As I walk away from the Court, with the sounds of the NAACP rally fading in the distance, I’m no clearer on how this case will be resolved than when I went into the building early this morning.
This uncertainty mostly results from the rather technical issues surrounding the Voting Rights Act’s “bailout” provision, as well as how narrowly the Court will want to construe the municipal utility’s challenge (as-applied, facial, or some other novel formulation).
What is clear is that the “liberal” justices, especially Ginsburg and Breyer, were downright hostile to the idea of curtailing federal supervision of state voting practices, while the “conservative” justices (not including Thomas, who was characteristically silent) found disingenuous assertions that VRA violations were systemic, or any more pervasive in the covered (mostly southern) jurisdictions than in non-covered ones.
Justice Kennedy sided strongly with the latter group, but, again, that may not mean much for the final contours of the Court’s decision.
However the case comes out, it is important to remember that even a complete striking of Section 5 does not leave voters who have been discriminated against without recourse in federal court; Section 2 has and will continue to be used to remedy VRA violations on a case-by-case basis (and without Section 5’s onerous preclearance requirements).
[Cross-posted from Cato's blog.]
Wednesday, April 29, 2009
Blogging from the Supreme Court -- NAMUDNO v. Holder
I write this from the Bar Members’ line waiting to be let into the Supreme Court courtroom for the final argument of the term.
Today the Court hears Northwest Austin Municipal Utility District No.1 (”NAMUDNO”) v. Holder. This is a challenge to the controversial Section 5 of the Voting Rights Act, which requires, among other things, any change in election administration in certain states and counties to be “precleared” by the Department of Justice in Washington. This is, of course, a remnant of the Jim Crow era, and southern states’ massive resistance to attempts to enforce the 15th Amendment.
In 1965, Congress included Section 5 — which would otherwise be an unconstitutional infringement on peoples’ right to run their own elections locally — as a temporary remedy to an emergency situation. The section has been amended and extended several times (e.g., to add linguistic minorities, Pacific Islanders, etc.), most recently in 2006. But in this last renewal, Congress, despite introducing more than 15,000 pages into the record, failed to even allege the existence of the type of systemic voting discrimination as existed in the 1960s — because, of course, it doesn’t exist any more, and other parts of the VRA exist to cover specific discriminatory incidents.
Accordingly, a small utility district in Austin, Texas, contests Section 5’s continuing validity (if it cannot escape the section’s clutches via a confusing and little-used “bailout” provision). Specifically, NAMUDNO wants to change the location of its polling station to a public garage (from a less convenient location) — a move that obviously lacks discriminatory intent, and showcases the minutiae that the DOJ now has to micromanage.
Cato legal scholars support NAMUDNO’s challenge because, barring the widespread systemic unconstitutional actions of the Civil Rights Era, Section 5 violates our most basic principles of self-government and federalism, and is emblematic of governmental overreach.
[Cross-posted from Cato's blog.]
Today the Court hears Northwest Austin Municipal Utility District No.1 (”NAMUDNO”) v. Holder. This is a challenge to the controversial Section 5 of the Voting Rights Act, which requires, among other things, any change in election administration in certain states and counties to be “precleared” by the Department of Justice in Washington. This is, of course, a remnant of the Jim Crow era, and southern states’ massive resistance to attempts to enforce the 15th Amendment.
In 1965, Congress included Section 5 — which would otherwise be an unconstitutional infringement on peoples’ right to run their own elections locally — as a temporary remedy to an emergency situation. The section has been amended and extended several times (e.g., to add linguistic minorities, Pacific Islanders, etc.), most recently in 2006. But in this last renewal, Congress, despite introducing more than 15,000 pages into the record, failed to even allege the existence of the type of systemic voting discrimination as existed in the 1960s — because, of course, it doesn’t exist any more, and other parts of the VRA exist to cover specific discriminatory incidents.
Accordingly, a small utility district in Austin, Texas, contests Section 5’s continuing validity (if it cannot escape the section’s clutches via a confusing and little-used “bailout” provision). Specifically, NAMUDNO wants to change the location of its polling station to a public garage (from a less convenient location) — a move that obviously lacks discriminatory intent, and showcases the minutiae that the DOJ now has to micromanage.
Cato legal scholars support NAMUDNO’s challenge because, barring the widespread systemic unconstitutional actions of the Civil Rights Era, Section 5 violates our most basic principles of self-government and federalism, and is emblematic of governmental overreach.
[Cross-posted from Cato's blog.]
Tuesday, April 28, 2009
In Defense of "Libertarian Crusades"
We in the public interest legal community — especially on the libertarian or conservative side — are used to taking slings and arrows from all quarters. The media doesn’t understand our quaint obsession with following the text of the Constitution. The so-called progressives seethe at our evil defense of property rights and the freedom of contract. Even the business community blanches at our refusal to leave their sacred regulatory protections untouched in our attack on statism.
