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OpenMarket: Law and Constitution

  • Pennsylvania Legislature Begins Process of Firing Attorney General Kathleen Kane

    November 30, 2015 12:51 PM

    Last month, Pennsylvania Attorney General Kathleen Kane stubbornly clung to office, refusing to resign even after she was suspended from practicing law for her alleged crimes and ethical violations by the Pennsylvania Supreme Court (crimes including official oppression, perjury, and obstruction of justice).

    Even before she was suspended from the bar, we had already rated Kane as the nation’s worst state attorney general.

    Now, the Pennsylvania State Senate has begun the difficult, time-consuming process of removing Kane from office, with a committee voting 5-to-2 to move forward. I discuss that decision, and the events leading up to it, at this link.

    Pennsylvania’s state constitution expressly empowers the senate to remove Kane for her misconduct. Yet Kane claims that any attempt to remove her would be unconstitutional, an argument rejected by legislators of both parties (including some of Kane’s fellow Democrats who think her removal from office is premature as a policy matter).

    Kane’s intransigent stubbornness elevates her own selfish interests ahead of her state’s, contrary to her fundamental ethical duties as an attorney. Kane’s refusal to step down endangers her office’s ability to carry its responsibilities, since as a suspended lawyer, she is no longer allowed to practice law, and practicing law includes supervising other lawyers—something she continues to do, including overseeing criminal prosecutions by others in her office.

  • Unconstitutional Sexual-Orientation Set-Asides in Massachusetts

    November 17, 2015 4:06 PM

    Government contracts should go to the lowest bidder, not be set aside for a particular group. So it is unfortunate that Massachusetts’s governor is now imposing set-asides in state contracts for LGBT businesses that appear to be unconstitutional. 

    Set-asides are unfair, discriminatory, and costly to taxpayers. They are also generally unconstitutional when they are not being used to remedy the present effects of the government’s own past discrimination. 

    These set-asides were apparently imposed in the name of “diversity.” But that is not a valid justification here. A federal appeals court struck down sexual set-asides in broadcast licenses in Lamprecht v. FCC , 958 F.2d 382 (D.C. Cir. 1992). It ruled that outside the educational setting, “diversity” is not a reason for preferences or discrimination under the Constitution’s “intermediate scrutiny” standard. Accordingly, it declared unconstitutional governmental “diversity” preferences based on sex. (For a later court ruling confirming this principle, see Lutheran Church—Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998).)

  • The Misguided Attempt to Censor Yik Yak

    October 29, 2015 9:57 AM

    People often seek to restrict new means of communication in ways that would never be applied to older forms of communication, sometimes based on fear of new technologies or illogical rationales. A recent example is the demand by 72 left-wing women’s groups and civil-rights groups that the federal government force colleges to block access to the social media app Yik Yak. They claim such measures are required by the federal civil-rights laws Title IX and Title VI. They want colleges to ban a form of social media just because a few users make racist, sexist, or threatening comments on it.

    The fact that a few users make bigoted or even threatening comments is not sufficient reason to shut down an entire medium of communication. No one would advocate banning demonstrations just because a few demonstrators uttered racist or inappropriate comments. New modes of communication like Yik Yak should not be treated any differently or worse. As I explain at this link, if the federal government granted their demand to crack down on Yik Yak, it would flagrantly violate the First Amendment.

    The Supreme Court’s 1997 decision striking down an Internet decency law likened such sweeping censorship to “burning the house to roast the pig.” In The Washington Post, law professor Eugene Volokh correctly described these women’s groups as a “national coalition in favor of campus censorship.” 

  • More Affirmative-Action Red Tape for Contractors: Sexual Orientation Added in California

    October 26, 2015 12:17 PM

    Governments impose a cobweb of complicated and confusing affirmative-action mandates on government contractors. That imposes billions of dollars in compliance costs on contractors. It also reduces the pool of contractors competing for government contracts, sometimes massively increasing the cost to taxpayers of transportation projects and government services by weeding out the most efficient contractor.

