Eugene Volokh's Blog, page 2551
May 21, 2012
Paul Watford Confirmed to the Ninth Circuit
I’m delighted to say that — according to an e-mail I just received (not from Paul or any mutual friend) — Paul Watford has just been confirmed by a 61-34 vote. (The Democratic Senators voted for him, as well as Republican Senators Alexander, Brown, Collins, Graham, Kyl, Lugar, McCain, Murkowski, and Snowe; some of those are quite conservative.) For all the reasons I mentioned before, I’m confident Paul will be a superb judge.
UPDATE: For the official roll call, see here.
Final Version of “Defending Equilibrium-Adjustment”
The Harvard Law Review has just posted the final version of my response to Professor Slobogin’s critique of my recent article, An Equilibrium-Adjustment Theory of the Fourth Amendment. Here’s a short excerpt from my response, Defending Equilibrium-Adjustment:
Equilibrium-adjustment is not originalism. It is a theory of maintaining the status quo balance of power, not an effort to restore eighteenth-century rules. That understanding explains why living constitutionalists and pragmatists alike have embraced equilibrium-adjustment, and why the chief attack on it has been launched on originalist grounds. It is true, as Slobogin says, that the theory “harks back to some earlier time.” But that does not make it originalist. The relevant “earlier time” is a time before a triggering technological development, but it need not be the year the Fourth Amendment was ratified.
To be sure, it is possible for originalists to adopt the method of equilibrium-adjustment. But nonoriginalists can adopt it, too. In my view, its widespread appeal is what makes equilibrium-adjustment a valuable tool for understanding Fourth Amendment law: Justices from very different interpretive schools use it. It operates equally well within all of the different theories of interpretation. Different Justices might tailor the method based on their interpretive commitments. But they all can engage in equilibrium-adjustment, and almost all do. The Supreme Court’s recent decision in United States v. Jones provides a revealing illustration of how equilibrium-adjustment can occur in both originalist and nonoriginalist forms.
. . . .
The Supreme Court handed down Jones just a few weeks after my Article appeared, and the case divided the Court into two main camps. One adopted an originalist methodology; the other explicitly rejected originalism. But both approaches relied heavily on equilibrium-adjustment.
. . . .
The majority opinion by Justice Scalia engaged in equilibrium-adjustment using an originalist framework. When the Government argued that Jones had no reasonable expectation of privacy in the public location of the car, Justice Scalia responded that the Fourth Amendment should be read to protect rights beyond the reasonable expectation of privacy test. Quoting from his opinion in Kyllo v. United States,28 Justice Scalia reasoned that the Fourth Amendment must be interpreted to “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” To assure preservation of that privacy, Justice Scalia interpreted the Fourth Amendment as protecting against common law trespasses. The installation of the GPS device with intent to use it to obtain information was a common law trespass, and therefore a Fourth Amendment search.
Justice Alito filed an opinion concurring in the judgment, joined by Justices Ginsburg, Breyer, and Kagan. Justice Alito criticized the majority’s originalist approach as inconsistent with precedent and unworkable. Instead, Justice Alito engaged in equilibrium-adjustment using the Katz “reasonable expectation of privacy” framework. He explained that “[i]n the pre-computer age,” surveillance that could reveal information as extensive as GPS monitoring was impractical in most cases. It would require “a large team of agents, multiple vehicles, and perhaps aerial assistance.” Changing technology had expanded government power by making such monitoring “relatively easy and cheap.” Accordingly, Justice Alito interpreted the Fourth Amendment to limit the government’s new powers. Although Justice Alito’s opinion is not a model of clarity, he seems to have interpreted the reasonable expectation of privacy test to lock in prior understandings of how invasive police investigations might be. Long-term use of GPS monitoring constituted a Fourth Amendment search because it exceeded pre-GPS societal expectations that such invasive monitoring was unlikely or even impossible.
