Category: reason

Yesterday, the Wisconsin Supreme Court decided Wisconsin Legislature v. Palm. This case declared invalid Wisconsin’s stay at home order. Eugene blogged about the 4-3 decision here. Justice Dallet’s dissent offered this charge:

This decision will undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history.

The label “judicial activism” is meaningless; it is used to describe a decision one disagrees with. But let’s assume the phrase “judicial activism” has the meaning often ascribed to it. Justice Dallett writes:

But legislating a new policy from the bench exceeds the constitutional role of this court.

Is Wisconsin Legislature v. Palm the most “blatant example” of “judicial activism”? I can think of at least one other decision that may fit the bill: In Re Booth (Wisc. 1854), which was reversed by the Supreme Court in Ableman v. Booth (1858). This famous decision openly disagreed with Supreme Court precedent.

I discussed the case in my article, The Irrepressible Myth of Cooper v. Aaron.

The fourth source of authority cited by Cooper to establish the principles of judicial supremacy and universality was Ableman v. Booth. This Taney Court case is “widely recognized as one of the most historically significant Supreme Court decisions of the nineteenth century.” In the antebellum era, abolitionist Sherman Booth interfered with the capture of a runaway slave in Wisconsin. At the time, Stephen Ableman, the federal marshal, held the slave in custody pursuant to a warrant issued by a federal district court. Booth was arrested for violating the Fugitive Slave Act of 1850. (This law was different from the Fugitive Slave Act of 1793, which was upheld in Prigg v. Pennsylvania.) Even though Booth was in federal custody, the Wisconsin Supreme Court granted a writ of habeas corpus. Justice Abram D. Smith expressly disagreed with Justice Story’s opinion in Prigg and ruled that Congress lacked the authority to enact the Fugitive Slave Act of 1850. (“[F]or the reason that the congress of the United States has no constitutional power or authority to punish the offense with which said Booth is charged, and for which he is detained by said warrant; for which reasons said warrant is of no force or validity whatever.”) The Wisconsin Supreme Court as a whole affirmed Smith’s decision, although on narrower grounds. One justice dissented because the issue had been “authoritatively decided by the supreme court of the United States, the last and final constitutional exponent.”

The Supreme Court unanimously reversed the Wisconsin Supreme Court:

The Supreme Court of the United States unanimously reversed this judg-ment.Chief Justice Taney wrote the majority opinion. He rejected the notion that the Wisconsin court could render its “decision [as] final and conclusive upon all the courts of the United States.”Once the state court knows the prisoner “is in custody under the authority of the United States,” Taney wrote, it “can proceed no further” and must respect “the line of division between the two sovereign-ties.”The Wisconsin judges could not grant a writ of habeas corpus because the federal prisoner is “within the dominion and exclusive jurisdiction of the United States.”If the state court should attempt to “interfere” with the federal marshal, the Chief Justice warned, “it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of law against illegal interference,” which is “nothing less than lawless violence.”

In short, the Wisconsin courts had no authority over a prisoner in federal custody who was held pursuant to a federal warrant. Were the structure otherwise, Chief Justice Taney wrote, “the powers granted to the Federal Government, would soon receive different interpretations in different States, and the Government of the United States would soon become one thing in one State and another thing in another.”

I think Prigg was an incorrect construction of the Constitution. Salmon P. Chase was right: Congress lacked the power to enact the Fugitive Slave Act. I also think that state courts judges take an oath to the Constitution, not to the Supreme Court. State judges can and should follow the higher law. And I’m not sure the Supremacy Clause precludes the outcome in Booth. However, under conventional doctrine, Booth flagrantly disobeyed Supreme Court precedent. Such apostasy would, in most corners, be labelled “judicial activism.”

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It was going to be the party of the year: my 50th birthday. I rented a fantastic place, picked a great menu, and sent funny invitations designed by my hilarious friend Brooke. I was counting down the weeks. Then COVID-19 hit. Lockdowns were ordered. No party for me. Yet what replaced it was the purest expression of the best that humanity has to offer, springing from creative forces that neither this virus—nor other negative forces—can kill.

My party being canceled is, of course, a minuscule tragedy compared with the deaths and economic destruction we’ve witnessed in the last few months. Still, I was sad that what was supposed to be a great weekend spent with family coming from France and friends coming from all over the country has been postponed indefinitely. I knew my teenagers would, no matter what, make the day special—it was Mother’s Day, too—and that I would still hear from my friends.

And what replaced the party was so much more meaningful and amazing because it was fueled by my friends’ love and creativity, and by the amazing innovators who make coping with the isolation more tolerable.

