By Eric Boehm • Reason
Given the choice of no longer paying to support unions they didn’t want to join in the first place, lots of public sector workers took it.
Two of the largest public sector unions in the country lost more than 210,000 so-called “agency fee members” in the wake of last year’s Supreme Court ruling that said unions could no longer force non-members to pay partial dues. That case, Janus v. American Federation of State, County and Municipal Employees, effectively freed public workers from having to make “fair share” payments—usually totaling about 70 to 80 percent of full union dues—in lieu of joining a union as a full-fledged member.
Now, annual reports filed with the federal Department of Labor show that the American Federation of State, County and Municipal Employees (AFSCME) lost 98 percent of it’s agency fee-paying members during the past year. Another large public sector union, the Service Employees International Union (SEIU), lost 94 percent of their agency fee-paying members.
Even though unions were preparing for a mass exodus in the wake of the Janus ruling, the numbers are staggering. In 2017, AFSCME reported having Continue reading
By John Yoo & James Phillips • National Review
We now hold the equivalent of yesterday’s supercomputers in our pockets. Communications occur instantly, from encrypted messages to Twitter blasts that reach millions. Entrepreneurs make fortunes by analyzing and harvesting the 2.5 quintillion bytes of data produced each day. Governments search the data to find terrorist networks or launch foreign propaganda. From business to politics, success depends on reading the tea leaves we electronically leave behind with social-media posts, texts and emails, or Google searches.
As inevitably as the weather, the hand of regulation has followed. While using the data for itself, the state seeks to regulate the businesses and individuals that create it. We have only begun to figure out whether the rules of privacy that governed paper records, telephone calls, and the mails will continue to apply, and how, to emails, texts, video clips, and social media. Not only does technology create more data that individuals want to protect; it also expands the government’s ability to search and manipulate. Where the line will fall between new technologies, regulation, and privacy will likely become the greatest legacy of Chief Justice John Roberts’s Supreme Court.
The Court will have the opportunity to correct the mistakes of its past. In the 1950s and ’60s, the Supreme Court under Chief Justice Earl Warren sought to adapt constitutional rules to electronic technologies such as the telephone. The liberal Warren Court ignored the Bill of Rights’ text and original meaning as part of a broader effort to remake the criminal procedure of the Constitution in its own image. We may again be facing a similar revolution, not out of fear of police and prosecutors, but out of unfounded worries about a Big Brother government. How the Roberts Court handles these coming issues will reveal much about how originalist the Court actually is.
In an ideal world, we might expect the political process to make the fundamental choices about the balance between privacy, government power, and the new communication and information technologies. But ever since the Warren Court, the Supreme Court has claimed that the Fourth Amendment gives it a right to set the rules. The text of the Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Scholars and judges generally agree that the Framers of the Fourth Amendment sought to prevent general warrants, which officers of the British Crown had used to search American colonists at any time, for any reason. But during the Warren years, the Justices transformed this ban into a requirement that the government could not conduct a constitutional search without a Fourth Amendment warrant based on probable cause, with a specific description of the persons and places to be searched. In Mapp v. Ohio (1961), the Warren Court extended the notorious exclusionary rule, which excludes from trial any evidence gathered in violation of the Fourth Amendment to all courtrooms throughout the nation. As even the liberal justice Benjamin Cardozo had complained as early as 1926, “the criminal is to go free because the constable has blundered.”
This general rule flies in the face of the text of the Fourth Amendment. Instead of assuming that only searches with warrants satisfy the Constitution, we ought to understand the amendment as composed of two parts: the search-and-seizures clause and the warrants clause. The text of the amendment fundamentally requires reasonable searches. If a search or seizure were reasonable, in the ordinary meaning of the word, then it would be legal, regardless of whether a specific warrant had been issued. Why then the warrant requirement? Such a requirement makes sense if the Framers considered search or seizure supported by a specific, judge-issued warrant to be per se reasonable. A warrant protected constables from lawsuits that, while more common during the Founding, have largely disappeared because of the Court’s immunity doctrines. The amendment recognizes two paths to reasonable, and thus legal, searches and seizures.
To be sure, some originalists defend the Warren Court, in part. They observe that the Pennsylvania and Massachusetts state constitutions contained nearly identical language, with one minor but clarifying difference: The relationship between the two clauses was not an “and” but a “therefore.” This difference would suggest that a specific warrant and reasonableness were one and the same. Further, according to this view, “unreasonable” meant against reason, which meant against the common law. And under the common law at the Founding, a warrant was necessary for a search or seizure unless law enforcement caught someone in the act of committing a felony.