Justice Sotomayor joined the majority opinion and filed a concurrence agreeing with and going beyond Justice Alito’s rationale. Like the opinions filed by Justices Scalia and Alito, Justice Sotomayor’s opinion engaged in equilibrium-adjustment. GPS monitoring “may alter the relationship between citizen and government,” Justice Sotomayor reasoned, and the Fourth Amendment had to be interpreted to limit use of “a tool so amenable to misuse.” Justice Sotomayor also expressed a need to revisit the third-party doctrine, the rule that information disclosed to third parties does not receive Fourth Amendment protection. That doctrine is “ill suited to the digital age,” Justice Sotomayor reasoned, given that now “people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”
The three opinions in Jones proceed from different premises. One is originalist; two are not. But all three opinions rest on the principle of equilibrium-adjustment.
Nonlegal Arguments for Upholding the Individual Mandate
Both sides in the individual mandate litigation have developed a wide range of legal arguments to support their position. Some defenders of the mandate have also emphasized several nonlegal reasons why they believe the Court should uphold the law. These arguments have gotten more emphasis since the Supreme Court oral argument seemed to go badly for the pro-mandate side. The most common are claims that a decision striking down the mandate would damage the Court’s “legitimacy,” that a 5-4 decision striking down the mandate would be impermissibly “partisan,” and that it would be inconsistent with judicial “conservatism.”
Even if correct, none of these arguments actually prove that the Court should uphold the mandate as a legal matter. A decision that is perceived as “illegitimate,” partisan, and unconservative can still be legally correct. Conversely, one that is widely accepted, enjoys bipartisan support, and is consistent with conservatism can still be wrong. Plessy v. Ferguson and Korematsu are well-known examples of terrible rulings that fit all three criteria at the time they were decided.
In addition, all three arguments are flawed even on their own terms.
I. A Decision Striking Down the Mandate is Likely to Enhance the Court’s Legitimacy More than it Undermines it.
Claims that a decision striking down the mandate will undermine the Court’s “legitimacy” founder on the simple reality that an overwhelmingly majority of the public wants the law to be invalidated. Even a slight 48-44 plurality of Democrats agree, according to a Washington Post/ABC poll. Decisions that damage the Court’s legitimacy tend to be ones that run contrary to majority opinion, such as some of the cases striking down New Deal laws in the 1930s. By contrast, a decision failing to strike down a law that large majorities believe to be unconstitutional can actually damage the Court’s reputation and create a political backlash, as the case of Kelo v. City of New London dramatically demonstrated.
Striking down the mandate will damage the Court’s reputation in the eyes of many liberals and some legal elites. But a decision upholding it will equally anger many conservatives and libertarians, including plenty of constitutional law experts. There is not and never has been an expert consensus on the constitutionality of the mandate. Any decision the Court reaches is likely to anger some people, both experts and members of the general public. But more are likely to be disappointed by a decision upholding the law.
Ultimately, the Court should not base its decision in this case on “legitimacy” considerations. If the justices believe that the mandate is constitutional, they should vote to uphold it despite the possible damage to their reputations. But it would be a terrible signal if key swing justices refused to strike down a law merely because their reputations would be damaged in the eyes of a small minority of the public and a vocal faction of the legal elite. It would certainly call into question their willingness to make unpopular decisions that are compelled by their duty to uphold the Constitution, including in cases where they must strike down unconstitutional laws that really do enjoy broad public support.
II. An Impermissibly “Partisan” Decision?
Any decision striking down the mandate is likely to pit the five conservative Republican justices against the four liberal Democrats. Some commentators, such as Larry Lessig and Jonathan Cohn, claim that such a result would be impermissibly “partisan,” creating a perception that the Court is only willing to strike down “liberal” laws.
This sort of argument urges judges to engage in genuinely political decision-making in order to avoid the mere appearance of it. If a Republican-appointed justice votes to uphold a law he believes to be unconstitutional in order to avoid the appearance of “partisanship,” he would be allowing political considerations to trump his oath to uphold the Constitution.
Even if there is a judicial duty to avoid the appearance of a partisan split, why doesn’t it fall on the liberal justices just as much as the conservatives? If one or more of the liberal justices were to join the five conservatives in striking down the mandate, that would diminish the appearance of partisanship just as much as a conservative “defection” to the liberal side would.
