Eugene Volokh's Blog, page 2587

March 23, 2012

The Congress Can-Do-Whatever-it-Wants Power

(David Bernstein)

As I've argued several times before, the Supreme Court's conservative majority will not uphold the individual mandate if the mandate's defenders are unable to come up with a limiting principle that will prevent a decision upholding the law from eviscerating any remaining limits on Congress's power to regulate interstate commerce.  (Which is not to say that the majority will necessarily uphold the law if such a limiting principle is articulated).


I leave it to those who have studied the briefs in detail to discuss whether the government and its amici have come up with such a principle.  But with friends like New York Times columnist Linda Greenhouse, they don't need enemies.  Greenhouse:


If  the commerce power extends to backyard marijuana growing (as it did to backyard wheat growing in the famous New Deal case of Wickard v. Filburn), the notion that Congress somehow lacks the power to regulate, restructure or basically do whatever it wants in the health care sector, which accounts for 17 percent of the gross domestic product, is far-fetched on its face.


Greenhouse's reasoning is sloppy.  First, Wickard v. Filburn didn't apply to "backyard" wheat growing, the farm in question was a large commercial operation, and the wheat in question was fed to the farm's cattle, who were sold on the interstate market.  But more important, Wickard and Raich were both as-applied challenges, while the challenge to the individual mandate is a facial challenge.


So what Greenhouse is arguing is that because the Supreme Court has in the past refused to countenance as-applied challenges that sought to exempt local activity from a concededly broader scheme of the regulation of interstate commerce, facial challenges to laws that on the grounds they don't regulate interstate commerce to begin with are also out of bounds.  In other words, Congress can do whatever it wants, at least so long as it identifies an important economic "sector" to which its regulation pertains.


In the health care area, can Congress in fact require everyone to eat broccoli? Exercise twice a day in government-run health care facilities, with a government-mandated exercise program? Prohibit people from picking wild blueberries for their own consumption?   According to Greenhouse, Congress can do any of those things, even though there is no commerce, much less interstate commerce, involved, so long as it can argue that by doing so it's really trying to regulate the "health care sector."


Maybe it's a good idea to give Congress the power to regulate whatever and however it wants, though I really doubt it.  More to the point, I'm quite sure that the conservative majority is not willing to endorse the proposition that the commerce power is really the Congress-Can-Do-Whatever-it-Wants Power.


Bonus foolishness from Greenhouse: She touts Nancy Pelosi's infamous "Are you serious?" response to questions about the ACA's constitutional basis as evidence that the ACA is in fact constitutional, as opposed to what is really is, evidence that Pelosi and her allies treated the idea that the health care law needed to be within Congress's enumerated powers with thinly-veiled contempt.  As I discussed here (with further examples of such contempt), this in turn is a very good reason for the Court not to defer to Congress' view of the scope of its commerce power, though of course lack of deference doesn't dictate the outcome one way or the other.


James Taranto and Ed Whelan also have sharp words for Greenhouse.







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Published on March 23, 2012 06:38

Koch v. Cato — David Koch Issues a Statement

(Jonathan H. Adler)

Koch Industries Executive Vice President David H. Koch has issued a nine-page statement regarding the Koch-Cato kerfuffle and directly responding to some of the claims made by Bob Levy.  As with his brother's statement, more of the release consists of categorical statements or assertions, and there is relatively little in the way of verifiable detail, particularly when responding to Levy.  Where the responses are most direct, they are beside the point, and respond to mischaracterizations or caricatures of Levy's claims (e.g. the statement denies that David Koch ever said Cato should work exclusively with or take direction from groups like Americans for Prosperity, when that is not what Levy claimed).  While the statement references compromise proposals put forward by the Kochs, it also lacks the level of detail Levy offered without disputing his specific claims (e.g. the discussion of beginning the search and creating a timetable for Ed Crane's retirement).


The most interesting aspect of David Koch's statement is how much it makes clear that (from the Koch's perspective) this dispute is about Ed Crane, and that Crane's behavior and what David Koch characterizes a "rule or ruin" approach to Cato makes a peaceful resolution difficult if not impossible.  The statement also claims Ed Crane was the "top Cato official" responsible for the quote in this paragraph from Jane Mayer's infamous story on the Kochs.


