Category: reason

According to the conventional wisdom, Supreme Court Justice Amy Coney Barrett successfully bobbed and weaved her way through her Senate confirmation hearings without really sharing any of her substantive legal views. But Barrett did disclose one big thing: She thinks the Supreme Court got it wrong when it protected the constitutional right to economic liberty in the famous 1905 case Lochner v. New York.

On October 14, Sen. Josh Hawley (R–Mo.) asked Barrett to “talk just a little bit about how a court could substitute its own views on economic policy for those of a law-enacting body, of a legislature or of Congress.”

Barrett replied that “in the Lochner era” and “in Lochner itself,” the Supreme Court “was standing in the way of reforms for workers that legislatures were enacting.” Say a federal judge “had a preference for free trade, or if one had a preference for having no minimum wage,” she said. “To hold such a statute that did the opposite of your policy preference unconstitutional because it didn’t comport with your idea of the best economic policy would be to thwart the will of the people without warrant in the Constitution.”

Is that what happened in Lochner? Did the Supreme Court “thwart the will of the people without warrant in the Constitution”?

The Court did thwart the New York lawmakers who wanted to limit the number of hours that bakers were allowed to work each day and each week. But since “clean and wholesome bread does not depend on whether the baker works but ten hours per day or only sixty hours a week,” observed the majority opinion by Justice Rufus Peckham, the rule was an illegitimate exercise of the state’s regulatory powers.

Unlike the rest of the Bakeshop Act, which properly and legitimately regulated “washrooms and closets,” the height of ceilings, floor conditions, and “drainage, plumbing, and painting,” Peckham wrote, the limit on hours involved “neither the safety, the morals, nor the welfare, of the public” and was thus “not, within any fair meaning of the term, a health law.” He concluded that the provision also violated liberty of contract, a constitutional right secured against state infringement by the 14th Amendment.

Peckham was correct that the original meaning of the 14th Amendment encompasses the right to economic liberty. As Rep. John Bingham (R–Ohio), the principal author of the amendment’s first section, told the House of Representatives, “the provisions of the Constitution guaranteeing rights, privileges, and immunities” include “the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil.”

Even opponents of the 14th Amendment’s ratification said as much at the time, which is also good evidence of the amendment’s original public meaning. In an 1866 House speech, for example, Rep. Andrew Jackson Rogers (D–N.J.) complained that “all the rights we have under the laws of the country are embraced under the definition of privileges and immunities.” He noted that “the right to contract is a privilege,” adding, “I hold if that ever becomes a part of the fundamental law of the land, it will prevent any state from refusing to allow anything to anybody embraced under this term of ‘privileges and immunities.'”

The 14th Amendment did become the law of the land, as the Court recognized in Lochner. Justice Barrett should revisit her views on this wrongly maligned case.

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Jeanne Pouchain has spent the last three years trying to prove to the French government she is still alive. In 2017, during a long legal dispute with a former employee, Pouchain was declared dead by a court in Lyon after the employee claimed she had died, even though a doctor had never signed a death certificate. That means Pouchain can no longer get a driver’s license or bank account or health insurance, among other discomforts.

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From today’s Wisconsin Court of Appeals decision in State v. C.G. (opinion by Judge Mark Seidl, joined by Judges Lisa Stark and Thomas Hruz):

Wis. Stat. § 301.47(2)(a)-(b) provides that a registered sex offender may not “[c]hange his or her name” or “[i]dentify himself or herself by a name unless the name is one by which the person is identified with the [DOC].” [C.G. (“Ella”)] … contends that, as applied to her, requiring her to register as a sex offender violates her First Amendment rights because the statute’s prohibition against legally changing her name restricts her right to self-expression as being a female….

