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Constitutional Law
TSA, Terrorism, and Civil Liberties
My new study on the Transportation Security Administration mainly focuses on the agency’s poor management and performance. The TSA has a near monopoly on security screening at U.S. airports, and monopoly organizations usually end up being bloated, inefficient, and providing low-quality services.
The study proposes contracting out or “privatizing” airport screening, which is the structure of aviation security used successfully in Canada and many European countries.
I briefly discuss some of the civil liberties problems surrounding TSA. Note that Cato’s Jim Harper also addresses those issues in his work, as does Robert Poole of Reason Foundation. I noticed this recent blog post by Poole that nicely summarizes some of the realities of TSA, terrorism, and civil liberties:
Read the rest of this post →A couple of years ago Jonathan Corbett, a tech entrepreneur from Miami, posted videos online showing him successfully passing through TSA airport body scanners with a metal box concealed under his clothing, seeking to demonstrate that the scanners are an ineffective replacement for walk-through metal detectors for primary screening. In 2010 he filed a lawsuit contending that body-scanning and pat-downs are both unreasonable searches that violate the Fourth Amendment.
As part of the discovery process, TSA provided Corbett with 4,000 pages of documents, many of them classified. He was allowed to produce two versions of his brief, one containing extracts of classified material, and available only to the court, and a heavily redacted version which could be made public. But as several news sites reported last month, a clerk in the US Court of Appeals (11th District) mistakenly posted the classified version online, and it was quickly noticed and reproduced on various websites. Although the court issued a gag order prohibiting Corbett from talking about the classified material, there was no way to stop others from doing so.
DOJ Still Fighting School Choice in Louisiana
Last week I noted that it was “long past time for the U.S. Department of Justice to drop its embarrassing lawsuit which would keep black kids in failing schools.” The Louisiana Department of Education released a study that completely undermined the DOJ’s case against the state’s school voucher program, showing that the program increased racial integration in most of the schools under federal desegregation orders and had a miniscule impact in the remainder.
Today, Michael Warren of the Weekly Standard reports that the DOJ has dropped part of its fight against school choice in Louisiana:
The Obama administration’s Justice Department has dropped a lawsuit aiming to stop a school voucher program in the state of Louisiana. A ruling Friday by a United States district court judge revealed that the federal government has “abandoned” its pursuit of an injunction against the Louisiana Scholarship Program, a state-funded voucher program designed to give students in failing public schools the opportunity to attend better performing public or private schools.
“We are pleased that the Obama Administration has given up its attempt to end the Louisiana Scholarship Program with this absurd lawsuit,” said Louisiana governor Bobby Jindal, a Republican, in a statement. “It is great the Department of Justice has realized, at least for the time being, it has no authority to end equal opportunity of education for Louisiana children.”
The move may have resulted from the bad press or a sudden acceptance of common sense, but more likely it was a simply legal maneuver to prevent the Black Alliance for Educational Options and the Goldwater Institute, representing parents of voucher recipients, from intervening in the lawsuit as defendants. As Warren reports:
On Friday, Judge Ivan Lemelle of the U.S. district court of the Eastern District of Louisiana ruled the parents could not intervene in the case because the feds are “no longer seeking injunctive relief at this time.” Lemelle explained that in the intervening months since the Justice Department filed suit, it had made clear both in a supplemental filing and in its opposition to the parent group’s motion to intervene that it was not seeking in its suit to end the voucher program or take away vouchers from students.
Lemelle continued: “The Court reads these two statements as the United States abandoning its previous request that the Court ‘permanently enjoin the State from issuing any future voucher awards to students unless and until it obtains authorization from the federal court overseeing the applicable desegregation case.’ ”
Lemelle will hold an oral hearing on Friday, November 22, during which Justice will make its case for the federal review process of the voucher program. In his statement on Friday’s ruling, Jindal criticized the federal government’s efforts.
“The centerpiece of the Department of Justice’s ‘process’ is a requirement that the state may not tell parents, for 45 days, that their child has been awarded a scholarship while the department decides whether to object to the scholarship award. The obvious purpose of this gag order would be to prevent parents from learning that the Department of Justice might try to take their child’s scholarship away if it decides that the child is the wrong race,” said Jindal. “The updated Department of Justice request reeks of federal government intrusion that would put a tremendous burden on the state, along with parents and teachers who want to participate in school choice.”
