Last night I attended a talk with Jeffrey Toobin, CNN legal analyst and author of the The Nine: Inside the Secret World of the Supreme Court. His remarks were essentially a rehash of the book’s main point: how the Republican party has changed dramatically over the last 40 years and how this new brand of Republicanism has changed the fundamental makeup of the Court and, in turn, constitutional law.
After his remarks someone in the audience asked him to address the notion of judicial activism — the controversial and difficult-to-define practice often involving the imposition of a judge’s own policy preferences or biases in the face of clear democratic majority will. Toobin used the opportunity to argue the point that, contrary to popular belief, the liberals on the Court do not have a monopoly on activist decisions. He points to the following conservative decisions recently handed down:
- Parents Involved in Community Schools v. Seattle School District No. 1: The Court refused to permit school districts to assign students to schools based on race in order to achieve racial integration.
- District of Columbia v. Heller: The Court held for the first time that the Second Amendment protects an individual right to bear arms and, in the process, struck down a 33 year old handgun ban in D.C.
- Citizens United v. Federal Election Commission: The Court held that the First Amendment prohibited the restriction of corporate funded political broadcasts and, in the process, struck down a portion of McCain-Feingold.
Each of these cases involved the Court second-guessing democratic policy preferences. But on the liberal side, Roe v. Wade and Lawrence v. Texas similarly involved the Court striking down democratic laws. It’s very difficult to dub a decision as activist without implicitly voicing a preference as to the merits of the decision — conservative and liberal judges likely think that each others’ decisions are activist if they disagree with the outcomes.
I suppose the moral of this post, then, is that one judge’s activism is another judge’s unwavering fidelity to the law. Or maybe it’s that the Court’s jurisprudence is simply policy masquerading as law.
As my first post, I thought I’d treat you to a special Tax Day list of some of the fun ways your hard earned dollars make their way to our government coffers to be spent wisely by our omniscient and benevolent lords and masters. I’m sure the list is incomplete – feel free to add your own.
It’s a useful exercise to try to calculate how much of your annual income ultimately is taken by the government via all the means. Disclaimer: I cannot be held responsible for the likely subsequent uptick in the suicide rate among the vast readership of this fine blog (or blogue).
And away … we … go:
Federal income tax
Federal Medicare tax
Federal Social Security tax
State income tax
Municipal income tax
Property Tax
Capital gains tax
Corporate income tax
Estate tax
State sales tax
Bridge and highway tolls
Bus, subway, and rail fares
Cell phone surcharges
Cable bill surcharges
Drivers license renewal fee
Building permit tax
Cigarette tax
Parking, sanitation, and other fines
Gasoline tax
Luxury taxes
School taxes
Recycling deposits (that nobody ever gets back)
And introducing:
Health insurance tax
Soda taxes
VAT tax
Every dollar (of the countless trillions) spent by the government has to come from somewhere. And ultimately, every dollar comes from you. Yes you. Sitting over there. Squinting at the screen. You know who you are. The Tax Man is coming.
Hide your soda can.
The Supreme Court will hear the funeral picketing case, Snyder v. Phelps, early next term. The case involves an organization led by Fred Phelps that pickets the funerals of American soldiers with signs such as “God Hates Fags,” “Thank God for 9/11″, and “Thank God for Dead Soldiers.” The organization believes that God is punishing the United States for its toleration of homosexuality.
The trial court awarded Mark Snyder — the father of a dead soldier whose funeral was picketed by the organization — a five million dollar verdict for intentional infliction of emotional distress and invasion of privacy. But the U.S. Court of Appeals for the Fourth Circuit reversed, holding that this activity is constitutionally protected speech under the First Amendment.
Eugene Volokh believes that the Court of Appeals was right:
[A]t least where speech on matters of public concern is involved, the First Amendment precludes liability based on “statements on matters of public concern that fail to contain a ‘provably false factual connotation’”. This applies not just to libel liability, but also liability for intentional infliction of emotional distress and intrusion upon seclusion (the specific form of invasion of privacy alleged here). If the speech fits within “one of the categorical exclusions from First Amendment protection, such as those for obscenity or “fighting words’” it might be actionable. But if it’s outside those exceptions, then it can’t form the basis for an intentional infliction of emotional distress or intrusion upon seclusion lawsuit — regardless of whether it’s “offensive and shocking,” or whether it constitutes “intentional, reckless, or extreme and outrageous conduct causing … severe emotional distress”.
Professor Volokh also notes that ruling in favor of Mr. Snyder would create a real slippery slope problem that would erode free speech protections in other contexts. In particular, he gives the following hypothetical scenario that he says might very well be permitted as a result of ruling in favor of soldier’s father:
The University of Maryland decides to discipline students who hold a demonstration carrying posters that display the Mohammed cartoons. The University disciplines for violating some sort of rule that bars the creation of a “hostile educational environment” for various religious groups, or for that matter a rule that bars “conduct or speech that is outrageous, and that intentionally or recklessly inflicts severe emotional distress on some students.”
