Millions of dollars originally intended for smoking cessation programs in Massachusetts have been diverted to offset budget deficits, leaving the state struggling to fund quit-smoking hotlines, treatment programs and anti-tobacco advertising, the New England Center for Investigative Reporting has found. … 

“Roughly 99 percent of all the tobacco dollars that come into the state are used for something else,” said Stephen Shestakofsky, recently retired executive director of Tobacco Free Massachusetts, an anti-tobacco advocacy group. He was referring to the nearly $254 million in tobacco-related legal awards given to Massachusetts in 2012. More than $561 million in tobacco taxes was also collected, bringing the state’s total tobacco tally to just over $815 million, the CDC reports.

Today, in an important decision with far-reaching implications, the D.C. Circuit Court of Appeals ruled unconstitutional President Obama’s appointment of three members to the National Labor Relations Board.

Slightly over a year ago, on January 4, 2012, President Obama appointed four people to high-level offices without the constitutionally required “advice and consent” of the Senate. Three of those appointees were placed on the NLRB, and the other was Richard Cordray, chosen to direct the Consumer Finance Protection Bureau, the “consumer watchdog” agency created by Dodd-Frank.

The appointments were one of the most significant power grabs by a president in recent memory. The Constitution requires that certain “officers of the United States,” a category which indisputably includes NLRB board members and the director of the CFPB, be appointed by the president with the “advice and consent of the Senate.” Like many constitutional provisions, this is a “checks and balances” requirement that helps ensure the president does not unilaterally control the executive branch for his own purposes.

As a precaution against crucial offices staying vacant while the Senate is not in session, the Framers included a clause that allows the president to temporarily circumvent the “advice and consent” requirement in order “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” At the time of the framing, as well as for many decades afterward, senators would usually spend six to nine months out of Washington. In those absences, it was left to the president to keep the government going, and the Recess Appointment Clause gives the president the power to make temporary appointments during those long periods when the Senate was simply unavailable.

Unfortunately, like so many constitutional provisions, the last 80 years have seen a gradual, bipartisan effort to whittle away the Recess Appointment Clause’s function and to concentrate more power in the president. Initially, presidents began redefining what a “recess” is by asserting the power to appoint officers during “intrasession recesses”—that is, breaks within a formal session (e.g., holiday breaks)—rather than just during intersession recesses. After this precedent had been established by President Warren Harding, successive presidents began appointing officials during shorter and shorter intrasession recesses. President Clinton made a controversial appointment during a 10-day intrasession recess, and President George W. Bush followed suit.

In 2007, after Bush’s controversial appointments, the Senate, led by Harry Reid, began holding “pro forma” sessions in order to block future appointments. Usually held every three days during intrasession recesses, pro forma sessions are often less than a minute long and held in a largely empty Senate chamber. Yet the sessions satisfy the constitutional definition of being “in session” and are often used by the Senate and House to satisfy the constitutional requirement that either chamber cannot adjourn for more than three days without the consent of the other.

Whereas previous presidents only had the gall to assert the power to determine what a recess was, President Obama’s innovation in executive power grabs was to assert the power to determine whether or not a pro forma session is actually a session for the purposes of the Recess Appointment Clause. According to the Office of Legal Council, the president has the “discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess Appointments.”

The OLC’s argument “will not do,” wrote Chief Judge David Sentelle in a stirring and chiding opinion rooted in constitutional originalism. He continued:

An interpretation of “the Recess” that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.

As for whether or not the Senate’s intentions for holding pro forma sessions permit the president to determine whether the Senate is actually in session, Judge Sentelle writes:

The Senate’s desires do not determine the Constitution’s meaning. The Constitution’s separation of powers features, of which the Appointments Clause is one, do not simply protect one branch from another. These structural provisions serve to protect the people, for it is ultimately the people’s rights that suffer when one branch encroaches on another. As Madison explained in Federalist No. 51, the division of power between the branches forms part of the “security [that] arises to the rights of the people.”