In other words, the DOJ is still seeking the legal authority to prevent low-income kids from escaping failing public schools if the feds say they have the wrong skin color.
A Conspiracy against Obamacare
Last week, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case was released, of which I am proud to be the editor. The book compiles the discussions and debates about the Affordable Care Act that occurred on the legal blog the Volokh Conspiracy, supplemented with new material. The posts are stitched together into a narrative structure. As a result, you can see the constitutional arguments against the Affordable Care Act develop in real time, from before the law was passed all the way to the Supreme Court.
The book documents a bellwether moment in the history of legal academia: A legal academic blog influencing major Supreme Court litigation. And not just major Supreme Court litigation, but a case that went from a much derided challenge to the biggest and most watched case in decades. As former Solicitor General Paul D. Clement, who expertly argued the case before the Court, kindly wrote in the foreword, “The Constitution had its Federalist Papers, and the challenge to the Affordable Care Act had the Volokh Conspiracy.”
The contributors are Randy E. Barnett, Jonathan H. Adler, David E. Bernstein, Orin S. Kerr, David B. Kopel, and Ilya Somin, most of whom are closely associated with Cato in one way or another.
In the introduction, I discuss the constitutional arguments against the law in a more abstract way, as well as describe how the law is destined to fail due to poor design. We are seeing the beginning of those failures now, but I fear we ain’t seen nothin’ yet.
It was not much commented on at the time–the administration and the law’s supporters were too busy spiking the ball–but the Supreme Court’s decision will speed up the law’s inevitable failures. As I describe in the introduction:
Due to the chief justice’s unpredictable opinion, we are now likely stuck with a law that I fear will seriously damage the health of Americans. What’s more, attempts to further centralize power will not stop at the individual mandate. When the law fails, as I predict it will, it will be said that the federal government lacked enough power to make it work. The chief justice’s opinion gives people a real choice whether to comply with the requirement to purchase insurance or pay a “tax.” Many people will not, and as the price of insurance goes up, more and more people will choose to remain uninsured. This will certainly be called a “loophole.” Similarly, the Court also gave states a choice about whether to comply with the Affordable Care Act’s Medicaid expansion. Another “loophole.” Finally, the states that don’t create health care exchanges will also throw wrenches in the law’s overall scheme. “Loopholes” all around. Having freedom of choice in deeply personal health care decisions, however, is not a loophole.
When the time comes to revisit the Affordable Care Act, those choices by free, sovereign entities (citizens and states) will be blamed for the law’s dysfunctions. To paraphrase philosopher Robert Nozick, liberty disrupts patterns. Free choice inevitably upsets the carefully crafted plans of Washington.
As a solution to the law’s problems, more power will be proposed. A few voices, such as many who write for the Volokh Conspiracy and those of us at the Cato Institute, will strenuously argue that the problem is not a lack of power but a lack of freedom. I am not optimistic, however, that very many entrenched bureaucrats and politicians will locate the problem in the mirror rather than in the freedoms of the American people.
If the Affordable Care Act keeps going south at this rate, we may need to prepare to have that debate sooner than we expected.
Cato at the Federalist Society Convention
The Federalist Society came into being in 1982 after a small group of conservatives and libertarians, concerned about the state of the law and the legal academy in particular, gathered for a modest conference at the Yale Law School, after which two law-student chapters were formed at Yale and at the University of Chicago. Quickly thereafter chapters sprung up at other law schools across the country. And in 1986 those students, now lawyers, started forming lawyer chapters in the cities where they practiced. Today the Federalist Society is more than 55,000 strong, its membership drawn from all corners of the law and beyond.
Toward the end of this past week many of those members gathered in Washington for the society’s 27th annual National Lawyers Convention, highlighted on Thursday evening by a gala black tie dinner at the conclusion of which Judge Diane Sykes of the Seventh Circuit Court of Appeals treated the audience to a wide-ranging interview of Justice Clarence Thomas. The convention sessions, concluding late Saturday, have now been posted at the Federalist Society’s website. As a look at the various panels and programs will show, this year’s theme, “Textualism and the Role of Judges,” was addressed in a wide variety of domains.
Concerning the role of judges, classical liberals and libertarians, who have long urged judges to be more engaged than many conservatives have thought proper, will find several panels of particular interest. Our own Walter Olson spoke about the new age of litigation financing, for example, while Nick Rosenkranz addressed textualism and the Bill of Rights – a panel that also included the spirited remarks of Cato adjunct scholar Richard Epstein. See also Epstein’s discussion of intellectual property on another panel that first day.