    California provides the latest example: new sexual-orientation-based affirmative-action mandates, imposed for certain subcontracts by California Public Resources Code § 25230. Loan recipients must now provide “outreach” to “LGBT business enterprises” alongside enterprises owned by women, “African Americans, Hispanic Americans, Native Americans, and Asian Pacific Americans.” As I explain at this link, these mandates are of doubtful legality, since the California state constitution subjects sexual-orientation classifications to strict scrutiny, and California appellate precedent applies strict scrutiny even when a classification prefers a minority rather than a majority. UCLA law professor Eugene Volokh raises practical questions about the new mandate, such as how it may be gamed by heterosexual subcontractors who claim to be bisexual.

  • Court Rules against Government in TSA Body Scanner Case

    October 23, 2015 2:05 PM

    Earlier today, the U.S. Court of Appeals for the D.C. Circuit ruled against the government in CEI’s challenge to the Transportation Security Administration’s (TSA) illegal body scanner policy. CEI, joined by the National Center for Transgender Equality and the Rutherford Institute, filed a mandamus petition in July asking the court to compel the TSA to produce its final rule on body scanners within 90 days.

    When the TSA began deploying body scanners as the primary screening method back in 2009, it failed to conduct a notice-and-comment rulemaking as required by the Administrative Procedure Act (APA). In 2010, the Electronic Privacy Information Center (EPIC) filed a lawsuit alleging, among other things, that the TSA was in violation of the APA. In July 2011, this same panel on the D.C. Circuit ruled in favor of EPIC and ordered the TSA to “promptly” complete the required rulemaking it should have completed before deploying the machines. Unfortunately, the TSA has still yet to produce the required final rule, which is what motivated this latest legal action.

    After years of TSA thumbing its collective nose at the court order, the D.C. Circuit today ordered the TSA to produce a final rule schedule within 30 days. We believe that the agency has finally been brought to heel and greatly appreciate the court’s decision.

  • Pennsylvania Attorney General Suspended from the Bar, Still Refuses to Quit

    October 23, 2015 9:39 AM

    Pennsylvania Attorney General Kathleen Kane was suspended from the bar on October 22 for apparent violations of the law by the Pennsylvania Supreme Court. A newspaper chain’s website says this makes her “the first attorney general without a license to practice law.”

    As it notes, “The first-term Democrat's license was put on indefinite, temporary suspension by the state Supreme Court on Sept. 21, weeks after she was charged with perjury and other crimes for allegedly leaking secret grand jury material to a reporter and lying about it. The court delayed the suspension for 30 days, so her first full day without a license” was October 22.

    As we described in “The Nation’s Worst State Attorneys General,” Kane has frequently shown contempt for the law and her ethical obligations while in office. (We rated her the nation’s worst attorney general.)

    But still, she is refusing to step down, even though the lack of a law license legally keeps her from performing many of her duties, and most of the state’s major newspapers have called for her resignation: “Embattled Pennsylvania Attorney General Kathleen Kane told senior staffers Wednesday that she still intends to run the office, even with a law license that has been placed on an emergency suspension. Kane, in a staff meeting, said that in her view about 98 percent of her work can go on as before,” with only two percent being farmed out to state Justice Department lawyers. After years of depicting herself as the state’s chief lawyer, she now implies that her role is largely bureaucratic.

    Given how political and partisan Kane has been in office (like dropping an investigation into corrupt Philadelphia lawmakers caught red-handed accepting bribes—an act which would have let them off scot-free had an outraged local prosecutor not indicted and convicted four of them), I can see why she is trying depict her role as primarily non-legal. But her politicizing legal matters doesn’t make them non-legal, and she plainly intends to continue meddling in legal matters.

  • A Class Merger: CEI and the Center for Class Action Fairness Get Hitched

    October 1, 2015 9:37 AM

    Litigation has been an important part of CEI since its earliest years—from our NYC rent control case in the 1980s, to our lawsuits against the lethal aspects of federal fuel economy standards several years later, to our constitutional challenges to the Big Tobacco deal (unsuccessful) and Sarbanes Oxley (successful). More recently, there was our Supreme Court Obamacare case, decided this past June (tragically unsuccessful) and our newly-revived Dodd Frank case, reinstated by a D.C. Circuit panel in July.

    Today we announce CEI’s merger with the Center for Class Action Fairness (CCAF), a young nonprofit outfit that has racked up an extremely impressive track record of objecting to abusive class action settlements. These are class actions and shareholder derivative cases in which the plaintiff class wins little or nothing, while their attorneys walk away with huge fees.