But what we don’t expect is to see federal judges openly and wantonly question our motives — least of all in an actual opinion. Yet this is precisely what Judge Jacques “Jack” Weiner did last Thursday in dissenting from a Fourth Amendment seizure/Fifth Amendment takings case. The case, Severance v. Patterson, involves a challenge to a Texas law that caused the seizure of beachfront property after Hurricane Rita pushed the vegetation line landward. The purpose of the law, the Open Beaches Act, is to ensure public access to the beach regardless of erosion and other natural land migrations (a.k.a. a “rolling easement”). The Fifth Circuit panel ended up affirming the dismissal of part of the claims and asking the Texas Supreme Court for a ruling on state-law issues implicated in others.
But the legal details aren’t important. What I want to highlight is Weiner’s dissent, which begins with the following “Context” (a section title not commonly found in judicial opinions; see pages 22-23 here):
Apparently in Judge Weiner’s world, it is beyond the pale for an organization to provide pro bono legal services that also advance some larger ideological mission. Somebody tell the NAACP or ACLU — or the Supreme Court for that matter, which invites amicus briefs from just the kinds of groups Weiner excoriates. Cato itself routinely files such briefs, of course, and on several occasions has joined with PLF.
Chief Judge Jones pithily dispatches her colleague’s grandiloquence in the majority’s first footnote (see bottom of page 2 here):
And I won’t even get into Weiner’s mixed metaphors and schoolboy Latin – he meant qua, not cum – other than to say “hit the road, Jack.”
(Full disclosure: I clerked on the Fifth Circuit and am familiar with Weiner’s squishy, unreliable jurisprudence; he’s very nice in person, but something happens in chambers — left-wing clerks? — that detracts from his effectiveness. One caveat: Weiner is a great friend of the taxpayer; the IRS does not win in his courtroom.)
For commentary from the Volokh Conspiracy, see here. For PLF’s press release, see here. Hat tip: Cato adjunct scholar Tim Sandefur (whose day job is with PLF, though he did not work on this case).
[Cross-posted at Cato's blog."]
But what we don’t expect is to see federal judges openly and wantonly question our motives — least of all in an actual opinion. Yet this is precisely what Judge Jacques “Jack” Weiner did last Thursday in dissenting from a Fourth Amendment seizure/Fifth Amendment takings case. The case, Severance v. Patterson, involves a challenge to a Texas law that caused the seizure of beachfront property after Hurricane Rita pushed the vegetation line landward. The purpose of the law, the Open Beaches Act, is to ensure public access to the beach regardless of erosion and other natural land migrations (a.k.a. a “rolling easement”). The Fifth Circuit panel ended up affirming the dismissal of part of the claims and asking the Texas Supreme Court for a ruling on state-law issues implicated in others.
But the legal details aren’t important. What I want to highlight is Weiner’s dissent, which begins with the following “Context” (a section title not commonly found in judicial opinions; see pages 22-23 here):
Although undoubtedly unintentionally, the panel majority today aids and abets
the quixotic adventure of a California resident who is here represented by
counsel furnished gratis by the Pacific Legal Foundation. (That non-profit’s
published mission statement declares that its raison d’être includes
“defend[ing] the fundamental human right of private property,” noting that such
defense is part of each generation’s obligation to guard “against government
encroachment.”) The real alignment between Severance and the Pacific Legal
Foundation is not discernable from the record on appeal, but the real object of
these Californians’ Cervantian tilting at Texas’s Open Beaches Act (“OBA”) is
clearly not to obtain reasonable compensation for a taking of properties either
actually or nominally purchased by Severance, but is to eviscerate the OBA,
precisely the kind of legislation that, by its own declaration, the Foundation
targets. And it matters not whether Ms. Severance’s role in this litigation is
genuinely that of the fair Dulcinea whose distress the Foundation cum knight
errant would alleviate or, instead, is truly that of squire Sancho Panza
assisting the Foundation cum Don Quixote to achieve its goal: Either way, the
panel majority’s reversal of the district court (whose rulings against Severance
I would affirm) has the unintentional effect of enlisting the federal courts
and, via certification, the Supreme Court of Texas, as unwitting foot-soldiers
in this thinly veiled Libertarian crusade. It is within this framework that I
shall seek to demonstrate how the panel majority misses the mark and why
Severance’s action should be dismissed, once and for all, for her lack of
standing to assert either a Fifth Amendment takings claim for reasonable
compensation (because Severance has had nothing taken by the State) or a Fourth
Amendment unreasonable seizure claim (because that which was putatively seized
did not belong to Severance at the time; and even if it had, there was nothing
unreasonable about the purported seizure).
