"Fair Pay Act" Will Only Further Damage Economy

When President Obama signs the Lilly Ledbetter Fair Pay Act, he will be fulfilling a campaign promise but undermining the American economy. This bill is not about sex discrimination — paying men and women different wages for the same job has been illegal for nearly half a century — but rather about statutes of limitations. How long after an incident of discrimination should someone be allowed to sue? The Supreme Court ruled that an employee has six months after a company’s initial pay decision to file a discrimination claim. While this was a fair reading of existing law, critics legitimately questioned whether the law itself unfairly foreclosed redress for a decision made long before an employee discovered the pay discrimination. They correctly went to Congress to fix the law, instead of demanding that courts rewrite it themselves.

But the solution is not to eliminate statutes of limitations altogether, which is essentially what the Fair Pay Act does when it restarts the litigation clock with every new paycheck. No, the proper solution is simply to codify the common law “discovery rule” for these types of cases, making clear that the statute of limitations begins to run only when the employee discovers the wrong that had been committed against her way back when — a compromise that was proposed by Senator Kay Bailey Hutchison but rejected by the Senate. Instead, the new law introduces major uncertainty into business operations and gives every employee a Sword of Damocles to dangle over her employer’s balance sheet. Companies will all of a sudden be subject to decades-old discrimination claims they have no ability to defend.

At bottom, the Lilly Ledbetter Fair Pay Act takes a bludgeon to an already reeling economy, acting as a stimulus only for the lawyers bringing and defending the coming avalanche of lawsuits.

[Cross-posted from Cato's blog.]

Little Hope for Judges Until the Judiciary Stops Legislating

In a recent editorial, the Washington Post issued a “hope for improvements” from the vitriol, partisan rancor, and blocking of qualified candidates that has increasingly dominated nominations to the federal bench. Don’t hold your breath; this is one hope that will not inspire change during the course of the Obama administration.

No, the poisoning of the judicial appointment process won’t end till courts stop acting as policymakers, finding powers in the Constitution that aren’t there and limiting rights that are. Thus the problem with judicial nominations has less to do with cynical politicians and embittered ideologues than it does with a ”living Constitution” that has been stretched over the years beyond any Founder’s recognition. In failing to enforce the constraints on federal powers — and to protect the rights retained by the people under the Ninth Amendment (along with those covered by the Fifth Amendment’s takings clause and the Fourteenth Amendment’s privileges or immunities clause, to name but the most maligned) – what Alexander Hamilton called the “least dangerous branch” has devolved into a disfunctional policymaking body that understandably attracts political passions. While various parties wrestle to direct the government’s expanded powers in their favor, as my boss Roger Pilon wrote in 2002, “everything is politics, nothing is law.”

Until we reset the balances of power among the branches and the government again abides by its constitutional parameters, I’m afraid that the partisanship and politics of personal destruction surrounding judicial nominations will continue unabated – to the detriment of the nominees, the judiciary, and the country. When so much is at stake, it can be no other way. (You might as well ask elections to be less partisan or otherwise heated.)

But the Post’s editorial is on the right track about one thing: the failure of Republicans to define the word “extremist” when speaking of likely Obama judicial nominees. Democrats and their hard Left brethren were so unsuccesful in blocking John Roberts and Samuel Alito in large part because they had cried bigot about practically every previous lower-court nominee. Instead, let’s define what is unacceptable practically and establish an objective standard for judicial nominees from the new administration. Then it will only be a matter of measuring the degree of support or opposition when analyzing each one’s record. I suggest the following: “An extremist judge is someone who puts policy views over the text of the law as written, someone whose record shows a propensity for rewriting statutes or the Constitution.”

If you don’t like the result you get when following the law or the Constitution, change the law or amend the Constitution. As Oliver Wendell Holmes said when asked whether he would be doing justice on the Supreme Court, “This is a court of law, young man, not a court of justice.”

[Cross-posted at Cato's blog.]

Our Latest Salvo in the Battle Over Campaign Finance Reform

Yesterday I filed an amicus brief on Cato's behalf in Citizens United v. Federal Election Commission, an election regulation/campaign finance case that will be argued before the Supreme Court in March or April. Testing the bounds of the Court’s landmark decision in Wisconsin Right to Life II (WRTL II), the Federal Election Commission recently sought to apply certain prohibitions and disclosure requirements of the Bipartisan Campaign Reform Act of 2002 to advocacy group Citizens United’s political documentary, Hillary: The Movie, and to the group’s broadcast advertisements for the film. Though the FEC conceded that the ads, at least, are not the functional equivalent of express campaign advocacy, as defined in WRTL II, it nevertheless determined that Citizens United must disclose the identities of its contributors.

Cato’s brief argues that BCRA violates the First Amendment freedom of association belonging to those contributors, which freedom includes the right to associate anonymously and to control the group’s character and message free from government intervention. For groups engaging in political speech, compelled disclosure of contributors’ identities infringes their freedom of private expressive association, a burden often no less severe than direct restraint of the group’s speech. This type of government action must be subject to strict constitutional scrutiny—a level of scrutiny that in practice is almost always fatal. The district court failed to afford sufficient value to associational rights and so failed to scrutinize appropriately BCRA’s unjustified infringement on those rights.

