Eugene Volokh's Blog, page 2638
January 6, 2012
Santorum, Federalism, and States' "Right to Do Wrong"
As co-blogger Jonathan Adler notes, Rick Santorum's view of constitutional federalism is that the federal government can always override the states when the latter are doing something that is "wrong":
I'm a very strong supporter of the 10th amendment . . . but the idea that the only things that the states are prevented from doing are only things specifically established in the Constitution is wrong.
Our country is based on a moral enterprise. Gay marriage is wrong. As Abraham Lincoln said, states do not have the right to do wrong. And so there are folks, here who said states can do this and I won't get involved in that.
I will get involved in that because the states, as a president I will get involved because the states don't have a right to undermine the basic fundamental values that hold this country together.
Although I'm no fan of Santorum's, there is a small kernel of truth to his argument. Some evils are so great that we may be justified in violating constitutional limitations on federal power in order to eliminate them. Slavery is probably the best historical example. Even some anti-slavery jurists, including Dred Scott dissenter Justice Benjamin Curtis, thought that Abraham Lincoln had exceeded his constitutional authority when he issued the Emancipation Proclamation (which freed all slaves held in the rebel states). But even if Curtis was correct, Lincoln still did the right thing. As Thomas Jefferson wrote in a letter defending the Louisiana Purchase (which he undertook even though he thought it was unconstitutional), "[A] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest."
But there is a big difference between claiming that we are morally justified in violating the Constitution in some extreme cases and concluding, as Santorum did, that the Constitution allows the federal government to "get involved" whenever the states are committing a "wrong." That would essentially give the feds the power to override the states anytime a national majority or the federal political elite thought state policies were wrong in some way. It would lead us to essentially unlimited federal power.
Maybe such unlimited power would not be a bad thing if we were confident that the feds would restrict themselves to overruling the states only when the latter are genuinely "wrong" in some objective sense, while otherwise leaving them alone. In reality, however, an unconstrained power to correct state wrongs is also an unconstrained power to impose federal wrongs. And federally imposed wrongs are often more dangerous than state wrongs. A "wrong" state policy affects fewer people than a similar federal policy does. Moreover, people can often "vote with their feet" to escape harmful state laws, which is much harder in the case of federal laws.
Obviously, there are important exceptions to these generalizations, some of which I have written about elsewhere. But there is good reason to reject the view that the federal government should be allowed to override the states anytime the latter do something "wrong."
The Wall Street Journal on Public Ignorance About Federal Spending
The Wall Street Journal recently published an article on widespread public ignorance about federal spending [HT: Andrew Varcoe]:
Many Americans have strong opinions about policy issues shaping the presidential campaign, from immigration to Social Security. But their grasp of numbers that underlie those issues can be tenuous.
Americans vastly overestimate the percentage of fellow residents who are foreign-born, by more than a factor of two, and the percentage who are in the country illegally, by a factor of six or seven. They overestimate spending on foreign aid by a factor of 25, according to a 2010 survey. And more than two-thirds of those who responded to a 2010 Zogby online poll underestimated the part of the federal budget that goes to Social Security or Medicare and Medicaid.
"It's pretty apparent that Americans routinely don't know objective facts about the government," says Joshua Clinton, a political scientist at Vanderbilt University.
Americans' numerical misapprehension can be traced to a range of factors, including where they live, the news they consume, the political rhetoric they hear and even the challenges of numbers themselves. And it isn't even clear how much this matters: Telling people the right numbers often doesn't change their views.
These are not new findings. I wrote about earlier survey data with similar results here and here. Despite the growing fiscal crisis that has emerged over the last few years, most of the public knows very little about federal spending.
The article suggests that this ignorance may not matter much because the majority of survey respondents don't change their minds about policy priorities even when presented with correct information. It is certainly true that people are slow to change their minds about political issues, often even rejecting outright any data that conflicts with their preexisting views. In general, however, people with higher levels of political knowledge have much different views on many issues than those with low levels, even after controlling for partisanship, race, gender, income, and many other background variables. Knowing one key fact about the budget may not change your mind. But being generally knowledgeable about federal spending may well lead you to have different views from otherwise similar people who are mostly ignorant about it. Moreover, on some key issues where the balance of political power is close, there could be important effects on policy even if only five or ten percent of voters change their minds.
In this case, the public's failure to understand that entitlements and defense constitute the lion's share of federal spending probably makes them more reluctant to consider cuts in these areas. Conversely, the belief that foreign aid and payments to illegal immigrants are much greater than they actually are lead voters to focus their ire on these issues far more than is warranted.
