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OpenMarket: June 2014

  • Is Harris v. Quinn Decision Preview of Abood Challenge?

    June 30, 2014 3:42 PM

    The U.S. Supreme Court’s decision in Harris v. Quinn puts a brake on an ongoing effort by organize labor to expand the definition of “public employee” to just about anyone who receives any form of government assistance, such as home care workers paid by Medicaid (a phenomenon I pointed out in a 2009 Cato Institute study on public sector unions; see page 9).


    However, the Court did not address the issue of whether government employees may be required to pay union dues in the first place. Workers who aren’t union members but work under a collective bargaining agreement can be required to pay “agency fees,” which are essentially dues in all but name.


    That would have required revisiting the Court’s 1977 decision, Abood v. Detroit Board of Education, which upheld a Michigan law, “whereby every employee represented by a union even though not a union member must pay to the union, as a condition of employment, a service fee equal in amount to union dues.” Yet, Justice Samuel Alito, writing for the Court’s majority in Harris, offers some strong criticisms of Abood that could well open the possibility of future challenges to it. 


  • Is John Boehner's Lawsuit the Best Way to Rein in the Executive Branch?

    June 30, 2014 3:39 PM

    House Speaker John Boehner plans to sue President Obama over perceived abuses of the separation of powers. Over at the Daily Caller, I argue that Boehner has a point that the executive branch has grown too powerful.


  • Harris v. Quinn: A Human Interest Angle

    June 30, 2014 3:20 PM

    The Harris v. Quinn decision today by the U.S. Supreme Court is a major human interest story.


    Congratulations to Pam Harris and her son, Josh, and family whose First Amendment freedom of association rights were vindicated.


    In total, eight women petitioned for their rights before the Supreme Court against a state governor and two massive unions. What’s more, all eight of these women were participants in a Medicaid program that afforded benefits for their loved ones who have been ill.


    Caring for chronically ill loved ones is a costly endeavor, financially, temporally, and emotionally.


    In the Harris v. Quinn victory, thwarting Big Labor’s attack on these eight family women and the other women who predominantly provide America’s home health care and daycare (in the sister case of Parrish v. Dayton) is great news.


  • Alito’s Excellent Defense of “Corporate Personhood” in Hobby Lobby

    June 30, 2014 1:14 PM

    The groundbreaking decision today in Burwell v. Hobby Lobby Stores, in which the Supreme Court ruled 5-4 that Obamacare’s contraception mandate violates the religious freedom of two closely held corporations,  will be dissected heavily for days, and studied for weeks, years and decades. My colleague Hans Bader has more here.


    For consistent civil libertarians, one of the most remarkable—and favorable—aspects of the majority opinion by Justice Samuel Alito is a no-hold-barred defense of corporations asserting rights of “persons.” Though this case dealt with statutory rights under the Religious Freedom Restoration Act, and did not directly involve constitutional liberties, Alito implied strongly that corporations—even if set up for profit—should enjoy such “personal” rights.


  • Supreme Court Rules in Favor of Hobby Lobby; Religious Businesses Can Invoke RFRA

    June 30, 2014 12:20 PM

    In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court has ruled that it violates the Religious Freedom Restoration Act (RFRA) for the Department of Health & Human Services (HHS) to require religious business owners to provide contraceptive and abortifacient coverage for their employees. HHS imposed the birth control requirement as a regulation issued under the 2010 healthcare law popularly known as Obamacare.


    We previously argued that the requirement indeed violates RFRA, since the requirement substantially burdened the free exercise of religion, and was not the least restrictive means of advancing a compelling governmental interest (see herehere, and here). RFRA, which was passed by an overwhelming bipartisan majority in 1993, requires such religious exemptions to federal regulations. RFRA used to require such exemptions to state laws, not just federal laws, but the Supreme Court struck down RFRA’s application to state law on federalism grounds in 1997, holding that RFRA encroached too deeply on state sovereignty.  By contrast, the Supreme Court continued to uphold RFRA against federal laws that restricted religious practices in ways not essential to vital government interests, such as ruling in favor of Native American claimants seeking to use controlled substances in their religious ceremonies, in its 2006 decision in Gonzales v. O Centro Espirita.


  • CEI’s Battered Business Bureau: The Week in Regulation

    June 30, 2014 8:20 AM

    There were no major regulations this week, but more than 80 little ones, covering everything from a religious exemption to the federal tanning tax to imported cotton.


  • What’s at Stake in Monday’s SCOTUS Decision on Harris v. Quinn

    June 27, 2014 12:46 PM

    This Monday, the U.S. Supreme Court is scheduled to decide Harris v. Quinn, as one of the court’s last two decisions to be handed down in 2014.


    The case, which originated in Illinois, concerns whether home health care workers who receive government assistance are public employees and can be unionized. These workers include individuals who offer home health care services, an industry that is largely run by women. A sister case in Minnesota, Parrish v. Dayton, addresses many of the same issues but focuses on daycare service providers. In both cases, all of the plaintiffs are women.