Supreme Court Makes It a Little Interesting

The common refrain this Supreme Court term is that, after several years of blockbuster cases—race-based school assignment, partial-birth abortion, the rights of Guantánamo detainees, the D.C. gun ban, etc., etc.—this year the Court is giving the front pages a break. Indeed, as we celebrated the advent of 2009, the only cases guaranteed to make it into the Cato Supreme Court Review were a drug regulation case (Wyeth v. Levine) and one involving the detention of a civilian in the United States as an enemy combatant (Al-Marri v. Pucciarelli). Almost all the cases garnering media and scholarly attention would have been after-thoughts in previous years.
On Friday, however, as it rounded out its docket for the term (no more than a handful more will be added to the list of cases to be argued and decided before the Court recesses in June), the Court gave us four fascinating cases to chew on:

Northwest Austin Municipal Utility District Number One (“NAMUDNO”) v. Mukasey
This is a challenge to the requirement of section 5 of the Voting Rights Act that certain state and local governments, mostly but not entirely in the South, obtain “preclearance” before making any changes affecting voting. A small (3,500 residents) utility district in Austin, Texas, argues that it has never been accused of voting discrimination or other irregularities and should not have to seek federal permission to, for example, move the location of a polling place or coordinate voting for its board with other county or state elections. You may recall that the latest extension of the VRA, in 2006, did not pass without some controversy. Indeed, in our federal system, should certain jurisdictions still be under the Justice Department’s thumb over 40 years after the demise of Jim Crow (and to this extent of micromanagement)?

Ricci v. DeStefano
A group of firefighters (19 white, 1 Hispanic) allege that New Haven city officials racially discriminated against them when they refused to certify the results of two race-neutral promotional exams that yielded racially disproportionate results (i.e., a much higher percentage of whites and Hispanics qualified for promotion than did blacks). As offensive as the facts of the case are, the way that the Second Circuit—a panel including oft-mentioned Supreme Court contender Sonia Sotomayor—summarily dismissed the petitioners’ appeal is even more disconcerting. When the full court voted 7-6 not to rehear the case en banc, Judge José Cabranes (a Clinton appointee) excoriated his colleagues, concluding that “[t]his perfunctory disposition rests uneasily with the weighty issues presented by this appeal.” I won’t get into the weeds of legal analysis here, but Ed Whelan has two excellent posts discussing the Second Circuit shenanigans over at NRO and Stuart Taylor last month wrote a typically hard-hitting piece on it for the National Journal. But again, however the Supreme Court decides this one, it has already provided a potent line of attack on Judge Sotomayor when the next vacancy arises on the high court.

Republic of Iraq v. Beaty
This case asks the simple question of whether U.S courts have jurisdiction over claims regarding misdeeds committed by the Saddam Hussein regime—or whether today’s Iraqi government can assert sovereign immunity. This simple question actually involves the interplay of a host of legislative and executive action that the Court will have to wade through. Beaty joins the Eurodif (international trade, about which I wrote here) and Elahi (treaty enforcement) cases as this year’s leading contributions to the Court’s international law jurisprudence.

Horne v. Flores
Taking up a complicated conflict between the No Child Left Behind Act and earlier legislation, this is the term’s leading education case. The main issue is whether a state, in this case Arizona, which complies with NCLB on English language instruction can still be violating the funding requirements for such instruction imposed by the Equal Education Opportunity Act of 1974. The Ninth Circuit declined to modify an eight-year-old injunction requiring Arizona to spend millions on this instruction and imposing millions in fines. It’s a highly technical case but one with significant ramifications for a key part of President Bush’s domestic policy legacy.

Despite these four grants, however, it is still safe to say that Court shied away from many, many cases that should interest readers of this blog—not least the patent/abuse of state sovereign immunity case called BPMC v. California, which I had earlier urged the Court to accept for review. I will be commenting further at least on NAMUDNO and Ricci when the Court hears argument and decides them.

[Cross-posted at Cato's blog.]

No Supreme Court Vacancies, But a New "Tenth Justice"

The selection of Harvard Law School Dean Elana Kagan to be the next solicitor general (and the first woman nominated for a position known as the “Tenth Justice”) is not at all surprising. While President-elect Obama is under great pressure to nominate more women for cabinet and judicial positions, in Kagan and former Stanford Law School Dean Kathleen Sullivan he had two highly credentialed candidates who would have been front-runners regardless of their gender. Two things we know about Kagan is that she is very smart – even before the Supreme Court clerkship and record of scholarship, she won a Sachs Scholarship, sometimes called a “Princeton Rhodes” – and has done a fabulous job as dean (including poaching star professors from law schools across the country). While the White House and Attorney General will, of course, be setting the administration’s legal policy, we can expect Kagan to defend those policy positions ferociously and expertly. Whether those efforts will coincide with a defense of the individual liberty and limited government encapsulated in the Constitution remains to be seen.

[Cross-posted at Cato's blog.]

Emoluments! Get Yer Red Hot Emoluments Here!