When I woke up, I was greeted by a video from my oldest friend in France: a fun musical performance of the “Happy Birthday” song performed with a piano and homemade instruments, recorded on an iPhone and sent over the Atlantic Ocean in mere seconds, free of charge. None of that would have been possible had I turned 50 in 2007.

Then came the Zoom family reunion with cousins in three countries, three continents, and two hemispheres. While Zoom was created in 2011, the company has quickly become a household name and a business essential during the pandemic. This company succeeds not only because it makes its product free to individuals but also because it quickly responded to the privacy issues that emerged during the pandemic.

After that international celebration came a wonderful video montage of my friends and colleagues from around the country, all orchestrated by my Mercatus Center boss, Dan Rothschild. The simple link that I received on Sunday morning does not boast of the thousands of technical innovations that make this wonder a now-commonplace reality in everyone’s homes. Remarkably, I drank in this love and well-wishing all from the comfort of my bed.

I soon discovered another gift at 11 a.m., but it was delivered to my house around 8 a.m. and would be picked up 12 hours later. This one is 100 percent a pandemic innovation, triggered by the thousands of life events that couldn’t be celebrated during these times of social distancing. As I opened my front door, I discovered a beautiful sign wishing me a happy birthday. It was festooned with balloons and cupcakes right there in my front yard, all orchestrated by my loving friends Ashley and Kevin.

The company, Sign Sisters, didn’t exist before this crisis. It’s an Arlington, Virginia, startup, and, just like its signs do, it displays the creativity and thoughtfulness of so many local entrepreneurs throughout the country—creative people who come up with ideas to satisfy needs, such as enabling celebrations when most of us remain in isolation.

That said, in the end, nothing surprised me more than the way my friends managed to reinvent my birthday celebration in this time of pandemic with a giant drive-by caravan of honking, decorated cars filled with cheering from people I cherish. As the neighbors came out of their houses to share in the celebration, I could feel my heart explode with gratitude, and I certainly didn’t feel alone.

After spending a few minutes Googling drive-by celebrations, I found out that friends, neighbors, and families around the country are organizing these drive-bys both to celebrate birthdays and graduations and to honor health care professionals, celebrate recovery from COVID-19, or simply offer moral support. New companies have been created to offer all sorts of festive designs for cars and trucks.

There was Andrew’s video montage with priceless testimonials from my kids, family, and friends. There were flowers and other thoughtful gifts delivered throughout the weekend—many ordered online, another innovation we now take for granted. So, in the end, while I’ll always have slight regret about not having my party as planned, my birthday weekend was way better than it would have been without this pandemic. I will never forget it, and I will always marvel at people’s endless ability to love, connect, and create.

COPYRIGHT 2020 CREATORS.COM

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Read the Wisconsin State Journal (Riley Vetterkind) article, or the 4-3 decision in Wisconsin Legislature v. Palm (161 pages!). The opening paragraphs of the majority opinion:

This case is about the assertion of power by one unelected official, Andrea Palm, and her order to all people within Wisconsin to remain in their homes, not to travel and to close all businesses that she declares are not “essential” in Emergency Order 28. Palm says that failure to obey Order 28 subjects the transgressor to imprisonment for 30 days, a $250 fine or both. This case is not about Governor Tony Evers’ Emergency Order or the powers of the Governor.

We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, and therefore is subject to statutory emergency rulemaking procedures established by the Legislature. Emergency Order 28 is a general order of general application within the meaning of Wis. Stat. § 227.01(13), which defines “Rule.” Accordingly, the rulemaking procedures of Wis. Stat. § 227.24 were required to be followed during the promulgation of Order 28. Because they were not, Emergency Order 28 is unenforceable.

Furthermore, Wis. Stat. § 252.25 required that Emergency Order 28 be promulgated using the procedures established by the Legislature for rulemaking if criminal penalties were to follow, as we explain fully below. Because Palm did not follow the law in creating Order 28, there can be no criminal penalties for violations of her order. The procedural requirements of Wis. Stat. ch. 227 must be followed because they safeguard all people.

We do not conclude that Palm was without any power to act in the face of this pandemic. However, Palm must follow the law that is applicable to state-wide emergencies. We further conclude that Palm’s order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of Wis. Stat. § 252.02 upon which Palm claims to rely.

And from Justice Dallet’s dissent:

Today, a majority of this court does the Legislature’s bidding by striking the entirety of Emergency Order 28, “Safer at Home Order” …. The majority reaches its conclusion by torturing the plain language of Wis. Stat. § 252.02 and completely disregarding the longstanding, broad statutory powers the Legislature itself granted to the Department of Health Services (DHS) to control COVID-19, a novel contagion. This decision will undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history. And it will be Wisconsinites who pay the price….

