NRA Cares More about NRA Than Gun Rights, Liberty, Professional Courtesy

Yesterday the Supreme Court granted the NRA’s motion for divided argument in McDonald v. Chicago. What this means is that Alan Gura’s 30 minutes of argument time on behalf of Chicagoland gun owners just became 20, with 10 going to former Solicitor General Paul Clement, whom the NRA hired at the last minute to pursue this motion and argument. (Full disclosure: Alan Gura is a friend of mine, and of Cato.)

The NRA’s motion was premised on the idea that Alan had not fully presented the substantive due process argument for selective incorporation of the Second Amendment — presumably out of an outsized concern for the Privileges or Immunities Clause arguments about which I’ve previously blogged and written a law review article. This is a highly unusual argument and is a facial slap at Alan’s abilities as an advocate. Sadly, it’s also typical of how the NRA has behaved throughout this case and before that during the Heller litigation — sabotaging Alan at every turn and showing again and again that, even in the face of winning arguments that fully support its legal positions, the NRA prefers to seek glory for itself rather than presenting the strongest case for its purported constituency of gun owners.

Alan rightfully opposed the NRA’s motion because the group’s participation at argument adds nothing substantive to the case. No one will ever know why the motion was granted, as the Court need not (and did not) provide any reasons. Nonetheless, it’s a safe bet that this is solely a testament to Clement’s talent and reputation (notably, the motion was not filed by any of the NRA’s other excellent attorneys, who briefed and argued their case in the lower courts and in a cert petition and brief before the Supreme Court).

I have great respect for Paul Clement, and have worked with him by filing amicus briefs in two cases he’s already argued this term, but I do take issue with his repeated suggestion that the motion’s purpose — and the reason behind its granting — was so that “all the avenues to incorporation, including the due process clause, are fully explored at the argument.” This kind of comment — again impugning Alan’s litigation strategy — is uncalled for, and renews concerns over the NRA’s conduct.

Throughout this case, Alan has consistently and forcefully advocated for the Second Amendment’s incorporation under the Due Process Clause. That didn’t change when his case was taken up by the Supreme Court. The thing is that the due process arguments are not all that complex, and simply do not merit the same care and attention in the briefs as arguments based on the Constitution’s actual text and history. A first-year law student who’s taken constitutional law – let alone a Supreme Court clerk – could write a due process incorporation argument in her sleep! In any event, the oral argument will be driven by the justices’ questions, not by any long soliloquies by counsel. Alan’s — and all attorneys’ — job is to be ready for anything.

If the NRA were concerned about the final outcome of the case, it would be unlikely to attack Alan’s strategy or question his preparation (an odd way to be “helpful” to one’s side). It is not a stretch to predict that this case will be favorably decided at least in part on due process grounds, however, so what we are seeing here is likely an attempt by the NRA to position itself as responsible for such a victory – and that Alan isn’t.

Ultimately, then, the NRA is engaging here in fundraising, not liberty-promotion or ethical lawyering.

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The Government Should Have Less Power to Tax and Spend, Not More Power to Regulate Speech

Yesterday, The Hill asked various pundits and politicos to respond to the Supreme Court’s Citizens United ruling. The Big Question (as their periodic feature is called) was, “Will corporate money change campaigns?” You can read my response here.

Today, that same newspaper invited me to blog some further thoughts on the Citizens United decision. Here’s what I wrote:

Critics of yesterday’s decision say the sky of American democracy is falling. Supporters—including myself—say it’s a great day for the republic and a vindication of the freedom of speech. How can this be? Are nonprofit think tanks and advocacy groups like my own Cato Institute, the ACLU, the NRA, and many other odd bedfellows who supported Citizens United all in the pockets of Wall Street, Big Oil, insurance companies, and others that President Obama assails as corrupting our politics? Leaving aside the issue of why the politician who got more of his campaign funding from Goldman Sachs than any other source would be going after the very industries that most support him, the asymmetry in this debate rests on the myth that money is an evil in the political system, and that therefore the American people want so-called campaign finance reform to “clean up” government.

Money is no more an evil in politics than it is in life generally. Some people may not like mud-slinging attack ads, but some people also don’t like SUVs, the Super Bowl, the Jay Leno Show, and many other things that people spend money on—including donations to Cato, the ACLU, the NRA, etc. The problem with money in politics isn’t the money, but rather the politics. So long as the government is powerful enough to dole out tax breaks, subsidies, stimulus funds, regulations, earmarks, and a whole host of other goodies (and baddies), those that stand to benefit (and lose) will spend money on the political process. The way to get rid of this behavior and spending—which is constitutionally protected in a whole host of ways: freedom of speech, freedom of association, the right to petition the government for redress of grievances, etc.—is to reduce the government’s power to affect so many people’s lives and transform economic incentives for businesses big and small. Reduce the size of government and K Street will melt away.