Even if this reading of the Fourth Amendment were correct, the Warren Court made no attempt to base its policymaking on the amendment’s original meaning. Instead, it eagerly sought to impose a regime of judicial supervision over virtually all government searches, even over technologies that would have appeared to be magic to the Framers. No case exemplifies the Court’s approach better than Katz v. United States (1967). In Katz, the Warren Court found that the Fourth Amendment required a warrant to allow the police to place a listening device in a public phone booth. The defendant had used the phone in a public place outside his house, and his call was electronically intangible — the Fourth Amendment protects only tangible things: “persons, houses, papers, and effects.” But the Court found that his conversation fell within a “reasonable expectation of privacy” that was recognized by society. Rather than allowing Congress and the states to decide how much protection to give phone calls or any other electronic means of communication, the justices took for themselves the power to decide what would qualify as privacy.
As they did in other areas we have already examined, the justices assumed the roles of philosopher-kings. How do courts know that society views an expectation of privacy as objectively reasonable? According to Katz, they just do. How will courts determine what society thinks? Opinion polls? And why does the Fourth Amendment expand or contract depending on what society thinks should be private? Katz’s definition of privacy fails not only because judges cannot determine society’s view on privacy (that is, after all, the job of legislatures), but because it is utterly circular. Instead of providing any certainty with clear rules, the federal courts turned themselves into the arbiters of privacy, the definers of the legal scope of every new technology, and the monitors of all police investigations.
Under Chief Justice William Rehnquist, and majorities formed by Reagan and Bush judges, the Supreme Court tried to pare back the Warren Court’s activism. The Rehnquist Court created exceptions for searches conducted under exigent circumstances (such as evidence found while pursuing fleeing felons or protecting the lives of others), in good faith (such as operating under a defective warrant), at random (such as random drug-testing and drunk-driver checkpoints), or in plain view (public spaces, observation on the street). In these decisions, the Rehnquist Court began to recognize that while searches with a warrant were reasonable, not all reasonable searches need a warrant. Some observers believed that the Rehnquist Court might even overturn the exclusionary rule or Katz, but it never took that controversial step.
One of the chief surprises of the Roberts Court is that the justices have turned away from their predecessors’ project of restoring reasonableness as the constitutional touchstone. When faced with the new technologies, a majority of justices have ignored the original understanding of the Fourth Amendment and reverted to the Warren Court’s free-floating approach to privacy and government search. They have placed significant restrictions on the government’s use of new technology for policing and anti-terrorism operations, even as foreign nations escalate their use of cyber weapons to steal valuable data (such as the security and background files of almost every federal employee), hack infrastructure, and interfere with elections. The Court has precipitously plunged into the complexities of technology and privacy, where its competence is not high, instead of allowing the people’s elected representatives to make the fundamental choices.
The early signs of this high-tech activism first emerged under the Rehnquist Court. In Kyllo v. United States (2001), the Court confronted a case where a Department of Interior officer had used a new technology to search for indoor marijuana growers. The officer used a thermal imaging device that could measure the heat emitted by a building, but did not allow agents to see or listen to the activity within the house. In an opinion written by Justice Scalia, an unusual majority composed of Clarence Thomas, David Souter, Ruth Bader Ginsburg, and Stephen Breyer held that the Fourth Amendment prohibited the search, even though past opinions had found that evidence in plain view or in public outside the home did not require a warrant before search. “We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area,’” Scalia wrote, “constitutes a search at least where (as here) the technology in question is not in general public use.” According to the majority, “this assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” The dissent properly observed that the officer observed something outside the house, much as an officer might hear screams coming from within or witness smoke pouring from a window. But unfortunately, the Court thought it should set the standard for advanced sensor technology, rather than allowing the elected branches to decide — either Congress through legislation or the executive branch via regulation.
Despite its conservative reputation, the Roberts Court picked up where the Rehnquist Court’s Kyllo decision left off. In United States v. Jones (2012), the Court addressed police use of a device that used the Global Positioning System to track a car’s movements. Without getting a warrant, Washington, D.C., police attached a device to a suspected drug dealer’s Jeep that reported its movements 24 hours a day for a month. Writing for the majority, Justice Scalia held that the placement of the device constituted a physical invasion of the car. All of the justices agreed that the GPS monitoring device violated the Fourth Amendment, though some justices believed that shorter time periods might satisfy the Constitution. But the Court’s decision did not persuasively address why the GPS device amounted to an illegal search, while the exact same work conducted by human beings – having police officers conduct round-the-clock surveillance – would not violate the Constitution. In both cases, the tracker or the police officer simply follows the public movements of a suspect’s car. The tracking device only saves time and resources, and even intrudes less on privacy because it would observe only the location of the car and not what happened inside. The Court’s approach only invites more intrusive surveillance, such as deploying an aerial drone, which would never come into physical contact with the car, or even need to use enhanced sensors, to follow a suspect and report its movements instead. It is difficult to believe that the justices would forbid the police the use of night vision, in the way they forbade GPS, in public places to pursue fleeing felons. Police could simply follow a car when it travels on public roads and record video of its movements in real time.