You never know where carrying around a pocket Constitution will take you. A few weeks ago, while attending the Federalist Society's annual lawyers convention, I got to chatting with UCLA law professor (and former member of the Cato Supreme Court Review editorial board) Eugene Volokh about something that a commenter to his well-known Volokh Conspiracy blog had queried: might Hillary Clinton, then just-announced as "on track" to become the next Secretary of State, be constitutionally disqualified from that job? I quickly turned to Article I, section 6, clause 2 of my handy Cato pocket Constitution (I carry one in every suit jacket and can attest that they make great stocking-stuffers) to look at the source of the problem: the Emoluments Clause. Indeed, it seemed that Sen. Clinton's appointment -- or that of any member of Congress whose term coincides with a cabinet pay raise, nothing against her in particular -- would violate the clear constitutional text.

I won't rehash the arguments here, especially because both Eugene and then I myself (and many others, including the venerable Supreme-Court-justice-in-waiting-of-Obama's-first-male-appointment Laurence Tribe) blogged about it. I thought that would be the end of it, but they keep pulling me back in. Today, for example, I have an elaborated version of my earlier blog post in the American Spectator. And tomorrow I'll be appearing at a Judicial Watch forum discussing the issue along with John O'Connor, author of "The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution." (The panel is at the National Press Club, 529 14th St. NW in Washington, runs 1:30 - 3:00pm, and open to the public.)

Interestingly, though Congress last week passed a "Saxbe Fix" for Sen. Clinton, we now have another emoluments problem, with Sen. Ken Salazar (D-CO), whom President-elect Obama has just nominated to be his Interior Secretary. And leaving aside the constitutional issue, that makes four senatorial vacancies (and two gubernatorial vacancies) created by the victory of the Obama-Biden ticket, including, of course, the Rod Blagojevich mess in Illinois. That has to be some sort of record, but I fear it's the only way the incoming administration will reduce the size of government (and only temporarily at that).

[Cross-posted at Cato's blog.]

Tis Better to Be Regulated by One Gorilla Than by Fifty Monkeys

When Congress lawfully exercises its constitutional powers to regulate a particular aspect of interstate commerce, states cannot also regulate in that area. This anodyne principle, arising from the Constitution’s Supremacy Clause, is known as preemption. Today, in its last public action of 2008 and its first 5-4 decision of the term, the Supreme Court violated that principle in a case involving cigarette labeling, Altria v. Good. The Court erroneously determined that the Federal Cigarette Labeling and Advertising Act does not preempt a suit for fraudulent labeling under state law.

While the Act expressly covers labeling and advertising “with respect to any relationship between smoking and health,” Justice Stevens’s opinion somehow finds that it does not cover smoking- and health-related suits predicated on the general duty not to deceive. (The Court was not asked to address, and did not address, the threshold question of whether the Act infringes on the free speech rights of advertisers.)

As Justice Thomas points out in dissent, the majority has created an unworkable rule that depends on how one frames “the legal duty that is the predicate of the common-law damages action” rather than the text of the federal statute at issue. Thus, not only will cigarette manufacturers who dutifully comply with federal law now face countless suits under countless state laws, but their fates in those suits will hinge on the creativity of counsel and the gullibility of judges. And of course, this type of reasoning can easily be extended to circumvent preemption in other regulatory fields, including this term’s eagerly awaited FDA case, Wyeth v. Levine.

[Cross-posted at Cato's blog.]

Race-Based Government in Paradise?

The current Supreme Court term is a bit of a letdown for those of us who track and comment on the machinations of One First Street; a steady diet of technical statutory interpretation questions without many “meaty” constitutional issues. Well, yesterday Cato filed its first amicus brief of the term in a case that itself is fairly sui generis — the issue is whether Hawaii can sell certain state lands without getting approval from a weird racialist commission called the Office of Hawaiian Affairs (OHA). But the case has broader ramifications for the Court’s equal protection jurisprudence. Moreover, as Cato’s resident Hawaii expert (we have a low bar here for that niche), I can say that the case threatens to set a terrible precedent for a state that has otherwise been a model of racial harmony.

In the 2000 case of Rice v. Cayetano, the Supreme Court held that a race-based scheme allowing only statutorily defined “Hawaiians” to vote for the OHA’s trustees was unconstitutional. Despite Rice, and despite Justice John Marshall Harlan’s dissenting statement in Plessy v. Ferguson 112 years ago that “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens,” the OHA continues to view Hawaiian citizens through racial lenses. This practice has spawned numerous lawsuits, including the present legal crisis in which the state’s sovereign authority to manage its land for the good of all of its citizens has been replaced with a court-imposed duty to hold the land for the benefit of one racial class.

Specifically, the Hawaii Supreme Court blocked the sale of certain state lands based on a mistaken (and race-based) interpretation of a joint resolution that Congress passed in 1993 to apologize to Hawaiian people for the overthrow of the Kingdom of Hawaii — which was itself based on a slanted view of history. Cato’s brief, joining with the Pacific Legal Foundation and the Center for Equal Opportunity, argues that race-based government is impermissible under the Fourteenth Amendment’s Equal Protection Clause, that the Constitution’s Indian Commerce Clause does not provide a basis for laws that grant preferences to “Native Hawaiians,” and that the Apology Resolution neither amended nor rescinded the federal laws that gave the State of Hawaii full control over the disputed land.

For other filings in the case, see here. Argument is scheduled for February 25.

