- “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]
Following robberies, the FBI is hitting Google with “reverse location” orders demanding that it turn over information on all users who were near crime locations at times crimes were committed. “Those users could be Android phone owners, anyone running Google Maps or any individual running Google services on their cell,” which will include many innocent persons. In a Henrico, Virginia, case, the FBI ordered Google to supply identifying information on all users within a several-block radius in a busy area. “Requests like this act as ‘general warrants’ and may violate the Fourth Amendment because they are not tied to a specific device,” said Jennifer Lynch, senior staff attorney at the Electronic Frontier Foundation. [Thomas Brewster, Forbes]
Chicago has enacted a law requiring food trucks to install GPS trackers reporting their location at all times, and the Fourth Amendment might have something to say about that [Ilya Shapiro and Aaron Barnes on Cato brief in Illinois Supreme Court case of LMP Services v. Chicago; Timothy Snowball, Pacific Legal Foundation; Foodservice Equipment Reports]
Plus: “The Fourth Amendment in the Digital Age,” conversation with Julian Sanchez, Matthew Feeney, and Caleb Brown for the Cato Daily Podcast.
In Friday’s Carpenter v. United States the Supreme Court by 5-4, with Chief Justice John Roberts writing and joined by the four liberals, held that police collection of cellphone location records covering a period of a week is a search covered by the Fourth Amendment and generally requires a warrant. Orin Kerr has first thoughts. Ilya Shapiro at Cato writes that the Court reaches “the right result for the wrong reason,” in an “artificial muddle” of a decision that carves an exception into the third-party doctrine without the more searching rethinking of search and seizure law that is needed.
More promising, Shapiro says, is Justice Neil Gorsuch’s opinion — which he styles as a dissent, but is a concurrence in all but name — which points the way to rethinking and strengthening Fourth Amendment search and seizure law along first principles of “the people’s right to be secure in their ‘persons, houses, papers, and effects’ based not on privacy expectations but on property rights, contract law, and statutory protections (all of which can certainly be applied in the modern digital age).” The alternative, says Shapiro, will be for the Court to fall back on “reinventing the Fourth Amendment with each technological revolution,” amid new ad hoc exceptions and elaborations. More background at Cato at earlier stages of the case: Matthew Feeney on oral argument, merits brief, certiorari brief.
A Cato-centric list:
- Supreme Court’s past refusal to enforce plain language of Contracts Clause cries out for review, but in Minnesota life insurance dispute only Gorsuch is up for the task [Roger Pilon, related Cato podcast] More: John McGinnis;
- In Collins v. Virginia, all Justices except Alito agree “that the cops need a warrant to enter your curtilage [area immediately surrounding your home] even if they are doing so to search a vehicle parked there.” [Kevin Underhill, Lowering the Bar, earlier here and here]
- SCOTUS agrees 8-1 that arrest can constitute First Amendment retaliation even if also backed by probable cause, a position urged by Cato in its brief [Lozman v. City of Riviera Beach; Heidi Kitrosser, SCOTUSBlog]
- Audio: I join Yuripzy Morgan on her WBAL radio show to discuss Husted v. A. Philip Randolph Institute, recent case on Ohio’s maintenance of voter rolls;
- Last winter I observed that neither wing of the Court seemed to be angling for a Culture War knockout at the Masterpiece Cakeshop oral argument, and predicted Kennedy might dispose of the case this way [New York Daily News flashback, more on cert grant and on Court’s decision, Cato Tumblr links on the case]
- Through pretextual police stops, government stealthily revives that hated institution of colonial days, the general warrant [Jay Schweikert on Cato cert amicus in Johnson v. U.S.]
“For over 60 years, the executive branch has, through regulatory fiat, imposed a ‘border zone’ that extends as much as 100 miles into the United States.” Within this zone, the Department of Homeland Security’s Customs and Border Protection (CBP) service can set up fixed or mobile checkpoints that require travelers, whether foreign- or native-born, to stop and submit to questioning and possible search “to get to work, go to the store, or make it to a vacation destination in the American Southwest.” Were the government to try using these same techniques at frankly internal checkpoints — in Omaha, say, or Indianapolis or Cheyenne — a range of constitutional protections would come into play to limit police discretion and protect citizens’ rights to go about their business freely. But the border, or areas within 100 miles of it, are different. One problem: since the coasts count as borders too, an estimated two-thirds of the American public lives in areas that are just one executive decision away from having a checkpoint system.