Apparently in Judge Weiner’s world, it is beyond the pale for an organization to provide pro bono legal services that also advance some larger ideological mission. Somebody tell the NAACP or ACLU — or the Supreme Court for that matter, which invites amicus briefs from just the kinds of groups Weiner excoriates. Cato itself routinely files such briefs, of course, and on several occasions has joined with PLF.
Chief Judge Jones pithily dispatches her colleague’s grandiloquence in the majority’s first footnote (see bottom of page 2 here):
Notwithstanding the hyperbolic and unsupported assertions in Part I of the
dissent (“Context”), the judges of the court endeavor not to decide appeals
based on who the litigants are, who their lawyers are, or what we may believe
their motives to be. Whether that rule is observed in light of Part I of the
dissent, however, the reader must determine.
And I won’t even get into Weiner’s mixed metaphors and schoolboy Latin – he meant qua, not cum – other than to say “hit the road, Jack.”
(Full disclosure: I clerked on the Fifth Circuit and am familiar with Weiner’s squishy, unreliable jurisprudence; he’s very nice in person, but something happens in chambers — left-wing clerks? — that detracts from his effectiveness. One caveat: Weiner is a great friend of the taxpayer; the IRS does not win in his courtroom.)
For commentary from the Volokh Conspiracy, see here. For PLF’s press release, see here. Hat tip: Cato adjunct scholar Tim Sandefur (whose day job is with PLF, though he did not work on this case).
[Cross-posted at Cato's blog."]
The Government Shouldn’t Tilt The Speech Playing Field in Its Own Favor
New Hampshire passed a law prohibiting the transfer of doctors’ prescription history to facilitate drug companies’ one-on-one marketing — a practice known as “detailing” — because it believes detailing drives up brand-name drug sales and, in turn, health care costs. The state knew that the First Amendment prevented it from banning detailing itself, so it made the practice more difficult indirectly.
Yet data collection and transfer is protected speech — think academic research, or the phone book — and government efforts to regulate this type of speech also runs afoul of the First Amendment. See, e.g., Solveig Singleton, “Privacy as Censorship: A Skeptical View of Proposals to Regulate Privacy in the Private Sector” (Cato Institute Policy Analysis No. 295). New Hampshire also engages in gross viewpoint discrimination: it exempts insurers’ efforts to persuade doctors to use generic drugs, and runs an “academic detailing” program to discourage brand-name drug use.
Remarkably, the First Circuit reversed a district court ruling that had invalidated the statute as unconstitutional, somehow finding that the statute regulates conduct rather than speech and that, in any event, the judiciary should defer to the legislative branch’s judgment. Two companies that collect and sell health information and analysis filed a petition asking the Supreme Court to review the case. Cato, joining Washington Legal Foundation, Reason Foundation, and a group of current and former state officials, has filed a brief supporting that petition.
Our brief argues that the Supreme Court should grant review because: 1) the speech at issue is worthy of First Amendment protection; 2) this case is a good vehicle for examining First Amendment issues attending state attempts to control health care costs (other states have passed similar laws); and 3) the lower court’s holding that a state may restrict speech to “level the playing field” conflicts with the Court’s precedent regarding both commercial speech and campaign finance regulation.
The Supreme Court will be deciding over the summer whether to review IMS Health v. Ayotte, with a decision expected after the “Long Conference,” which precedes the beginning of the new term in October.
[Cross-posted at Cato's blog.]
Yet data collection and transfer is protected speech — think academic research, or the phone book — and government efforts to regulate this type of speech also runs afoul of the First Amendment. See, e.g., Solveig Singleton, “Privacy as Censorship: A Skeptical View of Proposals to Regulate Privacy in the Private Sector” (Cato Institute Policy Analysis No. 295). New Hampshire also engages in gross viewpoint discrimination: it exempts insurers’ efforts to persuade doctors to use generic drugs, and runs an “academic detailing” program to discourage brand-name drug use.
Remarkably, the First Circuit reversed a district court ruling that had invalidated the statute as unconstitutional, somehow finding that the statute regulates conduct rather than speech and that, in any event, the judiciary should defer to the legislative branch’s judgment. Two companies that collect and sell health information and analysis filed a petition asking the Supreme Court to review the case. Cato, joining Washington Legal Foundation, Reason Foundation, and a group of current and former state officials, has filed a brief supporting that petition.
