The parties stipulated to the facts underlying this appeal. Baker was charged with violating section 720.4 based on a telephone conversation Baker had with Debra Krause, who had recently served as a juror in a criminal proceeding against one Greg Schoo, a friend of Baker. On May 8, 2003, the jury convicted Schoo of first-degree burglary, which carries a mandatory twenty-five-year prison sentence.

The day after the verdict was rendered Krause received a phone call that began with the caller’s question, “Is this Deb?” Because Krause and Baker had previously worked together, Krause recognized Baker’s voice. In addition, Krause’s caller ID confirmed the call was made from Baker’s telephone. When Krause responded that yes, she was Deb, the caller stated, “This is Rose.” The caller then asked Krause “if [she] knew that [she] gave him 25 years.” Krause understood Baker was referring to Schoo. Krause told Baker she did not know what sentence Schoo had received. Baker then stated: “Well, I just thought you should know you gave him 25 years,” and hung up the phone.

Krause notified law enforcement of Baker’s call. Although Krause did not feel threatened by Baker, she was bothered and upset by the call and Baker’s tone of voice. According to Krause, she “was in disbelief that [Baker] had called [her] to say that.” Krause said she “did not beg and plead to be one of the jurors,” and would rather not have been picked, but it was “something [she] had to do — whether [she] wanted to or not!”

Baker was charged with jury tampering, under a statute that provides, “A person who … in retaliation for anything lawfully done by any witness or juror in any case, harasses such witness or juror, commits an aggravated misdemeanor.” “Harassment” is in turn defined as, “with intent to intimidate, annoy, or alarm another person, … [c]ommunicat[ing] with another by telephone, telegraph, writing, or via electronic communication without legitimate purpose, and in a manner likely to cause the other person annoyance or harm.” The court of appeals concluded that the prosecution could go forward:

Here there was clearly a jury question under the stipulated facts whether Baker contacted Krause to gather factual information about Krause’s knowledge and views of the sentencing system, or whether the contact was intended to intimidate or alarm Krause in retaliation for her role in convicting Schoo.

Rosemary Baker was ultimately convicted on remand.

The court of appeals decision, it seems to me, is wrong and quite dangerous. The court seems to be suggesting that the impermissible purpose might be a purpose to make Krause feel frightened (“intimidate[d] or alarm[ed]“) — but if the stipulated facts are sufficient to permit a prosecution based on this theory, then no-one is safe expressing to a juror that they thought the juror helped work an injustice, or for that matter expressing to other people that they thought those people did something bad. There is always the danger that a hostile prosecutor, judge, and jury will infer a bad purpose on your part, even when there were no threatening words, the listener makes clear that she didn’t feel threatened, and the listener knows you and has no reason from past contact to fear you. Whatever the scope of the “true threats” exception to the First Amendment, I doubt it can be broad enough to cover speech such as this.

Of course, it’s plausible, given the stipulated facts, that Baker might have wanted Krause to feel sorry or unhappy about what she helped do. But I doubt such a desire can strip such speech of constitutional protection, and in any event it seems to me a “legitimate purpose” for purposes of the statute (or else any call to someone to tell them that they did something bad, and to make them feel bad about it, would potentially be criminal “harassment”). At the very least, the phrase “without legitimate purpose” doesn’t sufficiently inform people that such a purpose is impermissible (and is, I think, unconstitutionally vague).

More broadly, I’m quite troubled by such laws that prohibit a considerable amount of conduct, much of which would be constitutionally protected, and then try to avoid this overbreadth by limiting the prohibition to conduct that lacks a “legitimate purpose.” Who can know what purposes the legal system will eventually find “legitimate”? If you want to punish threats, punish threats. If you want to punish behavior that has the purpose of assisting some crime, punish that. But don’t just leave to future prosecutors, judges, and juries the decision about what’s “legitimate” and what isn’t — and thus leave citizens uncertain about what’s allowed and what’s not.

This is our lot if we live so long and labour unto the end –
Then we outlive the impatient years and the much too patient friend:
And because we know we have breath in our mouth and think we have thought in our head,
We shall assume that we are alive, whereas we are really dead.

We shall not acknowledge that old stars fade or stronger planets arise
(That the sere bush buds or the desert blooms or the ancient well-head dries),
Or any new compass wherewith new men adventure ‘neath new skies.

We shall lift up the ropes that constrained our youth, to bind on our children’s hands;
We shall call to the waters below the bridges to return and to replenish our lands;
We shall harness (Death’s own pale horses) and scholarly plough the sands.

We shall lie down in the eye of the sun for lack of a light on our way –
We shall rise up when the day is done and chirrup, “Behold, it is day!”
We shall abide till the battle is won ere we amble into the fray.

We shall peck out and discuss and dissect, and evert and extrude to our mind,
The flaccid tissues of long-dead issues offensive to God and mankind –
(Precisely like vultures over an ox that the army left behind).

We shall make walk preposterous ghosts of the glories we once created –
Immodestly smearing from muddled palettes amazing pigments mismated –
And our friend will weep when we ask them with boasts if our natural force be abated.

The Lamp of our Youth will be utterly out, but we shall subsist on the smell of it;
And whatever we do, we shall fold our hands and suck our gums and think well of it.
Yes, we shall be perfectly pleased with our work, and that is the Perfectest Hell of it!

This is our lot if we live so long and listen to those who love us –
That we are shunned by the people about and shamed by the Powers above us.
Wherefore be free of your harness betimes; but, being free be assured,
That he who hath not endured to the death, from his birth he hath never endured!

In his 1998 book, Rethinking the New Deal Court, legal historian Barry Cushman has called this conventional wisdom into question by noting (among other reasons) that, because the conference vote on West Coast Hotel took place before FDR announced his plan, Owen Roberts’ vote could not have been a product of the threat.  Cushman contends instead that the Owen Roberts’ change of heart was motivated, not by politics, but instead by a growing dissatisfaction with the workability of the Court’s Due Process doctrines.  But Cushman’s is probably still the minority view.  Fairly or not, Justice Owen Roberts will likely forever be known as the justice who succumbed to political pressure to change his vote.

Rubin and Parker’s columns made me wonder whether President Obama, Senator Leahy, and pundits like Jeff Rosen have now put Chief Justice John Roberts in the same position as FDR put Justice Owen Roberts.  Had the Chief Justice already provided the fifth vote in conference to uphold the ACA, and had these critics quietly respected the deliberations of the Court after the case was submitted, nearly everyone would have accepted that Chief Justice Roberts’ decision to uphold the ACA was motivated by legal rather than political concerns.  Now, however, if the Chief Justice rules to uphold the ACA after all these nonlegal pleas and threats, he will always be suspected by both supporters and opponents of the ACA of having changed his vote in response to this political pressure.  As with Justice Owen Roberts’ vote, the supporters of the law will cheer and the opponents will complain, but both groups will have reason to believe that Chief Justice Robert’s decision reflected political considerations rather than his considered legal judgment in a close case.  And, because Supreme Court deliberations are secret, he cannot defend himself by revealing that he did not in fact change his vote after conference.

Years from now, some historian may try to rescue Chief Justice Roberts’ reputation as Barry Friedman tried to rescue Owen Roberts.  But until then, thanks to the President, Senator Leahy and the pundits and professors who have so loudly called upon the Chief Justice to decide this case politically or risk the legitimacy of the Court, should he now decide to uphold the ACA, he will always be suspected of being the second Justice Roberts to switch in time.

Thanks to Boston.com for the pointer. (I don’t know whether this was inserted by the alumnus himself — apparently the norm for the directory — or by someone else.)

Note that the government acting as employer has much more power over on-the-job speech of its employees than it does over the speech of private citizens and private employees (more on that here). In particular, it’s possible that the Department could restrict the display of items that cause substantial tension among coworkers, though it sounds like in this instance the Department ultimately chose not to do this (whether based on a judgment that the plate wasn’t disruptive enough, a desire to avoid litigation, or something else).

I. Why there is no Doctrinal Connection Between Lochner and the Individual Mandate.

In reality, the individual mandate has no doctrinal connection to Lochner or any other economic liberties or property rights cases. I covered the reasons why in detail in this article (pp. 99-101). Co-blogger David Bernstein, a leading academic expert on Lochner, makes some additional relevant points here.