"Beezow Doo-Doo Zopittybop-Bop-Bop Arrested"
"Court records show his previous name to be Jeffrey Drew Wilschke. He legally changed it to Beezow Doo-Doo Zopittybop-Bop-Bop in October." Zop... was charged with, among other things, "possession of drug paraphernalia [and] possession of marijuana." Who'd have thunk it? Thanks to Tom Whiston for the pointer.
Felon Steals Gun, Accidentally Kills Himself, Estate Sues Owner and Gun Manufacturer
But I'm happy to say that today's Ryan v. Hughes-Ortiz (Mass. App. Ct. Jan. 6, 2012) throws out the lawsuit:
In November, 2001, [Charles] Milot was released on probation from the Billerica house of correction after an incarceration of about eighteen months. [Thomas] Hughes testified in his deposition that he helped Milot to get reestablished by loaning him a small amount of money and giving him odd jobs to do around his house. [During the pendency of this action, Hughes died, and his daughter, Hughes-Ortiz, was substituted as a party defendant.] Hughes knew Milot through Milot's sister, Deborah McConologue, and her husband, whom Hughes had known for twenty years. Hughes was aware of Milot's history of substance abuse, prior depression, and the loss of Milot's driver's license.
In his deposition, Hughes testified that he owned several firearms that he stored in a chest in a second-floor bedroom. The bedroom was kept locked and had been outfitted with barred windows. Hughes testified that he kept the keys to this bedroom in a vase on top of the fireplace.
One of the firearms that Hughes owned was a Glock pistol. Hughes purchased the Glock pistol and its storage container in 2000 from the widow of a former Boston police officer. Hughes testified in his deposition that he stored the unloaded pistol as well as its magazine in its storage container in a chest drawer in the same bedroom where his other guns were stored....
In her deposition testimony, McConologue reported that, at a family event held on February 23, 2002, Milot showed her two handguns and two loose cartridges ... [and] told her that he got them from Hughes's house. She further testified that Milot told her that he found the key in Hughes's house for the locked bedroom door, unlocked the door, and found the guns, ultimately taking them from Hughes's home. McConologue testified that she advised her brother to call Hughes and return the pistols to him, that Milot did not want to tell Hughes that he had taken the guns, but that Milot agreed to put them back the way he had found them.
On February 25, 2002, Hughes picked up Milot around 7:00 A.M. and brought Milot to his house. Once they were at Hughes's house, Hughes showed Milot the front doorbell that he wanted Milot to repair. Hughes then left his house to run some errands, returning to check on Milot's progress about two hours later. When Hughes returned home, he found Milot's body covered with blood in the front doorway of his home. The police and an ambulance were called and upon their arrival, Milot was pronounced dead. An autopsy was performed, and it was determined that Milot had suffered a gunshot wound to his left thigh which severed the femoral artery and caused Milot to bleed to death.... Police speculated that "[a]pparently the victim was attempting to put the gun back in the container when the round was fired, striking the victim in the upper left leg.... The victim apparently walked out of the bedroom, down the front stairs, into the living room, used the telephone and walked to the front door where he collapsed and died." ...
Milot, through an affirmative act of theft in violation of G.L. c. 266, § 30, stole a firearm from the home of Hughes, the owner, who had placed trust in him. We conclude that public policy dictates that Milot's criminal conduct acts as a bar to recovery. See, e.g., Flanagan v. Baker, 35 Mass.App.Ct. 444, 448–449 (1993) ("A 'burglar who breaks his leg while descending the cellar stairs, due to the failure of the owner to replace a missing step' ... could be denied recovery for public policy considerations"); Driscoll v. Board of Trustees of Milton Academy, 70 Mass.App.Ct. 285, 291–292 (2007) (student who committed statutory rape violated the law as well as "social values and customs" and "may not recover in tort against the school for his own sexual misconduct")....