Finally, as my colleague Roger Pilon points out, 26 states have minimal campaign finance laws, with no evidence that those states have more corruption—or a more unequal “political playing field”—than states that strictly regulate. And that’s because the real reason we have campaign finance regulations—the dirty little secret behind the whole convoluted regime—is that it’s an incumbency protection racket. From the so-called “millionaire’s amendment” that the Supreme Court struck down in 2008 to the limits on corporate and union advocacy that the Court struck down yesterday, McCain-Feingold and all other campaign finance legislation—passed by self-interested politicians—is designed to make it harder for challengers. After-all, incumbents have the benefit of name recognition, taxpayer-funded travel to and around their home districts and states, taxpayer-funded campaign literature disguised as informational flyers touting all the great things a congressman is doing, and a host of other advantages.

The First Amendment is not a “loophole” for big business and those of us who want freer speech—without bureaucrats deciding who gets to speak when and how much—are not corporate shills. Free speech is the very foundation of our democracy, and we are stronger today for the Citizens United decision.

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Supreme Court Ruling on Hillary Movie Heralds Freer Speech for All of Us

Today the Supreme Court struck a major blow for free speech by correctly holding that government cannot try to “level the political playing field” by banning corporations from making independent campaign expenditures on films, books, or even campaign signs.

As Justice Kennedy said in announcing the opinion, “if the First Amendment has any force, it prohibits jailing citizens for engaging in political speech.”

While the Court has long upheld campaign finance regulations as a way to prevent corruption in elections, it has also repeated that equalizing speech is never a valid government interest.
After all, to make campaign spending equal, the government would have to prevent some people or groups from spending less than they wished. That is directly contrary to protecting speech from government restraint, which is ultimately the heart of American conceptions about the freedom of speech.

No case demonstrates this idea better than Citizens United, where a nonprofit corporation made no donations to candidates but rather spent money to spread its ideas about Hillary Clinton independent of the campaigns of primary opponent Barack Obama, potential general election opponent John McCain, or any other candidates. Where is the “corruption” if the campaign(s) being supported have no knowledge, let alone control over what independent actors do? — be they one person, two people, or a large group?

Today’s ruling may well lead to more corporate and union election spending, but none of this money will go directly to candidates — so there is no possible corruption or even “appearance of corruption.” It will go instead to spreading information about candidates and issues. Such increases in spending should be welcome because studies have shown that more spending — more political communication — leads to better-informed voters.

In short, the Citizens United decision has strengthened both the First Amendment and American democracy.

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Scott Brown and the Future Supreme Court Vacancy

Josh Blackman and Lyle Denniston offer some thoughts on the effect of Scott Brown’s Massachusetts earthquake on the looming retirement of — and the nomination of a replacement for — Justice John Paul Stevens. Josh and Lyle both latch onto the idea that Brown’s providing the 41st vote to sustain a potential Republican filibuster could cause President Obama to nominate someone more moderate than would be the case if the Democrats had maintained their super-majority. Lyle goes on to speculate that both Obama and Senate Democrats, looking to this fall’s election, will generally want to tack right in the face of an emboldened GOP and impatient electorate.

I think this sort of analysis is a misapplication of otherwise correct political analysis to the sui generis event that is a Supreme Court nomination. Yes, Scott Brown’s presence in the Kennedy people’s seat will change the dynamic of the health care debate, definitively kill cap and trade, otherwise alter the Democrats’ legislative agenda — and even affect lower court nominees. But I’m not so sure it will affect Obama’s calculus in picking a new Supreme Court justice.

Here’s why: Despite having been a constitutional law professor — whom I did not have when I was in law school, though I passed him in the halls a few times — the president has not really tried to advance his ideological agenda in the courts. It’s bizarre, really, that judicial nominations have not at all been a priority for this administration given that few people pay attention to lower court appointments and this could have been a place where the president could have thrown some bones to his base at little political cost (and certainly far less cost than the rest of his domestic agenda).

Moreover, based on the Sotomayor nomination, we see that when it comes to the Supreme Court, Obama is much more about affirmative action than appointing either the best-qualified Democrats or the most ”progressive” ones (or both, to provide a counterweight to Justice Scalia). (Note that Sotomayor at the time of her nomination was nowhere near the best or most left-wing member of the federal judiciary.) Even with a filibuster-proof Senate majority, we would have been unlikely to see a Cass Sunstein or Harold Koh pick — though each took not insignificant heat and delay in being confirmed to regulatory czar and head State Department lawyer, respectively. (And Larry Tribe is too old.)

