My piece of two weeks ago for National Review about consent decrees, police, and the Jeff Sessions memo (briefly summarized here) drew a detailed response from Radley Balko in the Washington Post, whose writings on police misconduct I often link here. I’ve now responded in a second NR piece, arguing that while there is much common ground to be found on the issues here, I will stick with seeing the memo as generally on the right track in articulating proper limits to the feds’ constitutional role (especially under the post-Civil War Amendments) in restraining misconduct by lower levels of government. “The very real and sometimes dire failings of local governments do not change the most important fact about our federal government, which is that it is one of limited powers.”
- Kansas Supreme Court rules 4-3 that cops can conduct warrantless search of private homes if they say they smell marijuana. Practical difference between this and “…whenever they please” is not clear [Tim Carpenter, Topeka Capital-Journal] More: Jacob Sullum;
- At Timbs v. Indiana oral argument, Court seems sympathetic to idea of applying Excessive Fines clause to the states [Robby Soave, Jacob Sullum, Ilya Somin, earlier here, here, and here] Notwithstanding Justice Gorsuch and Kavanaugh’s interjections, there is and has been no uniform incorporation of the entire Bill of Rights against the states [Rory Little]
- Arizona Supreme Court should recognize that First Amendment protects right of calligraphic art studio not to be forced to draw invitations and vows for wedding ceremony of which owner/artists disapprove on religious grounds [Ilya Shapiro and Patrick Moran on Cato Institute amicus brief in Brush & Nib Studio v. City of Phoenix]
- Claim: notwithstanding SCOTUS precedent to the contrary, U.S. Constitution contains no general federal power to restrict immigration [Ilya Somin and others, Cato Unbound symposium, more]
- “The Supreme Court Really Needs to Start Defining the Scope of the Second Amendment” [Ilya Shapiro and Matthew Larosiere on Cato amicus brief in Mance v. Whitaker, interstate sales by gun dealers] “Bump Stock Rule Bumps Up Against the Constitution” [Shapiro and Larosiere] “The Most Common Firearm in America is Not a ‘Weapon of War’” [same on Cato amicus brief in Worman v. Healey, Massachusetts ban on “assault weapons”] Federal court strikes down as unconstitutional New York’s ban on nunchaku [AP, Lowering the Bar with previous coverage of lawyer’s quest]
- “An individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.” That’s a recently adopted provision of the New Hampshire constitution. Now what does it mean? [David Post]
This fall the Cato Institute held a policy forum on plea bargaining featuring Clark Neily, vice president for criminal justice at Cato, Scott Hechinger of Brooklyn Defender Services, Bonnie Hoffman of the National Association of Criminal Defense Lawyers, and Somil Trivedi of the ACLU. Description:
Supreme Court Justice Anthony Kennedy has observed that “criminal justice today is for the most part a system of pleas, not a system of trials.”
Although nowhere mentioned in the text of the Constitution, plea bargaining has become the default mechanism for resolving criminal charges in the United States. Indeed, some 95 percent of criminal convictions today are obtained through plea bargains, which raises a number of serious concerns, including why so few people choose to exercise their hallowed and hard-won right to a jury trial. When one considers the many tools available to prosecutors to encourage defendants to accept plea offers, together with the incentive to resolve as many cases as efficiently as possible, one cannot help but ask how many plea agreements are truly voluntary and how many are the result of irresistible coercion. Are there constitutional or ethical limits on coercive plea bargaining, and if so, are they being properly enforced? And what should we make of an institution that has practically eliminated the criminal jury trial and with it the Framers’ painstaking efforts to ensure citizen participation in the administration of justice?
- “Scott Gottlieb’s FDA Is Moving Toward a Stealth Ban on Cigarettes and Cigars” [Jacob Grier, Reason]
- Supreme Court should take Melissa and Aaron Klein cake-refusal case from Oregon and resolve the issues of free expression it dodged in Masterpiece [Ilya Shapiro and Patrick Moran, ABA Journal, earlier on Melissa and Aaron Klein cake-refusal case including oppressive $135,000 fine levied by Oregon BOLI (Bureau of Labor and Industries)]
- “Administrative Law Is Bunk. We Need a Bundesverwaltungsgericht” [Michael Greve, responses from Mike Rappaport, Philip Wallach, and Ilan Wurman, and rejoinder from Greve]
- New York’s family court system is failing children and their families [Naomi Riley/City Journal, thanks for quote]
- “The Emmys People Are Opposing A Pet Products Company Named After A Dog Named ‘Emmy'” [Tim Geigner, TechDirt]
- Metaphor alert: “Lawmaker Injured by Flying Constitution” [Kevin Underhill, Lowering the Bar, and funny throughout]
- “Asking a Fourth Amendment nerd why the police don’t just get a warrant is like asking an auto mechanic why drivers don’t just buy a new car.” [Orin Kerr on Twitter] “Judge Thapar Can Handle the Truth about the Fourth Amendment and Due Process” [Ilya Shapiro on police-search case of Morgan v. Fairfield County as well as public university due process case of Doe v. Michigan]
- “Indispensable Remedy: The Broad Scope of the Constitution’s Impeachment Power” [Gene Healy, Cato white paper and video feature] Michael Stokes Paulsen series at Law and Liberty on impeachment and originalism [introduction, developing a principled constitutional basis for use of the power, digression on Aaron Burr, special considerations of impeaching judges and presidents; on original meaning of “high crimes and misdemeanors” in context of English history and Framers’ debates]
- “Nonviolent Felons Shouldn’t Lose Their Second Amendment Rights” [Ilya Shapiro and Matthew Larosiere on Cato amicus in Seventh Circuit case of Hatfield v. Sessions]
- Court strikes down federal law banning female genital mutilation as overstepping constitutional authority [Eugene Volokh, Ilya Somin]
- Launched decades ago, advocates still hoping to reanimate: “The problem with zombie constitutional amendments” [Keith Whittington, Harvard Law Review on the Equal Rights Amendment (ERA) and others; ABA Journal; related,
Gerard Magliocca on ratification deadlines]
- Unenumerated rights of constitutional stature should include familial rights of children as well as parents [Ilya Shapiro and Reilly Stephens on Cato amicus brief in Wisconsin Supreme Court case of Michels v. Lyons]
What are the implications of the Constitution’s Appointments Clause for the tenure of acting attorney general Matthew Whitaker? Thomas Berry, recently a legal associate at the Cato Institute and now at the Pacific Legal Foundation, takes up the question in the Yale Journal of Regulation. More: Michael Rappaport; and earlier at Overlawyered on other Appointments Clause controversies.
