Yesterday a jury found that police officers entered a couple’s home without their permission and shot their dog for no good reason. The $620,000 award is a good outcome for the family, but all too often there is no accountability mechanism for police misconduct. Like the official response to the outrageous Cheye Calvo incident, the police insisted that they were just “doing their job,” which sounds like they’re going to keep on doing what they do.
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Obama Weighs In, Desperately
Today POLITICO Arena asks:
Is Obama right to warn conservative justices on the Supreme Court that a rejection of his sweeping health care law would be an act of “judicial activism” that Republicans say they abhor?
My response:
Obama is losing it. How else to explain his contention that the Court’s overturning ObamaCare would be “unprecedented” – except if it’s meant to be a craven political posture by a man who can read the polls on the subject. The Supreme Court has been overturning congressional acts from its inception. Its job is to ensure that Congress and the president act within their constitutional bounds, not to rubber-stamp whatever they do. That’s not “judicial activism.” It’s upholding the law.
When Obama adds that it’s important “to remind people that this is not an abstract argument” and that “people’s lives are affected by the lack of availability of health care (sic),” he only compounds the problem by encouraging the public to believe that that is a constitutionally relevant consideration.
The irony in this posturing by Obama and others on the Left is rich, of course. They’re the ones who’ve promoted genuine judicial activism for 75 years – first urging the Court to find powers nowhere granted, then to find rights nowhere held or recognized. And now, when the Court looks at last like it may be taking the Constitution seriously, they scream “judicial activism”?! Please.
On School Choice, Jews Can Have Their Lekach and Eat it, Too
In a recent WSJ op-ed, Peter Beinart calls on American Jews to ease up on their concerns about freedom of conscience and freedom of religion and embrace school vouchers. Beinart notes that,
Outside the Orthodox community, American Jewish organizations have for decades opposed government funding for religious schools. The most common objection is that by intertwining church and state, such funding threatens religious liberty
Fortunately, Beinart’s Solomonic choice between freedom of conscience and educational freedom is unnecessary. It is not only possible to achieve both, it is easily done thanks to education tax credits.
A problem with school vouchers is that they channel state spending to families and thence to religious schools. This compels every taxpayer to support every kind of education, including varieties they may find deeply objectionable–violating their freedom of conscience in a way that Thomas Jefferson called “sinful and tyrannical” in his 1786 Act Establishing Religious Freedom in Virginia.
But under education tax credit programs, no taxpayer is compelled to pay for any sort of private schooling at all, and those who chose to do so get to determine the kind of schooling they support. The U.S. Supreme Court recognized this distinction in its ACSTO v. Winn decision last year, upholding a scholarship donation tax credit program in Arizona.
Here’s how scholarship donation tax credits work: taxpayers can choose to make a donation to a non-profit organization that subsidizes tuition for families who need it. When they make that contribution, their taxes are cut—usually dollar for dollar. If they do not make any such contribution, their income is taxed as it always was in the past, and cannot be used for the support of any private school.
“Direct” or “personal use” tax credits are even simpler: they cut the taxes of parents who shoulder the cost of their own children’s education. Here again, no one is forced to pay for any sort of education to which they might object.
Not only are tax credits superior to vouchers from the standpoint of freedom of conscience, they are also superior to the status quo public school system, which forces all taxpayers to support a single official organ of education that cannot possibly reflect everyone’s values.
So, rather than abandoning their principles, defenders of freedom of conscience can pursue them far more effectively by advocating education tax credits than by propping up the status quo or by advocating alternative school choice policies.
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Cell Phone Location Surveillance: Now at a Police Dept. Near You!
As The New York Times reported this weekend, a series of freedom-of-information requests by the American Civil Liberties Union have confirmed what privacy and surveillance wonks long suspected: The use of cell phones as tracking devices by state and local law enforcement has become extremely common over the past few years, and is often done without the check of a Fourth Amendment search warrant based on probable cause.
More than 200 law enforcement agencies have responded to the ACLU’s request so far, and all but ten acknowledge tracking cell phone location for some purposes. Many do so primarily in emergency situations to locate potential victims of crime or accident, and of those that also make use of location tracking for investigative purpose, several insist that they always obtain a probable cause warrant. But many others either have unclear standards, or rely on subpoenas or court orders based on the low and easily-met standard of “relevance” to an investigation. In effect, they assert the right to put a virtual tracker on citizens—the same conduct the Supreme Court unanimously held to be covered by the Fourth Amendment when a physical tracking device is used—without any need to persuade a judge that a lojacked individual is actually engaged in any criminal conduct.
Perhaps the most troubling revelation, however, is the evidence that at least a handful of law enforcement agencies reported seeking “tower dumps” revealing everyone near a location at a particular time, a form of mass surveillance that can be used to generate a list of potential suspects. I was aware of only one previous case where such a method had been used, back in 2008 in Texas, and at the time that case was unique as far as anyone knew. Now, however, it appears to be sufficiently routine that major providers have a standard price sheet: A one hour “tower dump” from T‑Mobile will run you $150, while Verizon Wireless charges $30–$60 for every 15-minutes worth of mass location data. This is a method in serious tension with our constitutional tradition of “particularity” in searches, and if it were to be permitted under any circumstances, it would require extraordinary safeguards, ideally established by a clear legislative framework—not a patchwork of agencies making up the rules as they go.