Our conclusion is further buttressed by Restatement (Second) of Torts, and Milot's criminal acts — stealth of the pistol, and violation of 18 U.S.C. § 922(g)(1) (2006), which bars the possession of firearms and ammunition by convicted felons.... Milot's actions constitute the sort of conduct described in Restatement (Second) of Torts § 889 comment b (1977), whereby a plaintiff is "barred from recovery for harm caused by violation of [a] statute ... [where] the harm resulted from a risk of the type against which the statute was intended to give protection." See § 889 comment b, supra, illustration 5.... [I]n enacting the Gun Control Act of 1968 (which includes 18 U.S.C. § 922[g][1], of which Milot was in violation), Congress sought to "curb crime by keeping 'firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.' In order to accomplish this goal, Congress obviously determined that firearms must be kept away from persons, such as those convicted of serious crimes, who might be expected to misuse them." See also Barrett v. United States, 423 U.S. 212, 218 (1976) ("Congress ... sought broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous")....
The plaintiff brought claims of breach of the implied warranty of merchantability, negligence, wrongful death, and unfair and deceptive acts and practices against Glock.... The judge granted summary judgment on all claims after finding that the Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7901–7903 (2006) (PLCAA or Act) barred the plaintiff's claims against Glock....
The plaintiff alleges that the Glock pistol and gun case "were defective because the [gun] case caused the loaded Glock ... pistol ... to discharge through the case and because the pistol was likely to discharge unintendedly" and that "Glock so negligently and carelessly designed the Glock Model 17 pistol and storage case ... that the pistol discharged into the Decedent's body mortally wounding the Decedent." The plaintiff's claims of breach of the implied warranty of merchantability and design defect are thus based on the interaction between the Glock pistol and the gun case. We now consider whether the claims, as formulated by the plaintiff, are barred by the PLCAA....
[The PLCAA presumptively bars "any] civil action or proceeding ... brought by any person against a manufacturer ... of a qualified product, ... for damages, punitive damages, ... abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party...." ... The parties do not dispute that the Glock pistol is a "firearm" and therefore a "qualified product" under the PLCAA .... [Plaintiff argues that] the gun case is not a qualified product, and thus the PLCAA does not bar her suit against Glock[, but a]s this argument was not made in the trial court in the first instance, the argument is waived. We express no opinion as to whether the PLCAA would preclude or permit a future plaintiff to bring claims involving the interaction between qualified and nonqualified products.
The final element of the definition of a "qualified civil liability action" is that the civil action "result[ed] from the criminal or unlawful misuse of a qualified product by the person or a third party." The Act defines "unlawful misuse" to mean "conduct that violates a statute, ordinance, or regulation as it relates to the use of a qualified product." The plaintiff argues that "[t]he PLCAA is inapplicable because there was no evidence supporting the conclusion that the gun was misused, whether criminally, unlawfully or otherwise." ... [But] in violation of 18 U.S.C. § 922(g)(1), Milot possessed a firearm and ammunition after having been convicted of a felony. Since the civil action at issue here resulted from Milot's possession of the Glock pistol, which constituted "criminal or unlawful misuse" due to Milot's prior felony conviction, this is a "qualified civil liability action." ...
DOJ Files Supreme Court Brief Defending the Mandate
The brief is here, and it strikes me as significantly better than the briefs that DOJ was filing in the early mandate cases. In terms of atmospherics, it leads with a background of the health care industry to make clear that the industry as a whole is such a significant part of commerce, and it presents insurance as the "traditional" way to pay for health care. The argument section then leads with the Necessary and Proper clause. The word "Sutton" appears 14 times, and the word "Kavanaugh" appears 5 times. Just as a matter of litigation strategy, I agree that's the best way to present it.
It will be interesting to see if Clement et. al. come up with anything new in their merits brief. If I were briefing it for the challengers, I would de-emphasize the formalistic activity/inactivity distinction and instead just focus on the overall extent of government power. That is, instead of focusing on any one aspect, I would focus on all of them together, and argue that the statute taken as a whole just goes too far in a federal system.
UPDATE: Commenter Jon Shields points out this interesting passage from the brief:
Respondents nonetheless attempt to subdivide the uninsured into cost-shifters (who they say can be regulated) and non-cost-shifters (who they say cannot be), contending that "many healthy individuals make a rational choice to self-insure and are fully capable of paying for the care they receive," and that uninsured individuals are able to properly consider their "actuarial risk in self-financing (their) healthcare"…
The circumstances of this case well illustrate the flaws in respondents' premises. At the outset of this litigation, respondent Mary Brown thought she had made a rational choice to forgo insurance: she said she did "not believe that the cost of health insurance coverage (was) a wise or acceptable use of (her) financial resources," j.a. 141, apparently believing that she could pay her medical bills out of pocket. That belief proved incorrect. Ms. Brown and her husband recently filed a petition for bankruptcy, and they list among their liabilities thousands of dollars in unpaid medical bills, including bills from out-of-state providers. Those liabilities are uncompensated care that will ultimately be paid for by other market participants. As Congress found, Brown's experience is hardly atypical. 42 u.s.c.a. 18091(a)(2)(g) ("62 percent of all personal bankruptcies are caused in part by medical expenses.").
