- “North Dakota legislators attempt to retroactively change the terms of contracts between manufacturers and dealers of farm equipment. Well, crack open your Con Law casebook because that violates the Contract Clause of Article I, Section 10. So holds the Eighth Circuit (over a dissent), treating the reader to a history of the clause from 1789 to the New Deal and beyond.” [IJ “Short Circuit” on Association of Equipment Manufacturers v. Burgum]
- Subsidies conditioned on, and meant to promote, an official orthodoxy: California moves to approve $50 million state fund for film and TV production earmarked for producers who “share” state’s “values” on reproductive rights [Eugene Volokh]
- Not your usual combination: Cato Institute, Brennan Center, and Sierra Club join in amicus brief to challenge President’s powers under National Emergencies Act to divert funds appropriated for other purposes to construction of U.S.-Mexico wall [David Post]
- Judge Diarmuid O’Scannlain on textualism and the future of the federal judiciary [Federalist Society]
- “No person shall be disturbed in his private affairs, or his home invaded, without authority of law,” declares the constitution of Arizona. While judges in Washington have developed a distinctive jurisprudence based on the similar clause in their state’s constitution, the Arizona judiciary as yet has not [Timothy Sandefur]
- Does the Commerce Clause really empower the U.S. Congress to criminalize acts of animal cruelty “affecting” interstate commerce, whatever that means? [Jacob Sullum]
The Arizona Supreme Court made the right call, in my view, in ruling that it is forced expression for the city of Phoenix to require a wedding-calligraphy studio to inscribe invitations for weddings that go against its owner-artists’ religious scruples: “If it’s speech, you can’t force it.” The ruling is based on both the state constitution and on Arizona’s version of RFRA (religious freedom restoration act). [Lindsay Walker, Cronkite News/Arizona PBS; Eugene Volokh and Dale Carpenter (filed with Cato in the case on behalf of the studio); earlier here, etc., and related]
The latter part of the ruling does seem to result in a broader than usual reading of a state RFRA, because most state courts have declined to interpret the laws to provide very much protection for religious objectors in public-accommodation cases; their logic has been that reducing discrimination is a compelling state interest that cannot be enforced in a less restrictive way.
For small businesses, regulation vies with taxes as the most complained-of public policy issue. Commonly, however, no one regulation is singled out as causing most of the problem: it’s more the cumulative and interactive hassle of various burdens, especially as a company grows or tries to enter new markets or take on new functions. The Federalist Society has launched a “regulatory thicket” project aimed at shedding light on the problem. Among its products so far: an overview paper by Anastasia Boden et al.; a paper on how the thicket operates in one urban jurisdiction, the District of Columbia [Yesim Sayin Taylor]; a video on how it affects an Oregon couple’s home-based telecommunications services firm; and a teleforum with Brooks Rainwater and Luke Wake.
A related op-ed [Braden Boucek and Luke Wake, Real Clear Policy] notes that reformers often appeal to state legislators, with ideas such as sunset laws and regulatory impact statements for new legislation. But other actors can be involved too:
One especially interesting proposal that has been tried in Arizona with success is giving people a way to challenge regulations in court when they needlessly burden the right to earn a living. That way lawmakers are not the sole party able to bring about reform.
State governors are also in a position to help trim the regulatory thicket in many cases. Governors might follow Canada’s success in controlling the growth of regulation by requiring government agencies to eliminate regulatory impositions for every new mandate. President Trump’s executive order to eliminate two regulations for every new regulation is another instructive example. Likewise, state legislatures might assign the task of reviewing and eliminating regulation to a special commission.
