertarian community are on the left, and these same people are often fully vested in the modern feminist belief that all men are rapists.  It also puts libertarians in the position of defending crude and boorish speech, or at least defending the right to that speech.

But at the end of the day, the DOE needs to be forced to explain why drunk and stupid frat boys chanting crude slogans outside the women's center on campus should have fewer rights as accused than does a serial murder.

Michael Barone has more today in the Washington Times:

But more often they involve alleged offenses defined in vague terms and depending often on subjective factors. Lukianoff notes that campus definitions of sexual harassment include "humor and jokes about sex in general that make someone feel uncomfortable" (University of California at Berkeley), "unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people" (Iowa State University) or "elevator eyes" (Murray State University in Kentucky).

All of which means that just about any student can be hauled before a disciplinary committee. Jokes about sex will almost always make someone uncomfortable, after all, and usually you can't be sure if flirting will be welcome except after the fact. And how do you define "elevator eyes"?

Given the prevailing attitudes among faculty and university administrators, it's not hard to guess who will be the target of most such proceedings. You only have to remember how rapidly and readily top administrators and dozens of faculty members were ready to castigate as guilty of rape the Duke lacrosse players who, as North Carolina Attorney General Roy Cooper concluded, were absolutely innocent.

What the seemingly misnamed Office of Civil Rights is doing here is demanding the setting up of kangaroo courts and the dispensing of what I would call marsupial justice against students who are disfavored by campus denizens because of their gender or race or political attitude. "Alice in Wonderland's" Red Queen would approve.

As Lukianoff points out, OCR had other options. The Supreme Court in a 1999 case defined sexual harassment as conduct "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." In other words, more than a couple of tasteless jokes or a moment of elevator eyes.

Women'g groups all the time say things like "all men are rapists."  That's pretty hostile and degrading to men.  My guess is that somehow this kind of gender-hostile speech will not be what gets investigated by these kangaroo courts.

I wrote about related events at Yale here.

Will We Ever See Another Constitutional Amendment?

My column this week in Forbes elaborates on a theme I discussed last week in this blog.

I am not a big fan of prohibition, or the income tax (16th Amendment) before it, but in some sense these come from a better time.  Instead of dealing with the Constitutional problems of these initiatives by having a series of judges stare at the Constitution with their eyes crossed until the problem disappears, they actually wrote and passed a Constitutional amendment.  The took the wording of the Constitution seriously.

Consider alcohol prohibition.  Today, would we even bother modifying the Constitution?  After all, we’ve driven a forty year war on drugs — with massive spending, highest in the world imprisonment rates, militarization of our police, and frequent slashes into the heart of the Fourth Amendment — with nary a hint of the need for a Constitutional Amendment.  In fact, in Raich, the Supreme Court ruled that medical marijuana legally (under state law) grown, sold, and consumed in California could still be prohibited by the Federal government under their Constitution powers to regulated interstate commerce.  It seems almost quaint today that we sought a Constitutional change for Prohibition.

Fourth Amendment No Longer a "Real" Right?

Several of the amendments in the Bill of Rights, notably the second and the tenth, are no longer treated by many folks as "real."  Just old TJ kidding around.

Over the last several years, I have worried that the Fourth Amendment is rapidly heading in the same direction.  This week has been a bad week.

First up, today's decision that if cops have some reason to think valuable evidence is being destroyed, they can bust down your door without a warrant.  Toilet flush?  Must be getting rid of drugs.  Can be seen in the window at the computer?  Must be deleting child porn.  Silence?  Must be destroying evidence really quietly.

Think I am exaggerating?  Here are the facts of the case:

It began when police in Lexington, Ky., were following a suspect who allegedly had sold crack cocaine to an informer and then walked into an apartment building. They did not see which apartment he entered, but when they smelled marijuana smoke come from one of the apartments, they wrongly assumed he had gone into that one. They pounded on the door and called "Police. Police. Police," and heard the sounds of people moving.

At this, the officers announced they were coming in, and they broke down the door. They found Hollis King smoking marijuana, and put him under arrest. They also found powder cocaine. King was convicted of drug trafficking and sentenced to 11 years in prison.