Finally, this line of criticism overlooks an important reason why decisions enforcing limits on congressional power often have an ideological division: the Court’s liberals have consistently voted against nearly all structural limits on congressional power under the Commerce Clause, the Necessary and Proper Clause, and the Tenth Amendment. Thus, the Court enforces such limits only in those cases where the five conservative justices can agree among themselves. The only way for the conservatives to avoid the appearance of partisanship in this area would be complete abdication of judicial enforcement of structural limits on congressional power.
III. Consistency with Judicial “Conservatism.”
Jeffrey Rosen and others have argued that a decision against the mandate would be inconsistent with “conservative” attacks on “judicial activism” and deference to legislative judgment. Judicial conservatism is not a single, unitary entity. All sorts of decisions can potentially be justified on “conservative” grounds.
However, one major strand of conservative legal thought over the last thirty years has been the need to enforce constitutional limits on federal government power. This idea would be completely undercut by a decision upholding the mandate, since all of the government’s arguments in favor of the mandate amount to a blank check for unconstrained congressional power. As I explain in detail in this amicus brief for the Washington Legal Foundation and a group of constitutional law scholars, the government’s various “health care is special” arguments collapse under close inspection.
Conservative support for judicially enforced limits on federal power is in some tension with loose conservative rhetoric about “judicial activism,” which is one reason why I have long been critical of such rhetoric. However, for most on the right, “judicial activism” is not coextensive with any judicial overruling of statutes, but rather with departures from the text and original meaning of the Constitution. And the originalist case against the mandate is very strong.
Conservatives and others can disagree among themselves as to how much deference should be given to Congress in any given case. In considering this issue, they should weigh two points that Rosen advanced in his important 2006 book The Most Democratic Branch: How The Courts Serve America.
Although generally advocating judicial deference to Congress, Rosen notes two important exceptions to this principle. The first is that “When Congress’s own prerogatives are under constitutional assault (in cases involving legislative apportionment or free speech, for example), it may be less appropriate for judges to defer to Congress’s self-interested interpretations of the scope of its own power.” Obviously, there are few more “self-interested” interpretations of “the scope of its own power” than one that would give Congress virtually unlimited power to impose any mandate it wants.
Second, Rosen suggests that “[f]or the Court to defer to the constitutional views of Congress, Congress must debate issues in constitutional (rather than political) terms” (pg. 10). In order to deserve deference, Congress needs to take the relevant constitutional issues seriously. In the individual mandate case, congressional Democrats notoriously demonstrated utter contempt for the constitutional issues, and plenty of ignorance to boot.
In fairness, their performance was no worse than that of the GOP when they controlled Congress during the Bush years. Far from generating serious constitutional deliberation in the legislative branch, the judiciary’s tendency to defer to Congress on federalism issues has had the opposite effect. Both parties give short shrift to constitutional limits on federal power because judicial deference has created a political culture in which almost anything goes. More careful judicial scrutiny of Congress’ handiwork might lead Congress to start taking the Constitution seriously again. That result that should be welcomed by conservatives, libertarians, and liberals alike.
A nondeferential posture by the Court wouldn’t necessarily lead to the invalidation of the mandate. It merely means that the justices should give little weight to Congress’ “self-interested” interpretations of its own power, and instead come to their own independent judgment on the constitutional issues at stake.
Ultimately, the Court should not decide the individual mandate case based on these sorts of nonlegal considerations. It is more important that its decision be right than that it be perceived as legitimate, nonpartisan, or conservative. But even on its own terms, the nonlegal case for upholding the mandate is not as impressive as its advocates claim.
UPDATE: Ed Whelan makes some relevant points here.
Big Data and Network Security
As far as I can tell, one of the few network security tools getting better at the speed of Moore’s Law is network monitoring and audit. Modern networks throw off vast amounts of data as users go about their daily business. It is often possible to find the telltale signs of network intrusion by watching for activity that is anomalous or that fits the signature of network attacks elsewhere.
But finding those faint signals in a sea of noise isn’t easy. No one wants to sit and read logs.
The good news is that tools to analyze Big Data are improving and getting cheap at a great rate, and companies like Zions Bank have begun using open source programs like Hadoop to analyze their networks. 