Our brief argues that the Supreme Court should grant review because: 1) the speech at issue is worthy of First Amendment protection; 2) this case is a good vehicle for examining First Amendment issues attending state attempts to control health care costs (other states have passed similar laws); and 3) the lower court’s holding that a state may restrict speech to “level the playing field” conflicts with the Court’s precedent regarding both commercial speech and campaign finance regulation.
The Supreme Court will be deciding over the summer whether to review IMS Health v. Ayotte, with a decision expected after the “Long Conference,” which precedes the beginning of the new term in October.
[Cross-posted at Cato's blog.]
Wednesday, April 22, 2009
The Way to Stop Discrimination on the Basis of Race is to Stop Discriminating on the Basis of Race
Today the Supreme Court heard argument in Ricci v. DeStefano, the “reverse discrimination” case in which the city of New Haven refused to certify the results of a race-neutral promotion exam whose objective results would have required, under civil service rules, the promotion of only white and Hispanic (but no black) firefighters.
The firefighters who were thus denied promotions sued the city, claiming racial discrimination under Title VII of the Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment.
Remarkably, a panel of the Second Circuit Court of Appeals—including oft-mentioned Supreme Court contender Sonia Sotomayor—summarily affirmed the district court’s ruling against the firefighters, though Judge José Cabranes (a Clinton appointee) later excoriated the panel for not grappling with the serious constitutional issues raised by the case.
The Cato Institute filed a brief, joined by the Reason Foundation and the Individual Rights Foundation, pointing out the absurd incentives at play: if the lower court’s ruling stands, employers will throw out the results of exams (or other criteria) that produce racial disparity, even if those exams are race-neutral, entirely valid, and extremely important to the employer and (as in this case) the public.
Today the Court seemed starkly divided. The “liberal” justices hinted that an employer should be allowed to be “race conscious” to avoid Title VII lawsuits alleging “disparate impact” against minorities in hiring and promotions. The “conservatives” were disturbed that the only reason the firefighters weren’t promoted was their race. Nobody seemed persuaded by the government’s request—really an attempt to avoid taking a firm stand on a controversial issue—that the judgment be vacated and the case remanded for further factual development and legal rulings by the lower courts. Justice Kennedy will likely be the swing vote, and I predict that he will side with the conservatives, albeit narrowly in a separate concurrence as he did in Parents Involved in Community Schools v. Seattle School District No.1, the race-based school assignment case from 2007.
It was in Parents Involved that Chief Justice Roberts wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Quite so. The Supreme Court should thus reverse the Second Circuit, establishing that an employer can only discount test results when there is a “strong basis in evidence” that the test is somehow biased against a particular racial group.
[Cross-posted at Cato's blog.]
The firefighters who were thus denied promotions sued the city, claiming racial discrimination under Title VII of the Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment.
Remarkably, a panel of the Second Circuit Court of Appeals—including oft-mentioned Supreme Court contender Sonia Sotomayor—summarily affirmed the district court’s ruling against the firefighters, though Judge José Cabranes (a Clinton appointee) later excoriated the panel for not grappling with the serious constitutional issues raised by the case.
The Cato Institute filed a brief, joined by the Reason Foundation and the Individual Rights Foundation, pointing out the absurd incentives at play: if the lower court’s ruling stands, employers will throw out the results of exams (or other criteria) that produce racial disparity, even if those exams are race-neutral, entirely valid, and extremely important to the employer and (as in this case) the public.
Today the Court seemed starkly divided. The “liberal” justices hinted that an employer should be allowed to be “race conscious” to avoid Title VII lawsuits alleging “disparate impact” against minorities in hiring and promotions. The “conservatives” were disturbed that the only reason the firefighters weren’t promoted was their race. Nobody seemed persuaded by the government’s request—really an attempt to avoid taking a firm stand on a controversial issue—that the judgment be vacated and the case remanded for further factual development and legal rulings by the lower courts. Justice Kennedy will likely be the swing vote, and I predict that he will side with the conservatives, albeit narrowly in a separate concurrence as he did in Parents Involved in Community Schools v. Seattle School District No.1, the race-based school assignment case from 2007.
It was in Parents Involved that Chief Justice Roberts wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Quite so. The Supreme Court should thus reverse the Second Circuit, establishing that an employer can only discount test results when there is a “strong basis in evidence” that the test is somehow biased against a particular racial group.
[Cross-posted at Cato's blog.]
Monday, April 20, 2009
Yes, California, There is an Individual Right to Keep and Bear Arms
Last June, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual’s right to keep and bear arms, at least in the home for self-defense. While the Court’s ruling was a watershed in constitutional interpretation, it technically applied only to D.C., striking down the District’s draconian gun ban but not having a direct effect in the rest of the country.