To briefly summarize, this case is different from Lochner for two reasons. First, Lochner restricted some types of economic regulations by the states as well as the federal government. If the Supreme Court invalidates the federal individual mandate because it is beyond the scope of congressional authority, states such as Massachusetts would remain free to adopt mandates of their own.

Second, even the federal government would still have extraordinarily broad authority to regulate actual economic transactions, including employment relationships, manufacturing, the purchase of goods and services, and so on. Congress would only be denied the power to impose mandates under the Commerce Clause in the absence of some preexisting “economic activity.” Even the Court’s most extreme previous Commerce Clause decisions – such as Gonzales v. Raich – would remain in force. I would be very happy to get rid of Raich, a dubious decision that concluded that Congress’ power to regulate interstate commerce allowed it to forbid the possession of medical marijuana that had never crossed state lines or been sold in any market. But doing so isn’t necessary to strike down the mandate.

Conversely, if the Court upholds the mandate, that will in no way prevent it from strengthening enforcement of constitutional protections for economic liberties and property rights in future cases. Even if there are no enumerated powers limits to congressional authority under the Commerce Clause, that authority is still limited by the individual rights provisions of other parts of the Constitution. Many libertarians, including myself, believe that the Constitution imposes both stringent structural limitations on federal power and substantial individual rights-based ones. But it is perfectly possible for one to exist in the absence of the other. A decision upholding the individual mandate would not dictate the proper interpretation of the Takings Clause of the Fifth Amendment. Thus, it would not make it any less feasible for the Court to alter the questionable second class status of property rights in current doctrine.

It also would not dictate the correct interpretation of the Due Process Clausesof the Fifth and Fourteenth Amendments, or the Privileges or Immunities Clause. Thus, the Court could uphold the individual mandate, yet still (in future cases) enforce these clauses’ protections for economic liberties, which as David Bernstein and others have shown, are deeply rooted in the text and original meaning of the Amendment. And even if the Court did begin to protect property rights or economic liberties more strongly, it would not necessarily go as far as the pre-1930s Court did, which itself was not nearly as far as many modern liberals imagine (the Lochner-era Court upheld far more economic regulations than it struck down).

Indeed, the case for increased enforcement of individual rights constraints on Congressional power would be stronger if the Court ruled that there are no structural limitations on its authority to impose whatever mandates it wants. And that is the likely effect of a decision upholding the mandate.

II. Lochner as Epithet and Guilt by Association.

Some of those who raise the spectre of Lochner to attack the case against the individual mandate may not have any specific legal doctrine in mind. They might simply be using Lochner as a synonym for any decision striking down “economic” laws that they think are constitutional. If that’s the case, however, then the Lochner analogy is just a political epithet rather than a serious argument – much like Republicans calling Obama a “socialist.” As David Bernstein puts it in his important recent book on Lochner, it’s yet another example of commentators using the case as a “vacuous, rhetorical shortcut” for denouncing “what [they] consider the ‘activist’ sins of their opponents” even in situations where the legal issues in question have little or no connection to either Lochner or the Fourteenth Amendment. Conservatives have often used Lochner as an epithet themselves. So it’s understandable that liberals would do the same thing. But such rhetorical ploys are not substantive arguments.

Finally, there is the notion that the case against the individual mandate is discredited by its association with “radical” libertarian arguments against various other parts of the post-New Deal legal order. Some invocations of the Lochner analogy may be intended to reinforce this meme.

David effectively dismantles such guilt by association claims here. I would add that the case against the mandate has attracted support far beyond libertarian circles, “radical” or otherwise. The anti-mandate plaintiffs include 28 state governments and many private organizations, including many who are far from libertarian. It also has the support of most of the GOP and the vast majority of the general public. As a libertarian myself, I wish it were true that all of these people had suddenly bought into a broad libertarian agenda. In reality, however, their support for the case against the mandate is mostly a result of the fact that it’s perfectly possible to conclude that this law is unconstitutional without being either libertarian or an opponent of the entire post-New Deal legal regime.

UPDATE: I have made a few slight revisions to this post in order to increase clarity and correct a typo.

Let’s see what the left is asking Roberts to do. It’s quite a Faustian bargain it proposes.. The liberal advocates ask Roberts to knuckle under to the president’s public intimidation of the Supreme Court, begun when he attempted to humiliate publicly the justices on Citizens United and continuing up to his public scolding. They ask he accept the Supreme Court as an agent of the executive branch, ready to do its bidding. They ask Roberts to embarrass himself before fellow justices, who already know Roberts’s views of the case. They’ll certainly see if Roberts took a fall. Rosen et. al would have the chief justice sacrifice, perhaps permanently, the respect of his colleagues who know all too well the intimidation game afoot. The left would need Roberts to drag a fellow colleague, Justice Anthony Kennedy, along for cover — for it would be untenable for the chief justice to be lonely vote-changer. Kennedy’s robust and insightful questioning in oral arguments, in which he captured the essence of Obamacare (i.e. it would fundamentally alter the relationship between the individual and the federal government), would have to be swept aside. The Obama-Leahy-Rosen tag team would ask that Roberts subscribe to some alternate political reality in which Obamacare is very popular and the public would be shocked and rise up in anger that the Supreme Court would overturn the “popular will.” (They must assume Roberts isn’t aware more than 70 percent of the public think the law is unconstitutional.) The pleaders would ask Roberts to adopt the left’s contention that conservative justices who adhere to the meaning and text of the Constitution can’t all vote one way for fear it will “look bad,” but liberal justices are free to march uniformly as they see fit. In essence, the left asks Roberts, knowing he believes the law to be unconstitutional, to nevertheless switch sides and thereby violate his oath of office. That’s the one where he swore to “administer justice without respect to persons, and do equal right to the poor and to the rich.” And without regard to which side whines the loudest. I think the left asks waaay too much. The chief justice, I am certain, doesn’t want to go from umpire to the judicial equivalent of the 1919 Black Sox.

Read the whole thing here.

Michigan is one of 10 states in which gun deaths now outpace motor vehicle deaths, according to a study released Thursday by the Washington, D.C.-based Violence Policy Center.

But don’t expect the from-my-cold-dead-hands crowd to embrace the center’s conclusion that the disparity has everything to do with federal regulation — extensive and wildly successful in the case of motor vehicles, and virtually non-existent in the case of firearms.

“The idea that gun deaths exceed motor vehicle deaths in 10 states is stunning when one considers that 90% of American households own a car, while fewer than a third own firearms,” VPC Legislative Director Kristen Rand said. “It is time to end firearms’ status as the last unregulated consumer product.” …

“Motor vehicle deaths are on the decline as the result of a successful decades-long public health-based injury prevention strategy that includes safety-related changes to vehicles and highway design informed by comprehensive data collection and analysis,” a release accompanying the VPC study said. “Meanwhile, firearms are the only consumer product not regulated by the federal government for health and safety.”

But wait: The number of accidental gun deaths in Michigan in 2009 (the most recent year reported in WISQARS) was … 12, compared to 962 accidental motor-vehicle-related deaths. 99% of the gun deaths in Michigan that year consisted of suicides (575) and homicides (495).

Now say what you will about whether some gun control laws might reduce suicides or homicides, but it’s extremely unlikely that any “safety-related changes” or “regulat[ions] … for health and safety” are going to eliminate all but a tiny fraction of those suicides and homicides, which are overwhelmingly intentional acts by people who are willing to kill and are unlikely to be stopped by “regulat[ion] by the federeal government for health and safety.” Yet curiously the op-ed says nothing about how few of the gun deaths were accidental, and how few homicides or suicides could be prevented by “safety-related changes” along the lines of the safety regulations imposed on cars.

This also helps explain, I think, why gun rights supporters are so worried about “health and safety” proposals. Precisely because such proposals are so unlikely to have much of an effect, the gun rights supporters naturally assume that the backers of the proposals aren’t really after modest car-like “regulat[ions] … for health and safety,” but are actually trying to bring about much more aggressive sorts of gun restrictions.