Around 2005, [Zions Bank Chief Security Officer] Wood said, his team made the move to a massively parallel processing system that was designed for log management but that his team bent and hammered into a data warehouse for analytics. “We adopted a business intelligence mindset,” he said, “but slanted toward security.” He brought in some data-analysis specialists, and they started mining data and searching for patterns, a process made easier by the new higher-powered and more scalable system. But it, too, reached its limits as unstructured data from myriad new sources began streaming in.
In 2010, Zions started its transition to Hadoop and has been running its big data workloads exclusively on that platform since late 2011. Wood said he’s loading about 130 data sources into Hadoop, including server logs, web logs and customer transactions. Now, he explained, his team is able to analyze massive amounts of data — and fast — to detect everything from malware and spear phishing attempts to account takeovers. The latter is similar to credit card theft, only instead of discovering anomalous spending, Zions is able to detect anomalous transfers from customers’ bank accounts.
And Wood doesn’t worry about outgrowing his Hadoop cluster, which means his team can keep innovating on new ways to detect criminal behavior. If you’re monitoring network traffic, for example, Wood said, you “have to get down to 0s and 1s in packets to look for the needle in the haystack.” That means storing and analyzing everything in its raw form.
This approach to security is gaining traction, but once again, it looks as though the financial sector, rather than government, is pioneering a network security technology. In fact, this is going to be a tough act for government to follow. Just read that last sentence again. “That means storing and analyzing everything in its raw form.”
Just as they stalled government network intrusion prevention technology for a decade, privacy advocates are likely to trash any government security system that depends on storing and analyzing everything, even everything on the government’s own networks. Which means that security will likely remain Mission Impossible for most government information security officers.
Catholic Institutions Sue Over Contraception Mandate
Several Catholic dioceses and universities filed suit today against the so-called contraception mandate, the Washington Post reports here and here. In all twelve lawsuits were filed in twelve separate federal district courts. There are 43 separate plaintiffs in these suits, including the Archdioceses of Washington, D.C. and New York, Catholic University, and the University of Notre Dame, where President Obama delivered the commencement address in 2009.
In somewhat related news, Exorcist author William Peter Blatty is suing Georgetown University in Catholic court alleging the school has abandoned its Catholic faith and violating church teaching. According to this report, the “last straw” was Georgetown’s invitation to HHS Secretary Kathleen Sebelius to address graduating students.
Are Search Engine Providers Like Internet Service Providers?
Today’s NYT reports on the white paper Google commissioned from our host, Eugene (about which Eugene blogged here). I don’t know this area nearly as well as Eugene does, but I found this portion of the article particularly interesting:
there is a bit of a rub for Google, some scholars say. The kind of reasoning Mr. Volokh uses in his paper could come into conflict with one of Google’s policy priorities — the so-called net neutrality rules that call for everyone to get equal treatment on the Internet.
Since Google is not connecting users to the Internet, it is vital for its business that the companies that provide access to the Internet do not play favorites. Yet, if those providers could somehow qualify for First Amendment protection, then the government would have a harder time mandating “net neutrality.”
Mr. Volokh never mentions net neutrality in the paper, but a Duke law professor, Stuart M. Benjamin, who has written an academic paper casting doubt on First Amendment protection for mere transmitters of information like Internet service providers, said he saw a clear connection.
Mr. Benjamin said an Internet provider like Comcast, for example, could offer “a family friendly Web,” which would filter out content considered inappropriate for children; by doing so, “they have now gone to protected speech.”
But he also suggested there was a potential for Mr. Volokh’s reasoning to extend First Amendment protections to transmitters that do even less — for example, those that simply provide faster speeds to companies that pay more money. That is the kind of behavior net neutrality rules are meant to prevent.
The more the First Amendment is applied to how information is transmitted via the Internet, Mr. Benjamin said, the harder it is to regulate. “Whether that is a good or bad thing depends on your political perspective,” he said.
3D printing is cool — but not yet sexy
The promise of perfectly personalized products manufactured by 3D printers is on the horizon, but this 3D-printed bikini – supposedly the “world’s first ready-to-wear, completely 3D-printed article of clothing” – looks surprisingly uncomfortable and badly fitted to me.