Professor Volokh specifically asks us whether we would be confident that judges would in fact distinguish these two scenarios or instead defer to university administrators in the wake of a ruling against the Phelps organization. To be clear, I certainly believe that at the core of the First Amendment is the notion that speech must be tolerated even if the majority of society finds such speech abhorrent. If abhorrent speech were not tolerated then the First Amendment would quickly become a nullity. But I never found slippery slope arguments of the sort hypothesized by Professor Volokh very convincing. While I’m not sure if judges would rule in favor of university administrators in such a manner, my belief is that they should not. Funerals and educational settings are entirely different and distinguishable. Free speech on university campuses is vital to the “marketplace of ideas” theory. Where else are diverse viewpoints more important than higher educational settings? But a funeral is no such marketplace. Rather, funerals are perhaps the most solemn of human events and are immensely personal to the families involved. They certainly aren’t public and do not carry nearly the same interest of fostering diverse viewpoints as a university campus. Considering the context, I can’t help but think it provides ample room for distinguishing future speech-restricting scenarios and thus not make it the slippery slope that Professor Volokh fears. It also provides some justification for an explicit funeral exception to the First Amendment.
Network neutrality proponents are hurting today. Yesterday the U.S. Court of Appeals for the D.C. Circuit unanimously vacated the FCC’s 2008 order censuring Comcast for blocking certain peer-to-peer traffic. The decision once again gives ISPs like Comcast the power to withhold bandwidth and thus significantly slow down or even block certain disfavored Internet traffic.
It’s important to emphasize, however, that the court’s decision was not rooted in a lack of support for network neutrality principles. The question before the court was whether the FCC possessed the legal authority to enforce a principle like network neutrality under its very general ancillary jurisdiction. Without diving into the complexities of administrative law, federal agencies are created by statute and are thus limited in power depending on the formulation of the particular enabling law. The FCC is a creature of both the 1934 and 1996 Telecommunications Acts – neither of which gives the FCC the explicit authority to regulate ISPs. What the FCC was attempting to do with Comcast was use its delegated “ancillary jurisdiction” to regulate Comcast’s network traffic. But ancillary jurisdiction, almost by definition, has to be ancillary to some express delegation of regulatory authority, which the FCC does not have over ISPs. This is precisely what the D.C. Circuit said. It rejected the FCC’s argument that ancillary jurisdiction can be used to further general expressions of policy in the FCC’s enabling statute. According to the court, ancillary jurisdiction means ancillary to delegations of authority, not expressions of policy.
But this is not necessarily the end of the road. The Supreme Court might step in and reverse, although I personally don’t see that happening. Jack Balkin notes that the FCC might change course and assert its express Title II authority over “common carriers” as a jurisdictional grant over ISPs — a route it chose to avoid several years ago in the hopes of lessening the regulatory constraints that come with acting pursuant to express and limited jurisdictional grants (a.k.a. obeying the law).
Unfortunately, the most legally sound option, in my opinion, may actually be the most unlikely to occur. The most legitimate way for the FCC to assert jurisdiction over ISPs such as Comcast is for Congress to explicitly expand the FCC’s grants of jurisdiction to include ISPs. Such legislation would require a political will (i.e., 60 votes) negating the influence of special interests in Washington — namely the interests of broadband providers like Comcast. It just might take a few more years of blocked internet traffic for this type of climate to develop.
To quote Nicholas Quinn Rosenkranz, “[t]he most important sentence in the most important case about the constitutional law of foreign affairs is this one:”
If the treaty is valid there can be no dispute about the validity of the [implementing] statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.
The practical effect of this sentence is that the treaty-making power automatically gives Congress the power, when necessary, to pass legislation to give a treaty domestic legal effect even if Congress could not pass such legislation on its own. In other words, Congress can do through implementing legislation what it otherwise could not.
What makes this scary, in theory, is that the limits of the Executive’s treaty-making power under Article II have not been defined by the Supreme Court. While we know that there has to be some limit to what the President may impose upon the country through international agreement, we don’t know exactly where that line falls. Nobody would argue that the President could renegotiate the slave trade under the guise of treaty-making and thereby nullify the Thirteenth Amendment. But there are certainly less problematic examples.
The issue surrounding implementing legislation, however, is more subtle. Congress’s powers are limited and articulated piecemeal in Article I, section 8, the most significant of which is the authority to regulate interstate and foreign commerce. So if the President negotiates a treaty that requires implementing legislation, the subject matter of which falls outside the scope of Congress’s express powers, the above language by Justice Holmes means that Congress can nevertheless pass such legislation.
Examples of a problematic expansion of Congressional power under this theory need not be as abhorrent as nullifying constitutional rights. The reach of Congress’s regulatory authority calls into question basic federalist principles. The greater Congress’s regulatory terrain, the smaller becomes that of the States.