[Cross-posted at Cato's blog.]

Woe Canada!

In these heady days of hope, change, puppies, and rainbows, not too many people are paying attention to the political tableau playing out in our northern neighbor. Those wags who do remember that Canada had its own election in October -- resulting in the reelection of Prime Minister Stephen Harper -- quip that, come January, the United States will have the most liberal government in North America.

Not so fast. It turns out that while Harper's Conservatives did strengthen their minority government -- that is, they won by far the largest plurality in the nation's multi-party parliament, increasing their previous result -- by definition a minority government can be outvoted if other parties gang up on them. Here's the math: Canada's House of Commons has 308 seats (meaning 155 constitutes a majority), of which the Conservatives have 143, the Liberals 77, the Bloc Quebecois (whose sole raison d'etre is that Quebec should be a separate country) 49, New Democratic Party (socialists) 37, and unaffiliated independents 2. And here's the short version of what's gone down to upset the applecart: In a new fiscal program unveiled last week, PM Harper announced, among other things, cuts to public funding of political parties and restrictions on public sector unions' right to strike. The opposition would have none of this and quickly arranged what in other circumstances might be a called a palace coup: Liberal leader Stephane Dion (already a lame duck after leading his party to its worst showing ever), citing the Conservatives' failure to prepare for a recession (nevermind that Canada's economy grew in the third quarter, and by more than it has all year), agreed on a tripartite deal with the NDP and Bloc that would oust the Tory government.

The biggest news here is that, for the first time ever, a separatist party will be a formal part of the government -- the king-makers, no less. The federalism/Quebec "question" is, shall we say, a delicate one in Canada, so this is a pretty big deal.

While the Bloc will not have any ministers (the Liberals and NDP are to divvy up cabinet spots in a 3:1 ratio), it will, per the formal text of the deal, be part of a "permanent consultation mechanism." As blogger and National Post columnist Ezra Levant put it:

Well, we already have one of those – it’s called Parliament. But Parliament is a
little too public for this coalition – you know, with nosy Canadians watching
how deals are made. This consultation mechanism will be private – a way for the
separatists to make their demands in secret, and for Prime Minister Stephane
Dion to meet those demands in secret.

Indeed, those demands were many: an immediate $1 billion transfer to Quebec, along with a slew of patronage posts, including Senate seats (the Prime Minister appoints senators, and there are currently 18 vacancies). Apparently, Elizabeth May, leader of the Green Party (which won no seats in parliament but captured 6.8% of the vote) was also offered a Senate seat.

And, as part of a "Policy Accord to Address the Present Economic Crisis," the new coalition proposes such "stimulus" measures as "support for culture, including the cancellation of budget cuts announced by the Conservative government" and "support for Canadian Wheat Board and Supply Management." And then came word of a (further) $30 billion national "bailout," as yet undefined. In other words, a mish-mash of left-wing policy ideas dressed up as emergency measures.

OK, so now what happens? Well, according to parliamentary procedure, Dion, as Leader of Her Majesty's Loyal Opposition, will call for a "vote of non-confidence" in the government. Assuming the Liberal-NDP-Bloc coalition holds together -- Canada's mainstream media, displaying the same bias as America's, calls this the "Liberal-NDP" coalition so average Canadians don't think about the separatists -- the prime minister will have to resign and Governor-General Michaelle Jean (the titular head of state, filling the role the British monarch used to, in this case appointed by the Queen on former Liberal PM Paul Martin's recommendation) can either invite Dion to form a government or call new elections. Harper plans to head off this turn of events by asking Jean to "prorogue" (suspend) the parliament until January, by which point the Conservatives will have plead their case to the people and thereby either win a confidence motion or force new elections.

The bottom line: Canada is having a bit of a constitutional crisis, the most likely result of which is an unstable governing coalition composed of liberals, socialists, and socialist separatists. In the meantime, the Toronto Stock Exchange has tanked. It almost makes card check, the Fairness Doctrine, and the auto bailout look good by comparison.

[Cross-posted at Cato's blog.]

Is Hillary Clinton Unconstitutional?

So Hillary Clinton is “on track” to be the nation’s top diplomat, huh? Well, setting aside the wisdom of that decision — forget ideology; does she have both foreign policy expertise and a good working relationship with the President-elect? — it appears that there may be genuine constitutional problems with her expected nomination. To wit, Article I, section 6, clause 2 reads:

No Senator or Representative shall, during the Time for which he was elected, be
appointed to any civil Office under the Authority of the United States, which
shall have been created, or the Emoluments whereof shall have been encreased
[sic] during such time…

That is, under this “Emoluments Clause,” members of Congress are expressly forbidden to take any appointed position within the government which was created or whose pay has been increased during their current term in office. Now, a January 2008 executive order, promulgated in accordance with a statute from the 1990s that addressed cost of living adjustments for certain federal officials, raised the Secretary of State’s salary, thus constitutionally prohibiting any then-serving senator who remains in office from taking charge of Foggy Bottom. (Sen. Clinton’s current term began in January 2007 and expires in January 2013.)

Not surprisingly, this is not the first time such a conflict has arisen in executive appointments and nominations and, equally not surprisingly, Congress has on several occasions legislated around it: To enable one of its own to assume executive office, Congress simply decreases the pay of that office to the pre-raise level for the full tenure of that specific appointee.