After appointing Cordray and the NLRB board members, President Obama said he “refused to take no for an answer,” and that he would “not stand by while a minority in the Senate puts party ideology ahead of the people they were elected to serve.” The President’s attorneys made a similar argument, claiming that the Senate was standing in the way of his duties as president. Sentelle’s response:

It bears emphasis that “[c]onvenience and efficiency are not the primary objectives—or the hallmarks—of democratic government.” … The power of a written constitution lies in its words. It is those words that were adopted by the people. When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government.

The decision is an important step to reining in a long line of presidential abuses. If the court had upheld the appointments, Obama unquestionably would not have been the last to use this power. Moreover, the reasoning of the decision should directly apply to Richard Cordray of the constitutionally problematic CFPB. His days are numbered if the Supreme Court either upholds the decision or does not take the case.

Some of the U.S. Supreme Court’s most significant decisions are those declining to hear a case. Two weeks ago, the Court made such a momentous non-ruling in refusing to hear a lawsuit, Hall v. Sebelius, challenging government policies that deny otherwise eligible retirees their Social Security benefits if they choose not to enroll in Medicare. (I previously wrote about the case, and Cato filed a brief supporting the retirees’ petition for Supreme Court review.)

Despite having paid thousands of dollars each in Social Security and Medicare taxes during their working lives—for which they never sought reimbursement—the five plaintiffs were told by officials at the Social Security Administration and Department of Health and Human Services that they had to forfeit all of their Social Security benefits if they wished to withdraw from (or not enroll in) Medicare. This determination resulted from internal policies that were put in place during the Clinton administration and strengthened by the Bush administration. The plaintiffs sought a judicial ruling that would prohibit SSA and HHS from enforcing these policies, which they believed conflicted with the Social Security and Medicare statutes. A sharply divided U.S Court of Appeals for the D.C. Circuit eventually upheld them. By its decision not to hear the case, the Supreme Court let that controversial ruling stand.

At this point, one might ask why someone would want to give up Medicare. The answer is that some people would prefer to keep their existing (private) health insurance, but that for various regulatory and economic reasons insurance companies are wary of insuring people already covered by Medicare. Talk about the prototypical case of government programs crowding out the private sector!

In any event, the troubling reality of the Supreme Court’s non-ruling is twofold: First, the government now has full authority to force citizens to participate in a financially troubled program (Medicare) that was originally intended to be—and operated for almost three decades as—a wholly voluntary program. If they refuse, SSA and HHS can deny them their Social Security benefits. If they seek to withdraw from Medicare, SSA and HHS can not only deny them future benefits, but force them to repay all benefits received from both programs. Second, the Supreme Court’s unwillingness to address the issue raised here allows federal agencies to bypass Congress with impunity when drafting and implementing their own rules.

The plaintiffs’ lawyer, Kent Masterson Brown, had this to say in a press release following the Supreme Court’s order:

Not only have the Courts allowed these agencies to grant themselves permission to seize a retiree’s Social Security benefits should they opt out of Medicare, but they have allowed those agencies to turn voluntary programs into compulsory ones, giving Seniors no choice whatsoever but to accept the ever more limited health care offered by Medicare. The plaintiffs cannot pay for their own health care—and save the Government and taxpayers money—without forfeiting all of their Social Security benefits. There is nothing in the Social Security statutes that says a retired individual who chooses not to apply for Medicare coverage will be stripped of his or her Social Security benefits.

Martha de Forest, executive director of a group that supported the lawsuit, the Fund for Personal Liberty, also had a response:

Why would the government tie two programs together when they have different payment mechanisms and different start dates? It is about control, nothing more. That is why the government forces retirees to participate in Medicare as a condition of receiving Social Security Retirement benefits.

At base, it’s axiomatic that administrative agencies have no powers not granted to them by Congress and that regulations must be anchored in their operative statute. The rules challenged here failed this standard. Combined with the fiscal irresponsibility of forcing citizens to accept costly benefits during hard economic times, the SSA and HHS rules are an arbitrary power grab. Agency overreach imperils the separation of powers and therefore liberty.