(1) It’s the 1930s. The Scottsboro Boys are represented by a known Communist Party front, beholden to the agenda Josef Stalin and his minions have dictated to the the C.P., including the creation of a separate country for American blacks in the “Black Belt.” The Supreme Court should rule against the Scottboro Boys because otherwise the Court will be well on its way to adopting the Communist agenda.

(2) It’s the 1980s. The EEOC is before the Supreme Court arguing that Title VII protects women from sexual harassment. The intellectual energy behind this claim comes from radical feminist Catherine MacKinnon, who also supports such things as “comparable worth” and a ban on indecent sexual speech. The Supreme Court should rule against the EEOC, lest it be well on its way to adopting the radical feminist aganda.

(3) It’s the 2000s. Various War on Terror detainees are challenging their detention. While the detainess have some mainstream support, much of the energy behind their challenges comes from elements of the radical left who, for example, want the U.S. Constitution to be subordinated to “international law” as elaborated by left-wing NGOs, and who in some cases adhered to an ideology most would describe as “anti-American.” The Supreme Court should rule against the detainees, lest it be well on its way to adopting the radical left’s aganeda.

Obviously, these arguments are all flawed; the strength and validity of legal arguments before the Court does not depend on who is representing the parties, nor on whether the relevant legal arguments were invented or influenced by “radicals” who have a political agenda that extends well beyond the precise issues before the Court. Nor does adopting one argument supported by “radicals” in any way obligate the Court to adopt the “radicals’” agenda in any future ligitation. Not surprisingly, the Court rejected arguments to the contrary in all of the examples above, which were made especially vociferously in examples 1 & 3.

This has not prevented a meme from developing, led by some prominent Supreme Court commentators who should know better, that if the USSC invalidates the ACA it will somehow be well on its way to adopting a broader libertarian agenda supported by some of those, including some of my co-bloggers, who helped craft the arguments against the ACA currently before the Court.

In fact, if the Court rules against the ACA, the other 90+% of the U.S. government loathed by libertarians will still be going strong.

Those Supreme Court watchers who are pushing the “liberarians are coming” meme are well aware that the Supreme Court has historically never strayed much from mainstream public and elite opinion, both of which remain decidely not libertarian. Nor is there any particular reason to believe that John Roberts, Samuel Alito, et al., are in thrall to libertarian ideology. So all we have left is the disreputable rhetorical technique of trying to asssociate in the public mind sound legal arguments with unpopular “radicals”, and to eke out a victory on the basis of the libertarian equivalent of red-baiting rather than on the merits. To say the least, such arguments do no credit to those advancing them.

Novelist John Grisham could hardly spin a more provocative fiction: The president and his surrogates mount an aggressive campaign to intimidate the chief justice of the United States, implying ruin and ridicule should he fail to vote in a pivotal case according to the ruling political party’s wishes. If only it were fiction. The justice is, of course, John Roberts and the case involves the Affordable Care Act(ACA), a.k.a. Obamacare, which would be affordable only if the Supreme Court upholds the individual mandate requiring all Americans to buy health insurance. The left’s narrative goes as follows: If the justices side with the Obama administration, they will be viewed as brilliant and nonpartisan. If the reverse occurs, why then, the justices are partisan, judicial activists who have delegitimized the court. . . .

She concludes:

This not-so-stealth campaign to influence the Supreme Court is obnoxious, if not unethical. . . .  Publicly chastising the court — and now taunting Roberts specifically — seems to have two purposes. One is to get under Roberts’s skin in the hopes that he’ll rule the “correct,” if not necessarily “legally correct,” way. Two is to lay the groundwork for declaring the court illegitimate if all or part of Obamacare is overturned. Either way, it’s politics at its filthiest and is beneath the dignity of the court — and of the White House. Unfortunately for Roberts, it’s up to the chief justice to hold the bar high.

[Read the whole thing here.]

The irony here is the sustained campaign by the President, Senator Leahy, and Left commentators like Jeff Rosen has now tainted as political any decision by Chief Justice Roberts to uphold the mandate, even if he did cast (or switch) his vote solely as a matter of legal principle.

In October 2009, defendant worked as a security guard for a private company at Newark Liberty International Airport. Vice–President Biden had recently flown into the airport, and President Obama was scheduled to arrive the next day on Air Force One.

Defendant and two other individuals who worked at the airport were standing at a lunch truck near the runway where the President’s plane was scheduled to land, when defendant remarked how easy it would be for someone to shoot the President. He pointed out that anyone with a gun could fire at the President, as he left his plane, from surrounding locations, such as defendant’s work post, the roofs of nearby buildings or the fenced area enclosing the runway. The men defendant spoke to were sufficiently alarmed by his statements to report them immediately to the Port Authority police.

Within hours, law enforcement personnel questioned defendant and, with his consent, searched his residence. There, law enforcement discovered and seized about seventy weapons, including rifles, handguns, hunting knives, crossbow and arrow sets, hollow point bullets and other ammunition, as well as permits and storage cases. A record check revealed that one of the guns had been stolen from Alabama. Defendant was arrested and charged with terroristic threats against the President, N.J.S.A. 2C:12–3b, receiving stolen property, N.J.S.A. 2C:20–7a, and unlawful possession of hollow point bullets, N.J.S.A. 2C:39–3f(1). A restraining order was issued barring defendant from any contact with the President or his family.

Defendant is from a family of hunters and had an extensive and valuable gun collection. With the exception of one gun which, unknown to defendant, was reportedly stolen from Alabama, defendant legally possessed the other guns and had the appropriate firearms permits. No weapon was found in defendant’s possession when he was arrested at his place of employment….

On November 12, 2009, defendant pled guilty to two counts of disorderly persons harassment against the two individuals who heard defendant’s conjectures at the lunch truck, N.J.S.A. 2C:33–4. Both weapons charges were dismissed. At that time defendant requested the return of all property seized from his home, but the prosecutor refused.

On July 12, 2010, defendant moved before the trial judge who had taken his guilty plea for an order compelling the State to return his property, except for the hollow point bullets and stolen rifle. The State filed a written opposition to the motion, which failed to cite any statutory, regulatory or precedential authority. At the hearing on the motion, the assistant prosecutor “concede[d] that after thorough investigation by the federal authorities, the Port Authority police and my office, that we did not see this as a major threat.” The prosecutor also acknowledged the two mental health evaluations that defendant had in prison, which “the State concede[d] he passed.” Nonetheless, based upon “the whole totality of the circumstances,” the State opposed the return of the weapons. In denying defendant’s motion, the trial judge, without providing any legal basis, ruled:

[W]e live in a very different time [since September 11, 2001] and in a very different world; we don’t engage in certain conduct involving words or acts that can be interpreted as threats to our elected officials, threats to our citizens, threats to the health, safety and welfare of everyone. And that phrase, or concept, the public health, safety and welfare, I think trumps everything…. Mr. Brek’s character is not at issue. At no time has the State — at least to my knowledge — brought … [Mr.] Brek’s character into this…. I believe that the public health, safety and welfare of our citizens does come into play here, and accordingly, I am going to deny Mr. Brek’s application for the return of his weapons.

This appeal followed.

Guess how the New Jersey Superior Court Appellate Division ruled, and then read on.

It is not disputed that the property seized by the State that defendant requests be returned was lawfully acquired, that plaintiff had obtained the necessary permits to purchase the firearms, and that defendant’s possession of the firearms and other weapons in his residence was lawful. Thus, the State has alleged no facts before the trial judge or on appeal that would give rise to a claim of prima facie forfeiture. N.J.S.A. 2C:64–1a(1). Consequently, the State could only seek derivative forfeiture of defendant’s property, for which it was required to bring a civil action within ninety days of its seizure. N.J.S.A. 2C:64–3a.

Not only has the State failed to file a timely civil action, it has provided no extenuating circumstances to request an equitable extension of time. More importantly, the State does not make a claim or allege any facts to demonstrate that the property seized meets the statutory definition of derivative contraband, N.J.S.A. 2C:64–1a. Nowhere in the record does the State allege that the property at issue was used in furtherance of a crime, as an integral part of an illegal activity, or as the proceeds of illegal activity.