Although this legerdemain has been around since at least the Taft Administration — and was most recently used when President Clinton picked Sen. Lloyd Bentsen to be his Treasury Secretary – the move is called the “Saxbe Fix” after Sen. William Saxbe, whom President Nixon nominated for Attorney General.

The Saxbe Fix is not uncontroversial. UCLA law professor Eugene Volokh, for example, cites Steptoe and Johnson partner John O’Connor’s objection that the Saxbe Fix is inadequate for circumventing the Emoluments Clause. To O’Connor’s thinking, while simply lowering the salary — resulting in no “net” increase — does prevent the nominee from directly benefiting from a vote he or she cast, it would not substantively address the Framers’ intent to limit the size and scope of the federal government. That is, if, contrary to the Emoluments Clause’s terms, Congress can restore its Members’ eligibility for appointment by reducing the office’s salary, the Emoluments Clause ceases to serve its function as providing a constitutional disincentive for regular increases in the salaries of federal offices.

One could also argue that in this specific case, Congress did not act to increase anybody’s salary; it was that long-ago Congress that even gave that option to the president — and only in the form of an aross-the-board COLA, not some shady or opportunistic self-dealing. But, of course, if we are to follow the text of the Constitution, there is no exception for offices “the Emoluments whereof shall have been encreased” by a non-shady COLA granted via statutorily-enabled executive order.

Whether anyone could challenge Hillary Clinton’s appointment in the courts is another matter. Perhaps someone denied a passport, or who has had some other adverse action done to them by a Clinton-led State Department, would have standing to sue. In any event, in this time of constitutionally questionable bailouts, it cannot hurt to be vigilant even about the most obscure text from our nation’s governing document.

Much more on this issue can be found in Eugene’s fascinating post here.

[Cross-posted at Cato's blog.]

Peek-a-boo, I See a Challenge to Sarbanes-Oxley in the Supreme Court

An intriguing case that alleges a high-profile violation of the president’s exclusive power to appoint and remove government officials is winding its way through the courts. Free Enterprise Fund v. Public Company Accounting Oversight Board challenges the constitutionality of a key part of the Sarbanes-Oxley Act.

Congress passed Sarbox, as the law is called, in the wake of the Enron and WorldCom scandals to protect investors from shoddy accounting practices perceived as being rife in publicly traded companies. (We now know that Sarbox’s regulatory burden costs the economy much more than the fraud it prevents and detects, but never mind.) Among other things, the law created the Public Company Accounting Oversight Board — PCAOB, pronounced “peek-a-boo” — a private board exercising government power. Its members are not appointed by the SEC, which has limited removal power. In short, the president has neither any appointment nor removal power, in seeming violation of Article II, section 2 of the Constitution.

[Cross-posted from Cato's blog.]

On Monday, the D.C. Circuit, now consisting of nine members after Judge Raymond Randolph took senior status as of November 1, split 5-4 in denying en banc review of a panel decision in the government’s favor. Judges Janice Rogers Brown, Merrick B. Garland, Karen LeCraft Henderson, Judith W. Rogers, and David S. Tatel voted against rehearing while Chief Judge David B. Sentelle and Judges Douglas H. Ginsburg, Thomas B. Griffith and Brett M. Kavanaugh supported it. Interestingly, the three Clinton appointees and one George H. W. Bush appointee voted in the majority, while both Reagan and two of the three George W. Bush appointees dissented. The other George W. Bush appointee, Judge Brown, who is considered to be the most libertarian (she gave the B. Kenneth Simon Lecture at Cato’s 2007 Constitution Day conference) but also the most inscrutable, turned out to be the wild card. (But she won’t be the swing vote for long because President Obama will have two vacancies to fill on the court.)

Lawyers for the Free Enterprise Fund, who include our friends at the Competitive Enterprise Institute, had earlier indicated that if they failed to get en banc review, they would seek certiorari in the Supreme Court. The narrow split in the D.C. Circuit probably enhances the chance that the justices would agree to hear the case, except that the Court this year has shown a reluctance to take on especially newsworthy (i.e., both controversial and significant) constitutional cases.

Whither Fusionism?

One of the victims of the Bush presidency, along with limited government and the Republican Party, has been “fusionism,” the idea that conservatives and libertarians ought to come together to oppose the forces of socialism (and The Left generally). Indeed, this Tuesday’s election probably saw the highest-ever percentage of libertarians — depending on how you count them – vote for the Democratic presidential candidate (at least in the modern era, with the possible exception of the Nixon years). This despite that Democratic candidate being commonly seen as the most statist major-party candidate in history.

Cato adjunct scholar Ilya Somin who blogs at the Volokh Conspiracy and in his day job is a law professor at George Mason (currently visiting at Penn) — Ilya being a popular name among libertarian legal community – today puts up a smart post on the state of the erstwhile libertarian-conservative. Here’s a snippet:

Obviously, a lot depends on what conservatives decide to do. If they choose the
pro-limited government position advocated by Representative Jeff Flake and some
other younger House Republicans, there will be lots of room for cooperation with
libertarians. I am happy to see that Flake has denounced “the ill-fitting and
unworkable big-government conservatism that defined the Bush administration.”
Conservatives could, however, adopt the combination of economic populism and
social conservatism advocated by Mike Huckabee and others. It is even
possible that the latter path will be more politically advantageous, at least in
the short term.