[Richard] Fink, with his many titles, has become the central nervous system of the Kochtopus. He appears to have supplanted Ed Crane, the head of the Cato Institute, as the brothers' main political lieutenant. Though David remains on the board at Cato, Charles Koch has fallen out with Crane. Associates suggested to me that Crane had been insufficiently respectful of Charles's management philosophy, which he distilled into a book called "The Science of Success," and trademarked under the name Market-Based Management, or M.B.M. In the book, Charles recommends instilling a company's corporate culture with the competitiveness of the marketplace. Koch describes M.B.M. as a "holistic system" containing "five dimensions: vision, virtue and talents, knowledge processes, decision rights and incentives." A top Cato Institute official told me that Charles "thinks he's a genius. He's the emperor, and he's convinced he's wearing clothes." Fink, by contrast, has been far more embracing of Charles's ideas. (Fink, like the Kochs, declined to be interviewed.)


David Koch is indisputably correct that some Cato staff and partisans have levied unwarranted attacks on the Kochs' intentions and their influence on the libertarian movement — attacks they would have rejected had they been made by a journalist or progressive group several months ago.  As I have tried to stress in all of my posts on this matter (beginning here), I am concerned about the consequences of making Cato subject to the control of the Kochs or any single interest, but not because I believe they will necessarily make Cato more partisan or less principled.  I believe the Kochs have been principled supporters of libertarian ideas and have made immeasurable contributions to the fight for individual liberty — something most Cato supporters should also believe (and probably did until this conflict began).  I also hope that there will be a resolution to this conflict that leaves the Cato Institute standing.


 







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Published on March 23, 2012 05:45

Henry and Stearns on Obamacare:

(Todd Zywicki)

My former colleague and sometimes co-author Max Stearns has an op-ed defending the constitutionality of Obamacare in the Baltimore Sun here (co-authored with Leslie Meltzer Henry).  If you know Max's work you'll recognize the argument about interstate coordination here.


Update: I've corrected my error on Professor Henry's first name.  My apologies.







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Published on March 23, 2012 03:36

March 22, 2012

Speech as Evidence

(Eugene Volokh)

A reader pointed to a recent article about a child pornography prosecution. The defendant, it turns out, had posted to Facebook "actively discussing child pornography and methods for downloading pornography from the Internet," and the FBI apparently used the defendant's statement (coupled with other statements that showed interest in child pornography) as probable cause to get a search warrant of defendant's home computer — which turned out to indeed contain child pornography. I responded that I didn't see anything necessarily wrong with this.


The reader then replied:


[Y]ou said … that it is perfectly acceptable for law enforcement to use a person's statements on Facebook as probable cause to obtain a warrant to search their computer for child pornography. Would it also be OK to so use a person's Google search? A private conversation? An utterance one makes in one's sleep? (If your answer to all these questions is "yes", I suggest you reread George Orwell's "1984″.)


So here's the thing: Using a person's "private conversation" as probable cause to get a warrant to search for evidence is utterly commonplace, and indeed quite necessary. Say that the police are investigating who killed Violet Victim, and Don Defendant had said to Walter Witness that he had Violet's body in his freezer. Of course such a statement could be used, and should be used, in determining whether there is probable cause to search Don's house.


Of course, it might not itself be proof beyond a reasonable doubt that Don killed Violet. Maybe Don was joking, or was lying to Walter for some reason, or was deluded. But the point of searches is to uncover evidence that may help decide whether there is proof of guilt beyond a reasonable doubt. This is why the standard required for searches is the far lower "probable cause." And a person's own statement about what he supposedly did is pretty powerful evidence for showing such probable cause.



This is so whether Walter voluntarily tells the police about Don's statement, Don's statement to Walter is overhead by another citizen who reports it, Don's statement is recorded on a lawful wiretap (which was itself gotten based on probable cause), or Walter is compelled to testify before a grand jury about his conversation with Don. In all these cases, Don's statements, as reported by Walter, are precisely the sort of evidence that would be and should be used in determining probable cause, or in helping prove guilt beyond a reasonable doubt at a criminal trial.


Does the admissibility of speech as evidence have a "chilling effect" on speech? Sure. But I can't see how the alternative — never using a person's voluntary out-of-court statements as evidence against him (or perhaps even against his friends, if you're really so concerned about chilling effects), even though they are often the most reliable evidence, especially of matters such as knowledge or intent — could work.