Ouch.
Newt Gingrich on Marijuana and the Founding Fathers
Newt Gingrich recently claimed that Founding Fathers George Washington and Thomas Jefferson "would have rather strongly discouraged you from growing marijuana and their techniques with dealing with it would have been rather more violent than our current government." As Jacob Sullum points out, this ignores the fact that Washington and Jefferson themselves grew hemp on their plantations, and that marijuana use was neither illegal nor socially stigmatized in the late 18th and early 19th centuries.
Perhaps more importantly, few if any of the Founders would have thought that the federal government had the constitutional authority to ban marijuana growing. As I discuss in this article, as late as the early twentieth century, advocates of Prohibition had to enact a constitutional amendment to forbid the sale of alcoholic beverages, because the dominant view at the time held that Congress did not already have the power to do this. If they are serious about enforcing constitutional limits on federal power, Gingrich and other conservatives cannot continue to ignore the ways in which the War on Drugs has severely undermined those limits, most notably in Gonzales v. Raich, the Supreme Court's most expansive interpretation of federal authority so far.
Supreme Court Grants Cert in Dog-Sniff-At-The-Home Case
I blogged about the case a few days ago, and news of the cert grant is here. The QP:
Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?
And so the most interesting Supreme Court Term in years becomes even more interesting.
National Endowment for Democracy Event in Honor of Vaclav Havel
Earlier today, I skipped both the annual AALS conference and the parallel Federalist Society conference in order to attend a moving memorial for Vaclav Havel sponsored by the National Endowment for Democracy and the Czech embassy. Appropriately, most of the speakers were dissidents and human rights activists from societies with repressive governments — including Syria, China, Cuba, Ethiopia, and others. It was an impressive demonstration of the ways in which Havel inspired people all over the world. I won't try to summarize what the speakers said (videos of some of their remarks are available here). But it was particularly interesting to hear Ethiopian opposition leader Birtukan Midekssa speak about how she had read Havel's The Power of the Powerless while in prison.
I briefly summarized my own thoughts on Havel's life and legacy here.
My Upcoming University of Chicago Federalist Society Talk on the War on Drugs
On Tuesday, January 10 at noon, I will be speaking on the War on Drugs at a panel organized by the University of Chicago Law School Federalist Society. I will discuss the ways in which the War on Drugs undermines constitutional federalism, some of the harm it inflicts on our society, and recent changes in public and elite opinion that may make it easier to promote change in this field. Also taking part in the panel will be Cook County Commissioner John Fritchey.
Preemptive Recess Appointments
One justification for President Obama's decision to make several recess appointments this week is that the appointments were necessary to prevent partisan obstruction from disabling federal agencies from performing their duties. In the case of Richard Cordray, it was clear that Senate Republicans would block his appointment as head of the Consumer Financial Protection Board (CFPB) due to their opposition to how the Board is structured. A recess appointment was the only way to put Cordray (or anyone else) in place to run the Board.
In the case of the National Relations Board, the President was concerned that the Board would lack a quorum. As the Supreme Court confirmed in New Process Steel v. NLRB, there must be three NLRB members for the Board to have a quorum, and there were only two Board members remaining after Craig Becker's recess appointment expired on January 3. Yet if the NLRB was to lack a quorum it would not have been because Senate Republicans blocked the President's most recent nominees.
Two of those given recess appointments — Sharon Block and Richard Griffin — were only nominated to the NLRB on December 15, just before the Senate went into its "pro forma" session during which no business was to be conducted. Yet even had the Senate been conducting business over the holidays, neither Block nor Griffin could have been confirmed. As the Heritage blog reports, the Senate's Health, Education, and Labor Committee had yet to receive the relevant paperwork and background materials on these two nominees — materials that are typically required, in addition to a background check, for Senate consideration. (The third nominee to receive a recess appointment to the NLRB was Republican Terry Flynn who had been nominated last January.)
It is certainly possible — perhaps even likely — that Senate Republicans would have opposed confirmation of Block or Griffin, but we'll never know. The two were given recess appointments before they could be considered, let alone opposed. In this regard, the Griffin and Block appointments were something of a preemptive strike.
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