Indeed, if conservatives choose some version of the Huckabee-Palin route, fusionism is dead — and so, might I add presumptuously, is the Republican Party. That just ain’t where the majority of the nation is, or where it’s heading (though, as Ilya says, that direction may be politically advantageous in certain parts of the country under certain circumstances).

But this type of discussion may be beside the point; libertarian-conservative (in the sense of socially conservative, economically squishy) fusionism may have run its course, a relic of the Cold War. The new fusionism may well be fiscally conservative and socially tolerant (not necessarily liberal, just not wanting government to do anything about the way people live their private lives), including folks who might call themselves conservative cosmopolitans, crunchy cons, South Park conservatives, or indeed libertarians. Or they might eschew labels altogether but are sick of the rot coming from (or to) Washington. In other words: Purple America,

[Cross-posted at Cato's blog.]

What's Next for the Third Branch?

The new president will have a chance to significantly reshape the judiciary. President Bush managed to confirm only 321 judges—about 50 fewer than Presidents Reagan or Clinton—so there are plenty of vacancies to fill. Moreover, Congress has not created any new circuit court positions since 1991, while federal appellate filings increased by about 50 percent since that time; only four percent more district judges have been created during the same period, while filings to those courts increased by about 25 percent. We can expect, perhaps even in the “first 100 days,” a new judgeship bill that will add to the vacancies President-elect Obama will have to fill. 56 percent of federal judges are now Republican appointees, and the Ninth Circuit (based in San Francisco and sprawling across nine western states) is the only federal appeals court with a majority of judges appointed by Democratic presidents. Obama will be able to change the former statistic and swing control of all but three circuits (of the thirteen) to Democratic appointees. And then, of course, we have the two or three Supreme Court nominations the new president will probably have in the next four years: Justices Stevens, Ginsburg, and Souter are each likely to be off the Court by 2012. It is not for nothing that pundits consider judges to be one of the most undervalued policy areas in this long, strange campaign.

[Cross-posted at Cato's blog.]

The "Business Case of the Century"

On Monday, the Supreme Court will hear the case of Wyeth v. Levine, which the U.S. Chamber of Commerce has called the “business case of the century.” A Vermont woman who had to have an arm amputated after a nausea drug was improperly administered sued the drug’s manufacturer, Wyeth (she also sued the clinic, physician, and physician’s assistant, but these parties settled). She won in state court, and Wyeth sought review in the U.S. Supreme Court under the theory of “preemption” — that states cannot regulate (by statute or common law) in fields, like pharmaceuticals, where the federal government already does. Here the FDA had approved Wyeth’s label, but Wyeth did not change that label to conform to Vermont’s particular (and stronger) laws.

I don’t know whether this is the “business” case of the century, but it may well be that for the pharmaceutical industry. The outcome turns on a close reading of the statute — as Dan Troy and Becky Wood detailed in the most recent Cato Supreme Court Review, the Court is much more likely to endorse “explicit” rather than “implicit” preemption — but everyone (especially patients) will be better off if the Court upholds FDA preemption here. The courts should not be micro-managing what goes on labels or we will end up with the “overwarning” problems that defeat the labels’ purpose. Moreover, litigation is a blunt regulatory instrument that tends to skew the FDA’s already warped incentives to give too much weight to rare side-effects at the cost of prohibiting or suppressing useful drugs. These incentives, and the related litigation costs, ultimately affect the development of new drugs.

[Cross-posted at Cato's blog.]

A Plea for Divided Government

Former Catoite Radley Balko argues that the Republican Party deserves to lose because it "has exiled its Goldwater-Reagan wing and given up all pretense of any allegiance to limited government." He goes on to detail all the sordid ways in which the GOP has indeed betrayed its allegedly pro-free market, limited government beliefs and thus "forfeited its right to govern."

I don't disagree with any of Balko's analysis but I do take issue with his conclusion for one very simple (some would say banal) reason: The best way to limit the federal Leviathan is to have Congress and the presidency controlled by different parties. See, for example, the relevant parts of former Catoite Stephen Slivinski's book, Buck Wild: How the Republicans Broke the Bank and Became the Party of Big Government. Slivinski calculates that when one party controls the political branches, the growth of real per capita government spending is 3.4%. Under divided government, the rate is 1.5%. And it doesn't much matter whether Democrats or Republicans control are in sole charge: 3.3% government growth under Democrats vs. 3.6% under Republicans. The most libertarian combination seems to be a Democratic president with a Republican Congress, where the average rate of government growth is 0.4%. (This is also the rarest alignment in modern times, so it may be less significant statistically.)

In short, yes the Bush administration, enabled by a corrupt (ideologically and otherwise) Republican Congress, has been the second coming of LBJ. But rather than reward a party whose leaders in Congress have even lower approval ratings than President Bush with unified control of government -- giving the Democrats a mandate to turn American into some sort of socialist workers' paradise -- I suggest letting it gain in Congress (preferably without a filibuster-proof Senate because judges and international treaties are my pet issues) while losing the White House. Which isn't to say that this would necessarily be better than a President Obama with a Republican Congress, just that the chance of the GOP taking over even one house of Congress is only slightly greater than the chance that Bob Barr will be elected president.