Now that the Supreme Court has failed to counter this unauthorized expansion of federal power, it’s time for Congress to do so by legislation—as Quin Hillyer suggests in his commentary on the case. Richard Epstein has further thoughts on how Hall v. Sebelius illustrates the untrammeled growth of the administrative state.

Today’s Washington Post reports that a boy in a DC neighborhood was out riding a new bike that he received on Christmas. As he was riding through his neighborhood, he turned a corner and suddenly came upon three unattended pit bulls who proceeded to maul him. Fortunately for this 11-year old boy, a neighbor saw what was going on, ran into his house, got his handgun, and then returned and shot one of the pit bulls. A DC police officer, nearby on bicycle, heard the shot, got to the scene, and then shot the other two pit bulls.

The boy, unidentified by the newspaper, is traumatized. His uncle describes his injuries as “horrific” — all three pit bulls had their teeth clenched in the boy’s extremities just before the neighbor and officer shot them. 

Is the unidentified neighbor hailed as a hero? No — just the opposite — he apparently needs a lawyer because he is reportedly under “investigation” for violating our capital city’s firearms laws! You see — he may have discharged his weapon beyond his property line. Talk about no good deed going unpunished. 

Every single day, Americans use guns to save lives but we do not hear about these incidents on the evening news–and that’s mostly because the gun only has to be brandished and the bad guy takes flight. Just not considered “news.” Another reason is media bias–as the past few days illustrate. Yesterday, CNN had full coverage of a gun crime in Houston. This story–civilian uses gun to save an 11-year old’s life–only a few paragraphs back in the metro section of the newspaper.

Whether or not the prosecutors file charges here, DC laws need to change–so residents don’t have to hope for good sense to prevail (while paying attorneys fees). House Republicans do have jurisdiction over DC affairs — so here’s an opportunity to send a bill to the president’s desk to get the needed changes in place.

To draw more attention to how often Americans use guns in self-defense, Cato published this paper and created this self-defense map.

In his second inaugural address, President Obama made a series of direct and indirect references to the Declaration of Independence and other founding documents to make his case for collective (read: state) action. In doing so, he fell into the fallacy of argument ad antiquitatem – an illegitimate appeal to ages past in order to justify present and future actions.

Most people, including most Americans, would be surprised to learn that the word “democracy” does not appear in the Declaration of Independence (1776) or the Constitution of the United States of America (1789). They would also be shocked to learn the reason for the absence of the word democracy in the founding documents of the U.S.A. Contrary to what propaganda has led the public to believe, America’s Founding Fathers were skeptical and anxious about democracy. They were aware of the evils that accompany a tyranny of the majority. The Framers of the Constitution went to great lengths to ensure that the federal government was not based on the will of the majority and was not, therefore, democratic.

If the Framers of the Constitution did not embrace democracy, what did they adhere to? To a man, the Framers agreed that the purpose of government was to secure citizens in John Locke’s trilogy of the rights to life, liberty and property.

The Constitution was designed to further the cause of liberty, not democracy. To do that, the Constitution protected individuals’ rights from the government, as well as from their fellow citizens. To that end, the Constitution laid down clear, unequivocal and enforceable rules to protect individuals’ rights. In consequence, the government’s scope and scale were strictly limited. Economic liberty, which is a precondition for growth and prosperity, was enshrined in the Constitution.

The Bill of Rights establishes the rights of the people against infringements by the State. The only thing that the citizens can demand from the State, under the Bill of Rights, is for a trial by a jury. The rest of the citizens’ rights are protections from the State.

While invoking America’s founding documents and predecessors to justify collective action might appear as cleverness on the part of the President, it is a brazenly overused rhetorical instrument: an argument ad antiquitatem.

Most of President Obama’s second inaugural address was painful. For libertarians. For those who understand the difference between science and opinion. For those who have tracked his administration’s relationship with openness and the rule of law. All of which cringe-inducing elements undermined the splendor of this gem:

We, the people, declare today that the most evident of truths – that all of us are created equal – is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.