Now of course this rule can easily be misused by totalitarian regimes (even ones that do not use 1984's model of continuous physical surveillance inside people's homes). Many such regimes have indeed heavily relied on people reporting, say, political dissent by their acquaintances. But pretty much all crime-fighting techniques can be, and have been, misused by totalitarian regimes (and, more relevant to our discussion, by non-totalitarian regimes that are nonetheless acting abusively towards some citizens): Consider, for instance, prisons, police departments, and the criminal justice process itself. Yet this risk of misuse is generally a reason to impose some legal and political constraints on such institutions, not to abandon prisons, police departments, and the criminal justice process altogether.


Likewise, I think, with regard to the use of speech as evidence. We avoid oppression not by refusing to use people's reports of admissions of guilt by their acquaintances, but, for instance, by having First Amendment rules that limit the range of crimes that can be prosecuted. An acquaintance's statement to the police that I think the Obama Administration has been bad for the country is not going to lead to a conviction for seditious libel or "anti-government propaganda" (to borrow a term from Communist regimes), simply because the government may not declare such behavior to be criminal. Likewise, unlike in the 1984 world, a magistrate must indeed find probable cause for a search, and many statements will not offer such probable cause.


This being so, I think that the use of Facebook statements as evidence is no more troublesome. If someone says something on Facebook that strongly suggests that he killed his wife, or that he robbed someone, or that he has downloaded child pornography, that can rightly be used as evidence supporting probable cause for a search warrant. In some situations, it may be poor evidence, but in many situations it may be strong evidence indeed.


The same case-by-case inquiry into whether the statement provides probable cause should in principle apply to Google searches (e.g., "how to hide my stash of child pornography" or "how to hide a dead body") and to utterances in one's sleep. In those cases the result would often be that such statements are not sufficient to show probable cause. Google searches are generally much less specific than Facebook posts, and are less inculpatory than Facebook statements that (without any contextual cues suggesting humor or fiction) say "I did this-and-such." Statements in one's sleep might likewise often reflect dreams or fears more than actual experiences, though I don't know what the empirical research in that area suggests.


Still, the bottom line question remains: Does this statement, viewed in context and together with other evidence the police have, establish probable cause to believe that a search of a particular place will yield evidence of a crime? If the answer is yes, that statement is admissible, fears of 1984 notwithstanding.







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Published on March 22, 2012 21:25

Let's Try Again

(Eugene Volokh)

The Facebook comment experiment seems to have proven largely unsuccessful. It was successful in one important respect: Moving comments off-blog reduced our bandwidth demands, and thus made the site much more reliable; we didn't have any brownouts, I think, even when we got large spurts of visitors. But many readers noted various difficulties with the Facebook system (thanks again to all of you for writing!).


We've thus decided to try again with Disqus instead. Disqus is the system used by many sites, including Above The Law, and it seems to avoid many of the problems that bothered our readers.


Most significantly, while you'll still need to sign on to comment, you'll be able to do that using Disqus's own user id system, or using Google, Facebook, Twitter, Yahoo, or OpenID. This should make it easy for you to blog either under your own name or anonymously, and without any involvement on Facebook's part (which was a problem for many users for various reasons, including that some employers block Facebook).


Our hope is that this will work much better for our commenters. We plan to switch over tonight, and we'll see the results in the weeks to come. Thanks for bearing with us, and thanks again for your feedback.







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Published on March 22, 2012 17:24

Jonathan Adler to Georgetown

(Jonathan H. Adler)

Story here.


There's no relation, but it's still kinda cool.







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Published on March 22, 2012 15:17

How To Declare War (Anno Domini 1429)

(Kenneth Anderson)

Jhesus-Maria, King of England, and you, Duke of Bedford, who call yourself regent of the Kingdom of France, you, Guillaume de la Poule, count of Suffort, Jean, sire of Talbot, and you, Thomas, sire of Scales, who call yourselves lieutenants of the Duke of Bedford, acknowledge the summons of the King of Heaven.  Render to the Maid here sent by God the King of Heaven, the keys of all the good towns which you have taken and violated in France.  She is here come by God's will to reclaim the blood royal.  She is very ready to make peace, if you will acknowledge her to be right, provided that France you render, and pay for having held it.  And you, archers, companions of war, men-at-arms and others who are before the town of Orleans, go away into your own country, by God.  And if so be not done, expect news of the Maid who will come to see you shortly, to your very great injury.  King of England, if you do not so, I am chief-in-war and in whatever place I attain your people in France, I will make them quit it willy-nilly.  And if they will not obey, I will have them all slain; I am here sent by God, the King of Heaven, body for body, to drive you out of all France … (Written this Tuesday of Holy Week, March 22, 1429.)