On May 10, 2016, the Shawano Police Department received a complaint that a fifteen-year-old male with disabilities, Alan, had been held down by Ella and Mandy while at Mandy’s house, so that Ella could perform oral sex on him. {This opinion refers to the three juveniles as Ella, Alan, and Mandy…. [W]e use pseudonyms when referring to the juveniles in this confidential matter. Ella, a transgender female, prefers that we reference her using feminine pronouns, and we follow her preference.} At the time of her appeal, Ella was nineteen years old, but she was fifteen at the time of the incident. Ella sat on Alan’s legs while Mandy held down his arms. Alan was five feet, ten inches tall and weighed 110 pounds. A face sheet from the DOC stated that Ella was six feet, five inches tall and weighed 345 pounds.

Alan is on the autism spectrum and is blind in his left eye. When Alan tried to yell for help from Mandy’s parents, Mandy placed one of her hands over Alan’s mouth. When Ella stopped the assault, Alan pulled up his underwear and pants and then left Mandy’s house. Alan did not report the incident to anyone because he was embarrassed and Ella and Mandy had told him not to say anything. Alan’s parents later learned of the incident after they searched his cell phone and discovered Facebook messages indicating that Alan had been held down while a person performed oral sex on him….

Ella pled no contest to … sexual assault [of a child under sixteen], and the disorderly conduct count was dismissed and read in. Ella was adjudicated delinquent, and the circuit court entered a dispositional order placing her at Lincoln Hills School for six to ten months….

[A.] Ella first argues that the circuit court erroneously exercised its discretion by refusing to stay the disposition requiring her to register as a sex offender…. The circuit court properly considered the seriousness of Ella’s offense and its impact upon the victim when denying the request to stay the sex offender registry requirement despite Ella’s relatively low risk of reoffense. Although Alan did not suffer bodily harm, the assault was indeed very serious. The court noted that Alan was held down against his will and was prevented from yelling for help. The court further noted that Alan suffered from autism, was progressing slower than his peers in school, had emotional and learning problems in school, and was blind in one eye. Although Ella and Alan were ten months apart in age, Alan was in therapy all his life, and his situation became worse after the assault. Indeed, Alan’s mother testified that the assault has affected the whole family. As to the seriousness of the offense, the court reasonably found that Ella’s sexual assault of Alan was violent in nature.

Ella’s sexual assault was also nonconsensual and arguably premeditated. Prior to the sexual assault occurring, Alan expressed to Ella and Mandy that he was not interested in this type of behavior. Facebook messages reveal that Ella asked Alan if he had ever received “head” before. Alan repeatedly told Ella that he did not want “head” from Ella. Additionally, Alan told Mandy that he did not want to get “head” from a “guy.” Although Ella notes that she, Alan, and Mandy were friends, the messages support the circuit court’s findings that “[Alan] didn’t want to have this type of relationship.” Alan was also a vulnerable victim. He is blind in his left eye, a high school freshman functioning at a sixth-grade level, and suffers from attention deficit disorder and autism spectrum disorder. As stated above, Alan was much smaller than Ella. All of these facts strongly support the court’s finding regarding the seriousness of the offense.

In Ella’s supplemental reply brief, she attempts to minimize the seriousness of her offense and the impact on Alan by asserting that: (1) the offense was a very short incident between three individuals in the same friend group; (2) there was no violence or threat of violence; (3) it was Ella who stopped the encounter; (4) Alan did not report the incident; (5) Alan’s parents did not note any changes in his behavior or attitude; (6) although Alan has autism with cognitive delays, he is still in mainstream schools with the ability to make friends; (7) Ella’s physical description by the DOC was outdated; and (8) blindness is not a mental deficiency that rendered Alan incapable of understanding the consequences of his actions…. [But] the record contains ample evidence supporting the circuit court’s discretionary decision to deny Ella’s motion to stay the sex offender registration requirement. Based on the evidence presented, the court could reasonably determine that Ella failed to show by clear and convincing evidence that a stay should be granted….