And believe me, I looked closely. I take seriously my responsibilities as a technology commentator. And in that role, I think it’s safe to say that the future is already here but its coverage is skimpy.
Adventures in Asset Forfeiture
Asset forfeiture laws in many states allow the police to seize property that has supposedly been used to commit a crime, and then keep the proceeds for themselves. Often, these laws victimize people who have not been convicted of any crime, and indeed did not even know that their property might have been misused. They also often give the owner little or no opportunity to challenge the seizure, thereby flagrantly violating the Due Process Clause of the Fourteenth Amendment. Needless to say, such perverse incentives lead to many abuses, as documented in a 2010 report by the Institute for Justice.
Two excellent recent articles by George Will and Radley Balko describe some particularly egregious examples.
Here is Will:
Russ Caswell, 68, is bewildered: “What country are we in?” He and his wife, Pat, are ensnared in a Kafkaesque nightmare unfolding in Orwellian language….
In the lawsuit titled United States of America v. 434 Main Street, Tewksbury, Massachusetts, the government is suing an inanimate object, the motel Caswell’s father built in 1955. The U.S. Department of Justice intends to seize it, sell it for perhaps $1.5 million and give up to 80 percent of that to the Tewksbury Police Department, whose budget is just $5.5 million. The Caswells have not been charged with, let alone convicted of, a crime. They are being persecuted by two governments eager to profit from what is antiseptically called the “equitable sharing” of the fruits of civil forfeiture, a process of government enrichment that often is indistinguishable from robbery….
Since 1994, about 30 motel customers have been arrested on drug-dealing charges. Even if those police figures are accurate — the police have a substantial monetary incentive to exaggerate — these 30 episodes involved less than 5/100ths of 1 percent of the 125,000 rooms Caswell has rented over those more than 6,700 days. Yet this is the government’s excuse for impoverishing the Caswells by seizing this property, which is their only significant source of income and all of their retirement security.
The government says the rooms were used to “facilitate” a crime. It does not say the Caswells knew or even that they were supposed to know what was going on in all their rooms all the time. Civil forfeiture law treats citizens worse than criminals, requiring them to prove their innocence — to prove they did everything possible to prevent those rare crimes from occurring in a few of those rooms. What counts as possible remains vague. The Caswells voluntarily installed security cameras, they photocopy customers’ identifications and record their license plates, and they turn the information over to the police, who have never asked the Caswells to do more.
Balko describes an equally ridiculous case:
When the Brown County, Wis., Drug Task Force arrested her son Joel last February, Beverly Greer started piecing together his bail….
“The police specifically told us to bring cash,” Greer says. “Not a cashier’s check or a credit card. They said cash.”
So Greer and her family visited a series of ATMs, and on March 1, she brought the money to the jail, thinking she’d be taking Joel Greer home. But she left without her money, or her son.
Instead jail officials called in the same Drug Task Force that arrested Greer. A drug-sniffing dog inspected the Greers’ cash, and about a half-hour later, Beverly Greer said, a police officer told her the dog had alerted to the presence of narcotics on the bills — and that the police department would be confiscating the bail money.
“I told them the money had just come from the bank,” Beverly Greer says. “We had just taken it out. If the money had drugs on it, then they should go seize all the money at the bank, too. I just don’t understand how they could do that….”
It took four months for Beverly Greer to get her family’s money back, and then only after attorney Andy Williams agreed to take their case. “The family produced the ATM receipts proving that had recently withdrawn the money,” Williams says. “Beverly Greer had documentation for her disability check and her tax return. Even then, the police tried to keep their money….”
Civil asset forfeiture is based on the premise that a piece of property — a car, a pile of cash, a house — can be guilty of a crime. Laws vary from state to state, but generally, law enforcement officials can seize property if they can show any connection between the property and illegal activity. It is then up to the owner of the property to prove in court that he owns it or earned it legitimately. It doesn’t require a property owner to actually be convicted of a crime. In fact, most people who lose property to civil asset forfeiture are never charged. …
Although Mrs. Greer was able to recover her money, authorities in Wisconsin and elsewhere continue to seize cash based on “alerts” by drug-sniffing dogs, that can be extremely misleading:
But even in the odd world of asset forfeiture, the seizure of bail money because of a drug-dog alert raises other concerns. In addition to increasing skepticism over the use of drug-sniffing dogs, studies have consistently shown that most U.S. currency contains traces of cocaine. In a 1994 ruling, for example, the U.S. 9th Circuit Court of Appeals cited studies showing that 75 percent of U.S. currency in Los Angeles included traces of narcotics. In 2009, researchers at the University of Massachusetts analyzed 234 bills collected from 18 cities, and found that 90 percent contained traces of cocaine….
