We in the public interest legal community — especially on the libertarian or conservative side — are used to taking slings and arrows from all quarters. The media doesn’t understand our quaint obsession with following the text of the Constitution. The so-called progressives seethe at our evil defense of property rights and the freedom of contract. Even the business community blanches at our refusal to leave their sacred regulatory protections untouched in our attack on statism.

But what we don’t expect is to see federal judges openly and wantonly question our motives — least of all in an actual opinion. Yet this is precisely what Judge Jacques “Jack” Wiener did last Thursday in dissenting from a Fourth Amendment seizure/​Fifth Amendment takings case. The case, Severance v. Patterson, involves a challenge to a Texas law that caused the seizure of beachfront property after Hurricane Rita pushed the vegetation line landward. The purpose of the law, the Open Beaches Act, is to ensure public access to the beach regardless of erosion and other natural land migrations (a.k.a. a “rolling easement”). The Fifth Circuit panel ended up affirming the dismissal of part of the claims and asking the Texas Supreme Court for a ruling on state-law issues implicated in others.

But the legal details aren’t important. What I want to highlight is Wiener’s dissent, which begins with the following “Context” (a section title not commonly found in judicial opinions; see pages 22–23 here):

Although undoubtedly unintentionally, the panel majority today aids and abets the quixotic adventure of a California resident who is here represented by counsel furnished gratis by the Pacific Legal Foundation. (That non-profit’s published mission statement declares that its raison d’être includes “defend[ing] the fundamental human right of private property,” noting that such defense is part of each generation’s obligation to guard “against government encroachment.”) The real alignment between Severance and the Pacific Legal Foundation is not discernable from the record on appeal, but the real object of these Californians’ Cervantian tilting at Texas’s Open Beaches Act (“OBA”) is clearly not to obtain reasonable compensation for a taking of properties either actually or nominally purchased by Severance, but is to eviscerate the OBA, precisely the kind of legislation that, by its own declaration, the Foundation targets. And it matters not whether Ms. Severance’s role in this litigation is genuinely that of the fair Dulcinea whose distress the Foundation cum knight errant would alleviate or, instead, is truly that of squire Sancho Panza assisting the Foundation cum Don Quixote to achieve its goal: Either way, the panel majority’s reversal of the district court (whose rulings against Severance I would affirm) has the unintentional effect of enlisting the federal courts and, via certification, the Supreme Court of Texas, as unwitting foot-soldiers in this thinly veiled Libertarian crusade. It is within this framework that I shall seek to demonstrate how the panel majority misses the mark and why Severance’s action should be dismissed, once and for all, for her lack of standing to assert either a Fifth Amendment takings claim for reasonable compensation (because Severance has had nothing taken by the State) or a Fourth Amendment unreasonable seizure claim (because that which was putatively seized did not belong to Severance at the time; and even if it had, there was nothing unreasonable about the purported seizure).

Apparently in Judge Wiener’s world, it is beyond the pale for an organization to provide pro bono legal services that also advance some larger ideological mission. Somebody tell the NAACP or ACLU — or the Supreme Court for that matter, which invites amicus briefs from just the kinds of groups Wiener excoriates. Cato itself routinely files such briefs, of course, and on several occasions has joined with PLF.

Chief Judge Jones pithily dispatches her colleague’s grandiloquence in the majority’s first footnote (see bottom of page 2 here):

Notwithstanding the hyperbolic and unsupported assertions in Part I of the dissent (“Context”), the judges of the court endeavor not to decide appeals based on who the litigants are, who their lawyers are, or what we may believe their motives to be. Whether that rule is observed in light of Part I of the dissent, however, the reader must determine.

And I won’t even get into Wiener’s mixed metaphors and schoolboy Latin — he meant qua, not cum — other than to say “hit the road, Jack.”

(Full disclosure: I clerked on the Fifth Circuit and am familiar with Wiener’s squishy, unreliable jurisprudence; he’s very nice in person, but something happens in chambers — left-wing clerks? — that detracts from his effectiveness. One caveat: Wiener is a great friend of the taxpayer; the IRS does not win in his courtroom.)

For commentary from the Volokh Conspiracy, see here. For PLF’s press release, see here. Hat tip: Cato adjunct scholar Tim Sandefur (whose day job is with PLF, though he did not work on this case).

I watched the congressional conference committee on the budget yesterday on CSPAN, and it seemed like the final fall and sacking of Rome. Two of the remaining generals defending fiscal sanity, Reps. Paul Ryan and Jeb Hensarling, pled with the invading barbarians to limit their fiscal pillaging and warned that the Treasury was empty. But the barbarians, in the form of Rep. Rosa DeLauro and others, had visions of spreading the empire’s gold widely, and were not deterred by talk of damage to future generations.

The barbarians are inside the fiscal gate. The gate is the 60-vote margin usually required for big, new spending programs to pass in the Senate. Ryan and Hensarling were right that the Democrat budget plan could be a major turning point in the nation’s fiscal history. The “reconcilation” process approved by the Democrats lowers the bill passage margin in the Senate to a simple majority. The procedure was put in place in the 1970s to control spending and reduce budget deficits. But the Democrats may try to use that budget-restraint mechanism for the opposite — to pass a massive new health care subsidy program.

Ryan and Hensarling have proposed an alternate fiscal vision, but their troops have left the field, and they will need to rebuild their armies before they can put that vision in place.

I just wanted to follow up on a question Andrew Coulson raised last week about a poll showing a plurality of South Carolina African Americans in support of school choice. Andrew notes:

A new poll released today reveals that 43 percent of African Americans in South Carolina support private school choice while only 40 percent oppose it. What’s even more interesting, however, is that 53 percent said that “giving parents a tax credit or scholarship to choose the best school for their children — public or private — would improve the state’s dismal high school graduation rate.”