Don’t be surprised if you hadn’t heard about this happening in your town: Training materials obtained by the ACLU instruct police to never mention such tracking capabilities when speaking to media, and to omit them as far as possible from police reports. The goal, no doubt, is to avoid reminding criminals that any powered-on phone is a potential tracker. But this also means that a signally intrusive form of government monitoring has become widespread with minimal public awareness, let alone discussion or debate. Let’s hope media attention to these disclosures changes that.
Cato’s Amicus Brief Helps Persuade Supreme Court to Protect Private Property Rights
This blogpost was co-authored by Cato legal associate Anna Mackin.
Today, the Supreme Court agreed to hear Arkansas Game & Fish Commission v. United States, the Fifth Amendment Takings Clause case whose cert petition Cato supported with an amicus brief. In that brief, we joined the Pacific Legal Foundation in urging the Court to preserve a remedy long-recognized in American courts: compensation for government destruction of private property.
Over a year ago, the Federal Circuit blithely ignored this constitutionally guaranteed protection, ruling that so long as it might be characterized as “temporary,” no government flooding of private land can constitute a Fifth Amendment violation. If upheld, this sweeping opinion could prevent recovery for the destruction of private property whenever the government characterizes its own actions as “temporary,” without any assurances of the length of this “temporary” loss.
Notable Supreme Court commentators saw the importance of this case early on, and our amicus brief was featured on SCOTUSblog’s “petition of the day” page. Many thanks to Brian Hodges at PLF for working with Cato on the brief — one of just four filed in the case. Congratulations also and especially to Matthew Miller & Julie Greathouse of Perkins & Trotter, who represent AGFC, for their successful legal strategy.
It is gratifying to see the Court snap up this opportunity to protect private property rights — it is more likely than not that it will reverse the lower court — implicitly validating the position Cato and PLF advanced in this case. We’ll now be filing a brief on the merits that will urge the Court to maintain constitutional protections against government intrusions on private property. The Court will hear the case next term, probably this fall, with a final decision expected by early 2013.
For more on AGFC v. United States, check the case’s SCOTUSBlog page or its Supreme Court docket page. Jonathan Adler also blogged about the case at the Volokh Conspiracy.
Postal Problems: the Role of Government Micromanagement
Postal expert Michael Schuyler has released a follow-up to his January paper that compared the recent financial performance of the U.S. Postal Service to foreign postal service providers. Not surprisingly, the USPS has fared relatively poorly in comparison to its foreign counterparts. In his new paper, Schuyler looks at the role government micromanagement plays and finds that “Foreign posts have much more flexibility than USPS to adjust operations to keep costs in line with revenue.”
The following are some key points:
- Foreign governments intervene in their postal markets, but “foreign governments often temper their demands and grant their postal services substantial operational discretion, in order that they not undermine their posts’ financial viability.”
- The USPS has reduced headcount by 29 percent since 1999, but in comparison to foreign operators, it has less flexibility when it comes to managing labor costs. For instance, “there have been few layoffs because contracts with postal unions contain no-layoff provisions that protect the jobs of most career postal workers…Although the reduction the Service accomplished through attrition and buyouts has been skillful, it has not been sufficient to bring the workforce into balance with reduced mail volume.”
- While many foreign operators have moved to five-day mail delivery, Congress continues to insist that the USPS deliver mail six days a week. Given the continuing – and permanent – decline in the demand for mail, the case for cutting back on delivery is getting stronger. Regardless of whether the USPS should move to five day delivery, the “requirement shows how the U.S. Postal Service is hamstrung in its ability to rein in costs through operational adjustments, compared to many foreign posts.”
- Congressional meddling makes it harder for the USPS to downsize its retail network to better reflect financial reality. When the USPS tries to close post offices and other facilities, “members of Congress often object vigorously to proposed closings within their jurisdictions and occasionally threaten to introduce legislation to block proposed changes.” As a result, the USPS usually backs down.
I’ll conclude by making my standard pitch for liberalization of the U.S. postal market, which would ideally lead to privatization of the USPS. The word “privatization” scares a lot of people, but it shouldn’t. If one were to spend a couple of years working in the U.S. Senate, as I have, there’s a good chance that he or she will conclude that continuing to allow 535 politicians to manage a business is a whole lot scarier.
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Biden Confident about ObamaCare Litigation. Should He Be?
Over the weekend, Vice-President Joe Biden said that he was confident the Supreme Court would not invalidate President Obama’s health care law. Here’s Biden:
I’m not going to speculate about something I don’t believe will happen.
Flashback to 2000 when the Supreme Court declared then-Senator Biden’s initiative, the Violence Against Women Act, unconstitutional because it was beyond the limited powers of Congress. At the time, Biden wrote:
I am disappointed, but not surprised, by the U.S. Supreme Court’s 5–4 decision Monday to strike down the one piece of the landmark Violence Against Women Act that empowers a victim of domestic violence or sexual assault to sue her attacker in federal court. … The Supreme Court has been inching toward this decision for the last several years. In case after case, the court has grown increasingly bold in stripping the federal government of its ability to make decisions on behalf of the American people. … This court, molded by conservatives, has proven eager to substitute its own judgment for that of the political branches democratically elected by the people to do their business.