Joan of Arc, the Maid of Orleans, sends a formal letter of summons to the English upon the siege of Orleans.  (I post this once a year on this date at all the places I blog.)







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Published on March 22, 2012 13:03

March 21, 2012

Thoughts on Sackett v. EPA

(Jonathan H. Adler)

The regulators lost to the regulated today in Sackett v. Environmental Protection Agency. As Ilya notes below, the Supreme Court's unanimous opinion held that property owners and other regulated parties may challenge administrative compliance orders issued by the Environmental Protection Agency under the Clean Water Act. This is a small, yet significant, victory guaranteeing a modicum of procedural protection for those subject to regulation under the CWA.


In this case, the EPA issued an ACO to the Sacketts alleging they had filled wetlands without a federal permit and directing them to take remedial action or face civil penalties. The Sacketts had sought an agency hearing on the matter, but the EPA declined. So the Sacketts went to court. The federal government maintained that judicial review of the ACO was unavailable unless and until the EPA filed a civil enforcement action against them. The U.S. Court of Appeals for the Ninth Circuit concurred, only to be reversed by the Supreme Court.


Writing for the Court, Justice Antonin Scalia explained that an ACO can be challenged as a final agency action under the Administrative Procedure Act, as the order represents the conclusion of the agency's consideration of the question and is, itself, the source of a binding obligation on the regulated party. The order "has all of the hallmarks of APA finality" and is thus presumptively subject to judicial review. As the CWA does not expressly or impliedly preclude judicial review, and there is no other adequate remedy in court, the Sacketts can have their day in court.


Justice Scalia's opinion for the Court is quite narrow, and lacks the rhetorical flourishes we've come to expect in his environmental opinions. The Court had no occasion to reach the due process issues lurking below the surface of the case – specifically whether the Sacketts would be entitled to some opportunity to be heard, if not in court then before the agency, before they could be subject to fines for violating the administrative compliance order. Although Justice Scalia noted the continuing uncertainty over the scope of federal regulatory jurisdiction under the CWA, particularly with regard to wetlands, his opinion made clear the Court was expressing no opinion as to whether the EPA properly asserted jurisdiction over the Sacketts' land. Solely at issue was whether the Sackett's could challenge the EPA's assertion of jurisdiction and claim that the Sacketts had violated federal law by filling jurisdictional wetlands on their property without first obtaining a federal permit. Justice Ginsburg wrote a brief concurring opinion stressing this point.


Justice Alito's concurring opinion stressed the continuing regulatory uncertainty to which private landownres are subject under the Clean Water Act. The statute's reach is "notoriously unclear," and yet landowners can face substantial fines if they fail to obtain the requisite federal permits before modifying wetlands on their land. According to Alito, the Court's decision in Sackett offers landowners " a modest measure of relief" in that it now ensures that landowners may seek judicial review of an agency order directing them to cure CWA violations or face additional fines. Yet according to Alito, the burden on landowners remains substantial.


the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA's tune.


According to Alito, real relief will only come when Congress or the agencies provide a "reasonably clear" jurisdictional rule defining what constitute "waters" subject to federal regulatory control.


For 40 years, Congress has done nothing to resolve this critical ambiguity, and the EPA has not seen fit to promulgate a rule providing a clear and sufficiently limited definition of the phrase. Instead, the agency has relied on informal guidance. But far from providing clarity and predictability, the agency's latest informal guidance advises property owners that many jurisdictional determinations concerning wetlands can only be made on a case-by-case basis by EPA field staff.


Despite repeated losses in the Supreme Court, the EPA and U.S. Army Corps of Engineers have yet to make any serious effort to delineate the scope of their regulatory jurisdiction. The latest guidance, issued in response to Rapanos, is no exception. This virtually assures the question of CWA regulatory jurisdiction will come before the Supreme Court yet again, and the ability of the Sacketts and other regulated landowners to challenge ACOs should only accelerate the process.


Here are my prior posts on the Sackett case:



Court to Consider Administrative Compliance Orders
Sackett v. EPA
Sackett  Oral Argument
Funk on Sackett

UPDATE: At Legal Planet, Richard Frank assesses the case.  His conclusion:


Some will argue that the availability of judicial review to contest administrative orders issued by EPA under the Clean Water Act will hamper federal enforcement efforts in the future.  That's due in significant part to the fact that the vast majority of federal actions to enforce the CWA take the form of such orders, rather than formal administrative hearings or federal litigation that are more costly, resource-intensive and time-consuming for EPA.