Sounds of people moving in apartment = break the door down, no warrant needed.  This is just a joke, though I must also say the drug war has already gutted any number of Constitutional protections, so its not surprising to see yet another blow to liberty in the name of rounding up anyone who might be smoking a joint.  (more here)

The other case is perhaps even more egregious, and comes from Indiana, where the state Supreme Court decided that citizens must defer to agents of the state, even when those agents are violating the law.   In particular, if a cop wants to enter your house for no reason at all without a warrant, you can't resist.

"We believe … a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence," David said. "We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."

David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.

Escalation of violence is a two-way street.  Why is the homeowner, the innocent party, the one who is made legally responsible for such escalation?  Why isn't it the agent of the state who is responsible for any such escalation?  And while a homeowner may have plenty of opportunities to protest illegal entry after the fact (though this is debatable in real life) I would argue that the police officer had plenty of opportunities before the fact to get a freaking warrant.

Forget the Financial Settlement. Why Aren't These Guys on Trial for Attempted Murder?

This is just a sick, scary, amazing story of a man who came within days of execution because prosecutors knowingly withheld exculpatory evidence.  And not something arcane and equivocal, but blood tests that were the wrong type and witness testimony that contradicted the main witness.

The Supreme Court has upheld the effective immunity of prosecutors from any penalties for not following the most basic rules.  Forget sanctions or lost law licenses - why aren't these prosecutors on trial for attempted murder?  Obviously, with the Supreme Court decision a legislative solution is required, but don't hold your breath -- there is nothing more bipartisan than being "tough on crime" when running for re-election so it is unlikely any safeguards of defendants will be improved.

Arizona's Gift Clause

I am becoming increasingly enamored of the Arizona Constitution's "gift clause," even if it has not been enforced evenly in the past.   This sensible Constitutional provision requires that neither the state nor any municipality in it may “give or loan its credit in the aid of, or make any donation or grant, by subsidy or otherwise, to any individual, association, or corporation.”

This has been interpreted by the courts as meaning that if a state or municipal government gives money to a private company, it must get something of value back - ie it pays money to GM and gets a work truck back.  But politicians will be politicians and have stretched this rule in the past out of all meaning, by saying that they are getting "soft" benefits back.  In other words, they could subsidize the rent of a bookstore because reading is important to the community.  Silly?  Not in California:

The city spent $1.6 million in federal grant money to bring Borders into the Pico Rivera Towne Center and to help pay its rent for nearly eight years.

Now the bookstore at 8852 Washington Blvd. is among the 200 Borders stores closing by April in the wake of the company filing for Chapter 11 bankruptcy reorganization.

But the city still faces paying rent on the soon-to-be vacated 18,100-square-foot site, along with other costs associated with 2002 agreements it made with Borders and with Vestar Development Co., which owns the Towne Center....

Officials said the decision to bring a bookstore into the community was a quality-of-life issue.

So the gift clause originally was authored to stop handouts to railroads and such, but certainly should prevent stuff like this.  When it did not, our Goldwater Institute sued, and it was successful in reigning in these gift clause exclusions.  This is the ruling from a suit over a $97 giveaway to a new mall (the giveaway was nominally disguised as a parking lot).

Indeed, in today’s unanimous decision, penned by Chief Justice Andrew D. Hurwitz, the five Supreme Court judges say that indirect public benefits — like, apparently, beating out Scottsdale for the sale tax from Bloomingdales — aren’t enough to justify a giveaway to a private party.

Previous courts who’ve held that, they say, have misread precedent.

“In short, although neither [of two Supreme Court precedents] held that indirect benefits enjoyed by a public agency as a result of buying something from a private entity constitute consideration, we understand how that notion might have been mistakenly inferred from language in our opinions,” they say. Now that they’ve clarified, the justices seem to be saying, the appellate court must examine whether the direct benefit the city of Phoenix gets — aka. those parking spaces — is enough to justify the giveaway.

For the record, the Supreme Court suggests that the parking garage is not, likely, benefit enough to justify such a tax giveaway.

“We find it difficult to believe that the 3,180 parking places have a value anywhere near the payment potentially required under the Agreement,” its opinion finds. “The Agreement therefore quite likely violates the Gift Clause.”

This was a particularly awful subsidy which tried to move a Nordstrom's one whole mile, over the Scottsdale border into Phoenix (update here).