Stephen Downing, a retired narcotics cop who served as assistant police chief in Los Angeles, says it isn’t surprising that a drug dog would alert to a pile of cash, since it usually has traces of drugs.
“I’d call these cases direct theft. They’re hijackings,” says Downing, who is now a member of Law Enforcement Against Prohibition, an organization of former police and prosecutors who advocate ending the drug war.
Downing says he recently consulted a medical marijuana activist in California who was told to bring his bail money in cash, despite the fact that state law allows payment with a cashier’s check, a registered check or a credit card. “It makes me wonder if this seizing of bail is a new idea getting shopped around in law enforcement circles.”
While the details of these abuses vary, the underlying problem is the same: an asset forfeiture system that allows law enforcement agencies to seize the property of the innocent and then keep the loot for themselves. This predictably leads to a situation where many take the property first and only ask questions later – if at all. As Balko points out, low-income property owners are particularly likely to be victimized, because they often lack the funds to hire a lawyer to contest the seizure, and state law often does not pay for a public defender in these cases.
CONFLICT OF INTEREST WATCH: I have done pro bono work on other cases for the Institute for Justice, which is representing the property owner in the Tewksbury case.
UPDATE: I wrote this post before noticing Jonathan Adler’s earlier post on the same subject. I am leaving this post up because it goes into much more detail. Also, I disagree with Jonathan’s statement that this sort of abuse is “constitutional.” The Supreme Court ruled that it was in Bennis v. Michigan. But I think the dissenters in that case (a cross-ideological coalition of Justices Kennedy and Stevens) got it right.
Moreover, Bennis held merely that the seizure of innocent owners’ property does not automatically violate the Due Process Clause. It did not rule on the Due Process Clause issues that arise when the authorities seize the property with little or no evidence that it actually was used in a crime, or when they fail to give the owner a meaningful and prompt opportunity to challenge the seizure in court. In a 2009 case, the Supreme Court planned to address the latter issue, but ended up dismissing the case as moot.
UPDATE #2: In an update to his post, Jonathan clarifies that he too is sympathetic to many of the arguments made by the Bennis dissenters. For my part, I agree with him that not every morally objectionable forfeiture practice is necessarily unconstitutional.
Court to Consider Standing to Challenge FISA Surveillance
This morning the Supreme Court accepted certiorari in Clapper v. Amnesty International USA, which presents the question whether journalists and human rights organizations have standing to challenge the constitutionality of electronic surveillance of international communications without direct evidence their communications have been surveilled. In this case, the U.S. Court of Appeals for the Second Circuit held standing could be claimed because the plaintiffs had a reasonable fear of surveillance and undertook “costly and burdensome measures” to protect the confidentiality of their communications. Unsurprisingly, the SG’s office filed a cert petition. Because this decision created a circuit split with the U.S. Court of Appeals for the Sixth Circuit, a cert grant was virtually assured.
Thus far, the Roberts Court has stood pat on standing, neither raising nor lowering the hurdles to Article III standing. In this case, it will be interesting to see whether this trend continues.
Orin also blogged on this case here and here.
Asset Forfeiture Abuse
Radley Balko reports on fairly severe asset forfeiture abuse in Wisconsin. In short, after a woman’s son was arrested, the police told her she had to pay for his bail in cash (which was untrue). Then, when she showed up with the money, most of which she had just withdrawn from ATMs, the police seized the money under the state’s asset forfeiture law because a drug-sniffing dog detected traces of drugs on the money. Even with the help of an attorney, it took four months for the woman to get her money back. It’s bad enough that this sort of abuse is constitutional. It’s even worse that Wisconsin law enforcement would act this way.
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