- “Arizona Could Become the First State to Recognize Occupational Licenses From Other States” [Eric Boehm, Reason] “Making It Easier for Military Spouses To Get Occupational Licenses Could Help All Workers” [same] “Barbers and cosmetologists in Texas warn that repealing mandatory licenses for their professions would be as dangerous as having unlicensed chefs preparing your meals.” Thing is, cooks and chefs aren’t licensed [same]
- Meanwhile, in Congress: “Bipartisan Bill Would Stop States From Denying Occupational Licenses Due to Student Loan Debt” [Boehm again on Rubio-Warren measure]
- “Judicial Sanity on Occupational Licensing and the First Amendment” [Ilya Shapiro and Patrick Moran on Fifth Circuit decision in Express Oil Change v. Mississippi Board of Licensure for Professional Engineers & Surveyors]
- Ohio tackles licensure reform [Nick Sibilla] Idaho too: “Two Governors Kick Off 2019 With Big Occupational Licensing Reforms” [Eric Boehm]
- “Even congressmen can’t pump their own gas in New Jersey” [Simone Pathé, Roll Call]
- “Our results suggest that occupational licensing reduces labor supply by an average of 17–27 percent.” [Peter Q. Blair and Bobby W. Chung, Cato Research Briefs in Economic Policy]
- Waco biker prosecutions — a dragnet affair in which many bystanders were hit with charges, kept in jail on unaffordable bail, and lost their jobs — end after four years with all charges dropped; many deaths resulted from police fire [Brian Doherty, Reason; earlier and more]
- “Lawsuit: You did business with someone who did business with someone who committed a crime against me, so you’re also liable.” [Ted Frank describing suit against SalesForce alleging that its business management software assisted sexually oriented online business BackPage; Mike Masnick, TechDirt]
- “Our waterways policy is crony capitalism disguised as patriotism” [George Will, syndicated/Atlanta Journal Constitution] “The Jones Act Fleet: High Costs and Limited Capabilities” [Colin Grabow, Cato at Liberty] More on the maritime protectionism law, all from Grabow at Cato: Sen. Mike Lee introduces repeal bill; extending the law further? counting the costs for Puerto Rico; production of new ship no cause for celebration. And on East Coast freight traffic congestion [Dan Ikenson and Colin Grabow, New York Post]
- If you were born yesterday, you may be the target reader for a Gannett/USA Today and Arizona Republic piece attacking model state laws, the Goldwater Institute, and the American Legislative Exchange Council (ALEC) [critical threads by Julian Sanchez and Tim Sandefur]
- On attorneys’ fees, “The English Rule and the American Rule” [Federalist Society Policy Brief video with R. Hugh Lumpkin]
- Big Lawyers On Campus: “How Class-Action Lawyers Help Their Alma Maters” [James Copland, Bloomberg Opinion on cy pres practice; earlier here, here, etc.]
Dusting off rarely used powers held under the Class Action Fairness Act, the U.S. Department of Justice and some state attorneys general have begun to file in opposition to class action settlements. In a case against defendants Ashburn Corporation and online discount wine retailer Wines ‘Til Sold Out (WTSO), which had already drawn objections from CEI’s Ted Frank, DoJ and AGs from 19 states succeeded in getting some settlement terms rewritten, in a deal then denied final approval by the trial judge, who saw additional problems. [Alison Frankel, Reuters; Perry Cooper, Bloomberg Law and more; Nicholas Malfitano, Legal Newsline] For Arizona Attorney General Mark Brnovich, the wine case was the ninth in which his office had intervened against a class settlement it viewed as unfair [Brnovich press release] “If your state’s AG isn’t joining the briefs of the bipartisan coalition led by Arizona defending consumers against class action abuse, you should be asking their office some tough questions.” [@tedfrank on Twitter]
“The Latest On Occupational Licensing Reform: At the federal level and in the state of Michigan, there have been encouraging moves toward market liberalization.” [Thomas A. Hemphill and Jarrett Skorup, Cato Regulation mag] Related: George Leef, Regulation (reviewing “Bottleneckers” by William Mellor and Dick M. Carpenter II). “Florida Lawmakers Are Fast-Tracking Licensing Reforms” [Boehm] “But sadly Elias Zarate is no closer to being a barber, because he still doesn’t have a high school diploma. And, yes, that matters for some reason.” [same] “Inside the Insane Battle Over Arizona’s Blow-Dry Licensing Bill” [same] “Tennessee has imposed nearly $100K in fines for unlicensed hair braiding since 2009” [Debra Cassens Weiss, ABA Journal] Licensing bars on applicants with criminal histories, often related hardly at all to the risks of crime in licensed occupations, make re-entry of offenders harder [Arthur Rizer and Shoshana Weissmann, The Blaze] A Twitter thread on board certification of music therapists, which are licensed in 10 states [Shoshana Weissmann et al.] Study: “optician licensing appears to be reducing consumer welfare by raising the earnings of opticians without enhancing the quality of services delivered to consumers.” [Edward J Timmons and Anna Mills, Eastern Economic Journal]
I have myself been critical of President Donald Trump’s refusal to divulge his tax returns, but the bill advanced in the Maryland Senate purporting to make that a requirement for the next presidential ballot in Maryland is partisanship at its most inane. [Sponsors] are here attempting to (1) impose a new qualification on presidential candidates not found in either the U.S. constitution or federal law; (2) do so by means of denying ballot access in their own state, which means by restricting the choices of their own electorate; and (3) do so with the open aim of opposing a single particular candidate.