This is the heart of why Goldwater needs to continue to stand strong against the proposed $100 million Glendale subsidy of the Phoenix Coyote's hockey team purchase.  The city of Glendale and the buyer Matthew Hulzinger (who claims the bond issues is totally guaranteed and safe, raising the question of why he could not have gotten private financing instead) have rallied everyone from our local paper to John McCain to to task of excoriating Goldwater for standing up for the state Constitution.  They claim the deal makes a lot of financial sense.

Beyond the cities BS "total impact" numbers, I ask, "so what?"  This is an important Constitutional principle.  As America slides into a European-style corporate state, I can't think of anything more appropriate than drawing the line on corporate welfare here in Arizona (its certainly a more useful endeavor than some of the goofy legislation currently pouring out of our state house).  Heck, I would like to see a gift clause in the US Constitution


What a Bunch of Wusses

It would be difficult to find many folks who are more paranoid protectors of privacy information than I am.  But I have to say the tone of this is really pathetic.  (via Overlawyered)   Seriously, how many people think these folks feel truly harmed and how many think they are acting in order to try to score a tort payoff?

Consumers are hoping to cash in on last week's state Supreme Court ruling that it's illegal for retailers to ask customers for their ZIP Codes during credit card transactions, except in limited cases.

More than a dozen new lawsuits have been filed against major chains that do business in California, including Wal-Mart Stores Inc., Bed Bath & Beyond Inc., Crate & Barrel andVictoria's Secret. More filings are expected in the coming weeks.

The flurry of litigation stems from a decision last week againstWilliams-Sonoma Inc. in which the state high court ruled unanimously that ZIP Codes were "personal identification information" that merchants can't demand from customers under a California consumer privacy law.

This rush to court is pathetic on a number of levels

  • Zip code is personal, really?  Do you believe that?
  • Just say no.  Seriously.  I do it all the time -- I get asked for a phone number or a zip code and I always answer "no, sorry."  You know how many retailers have decided they did not want to make a sale to me at that point?  Zero.
  • It's ex post facto law.  Nowhere was it made clear to retailers that the law barred collecting zip codes.  Not until a group of judges effectively made this individual practice illegal did it become so, and then it was enforced retroactively on stores.  If the legislature wants collecting zip codes to be illegal, it should have written in the law that collecting zip codes is illegal.  Or, as a minimum, liability should begin on the day after the court decision.  Suing someone for taking a zip code last year when it only became clear this week it was illegal is classic ex post facto law.
  • Ira Stoll has a funny comment - guess what the first piece of information Jerry Brown's web site asks for?

The New Pharaohs: Confusing Triumphalism and State Coercion With Progress

My new Forbes column is up, and it discusses an article by Michael Malone that said in part:

The recent quick fade of the Deficit Commission was the latest reminder that America no longer seems to have the stomach for big challenges.  There was a time "“ was it just a generation ago? "“ when Americans were legendary for doing vast, seemingly superhuman, projects:  the Interstate Highway System, the Apollo Missions, Hoover Dam, the Manhattan Project, the Normandy invasion, the Empire State Building, Social Security.

What happened?  Today we look at these achievements, much as Dark Age peasants looked on the mighty works of the Roman Era, feeling like some golden age has passed when giants walked the Earth.

My response includes the following:

The list he offers is a telling one "” all except the Empire State Building were government programs, just as were the "mighty works" of the ancient Romans.  And just like the Romans, these and other government projects have more to do with triumphalism than they do with adding real value.

It is interesting he should mention the Romans.  There were few grand buildings during the centuries when Rome was a republic.  Only in the later Imperial period, when Rome became an autarky, did rulers begin to build the monumental structures that Malone admires.  Emperors taxed their subjects and marshaled millions of slaves to build temples and great columns and triumphal arches and colosseums to celebrate"¦ themselves.  Twentieth Century politicians have done the same, putting their names on dams and bridges and airports and highways and buildings.  They still build coleseums too, though today they cost over a billion dollars and have retractable roofs.  Are these, as Malone suggests, monuments to the audacity of the greatest generation, or just to the ego of politicians?...

This is the same concern that drives Thomas Friedman to extol the virtues of the Chinese government, where a few men there can point their fingers and make billions of dollars flow from their citizens to the projects of their choice.  This is a nostalgia for coercion and government power, for Lincoln imposing martial law, for FDR threatening to pack the Supreme Court, for the Pharaohs getting those pyramids built.  It is a call for dis-empowerment of the masses, for re-concentrating power in a few smart visionary folks, presumably including Mr.  Malone.