It’s not the first time the president has tied “Seneca Falls, and Selma, and Stonewall” together. Here’s hoping more politicians do.

Long-time California raisin farmers Marvin and Laura Horne have been forced to experience firsthand the costs that America’s regulatory state imposes on entrepreneurs, especially innovative members of the agriculture industry. 

No longer do farmers enjoy the ancient right to sell their produce and enjoy the fruits of their labor. Indeed, Horne v. U.S. Dept. of Agriculture exemplifies the extent to which all property and business owners are made to suffer a needless, Rube Goldberg-style litigation process to vindicate their constitutional rights. 

In this case, the USDA imposed on the Hornes a “marketing order” demanding that they turn over 47% of their crop without compensation. The order—a much-criticized New Deal relic—forces raisin “handlers” to reserve a certain percentage of their crop “for the account” of the government-backed Raisin Administrative Committee, enabling the government to control the supply and price of raisins on the market. The RAC then either sells the raisins or simply gives them away to noncompetitive markets—such as federal agencies, charities, and foreign governments—with the proceeds going toward the RAC’s administration costs. 

Believing that they, as raisin “producers,” were exempt, the Hornes failed to set aside the requisite tribute during the 2002–2003 and 2003–2004 growing seasons. The USDA disagreed with the Hornes’ interpretation of the Agricultural Marketing Agreement Act of 1937 and brought an enforcement action, seeking $438,843.53 (the approximate market value of the raisins that the Hornes allegedly owe), $202,600 in civil penalties, and $8,783.39 in unpaid assessments. After losing in that administrative review, the Hornes brought their case to federal court, arguing that the marketing order and associated fines violated the Fifth Amendment’s Takings Clause. 

After litigating the matter in both district and appellate court, the government—for the first time—alleged that the Hornes’ takings claim would not be ripe for judicial review until after the Hornes terminated the present dispute, paid the money owed, and then filed a separate suit in the Court of Federal Claims. The U.S. Court of Appeals for the Ninth Circuit proved receptive to the government’s reversal. Relying on Williamson County v. Hamilton Bank (1985)—the Supreme Court case that first imposed ripeness conditions on takings claims—the court ruled in a revised opinion that the Tucker Act (which relates to federal waivers of sovereign immunity) divested federal courts of jurisdiction over all takings claims until the property owner unsuccessfully sought compensation in the Court of Federal Claims. In conflict with five other circuit courts and a Supreme Court plurality, the Ninth Circuit also concluded that the Tucker Act offered no exception for those claims challenging a taking of money, nor for those claims raised as a defense to a government-initiated action. 

The ruling defies both law and common sense. It stretches the Supreme Court’s ripeness rule beyond its moorings and it forces property owners to engage in utterly pointless, inefficient, and burdensome activities just to recover what should never have been taken in the first place. Having filed an amicus brief that supported the Hornes’ successful petition for Supreme Court review, Cato has again joined the National Federation of Independent Business, Center for Constitutional Jurisprudence, and Reason Foundation on a new brief that urges the Court to affirm its plurality decision in Eastern Enterprises v. Apfel (1998), which held that an unjustified monetary order is inherently a taking without just compensation. Any ruling to the contrary imposes a pointless burden on property owners, particularly when the government initiated the original proceeding. 

We argue that the Ninth Circuit’s overbroad reading of Williamson County stretches the ripeness doctrine beyond any sensible reading; it allows the government to initiate a claim and then block an important constitutional defense on the fallacious notion that it has been brought prematurely. We advocate a rule that is more compatible with the history and text of the Fifth Amendment—that the most natural reading of the Takings Clause demands that compensation be offered as a prerequisite to government action. Indeed, from the time of Magna Carta, just compensation has been required before property was seized. 

Moreover, just as the Court wouldn’t permit the government to seize property without some prior “due process of law,” it shouldn’t permit the government to seize property without prior “just compensation.” The Court has no reason to treat takings claims with less deference than rights anchored in other constitutional provisions.

Horne will be argued at the Supreme Court on March 20.