[B.] Ella argues that the name-change ban in the sex offender registry statute regulates her right to express female identity and is therefore an unconstitutional burden on her free speech. Ella contends that having a name consistent with her gender identity gives her “dignity and autonomy that otherwise does not exist with her birth name.” She further contends that her ability to informally identify with a female-sounding name—as long as she notifies the registry that she uses such a name—is insufficient to protect her right to formally identify in that manner with a name other than her current legal name. This inability, according to Ella, prohibits her from truly identifying as a woman, and it also forces her to “out herself as a male anytime she is required to present her legal name.” …

[But] Ella’s wish to express herself with her desired name does not mean that the ban on legally changing her name implicates the First Amendment….. [A] prisoner ha[s] “no positive right to a name change.” … Ella has the right to use whatever name she chooses, provided she includes it in the sex offender registry. Her freedom of expression is therefore not implicated. Neither the fact that she may feel uncomfortable when having to use her legal name, nor that she feels “outed” when she does use her legal name, renders the statute unconstitutional as applied to her. Ella is capable of expressing herself and identifying herself consistent with her gender identity. Because the name-change ban … does not restrict Ella’s ability to express herself, we need not utilize a First Amendment analysis because the statute does not implicate the First Amendment.

Nonetheless, if we engage in a First Amendment analysis, we conclude that the name-change ban … is content neutral, and, thus, it does not trigger a strict-scrutiny analysis…. The name-change ban does not target speech based on its communicative content. Specifically, it does not apply to particular speech because of the topic discussed, or the idea or message being conveyed…. [I]t does not determine such matters as what name a person must use—or what must be contained in a name—and does not treat anyone differently based on their name.

The statute might be content based if, for example, it required a male to have a traditionally male-sounding name (e.g., William, John) and prohibited males from legally using “mixed-gender” names (e.g., Payton, Connie) or traditionally female-sounding names (e.g., Suzy, Mary). But, of course, the statute does not do so. The statute merely prohibits an individual from changing his or her current legal name, regardless of the message it conveys. Even if the name-change ban might disproportionately affect transgender persons, the statute is still content neutral. “[A] facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics.”

As a content neutral statute, the name-change ban would at most be subject to intermediate scrutiny…. Wisconsin’s statutory name-change ban for sex offender registrants easily passes intermediate scrutiny. Under the first prong of the Turner Broadcasting v. FCC test [for content-neutral restrictions], the name-change ban furthers an important or substantial government interest—specifically, to “protect the public and assist law enforcement.” Allowing changes to a registrant’s legal name would frustrate the ability of the public and law enforcement to quickly identify sex offenders and their locations.

Under the second prong of the Turner test, the governmental interest is unrelated to the suppression of free expression. As explained above, the name-change ban is content neutral and is justified without reference to the allegedly regulated “speech.”

As to the third prong of the Turner test, the name-change ban is sufficiently tailored to achieve the State’s important interest in efficiently tracking registered sex offenders. As noted above, the statute specifically enables Ella to express herself by using her desired name; she simply may not change her legal name. The name-change ban is sufficiently narrow in scope because it does “not ‘burden substantially more speech than is necessary to further the government’s legitimate interests.'” …

[C.] Ella also raises an as-applied challenge to the sex offender registry under the Eighth Amendment …, which prohibits states from imposing “cruel and unusual punishments.” … Ella’s argument regarding the Eighth Amendment fails because our supreme court has held that Wisconsin’s sex offender registration requirement does not constitute punishment at all. In Bollig, the court held that “Wisconsin’s registration statute does not evince the intent to punish sex offenders, but rather it reflects the intent to protect the public and assist law enforcement.” …

While Ella concedes that, under Bollig, the purpose of the sex offender registry is civil and nonpunitive, she nevertheless argues that its effect is punitive as applied to her, given her transgender identity…. Our supreme court found in Bollig that the intent of the sex offender registry statute is not to impose punishment but, rather, to create a civil regulatory scheme to protect the public and assist law enforcement. Moreover, the effects of the statute, as a whole, are not so punitive as to render it criminal in nature. In asserting an as-applied challenge, Ella is attempting to relitigate the issue of whether mandatory sex offender registration is punitive due to its effects as applied to her. Ella cannot circumvent Bollig‘s holding simply by bringing an as-applied challenge.