In sum, if we want divided government -- and I for one certainly do -- we had best let at least one Republican win.

[Cross-posted from Cato's blog.]

Sarah in Charge?

Some in the media (or at least Keith Olbermann at MSNBC) are ridiculing Sarah Palin’s recent answer to a third-grader’s question of “What does the Vice President do?” The part of her response that seems to have people in a tizzy is the following: “[A] Vice President has a really great job, because not only are they there to support the President agenda, they’re like a team member, the teammate to that President. But also, they’re in charge of the United States Senate, so if they want to they can really get in there with the Senators and make a lot of good policy changes… ” (emphasis added). Haha, Ms. Caribou Barbie Palin, the wags chortle, don’t you know that the Vice President is only mentioned four times in the Constitution (two of which mentions are in later amendments) and has no power but to break ties in the Senate?

Well, that’s right, except it’s not. While true that the only formal power the Constitution (specifically Article I, Section 3) gives the VP is to cast the deciding vote when the Senate is deadlocked, the Constitution is understandably silent as to what else the VP can do with his or her time. Yet nobody would deny that Dick Cheney has been an extremely powerful figure, and not because of any explicit powers but because he has aggressively pushed the Bush Administration’s agenda and lobbied senators (particularly Republicans). So sure, the VP can have a big effect on policy.

Moreover, the VP is the “President of the Senate,” which is sort of like being in charge — if indeed anyone is in charge of that motley group of wannabe presidents. This isn’t “in charge” the way a president or CEO is “in charge” — the VP can’t fire senators or force them to vote a given way or veto their bills — but I don’t think anyone can reasonably construe Palin’s comments to imply that. The most reasonable construction is that she was trying to explain in her own words what being “President of the Senate” means, and could’ve done a lot worse than characterizing it as being “in charge.”

You can read more on this issue in this CBS News posting, which further quotes my thoughts on the matter.

[Cross-posted at Cato's blog.]

Cato Law on the Road

Now that we’ve released the Cato Supreme Court Review and the Court has started its new term, I’m on the road quite a bit giving speeches and participating in debates. Here’s the schedule for my next trip, which starts tomorrow in Atlanta. All events are open to the public (though the lawyers’ events charge admission):

10/14 at 12pm - Atlanta Federalist Society Lawyers - Kilpatrick Stockton, 1100 Peachtree St.

10/14 at 4pm - Emory Law School - 1301 Clifton Rd., Atlanta

10/15 at 12pm - University of Florida Law School - 2nd Ave. & 25th St., Gainesville

10/15 at 4pm - Florida State University - 425 W. Jefferson St., Tallahassee

10/16 at 11:30am - Florida Coastal School of Law - 8787 Baypine Rd., Jacksonville

10/16 at 5:30 pm - Orlando Federalist Society Lawyers - The Citrus Club, 255 S. Orange Ave., 18th Floor

10/20 at 12pm - University of Miami Law School - 1311 Miller Dr., Coral Gables

If you come to one of these events because you learned of it from this blog post, please do come up and introduce yourself.

[Cross-posted from Cato's blog.]

Litigating the Fourth Amendment in the Supreme Court

In this first week of the new term, the Supreme Court heard two Fourth Amendment cases. The first, Herring v. United States, asked whether evidence obtained based on an erroneous arrest warrant (called in by a police clerk from a neighboring county) should be suppressed. The second, Arizona v. Gant, looked into whether the long-standing “Belton“ rule that a police officer may search the passenger compartment of an arrested person’s car should be set aside when the search — typically justified on “officer safety” grounds — occurs after the arrested person is handcuffed and locked in the back of a squad car. The easy legal answers would seem to be yes and yes (though I have qualms about the exclusionary rule — which is fairly unique to America – as a matter of policy), but then it’s hard to craft a readily administrable legal rule that would get you there without creating an equally unjust result in other circumstances. Hard cases, as they say, make bad law.

But my point is not to argue the finer points of Fourth Amendment doctrine. Instead, it is to highlight the difficulty of arguing those points in the rarefied air of the Supreme Court. As the SCOTUSblog analysis of the arguments in the above cases concluded:

The arguments in these cases illustrate the complexity of arguing Fourth Amendment cases before this Court. It is not simply a question of appealing
to Justices’ support for, or skepticism of, the exclusionary rule or broad
discretion for law enforcement officers. Many of the Justices are also concerned
about need for clear, administrable rules, while others simultaneously resist
the inflexibility and illogical results a bright-line rule inevitably gives rise to. And while some Justices are more than ready to abandon old decisions and doctrines they believe were wrongly adopted or no longer make sense (be it the exclusionary rule or Belton) others feel strongly about the Court’s obligation to adhere to its prior precedent absent strong justification for departure. And to make matters worse, these various considerations often point in different directions and cut across the traditional liberal-conservative lines on the Court: Justices Breyer and Alito worry about stare decisis, while Justice Thomas is much less concerned; Justice Kennedy wants a rule that makes pragmatic sense, while Justice Scalia doesn’t care if the rule is nonsensical if it has a historical pedigree; Scalia worries about a vague standard for applying the exclusionary rule, but the Chief Justice not so much. In the end, the
cross-currents can sometimes give advocates more to work with in crafting arguments that can attract five votes. But at the same time, it sometimes makes the task of holding together a coalition quite complicated.