Instead, the State argued that forfeiture was appropriate because defendant’s possession of hollow point bullets and a stolen rifle had shown that he was a threat to the public health, safety and welfare. The State compared the forfeiture of defendant’s property to the revocation or denial of a firearms permit if a person is found to be a threat. N.J.S.A. 2C:58–3. The trial judge, without referencing any statute, also used this analogy. We reject this argument as inapposite. This action does not involve the application for or revocation of a firearms permit under N.J.S.A. 2C:58–3, which is based upon a different statutory scheme than the Forfeiture Act. Furthermore, the property held by the State consists of many items, such as knives and bows and arrows, not covered by the firearms law.

Based upon the record before us, we cannot uphold the trial judge’s finding that the State had the right to retain defendant’s property as it was not based upon the required procedure in the Forfeiture Statute. Under that law, the State was required to file a civil action for forfeiture within ninety days of the seizure of the property. N.J.S.A. 2C:64–3a. The State neither made the requisite filing nor proffered extenuating circumstances for an extension of that time limitation. Even when requesting a remand for a forfeiture hearing, the State did not contend that requisite facts existed to prove the elements for prima facie or derivative contraband under N.J.S.A. 2C:64–1a. Accordingly, as the State had not moved timely under the Forfeiture Act, defendant is entitled to have his property returned to him.

From ABC News:

Dewitt told ABC News she has no regrets about the incident and said there was “no ill intent” in what she was doing.  Dewitt said her colleagues brought the pinata and were using it as a “memoir” of Haley’s words and actions towards unions in her time as governor.

“They made it and I would have played the game with them no matter it would have been pin the tail on the donkey with Nikki Haley’s face on it.  I still would have played,” Dewitt told ABC News over the phone.  ”There was no ill intent.  We were certainly have a good time.  I’m not mad or angry.”

“We’ve been the brunt of her comments now for two years and that’s what the whole thing was.  She’s been whacking at us over the last two years,” Dewitt, who has been president of the South Carolina AFL-CIO for the past 16 years and will retire at the end of June, continued. “Anyone that knows me knows there was no ill intent at all.  Our folks don’t go to speeches with guns and things like that.  We have very loving people in our unions who will take up money for people or a vet.  We just heard these comments by the governor for over the two years.  They were using a memoir of the last two years I’ve lived under her leadership.”

“Kids use piñatas all the time,” she added.

In Rosen’s world, avoiding 5–4 decisions at all costs is apparently a higher virtue than following the law. But, for the sake of argument, let’s set aside the question whether the law obligated the chief justice to vote a certain way. And let us also stipulate, for the sake of argument, that Rosen is right to place such high value on consensus. Rosen’s assertion that the chief justice would be an ”irredeemable failure” is still a dramatic overstatement.

First, it ignores the fact that the chief can only directly control his own vote and therefore would only be in a position to flip a 5–4 decision against the mandate to another 5–4 decision in favor of it. If Rosen is really concerned more about the vote counts than the ultimate results, both results would leave identical black marks on the chief justice’s record.

To the extent that Rosen hopes the chief justice will engage in lobbying of his colleagues reminiscent of the Warren-era court, such a strategy is inherently limited. Even if the chief justice were able to articulate a narrow decision that avoided making any major constitutional ruling (and if there were an obvious route to such a ruling, it is hard to imagine another of the many parties and amici would not have hit upon it), a determined coalition of four liberal justices would still be in a position to foreclose a consensus result simply by rallying around a position they knew none of the conservatives would accept.

The disproportionate weight Rosen places on this case also suggests he is more concerned about the outcome of the case than progressing toward unanimity. Take, for example, Sackett vs. EPA and Hosanna-Tabor, two of this term’s most important cases that could have been decided 5–4. Both were decided unanimously. Apparently a 5–4 ruling in the Obamacare case would cancel out these significant unanimous decisions. I would be curious to hear Rosen’s explanation.

 

The Court recognizes that under current law there is no established upper limit as to when the government must review seized electronic data to determine whether the evidence seized falls within the scope of a warrant. See, e.g., Mutschelknaus, 564 F.Supp.2d at 1076 (“Neither Fed.R.Crim.P. 41 nor the Fourth Amendment provides for a specific time limit in which a computer may undergo a government forensic examination after it has been seized pursuant to a search warrant.”). However, the Fourth Amendment requires the government to complete its review, i.e., execute the warrant, within a “reasonable” period of time. Numerous cases hold that a delay of several months between the seizure of electronic evidence and the completion of the government’s review of that evidence as to whether it falls within the scope of the warrant is reasonable. See id. at 1076–77 (finding a two-month delay reasonable); see also Burns, 2008 WL 4542990, at *8–9 (finding a ten-month delay for completion of the government’s review reasonable).

The parties have not provided the Court with any authority, nor has the Court found any, indicating that the government may seize and image electronic data and then retain that data with no plans whatsoever to begin review of that data to determine whether any irrelevant, personal information was improperly seized. The government’s blatant disregard for its responsibility in this case is unacceptable and unreasonable. See United States v. Debbi, 244 F.Supp.2d 235, 237–38 (S.D.N.Y.2003) (finding a Fourth Amendment violation in the search, seizure, and retention of seven boxes of documents from the defendant’s home, which included “personal and religious files, general correspondence, [and] family financial records,” when “no meaningful attempt” was made to separate and retain only the items the warrant permitted to be seized). The government contends that Debbi is inapposite because, in that case, the government retained original paper documents, whereas, in this case, the government returned the original electronic documents and equipment and retained only the imaged electronic documents. The Court disagrees. It is a distinction without a difference. The government’s retention of all imaged electronic documents, including personal emails, without any review whatsoever to determine not only their relevance to this case, but also to determine whether any recognized legal privileges attached to them, is unreasonable and disturbing.

. . .
The Court has not reached this conclusion lightly. However, the Court cannot, in the interest of justice and fairness, permit the government to ignore its obligations. Otherwise, the Fourth Amendment would lose all force and meaning in the digital era and citizens will have no recourse as to the unlawful seizure of information that falls outside the scope of a search warrant and its subsequent dissemination. Accordingly, Metter’s motion to suppress is granted. This conclusion is limited to the electronic evidence seized and imaged pursuant to the Metter Home Search Warrant, Office Search Warrant, and Email Search Warrant and does not include the paper documents and currency seized pursuant to those warrants.

It sounds like Judge Irizarry was really annoyed by the Government’s conduct. At the same time, I have trouble understanding exactly what Fourth Amendment principle Judge Irizarry thinks was violated here. She seems to be assuming that the Fourth Amendment ensures a right to the privacy of information seized pursuant to a search warrant if the information seized is not within the scope of the warrant. The idea seems to be that the government needs to complete its review of seized information quickly so the data outside the scope of the warrant can be taken outside the government’s reach — kind of a duty to separate the digital wheat from the digital chaff in a reasonable period of time, even if the government has warrants and the owners have their computers back. The assumption seems to be that evidence outside the scope of the warrant will be destroyed or made unavailable to the government after that search is completed, so the government needs to complete the forensic process quickly to enable that to happen. We saw some of this thinking in Judge Kozinski’s Compehrensive Drug Testing opinion, although it’s not generally found in existing Fourth Amendment caselaw. (It’s not clear if Judge Kozinski was trying to apply the Fourth Amendment, some other legal rule, or was just announcing new rules as some sort of advisory opinion.) Anyway, it will be interesting to see how this goes: This seems like the kind of case that would merit an interlocutory appeal, and I’m not sure the Second Circuit would look at this the same way.

Hat tip: Cybercrime Review.

[A] claim of harassment is … actionable if the harassment to which Complainant has allegedly been subjected was sufficiently severe or pervasive to alter the conditions of Complainant’s employment….

In this case, Complainant has alleged that he notified the Postmaster as early as March 2011 of employees repeatedly wearing Confederate flag t-shirts to work, but it was not until May 2011, that the Postmaster finally instructed the supervisor to start sending the employees home to change. Complainant argues that the Postmaster “procrastinated in taking action on my complaint” and that he filed the complaint, in part, because of the Postmaster’s “lack of concern for my feelings associated with this matter.” Complainant explained that he was offended by the t-shirts because he saw the Confederate flag as a symbol of racism that evoked the history of slavery. Complainant also alleged that he is now fearful of one the employees he complained about because the employee has started parking his car off Agency properly and Complainant believes he might have a weapon in his car.