The Cato Institute is launching a new online initiative, “Checkpoint America: Monitoring the Constitution-Free Zone.” Patrick G. Eddington explains in the Cato Daily Podcast above, and in this blog post.
Chicago requires food trucks to carry GPS tracking devices; police then get access to the resulting data. Is that constitutional under the Fourth Amendment? [Ilya Shapiro and Aaron Barnes on Cato amicus brief in LMP Services v. City of Chicago, on appeal to Illinois Supreme Court]
- Attitudes on law enforcement now function as culture war rallying point and vehicle of identity politics on both sides [Dara Lind] Good news on officer safety: “Line of duty deaths this year approached a 50-year low” [Ed Krayewski]
- SWAT deployment and police militarization — in rural Western Massachusetts [Seth Kershner, Valley Advocate] Trump still wrong on this issue [Eric Boehm]
- Would it be easier to address America’s high rate of fatal shootings by police if the focus were allowed to slip off race for a moment? [Conor Friedersdorf]
- Neighborhood police checkpoints employed in West Baltimore for several days in November, yet in 2009 DC Circuit, via conservative Judge Sentelle, found them unconstitutional [Colin Campbell and Talia Richman, Baltimore Sun; Elizabeth Janney, Patch]
- What should be done to address rising crime rates? Federalist Society convention panel video with Dr. John S. Baker, Jr., Heather Childs, Adam Gelb, Hon. Michael Mukasey, George J. Terwilliger III, moderated by Hon. David Stras;
- In Collins v. Virginia, Supreme Court has opportunity to reaffirm that home is truly castle against police search [Cato Daily Podcast with Jay Schweikert and Caleb Brown]
“I and others argued that crime would rise [in NYC]. Instead, it fell. We were wrong.” [Kyle Smith, National Review]
Of course, to the extent that stop-and-frisk police practices violate the U.S. Constitution — as they often do — NR should have known better than to support them even if they showed some results. Aside from that, though, it’s good to be open to changing one’s mind based on evidence.
Mostly Cato links:
- Today, Monday afternoon: Ilya Shapiro and John Paul Schnapper-Casteras preview Masterpiece Cakeshop v. Colorado Civil Rights Commission from different perspectives on eve of oral argument, Roger Pilon moderating [watch online, earlier] Why, on cakeshop case, “it won’t surprise me if the court comes up with something a little muddled and a little bit hard to read” [Chris Johnson, Washington Blade, quotes me] More: George Will (cakes are not expression; but while couple who sued cake-baker “might be feeling virtuous for having done so… siccing the government on him was nasty.”);
- “Christie v. NCAA: Anti-Commandeering or Bust” [Jonathan Wood and Shapiro, earlier here and here] “Supreme Court’s Sports Betting Case Could Redefine Relationship between Feds and States” [Shapiro]
- Federal courts were politicized before the Federalist Society came along, and promoting the cause of textualism helps de-politicize them [Roger Pilon]
- SCOTUS should use Janus v. AFSCME to recognize public employees’ First Amendment rights against forced union agency fees [Shapiro, Trevor Burrus, and Aaron Barnes] More: Shapiro and Frank Garrison, National Review; Cato Podcast with Jacob Huebert and Caleb Brown;
- Silvester v. Becerra: Ninth Circuit errs on individual gun rights, SCOTUS should correct [Shapiro and Matthew LaRosiere]
- Assuming patents = property, structure of Patent Trial and Appeal Board may flunk constitutionally required norms of judicial independence [Shapiro and Barnes on Oil States Energy Services, LLC v. Greene’s Energy Group, LLC; Federalist Society panel video with Gregory Dolin, John Duffy, Arti Ray, and Robert Greene Sterne; Jeffri Kaminski, WLF]
- Collins v. Virginia gives Court a chance to protect the integrity of the home against warrantless searches [Jay Schweikert] And mark Dec. 13 for the 2017 Cato Surveillance Conference;
- Extending Commerce Clause to prairie dogs gnaws at constitutional principle [Shapiro, Burrus, and Reilly Stephens on Cato amicus brief urging certiorari in PETPO v. U.S. Fish & Wildlife Service; Jacob Sullum]