A coordinated national campaign promotes enactment of Marsy’s Law, a set of victim’s rights enactments that have been added to state constitutions in many states. (Marsy’s Law amendments were on six state ballots this fall, and did well.) My colleague Roger Pilon testified in 1997 against a proposed federal constitutional amendment.
Now a South Dakota version of such a law is being used by police officers to conceal their identities from the public after a shooting by a police officer of a civilian who was subsequently charged with assaulting the trooper. Similar claims of confidentiality have been made under other states’ Marsy’s Laws to prevent disclosure of names of officers who have carried out shootings. [Scott Shackford, Reason]
More on the problems with victims’ rights laws from Scott Greenfield (“a right has been created for the ‘victim,’ which is curious since there is no victim until there’s a crime, and there is no crime until a jury says there is….many of these ‘rights’ are in direct conflict with some other guy’s rights in the well. Can you guess who that might be?”), Steve Chapman, Jill Lepore, and Sophie Quinton at StateLine, and my opinions against victim impact statements.
While we’re at it: Rules barring the interviewing of police soon after an officer-involved shooting (“cooling-off period”) impair, not advance, accurate investigation [Tom Jackman, Washington Post via Radley Balko] And via Justin Fenton of the Baltimore Sun, although the general rule in Maryland is that police officers on probationary status can be fired without internal due process, that rule applies except in instances of brutality allegations. Thanks a million, Law Enforcement Officers Bill of Rights (LEOBR)!
The Schoolhouse Gate: Public Education, The Supreme Court, and the Battle for the American Mind, a new book by Justin Driver of the University of Chicago Law School, is a cross-cutting look at the constitutional law of American public schools — a change from the usual format of broad constitutional law scholarship, which tends to stick closely to doctrinal categories such as criminal procedure or equal protection. Introduced by Will Baude, Driver guest-posted at the Volokh Conspiracy in September on why the Supreme Court has made a difference; the high-water mark and retreat of student speech rights; corporal punishment; Plyler v. Doe on the education of undocumented minors; and transgender student restroom cases. He also summed up some of his work in a New York Times op-ed.
In learning to reason impartially about constitutional law, a valuable exercise is to come up with a list of instances in which the best reading of the Constitution cuts *against* your own view of good policy. Ilya Somin goes first, with examples that include near-total Congressional control over foreign trade; too much use of juries; the extreme difficulty of removing a seriously bad President; the near-indelible status of state lines; and an amendment process that is too hard to use.
- “The Supreme Court should…reaffirm that the Constitution’s prohibition against ex post facto lawmaking forbids states from skirting constitutional scrutiny by simply labeling penalties as ‘civil'” [Ilya Shapiro and Nathan Harvey on Cato certiorari brief in Bethea v. North Carolina]
- Interesting: arguments that might work for progressive litigation outcomes in a more conservative Supreme Court [Daniel Hemel, Take Care]
- Notable cert grants: continued viability of Illinois Brick indirect purchaser doctrine [Cory Andrews, WLF on Apple v. Pepper iPhone antitrust litigation] Arbitration returns in two cases on class arbitration [Steptoe on Lamps Plus v. Varella; more, FedSoc with J. Michael Connolly] and delegation of arbitrability [Peter Phillips on Henry Schein Inc. v. Archer and White Sales Inc.] Court will revisit retaliatory-arrest First Amendment issue [Eugene Volokh on Nieves v. Bartlett, last year’s case]
- Gundy v. U.S., on whether Congress can delegate to the Attorney General the range of punishable conduct under the sex offender registry law SORNA, might revive vitality of non-delegation doctrine with far-reaching consequences [Trevor Burrus and Reilly Stephens on Cato brief; Damon Root, Reason; Matthew Cavedon and Jonathan Thomas Skrmetti, Federalist Society; more, FedSoc “Courthouse Steps” before and after, Randolph May, Georgetown/FedSoc panel with Todd Gaziano and Amanda Shanor, moderated by Evan Bernick, for FedSoc’s “Necessary and Proper” podcast] Law authorizing Homeland Security secretary to waive other laws to build border wall delegates too much legislative power to executive branch [Ilya Shapiro on Cato cert amicus on non-delegation doctrine in Animal Legal Defense Fund v. Department of Homeland Security]
- This is really something: argument that maybe it’s unconstitutional to have too conservative a Supreme Court [David Orentlicher, PrawfsBlawg]
- High court should review whether California state commission can force grape growers to pay for industry ads [Ilya Shapiro and Michael Finch on Cato amicus seeking cert in Delano Farms v. California Table Grape Commission]