Based on the circumstances alleged by Complainant, we conclude that he has stated a viable claim of discriminatory harassment which requires further investigation…. [U]nder certain circumstances, a limited number of highly offensive slurs related to a federal employee’s race may in fact state a claim or support a finding of discrimination under Title VII. Moreover, Complainant has alleged that it took the Postmaster nearly two months to finally take action to stop his coworkers from wearing the offensive t-shirts….

This case involved a government employer, but the EEOC applies precisely the same standards — speech is actionable if it is “severe or pervasive” enough to create a hostile, abusive, or offensive work environment based on race, religion, sex, and so on for a plaintiff and for a reasonable person — to government employment as courts do to private employment. So under the EEOC’s reasoning, an employer must order its employees to stop wearing Confederate flag T-shirts whenever someone complains, or risk massive liability in court.

As I’ve argued before, hostile work environment harassment law suppresses a broad range of speech, including speech related to political, religious, social, or artistic matters. And when applied to what I call “one-to-many” speech (as opposed to speech that is said to one particular person), I think the law is unconstitutional: It involves the government, acting as sovereign, imposing a content-based and viewpoint-based restriction on people’s speech.

To be sure, a private employer has broad authority to restrict speech on its property (just as a private blog operator, service provider, commercial landlord, university, church, or homeowner has such authority). And a government employer has fairly broad such authority as well, for instance if it concludes that such speech sufficiently undermines the employer’s mission. But harassment law involves the government using legal coercion to pressure employers to restrict people’s speech; that’s where the strong First Amendment constraints on government action should come in. Much as I dislike displays of the Confederate flag, the First Amendment can’t allow the government to suppress them through the threat of legal liability.

In any event, this case, I think, helps illustrate my point. If the EEOC is right, then employers essentially have a legal duty to suppress Confederate flag displays whenever they are engaged in by an employee and a coworker is offended. Employers also have such a duty whenever they are engaged in by patrons and an employee is offended, since employers have a duty to prevent “hostile work environments” created by patrons. Bars and other places of public accommodation would also have a similar duty not to display Confederate flags and similar imagery, and to eject patrons who do the same, so long as a patron complaints that he is offended.

And of course the same could in principle apply not just to speech that is perceived as racist, but also speech that is perceived as anti-Islam, anti-Christianity, anti-Hispanic-immigrant, anti-women, anti-men, and so on. (See, e.g., the Tufts anti-Islam ad incident, Doe v. City of New York & Bruce Tefft, and Rodriguez v. Maricopa County Community College Dist..) “Hostile environment harassment law” is a serious and often unconstitutional threat to free speech, whether in workplaces — where most people spend a third of their waking hours — or universities or places of public accommodation; this incident is just the latest example.

UPDATE: Hans Bader (Open Market) has more.

To ensure that individuals and entities licensed under this act observe common standards of decency, the commission shall, in consultation with the Association of Boxing Commissioners, establish a professional code of ethical conduct for mixed martial arts promoters and fighters. Notwithstanding any other provision of this code, upon receiving a complaint, the commission shall enforce the code of ethical conduct and may suspend, revoke, or refuse to issue or renew the license of any mixed martial arts promoter or fighter that it finds has violated this code of conduct. Violations of this code shall include, but not be limited to, the following:

(a) Engaging in actions or activities such as acts resulting in felony convictions or convictions for crimes involving moral turpitude, sexual assault, ethnic or religious slurs, hate speech, or obscene language, failing to respond to a subpoena, or incurring sanctions imposed by a judge or court of law.

I don’t think mixed martial arts fighters should be denied the right to compete — and denied it by law, not just by a private organization’s decision — simply because they have a criminal record. That’s especially so when the criminal record can involve relatively less significant offenses, such as contempt of court, or “crimes involving” “obscene language.”

But it seems to me especially wrong, and unconstitutional, to strip people of their livelihood based on viewpoint-based criteria such as whether their crimes involved “ethnic or religious slurs” or “hate speech.” To be sure, such conduct has to be independently a crime (e.g., disturbing the peace through trying to provoke a fight, or making loud noise, or what have you); ethnic slurs, religious slurs, and “hate speech” — whatever that vague term might mean — aren’t themselves crimes. But as R.A.V. v. City of St. Paul (1992) held, even if the government may outlaw certain kinds of speech (such as “fighting words”), it may not outlaw in ways that are viewpoint-based (or otherwise impermissibly content-based). Just as R.A.V. barred the imposition of greater penalties on bigoted fighting words than other fighting words, so it bars the loss of a license for crimes that involve “ethnic or religious slurs” or “hate speech” but not for comparable crimes that don’t involve such speech.

I recognize that hate crimes laws that increase the penalty for crimes based on the defendant’s discriminatory selection of a victim are constitutional, see the unanimous Wisconsin v. Mitchell (1993), and I think that decision is correct: The law has long allowed punishments to turn partly on the defendant’s motivation, and the selection of a victim based on particular criteria may indeed be a permissible basis for such distinctions (just as employment law may permissibly distinguish firing someone based on that person’s race or sex from firing the person based on something else). But R.A.V. makes clear that the law may not make the viewpoint of a person’s speech — as opposed to his victim selection decision — a basis for enhanced punishment.

And the same, I think, would apply to disqualification from the occupation of mixed martial arts fighting. Assemblyman Luis Alejo, the sponsor of the bill, and Assembly members Nora Campos, Betsy Butler, Mike Gatto, Tony Mendoza, and Bill Monning ought to know better, or at least seek out better counsel.

I blogged last month about the school district’s refusal to allow the shirt; “the message communicated by the student’s T-shirt,” the district argued, “was sexual in nature and therefore indecent and inappropriate in a school setting.” The student sued on First Amendment grounds, and Lambda Legal reports that the district has settled; here are the key terms:

2. The Defendants are enjoined from prohibiting Plaintiff Maverick Couch from wearing the “Jesus Is Not A Homophobe” T-shirt, which is more fully described in paragraph 7 of Plaintiff’s Complaint. Plaintiff is expressly permitted to wear the “Jesus Is Not A Homophobe” T-shirt to school when he chooses….

4. Defendants are ordered to pay damages and costs, including reasonable attorneys’ fees, in the amount of $20,000 to Plaintiff on or before July 5, 2012.

Thanks to my coblogger Jonathan Adler for the pointer.

UPDATE:  I should clarify that the Court should rule on severability according to existing severability doctrine, although this doctrine requires the exercise of judicial judgment.  My two posts on severability are offered in response to the nonlegal “prudential” considerations that are being urged upon the Court by others.  I fully agree with Ilya’s refutation of these nonlegal considerations.

Exhibit One is the challenge to the HHS contraceptives mandate noted by Jonathan below:

Several Catholic dioceses and universities filed suit today against the so-called contraception mandate, the Washington Post reports hereand here. In all twelve lawsuits were filed in twelve separate federal district courts. There are 43 separate plaintiffs in these suits, including the Archdioceses of Washington, D.C. and New York, Catholic University, and the University of Notre Dame, where President Obama delivered the commencement address in 2009.

The best way to remove the Supreme Court from the path of this perpetual conflict is to invalidate the entire ACA, a decision amply supported by existing severability doctrine.  From there, the next Congress will then have to revisit the problems with our current health care system by enacting reforms that enjoy bipartisan support.   Should the Court invalidate the ACA in June, the next election will inevitably be about the precise shape of this health care reform.  The timing of such a decision, therefore, could not be more fortunate for our political process.