    CCAF was founded in 2009 by attorney and former AEI scholar Ted Frank. In the years since then, Ted and his small staff have succeeded in directly returning tens of millions of dollars to consumers and shareholders through attorney fee reductions, in winning several precedent-winning cases, and in drastically weakening the incentives for behind abusive class actions that bring no benefit to the public.

    Ted got the idea for CCAF after he personally objected to the proposed settlement in a class action suit over Grand Theft Auto. The class was supposedly injured by the allegedly unexpected violence of the video game; it received all of $26,000, while its attorneys were to get a million dollars in fees—until Ted’s objection led the court to reduce the award to zero.

  • World Bank Increases Number of Poor

    September 25, 2015 11:22 AM

    The World Bank is considering changing its definition of what constitutes extreme poverty, raising the level below which someone is treated as extremely poor from $1.25 a day to $1.90 a day. This comes after a long trend of people moving out of the category, leading some to point out that the Bank may have an interest in maintaining high numbers of people defined as poor.

  • Education Department Harms Innocent Colleges and Students through Illegal Title IX Mandates

    September 9, 2015 10:08 AM

    The Education Department, where I used to work, is becoming more and more extreme in how it interprets and applies federal law. Sometimes this comes at the expense of colleges: as a task force of college presidents recently noted in a report to the U.S. Senate, the Education Department frequently makes up new legal mandates out of thin air under the bogus pretense that they are required by some statute, and then imposes them on colleges, without even going through the notice and comment required by the Administrative Procedure Act.

    Sometimes, its overreaching comes at the expense of individual people. The Education Department has thumbed its nose at court rulings by creating entitlements for people who make false discrimination and harassment complaints—even though such baseless complaints can make life miserable for the victims of such false allegations (and cause serious problems for the institution they work for or attend).

    Federal judges have ruled that people who lie and file sexual harassment charges over conduct they falsely claim was unwelcome can be disciplined, in cases such as Vasconcelos v. Meese (1990). But in a recent Title IX investigation of Michigan State University, the Education Department required university officials to offer “remedies” to “Student A,” whom both it and the University found had made a false allegation of sexual assault against two students. 

    The Education Department’s strange logic was that the university did not begin proceedings against the accused students fast enough (even though it immediately kicked them out of their dorm and ordered them to stay away from the accuser).

  • Cato, CEI File Amicus Brief to Protect Donor Confidentiality and Freedom of Association

    September 8, 2015 11:43 AM

    The Cato Institute and CEI recently filed an amicus brief with the Supreme Court, urging it to stop California Attorney General Kamala Harris from making intrusive demands for the donor lists of non-profit groups.

    Federal law treats the donor lists contained in non-profits’ Form 990 Schedule B as confidential, and forbids the IRS to give them to state attorneys general. (See, e.g., 26 U.S.C. § 6104(c)(3).)

    Moreover, California statutes do not require, or even specifically authorize, the state attorney general to collect such confidential donor information from non-profits. But Harris does it anyway, demanding that non-profits give her their Schedule B’s.

    Harris’s demands were challenged by the Center for Competitive Politics (CCP), a public-interest law firm, after Harris demanded that it disclose its principal donors to the state. CCP’s challenge was rejected by a trial court and then the Ninth Circuit Court of Appeals based on the meager premise that Harris could demand this information in the name of “investigative efficiency.”

    In that case, Center for Competitive Politics v. Harris, the Ninth Circuit rejected CCP’s facial First Amendment challenge to the requirement, but left open the theoretical possibility that charities can bring an as-applied challenge if they can show that their donors would experience “threats, harassment, and reprisals” due to such disclosure. But that is small comfort: Bringing such an as-applied challenge would require a lawsuit that would cost tens of thousands of dollars in attorney’s fees, meaning that all but the largest non-profits would be unlikely to do so even if they had experienced donor harassment or reprisals against their contributors. That would result in a massive chilling effect on First Amendment associational rights.

    Moreover, Harris (whom CEI earlier rated America’s fourth-worst state attorney general) has already indicated she will not grant such as-applied exceptions to her demands for disclosure, even to charities whose donors have already faced well-documented harassment, unless a court specifically orders her to do so in response to a lawsuit.


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