Cato fellows Nat Hentoff and Penn Jillette have just been profiled in major publications — Hentoff in the New York Times and Penn in Vanity Fair. Warning: the Hentoff profile is mostly about jazz, and the Penn interview contains lots of four-letter words, obscene imagery, and harsh language about religion. So if you have a low tolerance for jazz or for obscenity and blasphemy, be forewarned. But it’s no surprise that both of them talk a lot about the importance of free speech.
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Constitutional Law
Tip Your Hat to Government
This is not a story from The Onion…
The Associated Press reports that a school in Rhode Island prohibited eight-year-old David Morales from wearing a hat that he decorated with toy soldiers that…gasp…had tiny little plastic weapons. According to school administrators, the hat violates a “no weapons” policy.
Here’s the relevant section of the report:
Christan Morales said her son just wanted to honor American troops when he wore a hat to school decorated with an American flag and small plastic Army figures. But the school banned the hat because it ran afoul of the district’s zero-tolerance weapons policy. Why? The toy soldiers were carrying tiny guns. “His teacher called and said it wasn’t appropriate,” Morales said. Morales’ 8‑year-old son, David, had been assigned to make a hat for the day when his second-grade class would meet their pen pals from another school. She and her son came up with an idea to add patriotic decorations to a camouflage hat. Earlier this week, after the hat was banned, the principal at the Tiogue School in Coventry told the family that the hat would be fine if David replaced the Army men holding weapons with ones that didn’t have any, according to Superintendent Kenneth R. Di Pietro.
I’m not sure what to say about this, other than to link to Neal’s PA.
More on Property Rights (Plus Privileges, Immunities, Due Process)
Yesterday I blogged about the Florida property rights case, which I now consider the best unanimous opinion against my position I could ever imagine. Although the property owners lost, four justices stood for the idea that courts no less than legislatures or executive bodies are capable of violating the Takings Clause (Fifth Amendment), while two others endorsed remedying such violations via Substantive Due Process (Fourteenth Amendment), and the remaining two didn’t express an opinion one way or the other. For more on the case, see the blogposts of Cato adjunct scholars Tim Sandefur, Ilya Somin, and David Bernstein.
An interesting side note involves Justice Scalia’s excoriation of Substantive Due Process (and Justice Kennedy’s use of it):
Moreover, and more importantly, JUSTICE KENNEDY places no constraints whatever upon this Court. Not only does his concurrence only think about applying Substantive Due Process; but because Substantive Due Process is such a wonderfully malleable concept, see, e.g., Lawrence v. Texas, 539 U. S. 558, 562 (2003) (referring to “liberty of the person both in its spatial and in its more transcendentdimensions”), even a firm commitment to apply it would bea firm commitment to nothing in particular.
…
The great attraction of Substantive Due Process as a substitute for more specific constitutional guarantees is that it never means never—because it never means anything precise.
Scalia also calls Kennedy’s method “Orwellian” — after having said that Justice Breyer uses a “Queen-of-Hearts” approach “reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?” Really, this is classic Scalia, a delight to read (and you should, here).
Maher Arar
This week the U.S. Supreme Court declined to hear the appeal of Maher Arar, a dual-citizen of Syria and Canada who was seized by U.S. agents in September 2002 and deported to Syria under a policy of “extraordinary rendition.” Arar claims that Syrian agents tortured him for a year before letting him go.
Glenn Greenwald, Dahlia Lithwick, and Talkleft discuss the case and related issues.
Obamacare Is Unconstitutional
The very day President Obama signed the Patient Protection and Affordable Care Act, aka Obamacare, Virginia’s attorney general filed a lawsuit in federal court challenging the constitutionality of the health care overhaul. Virginia’s complaint alleges, in relevant part, that the PPACA’s requirement that every individual purchase health insurance or pay a fine — the “individual mandate” — is unconstitutional because Congress lacks the power to enact it.
The U.S. Government filed a motion to dismiss, claiming that Virginia lacked standing to bring this suit but also that the Commerce Clause, the Necessary and Proper Clause, and Congress’ taxing power all justify the individual mandate. Virginia responded, in relevant part, that the Commerce Clause does not grant Congress unbridled authority to regulate inactivity and force every man, woman, and child to enter the marketplace or face a civil penalty.
Cato, joined by the Competitive Enterprise Institute and Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a “memorandum” — not called a “brief” because this is district (trial-level) court — supporting Virginia’s position and explaining that neither of the Government’s fallback positions legitimizes the individual mandate. We point out that the Necessary and Proper Clause is not an independent source of congressional power, but enables Congress to exercise its enumerated powers. Similarly, the taxing power does not authorize the individual mandate because the non-compliance penalty is a civil fine — and it would be unconstitutional even if it were a tax because it is neither apportioned (if a direct tax) nor uniform (if an excise tax). Moreover, Congress cannot use the taxing power as a backdoor means of regulating an activity unless such regulation is authorized elsewhere in the Constitution.
You can read our memorandum here. The Government now has an opportunity to reply to the arguments raised by Virginia and those supporting its position (including us), and then the court will entertain oral arguments on the motion to dismiss. We can expect a ruling this fall.
Change? We Don’t Need No Stinkin’ Change
Today Politico Arena asks:
Can the DISCLOSE Act, with exemptions carved out for large special-interest groups, effectively rein in the influence of spending in campaigns?
My response:
Citizens United/Disclose Act Debate
In case you missed yesterday’s excellent Hill Briefing on the DISCLOSE Act and other recent developments in speech restrictions, next week I’ll be debating Citizens United and the future of campaign finance regulation. The event, cutely titled “Citizens United, Republic Divided; Campaign Finance Law After Citizens United,” takes place June 24 at noon at American University’s Washington School of Law, Room 401. That’s 4801 Massachusetts Ave. NW here in Washington.
IJ’s Steve Simpson and I will be up against American U’s Jamie Raskin and Election Law Blog’s Rick Hasen (who has also blogged this notice). RSVP to Michael Vasquez at mv5786a@student.american.edu so there’s enough lunch to go around.
For Cato’s take on the DISCLOSE Act, see John Samples’s latest podcast, blogpost, and op-ed. See also NRA board member Cleta Mitchell’s stunning op-ed about that organization’s cynical Faustian bargain. Finally, here’s the piece John and I published in January in the wake of the Citizens United decision.