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Yesterday, the Supreme Court heard oral argument in the tax return cases. Several Justices repeatedly asked Douglas Letter, counsel for the House, what limiting principle exists for Congress’s subpoena power. He refused to give an answer. Jon Adler and Mike Dorf faulted Letter. I wrote that Letter may have deliberately refused to answer those questions.

Steve Sachs wrote that a limit may not be needed. Under Article V, Congress has the power to propose a constitutional amendment “on any topic under the sun.”  Therefore, Congress could request just about any information that could help the development of a proposed amendment.

Ilya Somin suggests that courts could apply something of a good-faith standard:”if the supposed amendment turns out to be a complete sham cooked up purely for purposes of subpoenaing information, that fact is likely to leak out, and courts should be able to take notice of it and rule accordingly.” I’m not sure what a “complete sham” would mean in this context. There have been countless constitutional amendments proposed that had zero prospects of ratification. I suspect their authors would maintain they are not shams.

Let’s consider an example. The House is considering a constitutional amendment that would allow Congress to alter, by law, the president’s qualifications. Here, it may be reasonable to subpoena certain information from the President to determine how to properly structure that amendment. Does this amendment have any chance of ratification? Almost certainly not. Is it a sham? I wouldn’t say so. Many people would genuinely support this amendment. Or maybe the House is considering an amendment that would create a maximum-age limit for the presidency. (Derek Muller proposed this amendment.) Would it be reasonable to request the health records of the President and his family members? I think so. It will always be possible to craft, in good faith, a proposed amendment that requires the specific information the House already wanted.

Perhaps the answer is that Congress’s subpoena powers is unlimited because of Article V. So long as the House can draft up a possible constitutional amendment, it can seek any information to facilitate that process. But Article V would not provide the sort of limiting principle the Justices asked for.

Ilya also suggests that Article I may provide several limiting principles. For example, he cites Lopez and Morrison, which imposed some limitations on Congress’s powers under the Commerce and Necessary and Proper Clauses. I wish these limitations were meaningful, but after Raich, these powers are still quite broad. NFIB put only the slightest crimp on federal power, and the Court has not show any willingness to expand that doctrine in the last decade. Ilya also mentions the commandeering doctrine. This doctrine, thankfully, has far more teeth. Congress cannot order states, or state officials, to take certain actions.

Ilya offers two examples:

For example, Congress could not subpoena information related to Trump’s many affairs and his divorce settlements with his two previous wives. Marriage and divorce are matters largely left to state regulation, not federal. Similarly, Congress could not use its legislative authority to investigate whether it should force state or local governments to curtail possibly unethical business dealings by the Trump family. The anti-commandeering rule forbids such laws.

I agree. Congress’s Commerce & Necessary and Proper powers could not support the first hypothetical statute. Domestic law is reserved to the states. And the second hypothetical statute would run afoul of the Commandeering Doctrine.

But there is there is another element of Article I that Ilya did not mention: the spending power. Congress cannot force states to take action directly; but it can condition funds on states taking those actions. Here, the leading precedent in South Dakota v. Dole. Randy and I offered this summary in An Introduction to Constitutional Law.

Chief Justice Rehnquist wrote the majority opinion. He explained that “[t] he spending power is of course not unlimited, but is instead subject to [four] general restrictions.” First, “the exercise of the spending power must be in pursuit of ‘the general welfare.'”…  Second, Congress must place conditions on the funds “unambiguously.” States need to know what they are getting into when they accept federal money…. Third, the conditions must relate to “the federal interest” for which the spending program was established. Chief Justice Rehnquist found that “[t] he condition imposed by Congress is directly related to one of the main purposes for which highway funds are expended — safe interstate travel.” The majority opinion did not define how closely “related” the condition must be to Congress’s “purpose.” Justice O’Connor’s dissent provided a more narrow test for “relatedness,” or “germaneness.” Fourth, “[o]ther constitutional provisions may provide an independent bar to conditional grant of federal funds.” … In addition to these four limitations, Chief Justice Rehnquist identified a fifth factor: A condition becomes unconstitutional when “the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.'” Such coercion would, in effect, commandeer the state legislature to comply with the condition.

Congress could not force a state government to investigate possible corruption. But Congress could condition funds on the state performing that function. Congress could not regulate family law. But Congress could condition funds on states regulating family law in a specific fashion. And information could be requested to facilitate the drafting of such legislation.

Proposed legislation could be crafted in a very precise way to stick to the requirements of Dole. The statute would pursue the general welfare; the conditions would be unambiguous; the condition relates, broadly, to law enforcement concerns or domestic matters; no other provision (such as the Due Process Clause or the Bill of Attainder Clause) bars that condition; and the amount of funding is small, and non-coercive.