So an additional 10 percent of respondents think the program will work but don’t currently support it. Why? Perhaps because many black religious and political leaders in South Carolina have criticized the concept for years.

Certainly opposition from black leadership has probably softened support, but I don’t think that explains the difference in support between the first and subsequent questions. As Andrew notes, the other results peg pro-choice responses consistently at 53 percent.

Here’s the question in full: “Should parents, grandparents or custodial relatives be allowed to receive state scholarships for their children to go to private school if they feel the public school is not meeting their children’s needs?”

First, the description of the tax credit program instead implies a state voucher program. This is bad wording, but probably doesn’t drop support since black support for vouchers tends to be equal or higher than support for credits.

I think the real problem here is the phrase phrase “state scholarships.” This sounds to me like there very well could be conditions, such as academic merit, placed on who is eligible for the “state scholarships.” There are need-based and merit-based scholarships, but they are typically not available to all, and the question is at the very least confusing. This ambiguity, with the suggestion of limited availability, might have softened support/​increased undecideds.

In the context of consistent 53 percent support on other, better-worded choice-related questions, I think we can reasonably conclude that poor question wording on the first question likely dropped support for school choice about 10 points.

We really need to be careful with public policy questions … small changes can have a serious impact on the results.

Since taking office, President Obama seems to have discovered that anti-trade rhetoric, while popular on the campaign trail, isn’t so useful to a sitting president whose policies will have lasting consequences, says trade analyst Daniel J. Ikenson in a new Cato study.

In “Audaciously Hopeful: How President Obama Can Help Restore the Pro-Trade Consensus,” Ikenson and international trade attorney Scott Lincicome argue that the time has come “to arrest and reverse America’s misguided and metastasizing aversion to trade,” which has “been shaped overwhelmingly by relentless political rhetoric.”

The authors’ suggestions for President Obama include:

• Establish a “trade transparency initiative,” with the goal of publishing independent findings about the effects of trade and trade barriers on the U.S. economy, without political interference.
• Reinforce for Congress the fact that a unilateralist trade policy undermines multilateral foreign policy, as well as President Obama’s personal efforts toward repairing America’s damaged image abroad.
• Craft a pragmatic, principled approach to enforcement of standing trade agreements.
• Adopt a China policy of carrots and sticks, including a continued push for China to open more of its markets while resorting to the WTO dispute settlement system only when the situation and facts support doing so.
• Craft a proactive agenda now for implementation when trade consensus re-emerges.

See more Cato research on trade policy.

New Hampshire passed a law prohibiting the transfer of doctors’ prescription history to facilitate drug companies’ one-on-one marketing — a practice known as “detailing” — because it believes detailing drives up brand-name drug sales and, in turn, health care costs. The state knew that the First Amendment prevented it from banning detailing itself, so it made the practice more difficult indirectly. 

Yet data collection and transfer is protected speech — think academic research, or the phone book — and government efforts to regulate this type of speech also runs afoul of the First Amendment. See, e.g., Solveig Singleton, “Privacy as Censorship: A Skeptical View of Proposals to Regulate Privacy in the Private Sector” (Cato Institute Policy Analysis No. 295). New Hampshire also engages in gross viewpoint discrimination: it exempts insurers’ efforts to persuade doctors to use generic drugs, and runs an “academic detailing” program to discourage brand-name drug use.

Remarkably, the First Circuit reversed a district court ruling that had invalidated the statute as unconstitutional, somehow finding that the statute regulates conduct rather than speech and that, in any event, the judiciary should defer to the legislative branch’s judgment. Two companies that collect and sell health information and analysis filed a petition asking the Supreme Court to review the case. Cato, joining Washington Legal Foundation, Reason Foundation, and a group of current and former state officials, has filed a brief supporting that petition.

Our brief argues that the Supreme Court should grant review because: 1) the speech at issue is worthy of First Amendment protection; 2) this case is a good vehicle for examining First Amendment issues attending state attempts to control health care costs (other states have passed similar laws); and 3) the lower court’s holding that a state may restrict speech to “level the playing field” conflicts with the Court’s precedent regarding both commercial speech and campaign finance regulation.

The Supreme Court will be deciding over the summer whether to grant review, with a decision expected after the “Long Conference,” which precedes the beginning of the new term in October.

The latest Long Term Trends results of the National Assessment of Educational Progress are out. They reveal a productivity collapse unparalleled in any other sector of the economy.

At the end of high school, students perform no better today than they did nearly 40 years ago, and yet we spend more than twice as much per pupil in real, inflation-adjusted terms. I can’t think of any other service that has gotten worse during my lifetime. Our school system has failed alone.

While the stagnation in overall achievement masks a 3 to 5 percent gain in the achievement of African American 17-year-olds since 1970, the scores for whites at the end of high school are virtually unchanged.

Anyone who points to the slightly higher scores in the early grades as cause for celebration is missing the point. What parents care about is that their children are well prepared for higher education and future careers at the end of their secondary education. The fact that scores have risen somewhat in the early grades means little since those gains evaporate for the vast majority of students by the time they graduate.

Update: The Associated Press story is now out on the Long Term Trends NAEP results… and it doesn’t mention the long term trends. The story only reports changes in achievement over the most recent 4 year interval of a test whose raison d’être is to reach back to the early 1970s. I wonder why.… Fortunately, the Detroit Free Press does a better job.

Beyond how communications about swine flu are handled, consider also the merits of this “public health emergency.” Hamilton Nolan at Gawker has a pithy retrospective.