Well, today the Ninth Circuit (the federal appellate court covering most Western states) ruled that the Second Amendment restricts the power of state and local governments to interfere with individual right to have guns for personal use. That is, the Fourteenth Amendment “incorporates” the Second Amendment against the states, as the Supreme Court has found it to do for most of the Bill of Rights. I rarely get a chance to say this, but the Ninth Circuit gets it exactly right.
Here’s the key part of Judge Diarmuid O’Scannlain’s opinion:
Just as interesting — and potentially equally significant — is the footnote Judge O’Scannlain drops at the end of the above text in response to arguments that the right to keep and bear arms, regardless of its provenance as a fundamental natural right, is now controversial:
[Cross-posted at Cato's blog.]
Well, today the Ninth Circuit (the federal appellate court covering most Western states) ruled that the Second Amendment restricts the power of state and local governments to interfere with individual right to have guns for personal use. That is, the Fourteenth Amendment “incorporates” the Second Amendment against the states, as the Supreme Court has found it to do for most of the Bill of Rights. I rarely get a chance to say this, but the Ninth Circuit gets it exactly right.
Here’s the key part of Judge Diarmuid O’Scannlain’s opinion:
We therefore conclude that the right to keep and bear arms is “deeply rooted inIn short, residents of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington now join D.C. residents in having their Second Amendment rights protected. And courts covering other parts of the country — most immediately the Seventh Circuit, based in Chicago — will have their chance to make the same interpretation in due course.
this Nation’s history and tradition.” Colonial revolutionaries, the
Founders, and a host of commentators and lawmakers living during the first one
hundred years of the Republic all insisted on the fundamental nature of the
right. It has long been regarded as the “true palladium of liberty.” Colonists
relied on it to assert and to win their independence, and the victorious Union
sought to prevent a recalcitrant South from abridging it less than a century
later. The crucial role this deeply rooted right has played in our birth
and history compels us to recognize that it is indeed fundamental, that it is
necessary to the Anglo-American conception of ordered liberty that we have
inherited. We are therefore persuaded that the Due Process Clause of the
Fourteenth Amendment incorporates the Second Amendment and applies it against
the states and local governments.
Just as interesting — and potentially equally significant — is the footnote Judge O’Scannlain drops at the end of the above text in response to arguments that the right to keep and bear arms, regardless of its provenance as a fundamental natural right, is now controversial:
But we do not measure the protection the Constitution affords a right by theQuite right.
values of our own times. If contemporary desuetude sufficed to read rights out
of the Constitution, then there would be little benefit to a written statement
of them. Some may disagree with the decision of the Founders to
enshrine a given right in the Constitution. If so, then the people can
amend the document. But such amendments are not for the courts to ordain.
[Cross-posted at Cato's blog.]
Thursday, April 9, 2009
Yes We Can!
Congratulations are in order to Kim Jong Il on his unanimous re-election as Supreme Leader of North Korea.
I didn't realize we'd translated the Cato Constitution into Korean.
[Cross-posted at Cato's blog.]
Wednesday, April 8, 2009
Dance Like Thomas Jefferson's Watching
As Thomas Jefferson’s birthday approaches (April 13) – and tonight being the first night of Passover, which Jews celebrate to commerate their deliverance from slavery – I thought I’d comment on a disturbing tale that reminds us again that “the price of liberty is eternal vigilance.”
In celebration of Thomas Jefferson’s (265th) birthday last year, about 20 D.C.-area libertarians gathered at the Jefferson Memorial just before midnight. The plan was to have a music-through-headphones dance party for the father of the Declaration of Independence (i.e., each person would dance to the tune of his individual iPod). I was actually supposed to attend, but for some reason did not make it.
It was a short-lived party, however, with an ending that would almost certainly have made our nation’s third president frown in disapproval.
Shortly after the silent bopping started, U.S. Park Police officers began to disperse the partygoers. After shooing and pushing revelers (who were drunk only on liberty) off the memorial, one officer confronted the lone remaining dancer, Brooke Oberwetter, and told her to leave. Oberwetter calmly asked what law or rules she was violating. The officer provided no explanation but continued to insist that she leave. Not satisfied with the officer’s response, Oberwetter stood her ground — until the officer pushed her against a stone pillar, handcuffed her, and led her away.
Now, nearly one year later — after the citation against her (for “interfering with an agency function,” whatever that means) was neither dropped nor pursued – Oberwetter filed suit in the U.S. District Court for the District of Columbia against the arresting officer, Kenneth Hilliard, and the Secretary of the Interior, Kenneth Salazar (whose office oversees the Park Police). Oberwetter argues that Hilliard and the Park Police violated her First Amendment rights by interrupting and preventing her expressive activity and freedom of assembly. She also alleges that here Fourth Amendment rights were violated when she was arrested without probable cause and with excessive force.