Any competent legislator can draft a bill to accomplish those goals. Such a bill need never become law. And courts would be loathe to call it a “sham.” Justice O’Connor’s dissent would have put some teeth into the “germaneness” requirement. Alas, the majority rejected that approach. But given the broad confines of Dole, Congress could investigate a virtually unlimited range of conduct, pursuant to the spending clause.

During oral argument, Doug Letter alluded to the spending power. Early in the argument, Chief Justice Roberts asked Letter about a limiting principle. Letter responded with a discussion of “bankruptcy proceedings.” Roberts interjected, “do you think bankruptcy proceedings is a subject on which legislation could not be had?” Letter answered that “obviously, bankruptcy could be” subject for possible legislation. Letter than added, “Congress’s legislative authority is extremely broad, especially because of its appropriations–.” Roberts interrupted him, and cut him off. I think Letter was going to say “its appropriations power.” That is, the Spending Clause.

Later, Letter gave the same answer to Justice Alito:

JUSTICE ALITO: But you were not able to give the Chief Justice even one example of a subpoena that would be –that would not be pertinent to some conceivable legislative purpose, were you?

MR. LETTER: As –as I said, Your Honor, the –that –that’s correct, because this Court itself has said Congress’s power is –to legislate is extremely broad, especially when you take into account appropriations.

Here, the House was hinting at a limit, that would not really limit at all.

At bottom, perhaps Congress’s subpoena power has no meaningful limits. Maybe there doesn’t need to be a limiting principle. Maybe Steve Sachs is right, as a matter of first principles. That may be the House’s position, which explains Letter’s strategy. I don’t have a strong opinion on this question.

Generally, when a Justice asks for a limiting principle, you are probably going to lose. And efforts to manufacture limiting principles before conference–a form of armchair quarterbacking–will not work. (I wrote about this phenomenon in Unprecedented). Cases will be decided on the briefs. And Letter, who did not make any unnecessary concessions, will be happy to have the case decided on the briefs.

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Swedish climate activist Greta Thunberg has been invited by CNN to be an “expert panelist” on a Thursday night event about the COVID-19 pandemic.

If you are a bit confused by this choice, that’s fair. Thunberg not really an expert in the field for which she is most well known, and that field is not virology or epidemiology or economics. I don’t mean that as a slight against her angry performance at the United Nations last year. Honestly, more teenagers should snarl derisively at the elected and appointed leaders ruining the world.

Still, it was a performance and she is a performer, not an expert in pandemics or economics. Her inclusion on a panel that CNN is promoting as “Coronavirus: Facts and Fears” seems like a poor use of airtime. Sweden has taken a unique and interesting approach to COVID-19 that may prove useful for informing American policy. If the network wanted to share that experience with American news consumers in a way that could inform them, it might’ve been better to book a Swedish epidemiologist rather than a Swedish 17-year-old the internet loves to fight over.

Is this more evidence for the so-called “death of expertise”? That idea, most memorably expressed in a book of the same name by anti-Trump conservative radio host Tom Nichols, says that Americans have rejected expertise in policymaking (and other fields) in favor of misinformed hucksterism and conspiracy theorizing. The best piece of evidence for this trend is the election of President Donald Trump. Yet if public polling is to be believed, Americans trust the experts more than they trust Trump on the coronavirus.

Thunberg’s inclusion does say something pretty dreadful, however, about institutional media. People who talk about a decline in institutions usually mean public entities like the Justice Department or the presidency, or civic organizations like the Lion’s Club. But the media is an institution too, and it has been weakened not by the death of expertise (we have plenty of experts!) but by the cancer of cynicism.

Trump embodies that cynicism and so does media coverage of his behavior. His campaign rallies feature racist attacks on immigrants, but look at how many people showed up! His coronavirus press briefings are a word salad of half-truths and random speculation, but look at the ratings!

Inviting Thunberg to this panel was a deeply cynical decision by CNN. They knew it would be a big deal on Twitter, that it would raise the profile of the event even as it caused people who weren’t going to tune in anyway to get Mad Online. CNN knew they could get publications like Reason to write articles like this one providing free publicity beforehand, and that many publications—CNN.com included—will write recaps afterward, likely with a CNN video embedded. People who would not otherwise watch the panel if it included exclusively public health experts and economists will watch it because Thunberg is on it.

Electing celebrities won’t fix what’s wrong with American politics, and encouraging their performative antics won’t either.

CNN’s producers can, of course, invite whomever they want to their events. But when a news network makes a choice like this one—to provide a global platform on an issue of global importance to a teenager with no expertise—those of us who find that decision disconcerting should demand better. Media institutions like CNN are not victims of celebrity pseudo-expertise, they are the driving force behind it.

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