[Jeff Rosen's] comparison with the New Deal is not well taken.  The Obama Administration and the health care law do not have anything like the popularity that the Roosevelt Administration and the signature items of the New Deal had.  During the New Deal, the Roosevelt Administration and the Democrats were a political juggernaut as compared to the present day anemic Obama Administration.  As I show in this paper, Roosevelt and the Democrats won landslide after landslide, in the Presidential election of 1932, in the midterms of 1934, and in the President election of 1936.  Obama and the Democrats, however, took power in 2008 (after the Democrats won significant victories in 2006), but then were walloped in the midterm elections of 2010, losing 63 seats in the House.  Moreover, a significant portion of those losses were due to the passage on party line votes of the unpopular health care law.  By contrast, much of President Roosevelt’s agenda was passed with enormous majorities, including with significant Republican support (small as it was).

Even if President Obama is reelected – a big if, I would add – the House is very unlikely to turn back to the Democrats.  And the Senate will be closely divided and deadlocked, whichever party has the majority.  Thus, at worst, the Supreme Court need not fear any legislation being passed that would attack them.  Nor need the Court fear the criticisms of liberal Democrats about a very unpopular health care law.  Moreover, if President Obama is defeated and the Republicans at least keep the House, then there will be a strong coalition of political actors supporting the Supreme Court’s decision.

The bottom line here is that the Obama Administration and the health care law are not the New Deal and Social Security, even though liberals keep imagining that they are.  If the Supreme Court decides to strike down the law as an unprecedented exercise of federal power, the Court need not fear a repeat of the New Deal.

There is no escaping the fact that the entire Affordable Care Act is deeply unpopular and any decision to uphold it will not be well received by the public.

And, this morning, the Wall Street Journal has a strong editorial on the subject:

The first fallacy is defining judicial activism as overturning a Congressional law. Since Marbury v. Madison established judicial review in 1803, the High Court has overturned hundreds of laws in part or whole. The real measure of activism is whether the Court’s reasoning is rooted in Constitutional principle. If it is, the Court is not activist but is adhering to the highest legal principles.

Regarding the Affordable Care Act, we’d argue that upholding the individual mandate to buy health insurance requires far more judicial activism. That’s because if the Court finds this federal mandate to be Constitutional, it will have no principle on which to limit future purchase mandates.

Once health insurance can be mandated, Congress will inevitably find that other products or services are equally essential to national well-being. Future Courts will either have to find all such purchase mandates to be legal, in which case there is no limiting principle, or they will have to pick and choose, which means an endless exercise in policy-making.

Far better for judicial modesty—and the reputation of the Court—to draw the line that the Commerce Clause forbids Congress from mandating that individuals engage in commerce because such police powers are reserved for the states. This is the truly restrained judicial position.

The most dishonest argument is the liberal media chant that overturning the law means overturning the New Deal era’s Commerce Clause precedents. This is propaganda. None of the plaintiffs advocated that any precedents be overturned, even though in our view some of those cases deserve to be overturned. Paul Clement and Michael Carvin, who argued for the plaintiffs before the Court, explicitly denied any such desire.

And, as Ed Whelan insightfully observes on NRO, we are likely to find out whether any justices capitulated to this pressure:

In this regard, I’ll add that one unintended effect of Jeffrey Toobin’s (badly flawed) revelations about the behind-the-scenes goings-on in the Citizens United case ought to be to undermine the Left’s ongoing efforts to intimidate the justices on the individual mandate. Specifically, it’s reasonable to assume that a year or two from now (if not sooner) some reporter will provide the “inside story” of what happened at the Court. And little could be more damaging to the reality or perception of the Court’s independence than evidence that a justice changed course from his vote at the post-argument conference in apparent response to the intimidation campaign.

UPDATE: For the official roll call, see here.

Equilibrium-adjustment is not originalism. It is a theory of maintaining the status quo balance of power, not an effort to restore eighteenth-century rules. That understanding explains why living constitutionalists and pragmatists alike have embraced equilibrium-adjustment, and why the chief attack on it has been launched on originalist grounds. It is true, as Slobogin says, that the theory “harks back to some earlier time.” But that does not make it originalist. The relevant “earlier time” is a time before a triggering technological development, but it need not be the year the Fourth Amendment was ratified.

To be sure, it is possible for originalists to adopt the method of equilibrium-adjustment. But nonoriginalists can adopt it, too. In my view, its widespread appeal is what makes equilibrium-adjustment a valuable tool for understanding Fourth Amendment law: Justices from very different interpretive schools use it. It operates equally well within all of the different theories of interpretation. Different Justices might tailor the method based on their interpretive commitments. But they all can engage in equilibrium-adjustment, and almost all do. The Supreme Court’s recent decision in United States v. Jones provides a revealing illustration of how equilibrium-adjustment can occur in both originalist and nonoriginalist forms.
. . . .

The Supreme Court handed down Jones just a few weeks after my Article appeared, and the case divided the Court into two main camps. One adopted an originalist methodology; the other explicitly rejected originalism. But both approaches relied heavily on equilibrium-adjustment.
. . . .
The majority opinion by Justice Scalia engaged in equilibrium-adjustment using an originalist framework. When the Government argued that Jones had no reasonable expectation of privacy in the public location of the car, Justice Scalia responded that the Fourth Amendment should be read to protect rights beyond the reasonable expectation of privacy test. Quoting from his opinion in Kyllo v. United States,28 Justice Scalia reasoned that the Fourth Amendment must be interpreted to “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” To assure preservation of that privacy, Justice Scalia interpreted the Fourth Amendment as protecting against common law trespasses. The installation of the GPS device with intent to use it to obtain information was a common law trespass, and therefore a Fourth Amendment search.

Justice Alito filed an opinion concurring in the judgment, joined by Justices Ginsburg, Breyer, and Kagan. Justice Alito criticized the majority’s originalist approach as inconsistent with precedent and unworkable. Instead, Justice Alito engaged in equilibrium-adjustment using the Katz “reasonable expectation of privacy” framework. He explained that “[i]n the pre-computer age,” surveillance that could reveal information as extensive as GPS monitoring was impractical in most cases. It would require “a large team of agents, multiple vehicles, and perhaps aerial assistance.” Changing technology had expanded government power by making such monitoring “relatively easy and cheap.” Accordingly, Justice Alito interpreted the Fourth Amendment to limit the government’s new powers. Although Justice Alito’s opinion is not a model of clarity, he seems to have interpreted the reasonable expectation of privacy test to lock in prior understandings of how invasive police investigations might be. Long-term use of GPS monitoring constituted a Fourth Amendment search because it exceeded pre-GPS societal expectations that such invasive monitoring was unlikely or even impossible.

Justice Sotomayor joined the majority opinion and filed a concurrence agreeing with and going beyond Justice Alito’s rationale. Like the opinions filed by Justices Scalia and Alito, Justice Sotomayor’s opinion engaged in equilibrium-adjustment. GPS monitoring “may alter the relationship between citizen and government,” Justice Sotomayor reasoned, and the Fourth Amendment had to be interpreted to limit use of “a tool so amenable to misuse.” Justice Sotomayor also expressed a need to revisit the third-party doctrine, the rule that information disclosed to third parties does not receive Fourth Amendment protection. That doctrine is “ill suited to the digital age,” Justice Sotomayor reasoned, given that now “people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

The three opinions in Jones proceed from different premises. One is originalist; two are not. But all three opinions rest on the principle of equilibrium-adjustment.

Even if correct, none of these arguments actually prove that the Court should uphold the mandate as a legal matter. A decision that is perceived as “illegitimate,” partisan, and unconservative can still be legally correct. Conversely, one that is widely accepted, enjoys bipartisan support, and is consistent with conservatism can still be wrong. Plessy v. Ferguson and Korematsu are well-known examples of terrible rulings that fit all three criteria at the time they were decided.

In addition, all three arguments are flawed even on their own terms.

I. A Decision Striking Down the Mandate is Likely to Enhance the Court’s Legitimacy More than it Undermines it.

Claims that a decision striking down the mandate will undermine the Court’s “legitimacy” founder on the simple reality that an overwhelmingly majority of the public wants the law to be invalidated. Even a slight 48-44 plurality of Democrats agree, according to a Washington Post/ABC poll. Decisions that damage the Court’s legitimacy tend to be ones that run contrary to majority opinion, such as some of the cases striking down New Deal laws in the 1930s. By contrast, a decision failing to strike down a law that large majorities believe to be unconstitutional can actually damage the Court’s reputation and create a political backlash, as the case of Kelo v. City of New London dramatically demonstrated.