In short, separating out death penalty cases, it is in criminal law where the justices can be the least predictable.

[Cross-posted at Cato's blog.]

First Monday: A New Year at the Supreme Court

Today the Supreme Court begins a new term, and so far there is little for either constitutional scholars or the general public to get excited about. While two years ago the Court split 5-4 in a full third of its cases (with Justice Kennedy in the majority on each one), and last year produced fewer such decisions (and also fewer unanimous and 8-1 verdicts) but maintained sharp divides on high-profile cases involving Guantanamo Bay, the Second Amendment, and the death penalty, the current term seems to lack any striking features. Instead we have a raft of cases involving technical issues of statutory interpretation and minor doctrinal adjustment, especially in the areas of environmental and employment law, and criminal procedure. Even the typically riveting First Amendment cases fall flat, with the FCC’s obscenity regulation turning on administrative procedure and the lone religion matter concerning a quixotic use of private speech in a public forum. We can expect to see most of these cases decided by broad majorities on narrow grounds, perhaps reflecting the “minimalist” approach Chief Justice Roberts allegedly prefers. Still, given the small number of cases — the Court filed a leisurely 67 opinions on the merits after argument last year (the lowest number since 1953) and is on pace for not many more this term – it’s hard to read any trends into the Court’s work. And the last time Court watchers protested this much about the “boring” nature of the docket, October Term 2000, we ended up with the little-known case of Bush v. Gore. We will see very soon whether next month’s election — or indeed the bailout — will make history repeat itself.

Big Victory for Economic Liberty

Amid a financial crisis that has pundits playing the game of who can come up with the most nationalization and re-regulation—and a presidential campaign where neither candidate seems to have much coherent to say about the economy—one bright ray of light shone through.
And it came from San Francisco, no less.

On September 16, the U.S. Court of Appeals for the Ninth Circuit delivered a blow against unfair economic regulation in the case of Merrifield v. Lockyer. Pacific Legal Foundation lawyer and Cato adjunct scholar Tim Sandefur argued on behalf of Alan Merrifield, a businessman prevented from building structures to keep out pests by a bizarre licensing regulation. The California law in question required people who do not use pesticides to undergo years of training and take an examination testing their knowledge of chemicals and insects before they can use pest control techniques that involve neither chemicals nor insects.The law only applies to pigeons, rats, and mice, however, so putting spikes on a building to keep seagulls off it does not require a license. But the same activity aimed at deterring pigeons does. Moreover, the record showed that the rule was designed for the sole purpose of protecting people who have licenses from having to compete in the marketplace against upstart businesses like the one operated by Merrifield.

Circuit Judge Diarmuid O’Scannlain, writing for the panel majority, succinctly explained the problem with California’s rationale:

The possibility that non-pesticide-using pest controllers might interact with
pesticides or will need the skill to suggest pesticide use when it would be more
effective is the very rationale that government’s counsel proffered, and we
relied upon, in upholding the requirement that Merrifield obtain a license under
due process grounds. We cannot simultaneously uphold the licensing requirement
under due process based on one rationale and then uphold Merrifield’s exclusion
from the exemption based on a completely contradictory rationale. Needless to
say, while a government need not provide a perfectly logically solution to
regulatory problems, it cannot hope to survive rational basis review by
resorting to irrationality.” (Emphasis in original)

That is, “economic protectionism for its own sake, regardless of its relation to the common good, cannot be said to be in the furtherance of a legitimate governmental interest.”

This decision is thus a tremendous blow against the various licensing advantages granted by legislatures to the few at the expense of the many. As Sandefur put it in PLF’s press release, “This is a victory for free enterprise and for the Constitution’s safeguards for entrepreneurship.”
The battle for economic rights remains an uphill struggle, however, because the invalidation of California’s pernicious legislation rested not on the basic right to earn an honest living but on the state’s “irrational singling out of three types of vertebrate pests” to the economic benefit of some exterminators as against others.The case necessarily turned on an “equal protection” violation, instead of constitutional protection of any substantive rights. Without that arbitrary listing of pigeons, rats, and mice, the pesticide/insect requirements would have withstood Merrifield’s challenge. Judge O’Scannlain implicitly recognized that reaching the correct result in this manner was intellectually unsatisfying, but that his hands were tied by the Supreme Court’s 1873 Slaughterhouse Cases (which eviscerated the Fourteenth Amendment’s Privileges or Immunities Clause). So long as the Supreme Court shies from revisiting the twisted logic of that precedent, the Constitution will offer precious little defense against legislation that restricts the ability of individuals to freely exchange goods and services.

Nevertheless, in establishing the legal principle that mere protectionism is not a legitimate state interest, the Merrifield case is a major victory for economic liberty—and the first time the Ninth Circuit has taken up this issue.

Congratulations to Tim and to Pacific Legal!

[Cross-posted at Cato's blog.]