We may pause for a moment to imagine how this sort of stunt could be pulled by other partisans against other candidates, should it catch on.
No wonder California Gov. Jerry Brown (D) vetoed a similar bill because of the obvious constitutional concerns.
Related: in U.S. Term Limits v. Thornton (1994), a Supreme Court divided 5-4 held that Arkansas could not add to the qualifications for election to Congress enumerated in the Constitution by disqualifying candidates who had already served a set number of terms in office; it also specifically rejected the view that a restriction on ballot access does not act as a bar to office because it leaves open the possibility of running as a write-in.
Note also that the Arizona legislature in 2011, under the influence of “birther” sentiment, passed a measure requiring presidential candidates to provide proof of citizenship in order to get on the state’s ballot. Although natural born citizenship unlike the release of tax returns is of course a genuine constitutional prerequisite for serving as president, the interference with the appropriate distribution of federal-state power, as well as the intent to target one particular candidate, namely birther target and incumbent President Obama, was evident enough that conservative Arizona Gov. Jan Brewer vetoed the measure.
- Cafeteria nudge dud: questions raised on efficacy of USDA Smarter Lunchrooms Movement, launched in 2010 [Caitlin Dewey, Washington Post; Elizabeth Nolan Brown/Reason]
- “Florida Legislator Wants to Make It a Crime to Leave Your Kid in the Car for Just One Minute. But Why?” [Lenore Skenazy] “Dad Teaches Kids to Ride the Bus. But CPS Says He Can Never Leave Them Alone, Ever.” [same, Canada; more] “Court Upholds Dad’s Conviction for Making 8-Year-Old Son Walk Home Alone” [same, California]
- Judge: Arizona lawmakers not free to end Mexican-American studies program in schools if motivated by animus [Michael Kiefer, Arizona Republic]
- “Former Los Altos baseball player sues coach after being benched, claims bullying” [Hayley Munguia, San Gabriel Valley Tribune, Calif.]
- Oft-told story of residential schools as ruin of Native American life might admit of some complication [Naomi Schaefer Riley, Education and Culture, reviewing Dawn Peterson, Indians in the Family: Adoption and the Politics of Antebellum Expansion]
- New York initiative on suspensions likely to make schools less safe [Max Eden, New York Post] “Another Obama Policy Betsy DeVos Should Throw Out” [Jason E. Riley, WSJ]
- Highlights from the career of Sheriff Joe Arpaio, newly pardoned by President Trump [Jon Gabriel/USA Today, Phoenix New Times thread on Twitter] Still vividly remembered: the Thomas-Arpaio raids on elected officials, judges, and journalists who’d crossed the sheriff [samples here and here from our coverage; Terry Carter, ABA Journal]
- Fran and Dan Keller, freed from Texas prisons after 21 years in Satanic abuse hysteria, finally getting official declaration of innocence (+ $3.4 million) [AP/CBS, Michael King, Austin Chronicle]
- Cops fired even for outrageous misconduct often win reinstatement, investigation finds [Washington Post] “Police Won’t Say Whether Cops Caught Fabricating Charges Were Disciplined” [Ed Krayewski, Connecticut]
- “A Rogues’ Gallery of Bad Forensics Labs” [C.J. Ciaramella]
- You can come back above ground now: NYC dismisses 644,000 stale arrest warrants for minor offenses [James C. McKinley, Jr., New York Times]
- Deferred prosecution agreements (DPAs) turn U.S. Department of Justice into regulator without accountability [James Copland and Rafael Mangual, Manhattan Institute]