Striking down the mandate will damage the Court’s reputation in the eyes of many liberals and some legal elites. But a decision upholding it will equally anger many conservatives and libertarians, including plenty of constitutional law experts. There is not and never has been an expert consensus on the constitutionality of the mandate. Any decision the Court reaches is likely to anger some people, both experts and members of the general public. But more are likely to be disappointed by a decision upholding the law.

Ultimately, the Court should not base its decision in this case on “legitimacy” considerations. If the justices believe that the mandate is constitutional, they should vote to uphold it despite the possible damage to their reputations. But it would be a terrible signal if key swing justices refused to strike down a law merely because their reputations would be damaged in the eyes of a small minority of the public and a vocal faction of the legal elite. It would certainly call into question their willingness to make unpopular decisions that are compelled by their duty to uphold the Constitution, including in cases where they must strike down unconstitutional laws that really do enjoy broad public support.

II. An Impermissibly “Partisan” Decision?

Any decision striking down the mandate is likely to pit the five conservative Republican justices against the four liberal Democrats. Some commentators, such as Larry Lessig and Jonathan Cohn, claim that such a result would be impermissibly “partisan,” creating a perception that the Court is only willing to strike down “liberal” laws.

This sort of argument urges judges to engage in genuinely political decision-making in order to avoid the mere appearance of it. If a Republican-appointed justice votes to uphold a law he believes to be unconstitutional in order to avoid the appearance of “partisanship,” he would be allowing political considerations to trump his oath to uphold the Constitution.

Even if there is a judicial duty to avoid the appearance of a partisan split, why doesn’t it fall on the liberal justices just as much as the conservatives? If one or more of the liberal justices were to join the five conservatives in striking down the mandate, that would diminish the appearance of partisanship just as much as a conservative “defection” to the liberal side would.

Finally, this line of criticism overlooks an important reason why decisions enforcing limits on congressional power often have an ideological division: the Court’s liberals have consistently voted against nearly all structural limits on congressional power under the Commerce Clause, the Necessary and Proper Clause, and the Tenth Amendment. Thus, the Court enforces such limits only in those cases where the five conservative justices can agree among themselves. The only way for the conservatives to avoid the appearance of partisanship in this area would be complete abdication of judicial enforcement of structural limits on congressional power.

III. Consistency with Judicial “Conservatism.”

Jeffrey Rosen and others have argued that a decision against the mandate would be inconsistent with “conservative” attacks on “judicial activism” and deference to legislative judgment. Judicial conservatism is not a single, unitary entity. All sorts of decisions can potentially be justified on “conservative” grounds.

However, one major strand of conservative legal thought over the last thirty years has been the need to enforce constitutional limits on federal government power. This idea would be completely undercut by a decision upholding the mandate, since all of the government’s arguments in favor of the mandate amount to a blank check for unconstrained congressional power. As I explain in detail in this amicus brief for the Washington Legal Foundation and a group of constitutional law scholars, the government’s various “health care is special” arguments collapse under close inspection.

Conservative support for judicially enforced limits on federal power is in some tension with loose conservative rhetoric about “judicial activism,” which is one reason why I have long been critical of such rhetoric. However, for most on the right, “judicial activism” is not coextensive with any judicial overruling of statutes, but rather with departures from the text and original meaning of the Constitution. And the originalist case against the mandate is very strong.

Conservatives and others can disagree among themselves as to how much deference should be given to Congress in any given case. In considering this issue, they should weigh two points that Rosen advanced in his important 2006 book The Most Democratic Branch: How The Courts Serve America.

Although generally advocating judicial deference to Congress, Rosen notes two important exceptions to this principle. The first is that “When Congress’s own prerogatives are under constitutional assault (in cases involving legislative apportionment or free speech, for example), it may be less appropriate for judges to defer to Congress’s self-interested interpretations of the scope of its own power.” Obviously, there are few more “self-interested” interpretations of “the scope of its own power” than one that would give Congress virtually unlimited power to impose any mandate it wants.

Second, Rosen suggests that “[f]or the Court to defer to the constitutional views of Congress, Congress must debate issues in constitutional (rather than political) terms” (pg. 10). In order to deserve deference, Congress needs to take the relevant constitutional issues seriously. In the individual mandate case, congressional Democrats notoriously demonstrated utter contempt for the constitutional issues, and plenty of ignorance to boot.

In fairness, their performance was no worse than that of the GOP when they controlled Congress during the Bush years. Far from generating serious constitutional deliberation in the legislative branch, the judiciary’s tendency to defer to Congress on federalism issues has had the opposite effect. Both parties give short shrift to constitutional limits on federal power because judicial deference has created a political culture in which almost anything goes. More careful judicial scrutiny of Congress’ handiwork might lead Congress to start taking the Constitution seriously again. That result should be welcomed by conservatives, libertarians, and liberals alike.

A nondeferential posture by the Court wouldn’t necessarily lead to the invalidation of the mandate. It merely means that the justices should give little weight to Congress’ “self-interested” interpretations of its own power and instead come to their own independent judgment on the constitutional issues at stake.

Ultimately, the Court should not decide the individual mandate case based on these sorts of nonlegal considerations. It is more important that its decision be right than that it be perceived as legitimate, nonpartisan, or conservative. But even on its own terms, the nonlegal case for upholding the mandate is not as impressive as its advocates claim.

UPDATE: Ed Whelan makes some relevant points here.

But finding those faint signals in a sea of noise isn’t easy.  No one wants to sit and read logs.

The good news is that tools to analyze Big Data are improving and getting cheap at a great rate, and companies like Zions Bank have begun using open source programs like Hadoop to analyze their networks. 

Around 2005, [Zions Bank Chief Security Officer] Wood said, his team made the move to a massively parallel processing system that was designed for log management but that his team bent and hammered into a data warehouse for analytics. “We adopted a business intelligence mindset,” he said, “but slanted toward security.” He brought in some data-analysis specialists, and they started mining data and searching for patterns, a process made easier by the new higher-powered and more scalable system. But it, too, reached its limits as unstructured data from myriad new sources began streaming in.

In 2010, Zions started its transition to Hadoop and has been running its big data workloads exclusively on that platform since late 2011. Wood said he’s loading about 130 data sources into Hadoop, including server logs, web logs and customer transactions. Now, he explained, his team is able to analyze massive amounts of data — and fast — to detect everything from malware and spear phishing attempts to account takeovers. The latter is similar to credit card theft, only instead of discovering anomalous spending, Zions is able to detect anomalous transfers from customers’ bank accounts.

And Wood doesn’t worry about outgrowing his Hadoop cluster, which means his team can keep innovating on new ways to detect criminal behavior. If you’re monitoring network traffic, for example, Wood said, you “have to get down to 0s and 1s in packets to look for the needle in the haystack.” That means storing and analyzing everything in its raw form.

This approach to security is gaining traction, but once again, it looks as though the financial sector, rather than government, is pioneering a network security technology.  In fact, this is going to be a tough act for government to follow.  Just read that last sentence again.  “That means storing and analyzing everything in its raw form.”

Just as they stalled government network intrusion prevention technology for a decade, privacy advocates are likely to trash any government security system that depends on storing and analyzing everything, even everything on the government’s own networks.  Which means that security will likely remain Mission Impossible for most government information security officers.

In somewhat related news, Exorcist author William Peter Blatty is suing Georgetown University in Catholic court alleging the school has abandoned its Catholic faith and violating church teaching. According to this report, the “last straw” was Georgetown’s invitation to HHS Secretary Kathleen Sebelius to address graduating students.

there is a bit of a rub for Google, some scholars say. The kind of reasoning Mr. Volokh uses in his paper could come into conflict with one of Google’s policy priorities — the so-called net neutrality rules that call for everyone to get equal treatment on the Internet.

Since Google is not connecting users to the Internet, it is vital for its business that the companies that provide access to the Internet do not play favorites. Yet, if those providers could somehow qualify for First Amendment protection, then the government would have a harder time mandating “net neutrality.”