The Roberts Court’s most recent opinion, Carpenter v. United States (2018), might prove its most sweeping. In a 5–4 decision, the chief justice joined the Court’s four liberals in finding that a person had an expectation of privacy in records kept by a telephone company of his cellphone’s location. Dissenting Justices Kennedy, Thomas, Alito, and Gorsuch argued that the third-party exception to the Fourth Amendment meant no warrant was required. Under existing doctrine, and the plain text of the amendment, individuals lose their claim to privacy over records or information that they willingly hand over to a third party. Upon this understanding, the Court has allowed warrantless searches such as “pen registers,” which record dialed telephone numbers, and for business records such as credit-card and financial transactions, because the original owner voluntarily gave the information to someone else. In this case, the owner of the cellphone allows the device to constantly “ping” the wireless cellphone network, which notifies the telephone company of its location. Police used the information to show that the suspects — who had, ironically, sought to rob cellphone stores — were present at the time and place of a series of crimes.
Nevertheless, the Court held that such nonprivate information received the protections of the Fourth Amendment. The Court did not find that the means to gather the information violated the text of the Constitution, but that somehow the data violated the Fourth Amendment because the government had come to have too much information. Chief Justice Roberts concluded that such commercial records still fell within the suspect’s “anticipation of privacy in his physical location” because “the time-stamped data provides an intimate window into a person’s life,” not just now, but well into the past. The problem with Chief Justice Roberts’s approach is that it provides no clear rule about how much information is too much information for the government to have, how courts and police are to decide, or why the Fourth Amendment even places limits on how much knowledge the government can have about its citizens’ public activities. Chief Justice Roberts, for example, might believe that the Fourth Amendment would bar government agencies from examining social media, even though individuals choose to blog and post so that many people can see, or financial data, which we transmit to banks and companies. He inevitably “invites courts to make judgments about policy, not law,” as Justice Thomas wrote in dissent.
These cases demonstrate that the Court, though now composed of a conservative majority appointed by Republican presidents, may still drift in a liberal direction. It is most likely to do so when, as here, it leaves behind the constitutional text and history in favor of judgments — no matter how reasonable or popular — that fall within the province of the elected branches of government. Technological advances will continue to pressure the Court to get creative with the Constitution over the intersection of privacy and law enforcement. So the justices have a choice. They can tread the constitutionally dubious path laid out by the Warren Court and invent whatever doctrine or test they think will be optimal from a policy perspective, per Katz and Carpenter.
Or they can leave that to the nation’s policymakers: Congress and the president. There is precedent for the elected branches making decisions related to the intersection of privacy and law enforcement. In 1968, Congress passed the Omnibus Crime Control and Safe Streets Act, in part as a response to Katz, which was handed down just a year earlier. The act allowed the institution best able to weigh the competing policy interests of privacy and safety — the legislature — to make the balancing determination. The Constitution’s federal structure also encourages states to experiment with different balances of privacy and security. Of course, the text and history of the Constitution provide a floor. But if society wishes to provide greater protection for privacy at the cost of some security, it should make that decision through the same political process that it uses for other public policies.
As technological development continues to accelerate, the Court will have a decision to make. Will it usurp the authority of the people and their representatives to decide how to best move forward in this new world, or will it succumb to the temptation of playing platonic guardians who know better how to navigate the future? Time will tell which path the Court chooses, but the Constitution has an answer, if they choose to consult it.
By Senator Ben Sasse (NE) • Wall Street Journal
Brett Kavanaugh has been accused of hating women, hating children, hating clean air, wanting dirty water. He’s been declared an existential threat to the nation. Alumni of Yale Law School, incensed that faculty members at his alma mater praised his selection, wrote a public letter to the school saying: “People will die if Brett Kavanaugh is confirmed.”
It’s predictable now that every Supreme Court confirmation hearing will be a politicized circus. This is because Americans have accepted a bad new theory about how the three branches of government should work—and in particular about how the judiciary operates. Continue reading
By David Harsanyi • The Federalist
It’s odd, isn’t it, that so many of the folks who warn us about the authoritarianism of the GOP also happen to support an array of policies that coerce Americans to do things they don’t want to?