 

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If you were hoping President Joe Biden might break from former President Donald Trump’s broad view of executive authority, don’t hold your breath. On Wednesday afternoon, Biden plans on extending the Centers for Disease Control and Prevention’s (CDC) eviction moratorium through the end of March.

That moratorium prohibits landlords—under penalty of stiff fines and even jail time—from evicting tenants for non-payment if they file a hardship declaration stating that they are unable to pay rent because of the pandemic and their eviction would result in them moving into a crowded living situation.

The Trump administration, through the CDC, first issued this moratorium back in September. It was extended through the end of January by the relief bill passed by Congress at the end of December.

Throughout the pandemic, federal housing agencies have issued a slew of eviction and foreclosure protections for residents of single-family homes financed or owned by a government-sponsored enterprise like Fannie Mae and Freddie Mac or with a federally insured mortgage. The CARES Act, passed in March 2020, paused evictions at multi-family properties with a federally insured mortgage and for renters receiving federal housing aid.

The CDC’s eviction moratorium is distinct in that it applies to all rental properties nationwide, regardless of any federally insured mortgage or participation in a government housing program. The sweeping nature of that moratorium, and the fact that it was initially issued by executive fiat, has sparked numerous legal challenges.

“There’s definitely separation-of-powers problems with the president just making up law or the CDC just making up law. That’s what happened under Trump with the CDC when they issued the national eviction moratorium,” says Luke Wake, an attorney with the Pacific Legal Foundation, which has filed multiple lawsuits challenging the CDC’s moratorium. “Biden is doing this on the same flawed statutory construction.”

The CDC has relied on a very broad interpretation of the Public Health Service Act to justify its initial moratorium. That law gives federal health officials the authority to make regulations “reasonably necessary” to prevent the interstate spread of communicable disease, including “inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.”

The potential for evicted tenants to move into crowded living situations, spreading COVID-19 in those environments, made an eviction ban a “reasonably necessary” means of combating the pandemic, according to the CDC.

That’s a sweeping claim of authority on the part of the agency, as some legal observers have noted.

“If Trump can use this authority to impose a nationwide eviction moratorium, Joe Biden (or some other future president) could use it to impose a nationwide mask mandate, a nationwide lockdown, or just about any other restriction of any activity that could potentially reduce the spread of the flu, the common cold, or any other disease,” wrote George Mason University law professor Ilya Somin at the Volokh Conspiracy in September.

Biden himself appears unwilling to embrace this expansive view of executive power when it comes to things like masks. The president initially claimed on the campaign trail that he could issue a nationwide mask mandate before deciding that that power was beyond the scope of the presidency. Last week he also explicitly called on Congress to pass another extension of the nationwide eviction moratorium through the end of September 2021.

All of that would suggest that even Biden believes congressional action is necessary to extend the CDC’s eviction moratorium.

“There’s a sense that [Biden] can’t really do it, or it’s legally questionable about whether he can legally do it, so he wants to get Congress to do something to cover his tracks,” Wake tells Reason. “The fact that Congress did pass a bill to provide a nationwide moratorium on evictions for a month speaks to the fact that when Congress wants to pass that kind of legislation, they can do it.”

At best, this suggests Biden has an inconsistent view of his own powers to fight the pandemic. More concerning is the possibility that the new president is letting politics, not legal principles, guide his executive actions.

If that’s true, Biden is forgoing the imposition of a nationwide mask mandate not because it would be illegal, but because it would be unpopular.

It raises the worrying possibility that the president could impose any number of pandemic-related restrictions, from a mask mandate to business closures, should he perceive that to be a politically advantageous move.

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