Mr. Volokh never mentions net neutrality in the paper, but a Duke law professor, Stuart M. Benjamin, who has written an academic paper casting doubt on First Amendment protection for mere transmitters of information like Internet service providers, said he saw a clear connection.

Mr. Benjamin said an Internet provider like Comcast, for example, could offer “a family friendly Web,” which would filter out content considered inappropriate for children; by doing so, “they have now gone to protected speech.”

But he also suggested there was a potential for Mr. Volokh’s reasoning to extend First Amendment protections to transmitters that do even less — for example, those that simply provide faster speeds to companies that pay more money. That is the kind of behavior net neutrality rules are meant to prevent.

The more the First Amendment is applied to how information is transmitted via the Internet, Mr. Benjamin said, the harder it is to regulate. “Whether that is a good or bad thing depends on your political perspective,” he said.

And believe me, I looked closely. I take seriously my responsibilities as a technology commentator.  And in that role, I think it’s safe to say that the future is already here but its coverage is skimpy.

Two excellent recent articles by George Will and Radley Balko describe some particularly egregious examples.

Here is Will:

Russ Caswell, 68, is bewildered: “What country are we in?” He and his wife, Pat, are ensnared in a Kafkaesque nightmare unfolding in Orwellian language….

In the lawsuit titled United States of America v. 434 Main Street, Tewksbury, Massachusetts, the government is suing an inanimate object, the motel Caswell’s father built in 1955. The U.S. Department of Justice intends to seize it, sell it for perhaps $1.5 million and give up to 80 percent of that to the Tewksbury Police Department, whose budget is just $5.5 million. The Caswells have not been charged with, let alone convicted of, a crime. They are being persecuted by two governments eager to profit from what is antiseptically called the “equitable sharing” of the fruits of civil forfeiture, a process of government enrichment that often is indistinguishable from robbery….

Since 1994, about 30 motel customers have been arrested on drug-dealing charges. Even if those police figures are accurate — the police have a substantial monetary incentive to exaggerate — these 30 episodes involved less than 5/100ths of 1 percent of the 125,000 rooms Caswell has rented over those more than 6,700 days. Yet this is the government’s excuse for impoverishing the Caswells by seizing this property, which is their only significant source of income and all of their retirement security.

The government says the rooms were used to “facilitate” a crime. It does not say the Caswells knew or even that they were supposed to know what was going on in all their rooms all the time. Civil forfeiture law treats citizens worse than criminals, requiring them to prove their innocence — to prove they did everything possible to prevent those rare crimes from occurring in a few of those rooms. What counts as possible remains vague. The Caswells voluntarily installed security cameras, they photocopy customers’ identifications and record their license plates, and they turn the information over to the police, who have never asked the Caswells to do more.

Balko describes an equally ridiculous case:

When the Brown County, Wis., Drug Task Force arrested her son Joel last February, Beverly Greer started piecing together his bail….

“The police specifically told us to bring cash,” Greer says. “Not a cashier’s check or a credit card. They said cash.”

So Greer and her family visited a series of ATMs, and on March 1, she brought the money to the jail, thinking she’d be taking Joel Greer home. But she left without her money, or her son.

Instead jail officials called in the same Drug Task Force that arrested Greer. A drug-sniffing dog inspected the Greers’ cash, and about a half-hour later, Beverly Greer said, a police officer told her the dog had alerted to the presence of narcotics on the bills — and that the police department would be confiscating the bail money.

“I told them the money had just come from the bank,” Beverly Greer says. “We had just taken it out. If the money had drugs on it, then they should go seize all the money at the bank, too. I just don’t understand how they could do that….”

It took four months for Beverly Greer to get her family’s money back, and then only after attorney Andy Williams agreed to take their case. “The family produced the ATM receipts proving that had recently withdrawn the money,” Williams says. “Beverly Greer had documentation for her disability check and her tax return. Even then, the police tried to keep their money….”

Civil asset forfeiture is based on the premise that a piece of property — a car, a pile of cash, a house — can be guilty of a crime. Laws vary from state to state, but generally, law enforcement officials can seize property if they can show any connection between the property and illegal activity. It is then up to the owner of the property to prove in court that he owns it or earned it legitimately. It doesn’t require a property owner to actually be convicted of a crime. In fact, most people who lose property to civil asset forfeiture are never charged. …

Although Mrs. Greer was able to recover her money, authorities in Wisconsin and elsewhere continue to seize cash based on “alerts” by drug-sniffing dogs, that can be extremely misleading:

But even in the odd world of asset forfeiture, the seizure of bail money because of a drug-dog alert raises other concerns. In addition to increasing skepticism over the use of drug-sniffing dogs, studies have consistently shown that most U.S. currency contains traces of cocaine. In a 1994 ruling, for example, the U.S. 9th Circuit Court of Appeals cited studies showing that 75 percent of U.S. currency in Los Angeles included traces of narcotics. In 2009, researchers at the University of Massachusetts analyzed 234 bills collected from 18 cities, and found that 90 percent contained traces of cocaine….

Stephen Downing, a retired narcotics cop who served as assistant police chief in Los Angeles, says it isn’t surprising that a drug dog would alert to a pile of cash, since it usually has traces of drugs.

“I’d call these cases direct theft. They’re hijackings,” says Downing, who is now a member of Law Enforcement Against Prohibition, an organization of former police and prosecutors who advocate ending the drug war.

Downing says he recently consulted a medical marijuana activist in California who was told to bring his bail money in cash, despite the fact that state law allows payment with a cashier’s check, a registered check or a credit card. “It makes me wonder if this seizing of bail is a new idea getting shopped around in law enforcement circles.”

While the details of these abuses vary, the underlying problem is the same: an asset forfeiture system that allows law enforcement agencies to seize the property of the innocent and then keep the loot for themselves. This predictably leads to a situation where many take the property first and only ask questions later – if at all. As Balko points out, low-income property owners are particularly likely to be victimized, because they often lack the funds to hire a lawyer to contest the seizure and state law often does not pay for a public defender in these cases.

CONFLICT OF INTEREST WATCH: I have done pro bono work on other cases for the Institute for Justice, which is representing the property owner in the Tewksbury case.

UPDATE: I wrote this post before noticing Jonathan Adler’s earlier post on the same subject. I am leaving this post up because it goes into much more detail. Also, I disagree with Jonathan’s statement that this sort of abuse is “constitutional.” The Supreme Court ruled that it was in Bennis v. Michigan. But I think the dissenters in that case (a cross-ideological coalition of Justices Kennedy and Stevens) got it right.

Moreover, Bennis held merely that the seizure of innocent owners’ property does not automatically violate the Due Process Clause. It did not rule on the Due Process Clause issues that arise when the authorities seize the property with little or no evidence that it actually was used in a crime, or when they fail to give the owner a meaningful and prompt opportunity to challenge the seizure in court. In a 2009 case, the Supreme Court planned to address the latter issue, but ended up dismissing the case as moot.

UPDATE #2: In an update to his post, Jonathan clarifies that he too is sympathetic to many of the arguments made by the Bennis dissenters. For my part, I agree with him that not every morally objectionable forfeiture practice is necessarily unconstitutional.

Thus far, the Roberts Court has stood pat on standing, neither raising nor lowering the hurdles to Article III standing. In this case, it will be interesting to see whether this trend continues.

Orin also blogged on this case here and here.

UPDATE: Speaking of asset forfeiture abuse, George Will had a column last week on another disturbing case.

SECOND UPDATE: Given Ilya’s post above, I thought I’d add a slight clarification. When I wrote that asset forfeiture is “constitutional” as currently practiced, I meant this as shorthand for “constitutional under existing Supreme Court doctrine.” Like Ilya, I am quite sympathetic to the dissenters in Bennis v. Michigan, and suspect much civil asset forfeiture would transgress a proper application of the due process clause, though I have not delved sufficiently deeply into this area to have a more fully-formed view on the limits the due process clause places on asset forfeiture. That many current practices are outrageous does not necessarily mean that they are unconstitutional.

If ever there were a startup that lawyers and accountants could have dreamed up, this is it.  I hope that doesn’t guarantee its failure.