Take, for example, the four reliably liberal Supreme Court justices, all of whom believe it’s OK to compel Americans to pay dues to political organizations they disagree with, to coerce them to say things they abhor, and to compel them to create things that undermine their principles.
For some, myself included, the prospects of a court run by people who ignore the Constitution was the best argument for Donald Trump in 2016. The question was, “What’s scarier, a Trump presidency or a progressive Supreme Court?” I imagine the answer is becoming a bit clearer for many conservatives.
In three cases this term — the rulings Continue reading
By Clifford Humphrey • The Federalist
It is no secret that the United States is a severely divided nation. In fact, division seems to be one thing that unites Americans today. Across the country, citizens disagree on kneeling, bathrooms, guns, and free speech. Californians are so divided they are actually considering splitting up their beloved republic into three separate states.
The important question on matters of disagreement is: Who gets to settle these differences? The answer, of course, is “We the people,” but we are disagreeing more and more about what that phrase even means. This disagreement is based in part on the fundamental distinction between a democracy and a republic.
Our Founders did not believe that the people have a right to enact whatever laws the majority necessarily want, but, rather, that the people have a right to enact whatever laws the people as a whole think are just. That higher aspiration requires Continue reading
by Ilya Shapiro • National Review
As we approach the final year of Barack Obama’s presidency, there isn’t much that the president can do to change people’s opinion of him, for better or worse. His legacy, barring some extraordinary occurrence — including an extraterrestrial one, as the holiday advertising blitz for the new Independence Day movie reminds us — is baked into history.
Setting aside legislation and executive action (on which more imminently), we note that one of President Obama’s chief accomplishments has been to return the Constitution to a central place in our public discourse.
Unfortunately, the president fomented this upswing in civic interest not by talking up federalism or the separation of powers but by blatantly violating the strictures of our founding document. With his pen and his phone, and hearkening to Woodrow Wilson’s progressive view of government, he’s been taking out his frustrations with the checks and balances that inhibit his ability to “fundamentally transform” the country. Continue reading
President Obama has issued a form of executive action known as the presidential memorandum more often than any other president in history — using it to take unilateral action even as he has signed fewer executive orders.
by Gregory Korte • USA Today
President Obama has issued a form of executive action known as the presidential memorandum more often than any other president in history — using it to take unilateral action even as he has signed fewer executive orders.
When these two forms of directives are taken together, Obama is on track to take more high-level executive actions than any president since Harry Truman battled the “Do Nothing Congress” almost seven decades ago, according to a USA TODAY review of presidential documents. Continue reading
by Editorial Board • U-T San Diego
There is not likely to be any comprehensive reform of this country’s broken immigration system during Obama’s remaining two years. There probably won’t be much of anything else the next two years, either. That is the unfortunate but real import of the executive order President Barack Obama issued last week shielding up to 5 million unauthorized immigrants from deportation. It represents a monumental failure of national leadership.
The history of the contentious immigration issue over the past six years is instructive to where we are today.
It was in July 2008 that candidate Obama pledged to make comprehensive immigration reform “a top priority in my first year as president.” He broke that promise in 2009, never even attempting immigration reform at the time his popularity and power were at their greatest. Continue reading
The president who began as a champion of the legislature’s prerogative to declare war has morphed into Napoleon.
by Charles C. W. Cooke • National Review
Asked earlier today how long he expected the bombing of Syria to last, Lieutenant General William C. Mayville Jr. advised reporters to think “in terms of years.” “Last night’s strikes,” Mayville confirmed, “were only the beginning.” A mile or so away, on the White House lawn, Barack Obama struck a similarly defiant note. “We’re going to do what is necessary to take the fight to this terrorist group,” the president explained, before assuring those present that the United States was but one part of a global alliance that stood “shoulder to shoulder . . . on behalf of our common security.” “The strength of this coalition,” Obama added, “makes clear to the world that this is not just America’s fight alone.” This much, at least, was true. Among the nations that have signed on to the attacks are Bahrain, Qatar, Saudi Arabia, Jordan, and the United Arab Emirates — all vital accomplices in the winning of hearts and minds. And yet, for all the cosmopolitanism, one crucial ally was conspicuously missing from the roster of the willing: the Congress of the United States. Continue reading
by Seth Lipsky • New York Post
There are three ways something can become what the US Constitution calls the “supreme law of the land.” It can be made part of the Constitution by amendment, it can be passed by Congress as a law or it can be ratified by the Senate as a treaty.