With Sonia Sotomayor, Obama hit the “twofer” of a woman and a Hispanic (the first unless you count Benjamin Cardozo). With the Stevens replacement, women and minorities are still slightly preferred but the key “diversity” quota to fill is “non-judge” — and, per the above, a non-controversial one on whom the president won’t have to spend much political capital.

And so, while the prohibitive favorite — solicitor general Elana Kagan (and a woman) – is no surprise, you heard it here first that the other likely nominees, in no particular order, are Janet Napolitano (DHS secretary, woman), Deval Patrick (Massachusetts governor, black), Jennifer Granholm (Michigan governor, woman), Kathleen Sullivan (former Stanford dean, lesbian), Amy Klobuchar (senator, woman), and Akhil Amar (Yale law professor, South Asian). I’ll comment on their relative merits in future posts, but nobody on that list is both a radical and an intellectual heavyweight, and the list has not changed with Scott Brown’s election (though the indirect spotlight during the campaign on Gov. Patrick’s unpopularity might have hurt his chances).

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Is Justice Kennedy Libertarian?

Early last year, Cato hosted a book forum for Helen Knowles’s The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty. This really is a remarkable book, with an ambitious goal: trying to make coherent sense of the oft-frustrating “swing justice.” And now I have a lengthy review of it that just came out in the latest issue of the Harvard Journal of Law & Public Politics (where Bob Levy also has an essay, on the aftermath of District of Columbia v. Heller).

Knowles makes the provocative argument that Justice Kennedy’s jurisprudence is “modestly libertarian.” I think that this argument, in the limited ways Knowles makes it — with respect to free speech, equal protection, and individual dignity — is probably sound. Still, that deduction is a small discovery considering the broad swath of Supreme Court jurisprudence. Moreover, it says little about whether Kennedy is faithful to the Constitution, which is a stronger measure of libertarianism (as Randy Barnett described at Cato’s 2008 Constitution Day Conference in his B. Kenneth Simon Lecture in Constitutional Thought, reprinted in the latest Cato Supreme Court Review).

Here’s how I conclude:

Good on speech and race, bad on government power, and ugly on abortion and the
death penalty, Justice Kennedy is a sui generis enigma at the heart of the
modern Supreme Court. However new Justice Sonia Sotomayor affects the
Court’s dynamics, it is unlikely that Justice Kennedy will shift from his role
as the deciding vote in most controversial cases. Helen Knowles has thus
done us a great service in deconstructing Justice Kennedy’s faint-hearted
libertarianism and helping us better understand the “sweet mystery” of his
jurisprudence.

For details on how I reached this conclusion, read the full review (which you can also download from SSRN). I should add that Knowles’s book is more useful to us Court-watchers than Frank Colucci’s Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty — whose shortcomings I won’t detail but instead refer you to Eric Posner’s thoughtful critique.

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Actually, Justice Breyer, the Constitution Enumerates Specific Powers, not Limitations on Otherwise Plenary Federal Power

Yesterday I went to the Court to watch the argument in United States v. Comstock, which I blogged about previously and in which Cato filed an amicus brief. As I also blogged previously, Cato’s arguments so concerned the government that the solicitor general spent four pages of her reply brief going after them.

At issue is a 2006 federal law that provides for the civil commitment of any federal prisoner after the conclusion of his sentence upon the appropriate official’s certification that the soon-to-be-released prisoner is “sexually dangerous.” The problem is that, while states have what’s called a “police power” to handle this sort of thing — to appropriately deal with with threats to society from the dangerously insane and so forth — the federal government’s powers are limited to those enumerated in the Constitution. And I’m sorry, there’s no power to civilly commit people who have committed no further crime beyond those for which they’ve already been duly punished.

The government, having abandoned its Commerce Clause argument — a big loser in the lower courts — relied at the Supreme Court on the Necessary and Proper Clause. This clause says that Congress shall have the power to “make all laws which shall be necessary and proper for carrying into execution [the specific powers listed in Article I, section 8], and all other powers vested by this Constitution in the government of the United States.”

In other words, we have a government of delegated and enumerated, and therefore limited powers. As Ryan Lirette put it in National Review Online last week, ”Congress may not search every corner of our country looking for problems to vanquish. Instead, Congress must be able to justify each law it passes with a specific congressional authorization.”