The complaint, available here, is a model of legal writing. Pithy, legally sound, and eminently readable, I cannot recommend it more highly to law students and young lawyers. This is perhaps not surprising because Oberwetter’s counsel is none other than my friend Alan Gura, who last year successfully argued D.C. v. Heller before the Supreme Court.
Here’s a recent TV news story about the case and here’s Radley Balko’s (formerly of Cato, now at Reason) original post about the incident.
Full disclosure: While our tenures never crossed, Oberwetter is a former Cato employee -- and a social acquaintance. I wish Brooke and Alan the best in their fight against such arbitrary use of government power to oppress basic liberty. (As Alan told me, a good rule of thumb for police: if you can't think of any charges, even a few weeks later, it was probably a bad arrest.) And I hope the incident gets Kevin Bacon thinking sequel.
[Cross-posted from Cato's blog.]
In celebration of Thomas Jefferson’s (265th) birthday last year, about 20 D.C.-area libertarians gathered at the Jefferson Memorial just before midnight. The plan was to have a music-through-headphones dance party for the father of the Declaration of Independence (i.e., each person would dance to the tune of his individual iPod). I was actually supposed to attend, but for some reason did not make it.
It was a short-lived party, however, with an ending that would almost certainly have made our nation’s third president frown in disapproval.
Shortly after the silent bopping started, U.S. Park Police officers began to disperse the partygoers. After shooing and pushing revelers (who were drunk only on liberty) off the memorial, one officer confronted the lone remaining dancer, Brooke Oberwetter, and told her to leave. Oberwetter calmly asked what law or rules she was violating. The officer provided no explanation but continued to insist that she leave. Not satisfied with the officer’s response, Oberwetter stood her ground — until the officer pushed her against a stone pillar, handcuffed her, and led her away.
Now, nearly one year later — after the citation against her (for “interfering with an agency function,” whatever that means) was neither dropped nor pursued – Oberwetter filed suit in the U.S. District Court for the District of Columbia against the arresting officer, Kenneth Hilliard, and the Secretary of the Interior, Kenneth Salazar (whose office oversees the Park Police). Oberwetter argues that Hilliard and the Park Police violated her First Amendment rights by interrupting and preventing her expressive activity and freedom of assembly. She also alleges that here Fourth Amendment rights were violated when she was arrested without probable cause and with excessive force.
The complaint, available here, is a model of legal writing. Pithy, legally sound, and eminently readable, I cannot recommend it more highly to law students and young lawyers. This is perhaps not surprising because Oberwetter’s counsel is none other than my friend Alan Gura, who last year successfully argued D.C. v. Heller before the Supreme Court.
Here’s a recent TV news story about the case and here’s Radley Balko’s (formerly of Cato, now at Reason) original post about the incident.
Full disclosure: While our tenures never crossed, Oberwetter is a former Cato employee -- and a social acquaintance. I wish Brooke and Alan the best in their fight against such arbitrary use of government power to oppress basic liberty. (As Alan told me, a good rule of thumb for police: if you can't think of any charges, even a few weeks later, it was probably a bad arrest.) And I hope the incident gets Kevin Bacon thinking sequel.
[Cross-posted from Cato's blog.]
Friday, April 3, 2009
I Love You Too, America
People who don’t know me well don’t realize I’m not American. I have no accent, am among the most patriotic people you could meet, went to college and law school here, interned for a senator, clerked for a federal judge, worked on a presidential campaign, spent time in Iraq, and speak and write about the U.S. Constitution for a living. I was born in Russia, however, and immigrated to Canada with my parents when I was little. “We took a wrong turn at the St. Lawrence Seaway,” I like to joke.
The upshot is that, much as I’ve wanted to be American since about age eight — when I discovered that the U.S. governing ethos was “life, liberty, and the pursuit of happiness,” while Canada’s is “peace, order, and good government” — I am a Canadian citizen. And, because of this country’s perverted immigration system, none of the time I’ve spent in the United States (my entire adult life save a 10-month masters program in London) got me any closer to the unrestricted right to live and work here (a “green card”).
Don’t worry, I’ve always been legal, through a combination of student, training, and professional visas, but those were always tied to the school or employer, hindering the types of professional activities I could engage in hanging a sword of Damocles over my life. If I lost my job — as so many lawyers have, for example, in this economy — I would have to leave the country where about 95% of my personal and professional network is located.
When I came to Cato, the opportunity presented itself to finally be able to petition for a green card. (I’ll spare you the overly technical and exceedingly frustrating details.) Along the way, I even got a certificate saying that the U.S. government — or at least the Department of Homeland Security’s U.S. Citizenship and Immigration Service (what used to be the I.N.S.) — considered me an “alien of exceptional ability.” I didn’t let this go to my head; when lawyers and bureaucrats come up with a term of art, it means less in real life than, say, one of you readers emailing me that you liked something I blogged here.