Then too you won’t want to miss senior fellow Randy Barnett’s treatment of textualism and constitutional interpretation the next day, especially as he spars with two opponents on the left, or his Saturday debate against Judge J. Harvie Wilkinson III of the Fourth Circuit Court of Appeals, where the proposition before the two was “Resolved: Courts are Too Deferential to the Legislature.” And finally, our own Trevor Burrus was on hand for a book signing: The book he edited, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, has just come out and is must reading for those who want to see how the issue of the day, and many days to come, was teed up, legally, by a dedicated band of libertarians before it reached the Supreme Court.
Bans on Child Labor
Only a heartless libertarian could possibly object to bans on child labor, right? After all, no one wants to live in some Dickensian dystopia in which children toil endlessly under brutal conditions.
Unless, of course, bans harm, rather than help, both children and their families. And in a new working paper, economists Prashant Bharadwaj (UCSD), Leah Lakdawala (Michigan State), and Nicholas Li (Toronto), find just that. They
… examine the consequences of India’s landmark legislation against child labor, the Child Labor (Prohibition and Regulation) Act of 1986. … [and] show that child wages decrease and child labor increases after the ban. These results are consistent with a theoretical model … in which families use child labor to reach subsistence constraints and where child wages decrease in response to bans, leading poor families to utilize more child labor. The increase in child labor comes at the expense of reduced school enrollment.
And it gets worse. The authors
… also examine the effects of the ban at the household level. Using linked consumption and expenditure data, [they] find that along various margins of household expenditure, consumption, calorie intake and asset holdings, households are worse off after the ban.
Good intentions are just that; intentions, not results. The law of unintended consequences should never be ignored.
Supreme Court Should End Advertiser’s Kafkaesque Nightmare
Douglas Walburg faces potential liability of $16–48 million. What heinous acts caused such astronomical damages? A violation of 47 C.F.R. § 16.1200(a)(3)(iv), an FCC regulation that enables lawsuits against senders of unsolicited faxes.
Walburg, however, never sent any unsolicited faxes; he was sued under the regulation by a class of plaintiffs for failing to include opt-out language in faxes sent to those who expressly authorized Walburg to send them the faxes.
The district court ruled for Walburg, holding that the regulation should be narrowly interpreted so as to require opt-out notices only for unsolicited faxes. But on appeal, the Federal Communications Commission, not previously party to the case, filed an amicus brief explaining that its regulation applies to previously authorized faxes too. Walburg argued that the FCC lacked statutory authority to regulate authorized advertisements. In response, the FCC filed another brief, arguing that the Hobbs Act prevents federal courts from considering challenges to the validity of FCC regulations when raised as a defense in a private lawsuit. Although the U.S. Court of Appeals for the Eighth Circuit recognized that Walburg’s argument may have merit, it declined to hear it and ruled that the Hobbs Act indeed prevents judicial review of administrative regulations except on appeal from prior agency review.
In this case, however, Walburg couldn’t have raised his challenge in an administrative setting because the regulation at issue outsources enforcement to private parties in civil suits! Moreover, having not been charged until the period for agency review lapsed, he has no plausible way to defend himself from the ruinous liability he will be subject to if not permitted to challenge the regulation’s validity. Rather than face those odds, Walburg has petitioned the Supreme Court to hear his case, arguing that the Eighth Circuit was wrong to deny him the right to judicial review without having to initiate a separate (and impossible) administrative review.
Cato agrees, and has joined the National Federation of Independent Business on an amicus brief supporting Walburg’s petition. We argue that the Supreme Court should hear the case because the Eighth Circuit’s ruling permits administrative agencies to insulate themselves from judicial review while denying those harmed by their regulations the basic due-process right to meaningfully defend themselves. The Court should hear the case because it offers the opportunity to resolve lower-court disputes about when the right to judicial review arises and whether a defendant can be forced to bear the burden of establishing a court’s jurisdiction.
These are important due-process implications raised in this case, and the Court would do well to adopt a rule consistent with the Eleventh Circuit’s holding on this issue—one that protects the right to immediately and meaningfully defend oneself from unlawful regulations. Otherwise, more and more Americans will end up finding themselves at the bad end of obscene regulatory penalties by unaccountable government agencies, with no real means to defend themselves.
The Court will decide whether to take Walburg v. Nack early in the new year.