President Obama can’t get his climate-change agreement made supreme law of the land by any of those constitutional routes. Not even close. The Republican House doesn’t want it. The Democratic Senate won’t act.
That’s because the people don’t want it. They’re no dummies. Even in drought-stricken California, the Hill newspaper reports, Democratic candidates for Congress avoid the climate-change issue.
This is driving Obama crazy. Continue reading
Outrageous, but candid.
“There is a vast amount of discretion that a president has — and more specifically that an attorney general has,” Holder told the House Judiciary Committee. “But that discretion has to be used in an appropriate way so that you’re acting consistent with the aims of the statute but at the same time making sure that you are acting in a way that is consistent with our values, consistent with the Constitution and protecting the American people.” Continue reading
Frontiers of Freedom has consistently maintained that the constitutional division and separation of powers explicitly prohibits the President of the United States from unilaterally rewriting laws and from selectively enforcing them. In fact, that has been the law of the land for more than 200 years. Yet, President Obama has made a habit of enforcing laws he likes, and openly refusing to enforce laws he doesn’t. If he doesn’t like a law, he can suggest Congress pass reform legislation through the House and the Senate and he can sign it and enforce it. But he cannot simply ignore the law or unilaterally alter it. Now even one of the leading defenders of the Obama administration and a predictable voice for the Left – The Washington Post –has written that the President is acting outside his constitutional authority. Here is what the editorial board of the Washington Post wrote:
The Obama administration on Monday announced that it was delaying, once again, enforcement of the Affordable Care Act (ACA) “employer mandate.” Yes, Republicans have done everything they can to impede implementation of this law. Yes, their “solution” — gutting the individual mandate — is an awful idea. And, yes, their public response to the administration’s action was predictably over-the-top. But none of that excuses President Obama’s increasingly cavalier approach to picking and choosing how to enforce this law. Imagine how Democrats would respond if a President Rand Paul, say, moved into the White House in 2017 and announced he was going to put off provisions of Obamacare he thought might be too onerous to administer. Continue reading
During a visit to Monticello with the President of France on Monday, President Obama quipped, “That’s the good thing about being president, I can do whatever I want.” Some would argue that President Obama was simply joking. But more and more, it looks like the President believes he can do as he pleases and can enact and amend legislation all by himself. Also on Monday, the White House announced that Obama had changed the clear and unambiguous terms of the ObamaCare law and delayed the employer mandate yet again for certain select groups.
This is particularly odd because the President himself has repeatedly called ObamaCare the of the land and demanded that Republicans accept it and stop trying to reform it. Yet, the President doesn’t view the law of the land as any reason for him to respect the plain language of the law. Students of the Constitution find this usurpation of power deeply troubling. But it is also deeply cynical as the President continues to assure Americans that the roll out of ObamaCare is going well. Yet if it were, he would not be repeatedly postponing its mandates until after the next election cycle.
by Brett Logiurato
The Obama administration announced Monday that it will delay implementation of part of the Affordable Care Act’s employer mandate for the second consecutive year.
The Treasury Department said it will delay the mandate’s penalty another year for small businesses with 50-99 workers. It will also adjust some of the requirements for larger employers.
Under the new Treasury Department rules, businesses with 100 employees or more must offer coverage to at least 70% of full-time workers in 2015 and 95% in 2016, or face a penalty. Continue reading
by Linda Feldmann
Ju Hong’s voice rang out loud and clear, interrupting the most powerful man in the world.
“You have a power to stop deportation for all undocumented immigrants in this country!” the young South Korean man yelled at President Obama during a speech on immigration reform last November in San Francisco. Waving away security guards, Mr. Obama turned and addressed Mr. Hong, himself undocumented. “Actually, I don’t,” the president said. “And that’s why we’re here.”
“We’ve got this Constitution, we’ve got this whole thing about separation of powers,” Obama continued. “So there is no shortcut to politics, and there’s no shortcut to democracy.”
The reality isn’t so simple. Continue reading
Immediately following President Barack Obama’s press conference on yesterday — in which he proposed a one-year “fix” for Obamacare — former Democratic National Committee chairman and Vermont Gov. Howard Dean question if Obama actually could legally do what he had proposed.
“A) I wonder he had the legal authority to do this since this was a congressional bill that set this up,” Dean said. “And B) I stick to what I said before the president came on, which is if you want to make it work, you’ve got to get people in the system. And the website is not going to work for awhile — have a call center someplace.” Continue reading