Anyhow, not expecting any action on my green card petition for at least another year (based on the processing times posted at the USCIS website), last night I came home to an unmarked envelope in my mailbox. It was my green card! — complete with a little pamphlet welcoming me to America.
This is quite literally the key to the rest of my life in this wonderful country. Those who know me well know how huge a deal this is for me personally, how long it has taken, and how many arbitrary and capricious obstacles our immigration non-policy places in the way of “skilled workers.” (Three years ago I attracted media attention during the Senate immigration debate with the soundbite, “if this reform goes through, I’m giving up law and taking up gardening.”)
I’ve been very fortunate in the opportunities I’ve had and the people I’ve met — including, in significant part, through the big-tent movement for liberty — and I am eternally grateful that this day has finally arrived. Believe me that I will never take for granted the great privilege that is permanent residence in the United States. My sincere hope is that America remains a beacon of liberty and that shining city on a hill.
I may well blog or write more about this in the future, but for more on my personal story, see, e.g., here, here, and here. More importantly, check out Cato’s excellent immigration work here.
[Cross-posted at Cato's blog.]
The upshot is that, much as I’ve wanted to be American since about age eight — when I discovered that the U.S. governing ethos was “life, liberty, and the pursuit of happiness,” while Canada’s is “peace, order, and good government” — I am a Canadian citizen. And, because of this country’s perverted immigration system, none of the time I’ve spent in the United States (my entire adult life save a 10-month masters program in London) got me any closer to the unrestricted right to live and work here (a “green card”).
Don’t worry, I’ve always been legal, through a combination of student, training, and professional visas, but those were always tied to the school or employer, hindering the types of professional activities I could engage in hanging a sword of Damocles over my life. If I lost my job — as so many lawyers have, for example, in this economy — I would have to leave the country where about 95% of my personal and professional network is located.
When I came to Cato, the opportunity presented itself to finally be able to petition for a green card. (I’ll spare you the overly technical and exceedingly frustrating details.) Along the way, I even got a certificate saying that the U.S. government — or at least the Department of Homeland Security’s U.S. Citizenship and Immigration Service (what used to be the I.N.S.) — considered me an “alien of exceptional ability.” I didn’t let this go to my head; when lawyers and bureaucrats come up with a term of art, it means less in real life than, say, one of you readers emailing me that you liked something I blogged here.
Anyhow, not expecting any action on my green card petition for at least another year (based on the processing times posted at the USCIS website), last night I came home to an unmarked envelope in my mailbox. It was my green card! — complete with a little pamphlet welcoming me to America.
This is quite literally the key to the rest of my life in this wonderful country. Those who know me well know how huge a deal this is for me personally, how long it has taken, and how many arbitrary and capricious obstacles our immigration non-policy places in the way of “skilled workers.” (Three years ago I attracted media attention during the Senate immigration debate with the soundbite, “if this reform goes through, I’m giving up law and taking up gardening.”)
I’ve been very fortunate in the opportunities I’ve had and the people I’ve met — including, in significant part, through the big-tent movement for liberty — and I am eternally grateful that this day has finally arrived. Believe me that I will never take for granted the great privilege that is permanent residence in the United States. My sincere hope is that America remains a beacon of liberty and that shining city on a hill.
I may well blog or write more about this in the future, but for more on my personal story, see, e.g., here, here, and here. More importantly, check out Cato’s excellent immigration work here.
[Cross-posted at Cato's blog.]
School Strips Student of Clothes, Rights
A middle-school student who was caught red-handed with prescription-strength ibuprofen (in violation of the school’s drug policy) implicated another 13-year-old girl, Savana Redding. On the sole basis of this accusation, school officials searched Savana’s backpack, finding no evidence of drug use, drug possession, or any other illegal or improper conduct. They then took the girl to the nurse’s office and ordered her to undress. Not finding any pills in Savana’s pants or shirt, the officials ordered the girl to pull out her bra and panties and move them to the side. The observation of Savana’s genital area and breasts also failed to reveal any contraband.
Savana’s mother, whom Savana had not been permitted to call before or during the strip search, sued the school district and officials for violating her daughter’s Fourth Amendment rights to be protected from unreasonable search and seizure. The trial court and a panel of the Ninth Circuit ruled against her, but the en banc Ninth Circuit reversed, finding the search unjustified and unreasonable in scope, and therefore unconstitutional. The Supreme Court granted the school district’s petition for review.