Be that as it may, my own opinion is that Scalia and the Court got this one right.  The Sackettdecision's statutory analysis seems compelling, and the equities of this particular David-and-Goliath saga fall rather strikingly in favor of the Sacketts.  I don't often find myself in agreement with Justice Scalia, but I confess that I do here.  One of Scalia's closing observations in Sackett particularly resonated with me: "there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into `voluntary compliance' without the opportunity for judicial review–even judicial review of the question whether the regulated party is within the EPA's jurisdiction."


 







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Published on March 21, 2012 19:32

The Individual Mandate Litigation: What's Lochner got to do with It?

(David Bernstein)

I have an op-ed up at Jurist Forum.  Here's how it starts:


With the US Supreme Court poised to decide whether the Affordable Care Act's (ACA) individual mandate is unconstitutional, the ghost of the notorious 1905 Supreme Court decision in Lochner v. New York hovers over the case. Invalidate the mandate and you are resurrecting Lochner, legal briefs supporting the government argue.


Yet the holding in Lochner, which found that the Due Process Clause of the Fourteenth Amendment protects a robust right to "liberty of contract," was overruled decades ago and is not at issue in the health care litigation. Plaintiffs have challenged the individual mandate primarily as being beyond Congress's Article I, Section 8 power to regulate interstate commerce. They argue that this power must have substantive limits, or the Constitution would have simply given Congress the power to regulate everything.


So why are defenders of the mandate so eager to talk about Lochner? The answer lies in the peculiar status of Lochner in American constitutional discourse.







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Published on March 21, 2012 18:24

The Right to Effective Counsel in a Plea Bargain: The Important New Decisions in Missouri v. Frye and Lafler v. Cooper

(Orin Kerr)

Most criminal cases are resolved by plea bargains. Imagine a defense attorney does a terrible job informing his client about a plea offer: Maybe he gives the client bad advice about the desirability of the plea, or he just forgets to communicate the plea. As a result, the defendant does not take the deal. The defendant goes to trial and is convicted, and is sentenced to a higher punishment than he would have been sentenced to if he took the deal. Does the lawyer's terrible job during the plea negotiations give the defendant a right to challenge his conviction and higher punishment? And if so, how can you tell if the defendant really would have taken the deal, given that every defendant who gets a higher sentence at trial can later claim that they would have taken the deal if their lawyer had been more effective? And what is the proper remedy?


This morning, the Supreme Court handed down two very important cases on these critical questions. Both decisions were 5-4, with Justice Kennedy joining the liberals and writing the majority opinion in both cases.


In the first case, Missouri v. Frye, the prosecution made a plea offer with an expiration date, and the lawyer did not tell his client of the offer. The defendant claimed that he would have taken the deal if he had known about it. Justice Kennedy holds that the Sixth Amendment right to counsel is implicated fully at the plea stage. Because the state conceded that the lawyer was ineffective if the right to counsel applied, the remaining issue was how to tell if a defendant was prejudiced by the lawyer's ineffectiveness. According to the majority, the test for whether the defendant was prejudiced is as follows:


To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have acceptedthe earlier plea offer had they been afforded effectiveassistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.


In the second case, Lafler v. Cooper, the defense attorney told the defendant about the plea offer but allegedly gave the client extremely foolish advice to reject the plea and go to trial. The defendant followed the lawyer's advice, went to trial, was convicted on all counts, and received a much higher sentence than the plea. Again, the state conceded that the lawyer was ineffective. The test for prejudice in this setting was announced as the following:


In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.


If there is prejudice, what is the remedy? This is tricky, the Court explains, because the goal is to eliminate the taint of the unconstitutionality but not give defendants a windfall. Exactly how to do that is tough, as it depends on the case. In some cases, the Court explains, the remedy is a resentencing:


In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence. This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial. In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel's errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.


In other cases, a resentencing will be sufficient: "If, for example, an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge's sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice." What then?


In these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.


In implementing a remedy in both of these situations,the trial court must weigh various factors; and the boundaries of proper discretion need not be defined here. Principles elaborated over time in decisions of state and federal courts, and in statutes and rules, will serve to give more complete guidance as to the factors that should bear upon the exercise of the judge's discretion.


These are really important decisions, and there is a lot to mull over here. For now I just wanted to flag the new cases for those that haven't seen them yet.







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Published on March 21, 2012 10:54

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