The solicitor general contends that civilly committing the sexually dangerous is “necessary and proper” to regulating the federal prison system — which itself is not an enumerated power but ancillary to enforcing federal criminal laws that Congress is appropriately empowered to make. At the argument, Solicitor General Kagan further justified the relevant provision as related to “responsibly” releasing federal prisoners.

I don’t think her “cascading powers” theory of the Necessary and Proper Clause is a winner — for reasons I describe in my recent podcast — and Justice Scalia also wasn’t convinced. Justice Breyer, however, at one point asked where the Constitution prohibited the federal government from “help[ing] with” a problem it identified (see page 31 of the transcript) and in general was hesitant to find limits to congressional action to solve big policy areas.

Breyer has it all backward: We don’t operate on the premise that the government has full plenary power to do whatever it thinks is best, for the “general welfare,” for “the children,” for “society,” or for any particular group, checked only by specific prohibitions. Instead, our system of government — our constitutional rule of law — provides for islands of government involvement in a sea of liberty. It is individual people who can do whatever they want that isn’t prohibited by law, not the government.

And so we’ll see soon enough which vision of the relationship between citizen and state the Supreme Court embraces. Along with Justice Breyer, Justices Stevens and Ginsburg also were not very sympathetic to the federalism and libertarian arguments ably presented by federal public defender G. Alan DuBois. Along with Justice Scalia, Justice Alito was (refreshingly) skeptical of undue government power — and one would expect (the silent) Justice Thomas to be in that category as well. Justice Sotomayor also asked some interesting questions inquiring into the federal government’s ability to hold someone indefinitely — including on the relationship of that power to the Commerce Clause authority underlying most federal exercise of power — so she could go either way. Finally, the Chief Justice and Justice Kennedy were, uncharacteristically, not all too active — seeming to question both sides equally — so it’s hard to predict how the Court will ultimately rule.

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Supreme Court Lets Eminent Domain Abuse Continue

Yesterday, the Supreme Court decided not take up an important takings case, the infelicitously titled 480.00 Acres of Land v. United States. As I blogged previously, Cato filed an amicus brief in the case in the hopes that the owner of the “480.00 Acres of Land,” Gil Fornatora, would ultimately receive the “just compensation” to which he is constitutionally entitled. The Court also missed the chance to correct the pattern of due process abuse that is apparently rampant in Florida. The case involved the federal government maneuvering to unjustly drive down property values before taking land for (legitimate) public use — in this case expanding the Everglades — thus greatly diminishing the compensation it was obligated to pay the owners. Fox News recently had a report about the case, in which I briefly appeared.

Interestingly — and sadly – since the Fox News report, my voicemail and email inbox has been receiving story after story of individuals who have experienced injustices similar to that of Mr. Fornatora. While it is unfortunate that this case has come to an end, the number of calls and emails leads me to believe that more cases like this will be making their way through the federal judiciary and that, eventually, this abuse will be halted.

To that end, while Cato does not involve itself directly in litigation, on the subject of takings and eminent domain abuse I can certainly recommend our friends at the Institute for Justice and Pacific Legal Foundation. Specifically on the type of “condemnation blight” at the heart of the Fornatora case, feel free to contact PLF’s Atlantic (Florida) office at (772)781-7787 or write to Pacific Legal Foundation, 1002 SE Monterey Commons Blvd., Suite 102, Stuart, FL 34996. Steven Gieseler was the attorney who presented the Fornatora case to the Supreme Court, and who got me involved.

In other eminent domain news, George Will had an excellent column on January 3 condemning the pernicious Atlantic Yards land grab.

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Michigan Court Inexplicably Tosses Suit, Endorses Forcible Enlistment of Day-Care Workers into the State Government

When lawyers and other commentators say that a court did not properly explain its decision, it’s typically for hyperbolic effect. But, in a bizarre move, a court in the failed great state of Michigan has dismissed an economic liberty case brought by our friends at the Mackinac Center Legal Foundation for reasons the court quite literally did not explain. The court simply denied the plaintiffs’ complaint and that was that.

Home-based day care owners Sherry Loar, Michelle Berry, and Paulette Silverson have all been taxed by the Michigan Department of Human Services because, according to the state, they are somehow employees of the state and (further!) must pay union dues. because this baseless assertion comes directly from the state DHS, an executive department, among the significant constitutional objections to the case presents separation of power problems. (Ok, I haven’t studied the Michigan Constitution, but I assume they separate their powers there.) Enough ridiculous laws are passed by state legislatures — more than 40,000 last year alone – we don’t need state executive agencies getting into the act.

Yet, the Michigan Court of Appeals has nothing at all to say about the case.

Inexplicable — and unpardonable.

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