Cato, joined by the Rutherford Institute and Goldwater Institute, filed a brief supporting the Reddings’ suit, arguing that strip searches, particularly of students, are subject to a higher level of scrutiny than other kinds of searches. Such searches are reasonable only when school officials have highly credible evidence showing that (1) the student is in possession of objects posing a significant danger to the school and (2) the student has secreted the objects in a place only a strip search will uncover.
In this case, there was insufficient factual basis for the strip search and the search was not reasonably related and disproportionate to the school officials’ investigation. The Supreme Court should thus affirm the Ninth Circuit and establish that such searches may be undertaken only when compelling evidence suggests a strip search is necessary to preserve school safety and health.
Safford Unified School District No. 1 v. Redding will be argued at the Supreme Court on April 21.
[Cross-posted at Cato's blog.]
Savana’s mother, whom Savana had not been permitted to call before or during the strip search, sued the school district and officials for violating her daughter’s Fourth Amendment rights to be protected from unreasonable search and seizure. The trial court and a panel of the Ninth Circuit ruled against her, but the en banc Ninth Circuit reversed, finding the search unjustified and unreasonable in scope, and therefore unconstitutional. The Supreme Court granted the school district’s petition for review.
Cato, joined by the Rutherford Institute and Goldwater Institute, filed a brief supporting the Reddings’ suit, arguing that strip searches, particularly of students, are subject to a higher level of scrutiny than other kinds of searches. Such searches are reasonable only when school officials have highly credible evidence showing that (1) the student is in possession of objects posing a significant danger to the school and (2) the student has secreted the objects in a place only a strip search will uncover.
In this case, there was insufficient factual basis for the strip search and the search was not reasonably related and disproportionate to the school officials’ investigation. The Supreme Court should thus affirm the Ninth Circuit and establish that such searches may be undertaken only when compelling evidence suggests a strip search is necessary to preserve school safety and health.
Safford Unified School District No. 1 v. Redding will be argued at the Supreme Court on April 21.
[Cross-posted at Cato's blog.]
Wednesday, April 1, 2009
When the Government Takes Your Money, It Takes Your Property
When Daniel and Andrea McClung applied for a permit to build a small business on their property in Sumner, Washington, the city charged them nearly $50,000 to pay for improvements to the city’s entire storm drainage system.
The McClungs sued the city under the Fifth Amendment to the Constitution, whose Takings Clause prohibits the government from “taking” private property for public use without just compensation. They argue that the city cannot force them to pay fees for off-site pipes absent proof that their development would have a specific detrimental effect on the existing drainage system–and without any evidence that the impact was worth $50,000.
The Ninth Circuit ruled in favor of the city, reasoning that money is not property (so there could be no unconstitutional taking) and that because the fees were imposed by ordinance (so the city’s determination that the pipes needed upgrading was justification enough for the fees). The McClungs have now asked the Supreme Court to review their case.
Cato, joined by the Pacific Legal Foundation and the Building Industry Association of Washington, argues that this case is a perfect vehicle for the Court to revisit the scope of Fifth Amendment protections.
Our brief highlights the deep divisions among state and federal courts over several important issues, such as whether the Takings Clause applies to legislative (as opposed to bureaucratic) exactions and whether it applies to monetary exactions (not just burdens on land use). The Court should take this case to ensure that the standard for reviewing development conditions is uniform across the country and make clear that property right protections do not depend on ill-defined distinctions such as the form of property demanded by the government or the manner in which a condition is imposed.
[Cross-posted at Cato's blog.]
The McClungs sued the city under the Fifth Amendment to the Constitution, whose Takings Clause prohibits the government from “taking” private property for public use without just compensation. They argue that the city cannot force them to pay fees for off-site pipes absent proof that their development would have a specific detrimental effect on the existing drainage system–and without any evidence that the impact was worth $50,000.
The Ninth Circuit ruled in favor of the city, reasoning that money is not property (so there could be no unconstitutional taking) and that because the fees were imposed by ordinance (so the city’s determination that the pipes needed upgrading was justification enough for the fees). The McClungs have now asked the Supreme Court to review their case.
Cato, joined by the Pacific Legal Foundation and the Building Industry Association of Washington, argues that this case is a perfect vehicle for the Court to revisit the scope of Fifth Amendment protections.
Our brief highlights the deep divisions among state and federal courts over several important issues, such as whether the Takings Clause applies to legislative (as opposed to bureaucratic) exactions and whether it applies to monetary exactions (not just burdens on land use). The Court should take this case to ensure that the standard for reviewing development conditions is uniform across the country and make clear that property right protections do not depend on ill-defined distinctions such as the form of property demanded by the government or the manner in which a condition is imposed.
[Cross-posted at Cato's blog.]
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