    There are two big issues to keep in mind for Monday’s decision:


    1. Forcing private employers, employees, and independent contractors to be government employees


    Many daycare and home health care service providers end up being paid with government benefits because an individual they are caring for is a recipient of government benefits, such as Medicaid. At issue in this case is whether these providers may be considered state employees, because some of their earned pay comes from government dollars.


    The argument is ridiculous that anyone directly or indirectly receiving government benefits as payment for service could therefore be considered a government employee. That is like arguing 7-Eleven workers are government employees because 7-Eleven accepts food stamps. In this case’s oral argument, the attorney representing the women suing the government, used the example of medical care, saying that by this logic, every doctor could then be considered a government employee for accepting Medicaid or Medicare.


    2. Violating the First Amendment right to Freedom of Association

  • Red Tapeworm 2014: Number of Proposed and Final Rules in the Federal Register

    June 27, 2014 10:49 AM

    This is Part 12 of a series taking a walk through some sections of Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State (2014 Edition)


    We’ve talked about total pages in the Federal Register, as well as isolated the record number of pages now devoted to final rules.


    But the actual numbers of proposed and final rules published in the Federal Register—not just the page counts such rules command—merit close attention.


    The chart nearby shows how, in 2013, rules finalized dropped by 1.3 percent, from 3,708 to 3,659. (In a future column we’ll examine some possible reasons for this recent decline). Obama’s first year in office brought 3,503 rules, so the increase since then is four percent.


     



     


  • Unanimous Supreme Court Strikes Down Unconstitutional Obama "Recess" Appointments

    June 26, 2014 4:17 PM

    Today, in NLRB v. Noel Canningthe Supreme Court unanimously struck down President Obama’s “recess” appointment of NLRB members during a non-existent recess, saying there has to be an actual Senate recess (like a break of ten days or more) for the President to make a recess appointment.


    As University of Tennessee law professor Glenn Reynolds notes, the “recess appointment case was the 13th time the Supreme Court has ruled unanimously against the Obama Administration since 2012.” The Obama administration takes such extreme positions that even liberal Supreme Court justices ideologically sympathetic to it sometimes have to rule against it.


    The Supreme Court rightly, and unanimously, rejected President Obama’s radical interpretation of the Constitution’s recess appointments clause. His interpretation would, as D.C. Circuit Judge David Sentelle noted, have given Obama “free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch or even when the Senate is in session and he is merely displeased with its inaction,”” gutting constitutional checks and balances against unqualified presidential appointments.


    Its ruling also underscores the unconstitutionality of Obama’s “recess” appointment of Richard Cordray as head of the Consumer Finance Protection Bureau. He was appointed on the same day in the same non-existent “recess” as the invalidly-appointed NLRB members, as the Competitive Enterprise Institute noted in its amicus brief to the Supreme Court, and thus, many of his actions while invalidly appointed and without authority to act were under a cloud. A CEI case that challenges his appointment and the constitutionality of other aspects of the Dodd-Frank financial “reform” law – State National Bank of Big Spring v. Lew — remains pending.


  • Why the Supreme Court's Aereo Decision Protects Creators without Endangering the Cloud

    June 26, 2014 10:41 AM

    This post was coauthored by Geoffrey Manne and Ben Sperry of the International Center for Law and Economics. It originally appeared at Truth on the Market.


    Yesterday, the Supreme Court released its much-awaited decision in ABC v. Aereo. The Court reversed the Second Circuit, holding that Aereo directly infringed the copyrights of broadcast television program owners by publicly performing their works without permission. Justice Breyer, who wrote the opinion for the Court, was joined by five other Justices, including Chief Justice Roberts, Justice Kennedy, and the liberal-leaning bloc. Interestingly, Justice Scalia dissented on textualist grounds, joined by his conservative-leaning colleagues Justice Thomas and Justice Alito.


    As this split illustrates, debates about intellectual property often don’t break down along partisan or ideological lines, and the division between the majority and the dissent in Aereo focused entirely on how to interpret the copyright statute, not on the underlying philosophical merits of property rights or policy judgments regarding the costs and benefits of stronger or weaker IP.


    The majority, relying on both the legislative history and the text of the Copyright Act of 1976, emphasized that the Act sought to foreclose the workaround by cable companies of broadcasters’ copyrights that the Supreme Court had previously sanctioned in a duo of cases—and that Aereo’s conduct was functionally almost identical to the unauthorized retransmissions by cable companies prior to the 1976 Act.


    Justice Scalia dissented on two grounds: first, that the majority based its reading of the statute on legislative history, a practice he opposes as a means of divining a statute’s meaning; and second, that the majority relied on a vague and inapt comparison between Aereo’s allegedly infringing conduct and cable companies’ pre-1976 retransmissions of broadcast network programming.


    We argue here, building on our amicus brief and our previous blog post on Aereo, that, regardless of which test applies, Aereo infringes on television program owners’ exclusive right under the Copyright Act to publicly perform their works. Moreover, we argue that the Court’s test in Aereo is far less ambiguous than its critics assert, and that it does not endanger cloud computing services like so many contend.


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