- “Lawyer says it ‘would be an honor’ to be disbarred; disciplinary board aims to oblige” [ABA Journal, Lowering the Bar]
- In the mail: Jacob Grier’s new book The Rediscovery of Tobacco: Smoking, Vaping, and the Creative Destruction of the Cigarette [more from author, Mark Fogerson/Portland Monthly, John Locke Foundation podcast with Grier and Mitch Kokai] And: Cato video;
- Re: House subpoenas aimed at the Trump administration, colleague Ilya Shapiro wrote this comprehensive pre-game report [last December for the Washington Examiner]
- NBC might not have picked the ideal poster inmate to showcase the problem of long-term sentencing of nonviolent drug offenders [Kent Scheidegger via Volokh]
- Profile of police brutality/civil rights plaintiff’s lawyer Benjamin Crump [John H. Richardson, New York magazine]
- Conservative Tennessee lawmaker introduces bill to provide instructions for jury nullification in acquittal direction only [Scott Greenfield in February]
“When public officials or those running for office call out the political donations of people they don’t like, what’s the goal? Is it merely to shame them?” I comment in this new Cato Daily Podcast with Caleb Brown.
More on the controversy over Rep. Joaquin Castro’s (D-Tex.) tweet: Katie Rogers and Annie Karni, New York Times; Bradley Smith, National Review, Christian Britschgi, Reason; and earlier episodes, not exactly parallel but with some points of similarity, involving Sen. Marco Rubio (Maduro-cozying restaurant owner) and the then-campaigning Donald Trump (“They better be careful, they have a lot to hide!”).
At National Review, Lyman Stone challenges the currently popular idea that American electoral processes are in the grip of a crisis of democratic legitimacy. While there is real room for process improvement, as with the issue of gerrymandering, it is less clear that imperfections in our electoral system 1) have worsened a lot or 2) are especially different from than those found in other mature democratic systems. It is also far from clear that over the long run the imperfections systematically benefit one “side”: at the moment Republicans hold more seats than their share of votes would predict, but one needn’t go far back in time to find periods when Democrats held the same sort of edge.
Two areas where the U.S. is unusual: we have low voter turnout, well below that of most advanced countries, and each member of our House of Representatives represents a very large number of people.
“The revival of Congressional activity under the CRA is a welcome development and shows that Congress is taking seriously its responsibilities both as ultimate lawmaker and in oversight of federal agencies,” said Olson. I’m quoted among other regulation-watchers [Aileen Yeung, Western Wire] More on the belated vitality of the Congressional Review Act: Brian Mannix/Law and Liberty; Kim Strassel/WSJ; Paul Larkin/Heritage.
Well, isn’t this a shame:
Brad Fitch, president and CEO of the Congressional Management Foundation, told Bloomberg BNA Feb. 16 that House “Democratic chiefs of staff are freaking out” about finding room in their budget for overtime wages.
It’s not clear whether the Obama administration’s forthcoming edict on overtime will apply to legislative staffers, but House Democratic leadership decided it would be prudent for their members to at least gesture toward the spirit of the controversial rule by preparing for compliance. [BNA Daily Labor Report] Now “the rule is creating administrative headaches” and more:
“We don’t have a set-hour kind of situation here; some kids work 12, 14, 16 hours a day, weekends, and I feel terrible that I cannot afford to give raises to the staff,” Rep. Alcee Hastings (D-Fla.) told Bloomberg BNA Feb. 11.
With $320,000 slashed from members’ representational allowances (MRAs) over the past four years, “I don’t see how we could pay overtime” for the “17 or 18 people that each of us is allowed to have—that’s problematic for me,” added Hastings, a senior member of the House Rules Committee.
Some members fear that an overtime mandate will result in having to send staffers home at 5 p.m., leaving phones unanswered and impairing constituent service. “Most members are of the sentiment that it’s impractical to be paying overtime,” said former Virginia Democratic Rep. Jim Moran, now a lobbyist, who suggests that members choose to close one of their district offices or reduce constituent correspondence to adjust to a smaller staff number.
In the bonbon box of schadenfreude, this is one of the ones I would save to eat last.
To the now-famous Obama “pen and phone” formula for circumventing Congress to change the law through executive fiat, columnist Debra Saunders suggests adding “…and teleprompter,” since blaming the opposition seems to be an integral part of the tactic. The President’s flippant, confrontational “so sue me” remark illustrates the problem: even when the executive decrees are not at war with the rule of law, as they often are, they often breach the spirit of comity between the branches.
As Saunders notes in quoting me, there are areas where I find some of the administration’s underlying policy objectives to be sympathetic or understandable — for example, in the effort to adjust banking regulation to accommodate legal marijuana commerce in Washington and Colorado. But “understandably motivated” does not equal “lawful.” On top of all that, many of the executive initiatives, typified by those on labor issues, are truly horrible as policy.
None of which is to endorse proposals to head off the problem by having Congress sue the President. Those will often collide with the Framers’ contemplated role of the courts as adjudicating true cases or controversies arising between parties, not umpiring every power dispute between the other two branches (plus: follow-up Saunders blog post).
Obama urged to raise taxes unilaterally on disfavored groups by regulation if Congress won’t act:
Out of deference to Congress, the Treasury Department has traditionally avoided making policy in areas where the legislative branch may act. “But when the legislative process is as broken as it has become today,” said Daniel N. Shaviro, a law professor at New York University, “it’s simply inevitable that administrations will care less about such comity, and be more willing to advance their policy views in controversial areas through the unilateral exercise of regulatory authority.”
Huge win for justice and good sense: facing a mounting public furor, “The Social Security Administration announced Monday that it will immediately cease efforts to collect on taxpayers’ debts to the government that are more than 10 years old.” [WaPo] Credit goes above all to the Washington Post and its reporter Marc Fisher for exposing the most outrageous features of the IRS’s refund-interception program last week, as recounted in this space; I like to think I helped as well by beating the drum early and repeatedly since then with Cato’s help. Overlawyered’s Facebook post on the subject has been seen by more than 60,000 people and shared more than 700 times in the past few days. (Have you liked us yet?)
The next step should be to establish for the public record how the provision in question got slipped into the farm bill, and at whose behest. Congress’s refusal to be forthcoming on this topic speaks volumes about its lack of a felt sense of responsibility toward the people it represents.
And a theme I’ve been repeating for almost as long as I’ve been writing about law: statutes of limitations developed in civilized legal systems for a reason. They protect us not only from cost, uncertainty, and the misery of legal process, but from injustice of a hundred other kinds, and they protect society itself from spiraling into a legal war of all against all. Stop trying to abolish them!
I’ve long found it exasperating when would-be lawmakers take the view that it’s okay for them to vote for measures that might be unconstitutional because, after all, the courts are there to backstop things. The Michigan businessman who’s challenging Rep. Justin Amash in a Republican primary is just out with a particularly flagrant quote along those lines to which I respond at Cato at Liberty.