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On Monday, Attorney General Eric Holder announced proposed prison reforms aimed at reducing the population of the nation's overflowing ­federal prisons. Holder cited figures that show the federal prison population has grown almost 800 percent since 1980. "With an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, deter and rehabilitate, not merely to warehouse and forget," he said.

Holder's solution? Stop prosecuting federal crimes. Holder directed all federal prosecutors across the country to stop charging low-level, nonviolent drug offenders with offenses that impose severe mandatory sentences. But there is a far more effective way to reduce the prison population: slash the number of federal crimes. Yes, mandatory sentencing is part of the problem, but the larger culprit is the explosive growth of federal criminal laws. There are 4,500 federal crimes on the books, with new ones being added at a rate of about 500 a year. The laws are deliberately vague, giving prosecutors maximum discretion "to intimidate decent people," as syndicated columnist George Will has observed.

Until relatively recently, ordinary criminal law was almost exclusively the province of state authorities. And with good reason: under the U.S. Constitution, the federal government has only limited power over crime, generally covering things like treason, piracy, and counterfeiting.

How the federal government managed to expand its criminal jurisdiction would come as a surprise to most Americans. Most federal criminal laws are justified under Congress's power to regulate interstate commerce. And so, for example, the courts have allowed the federal government to prosecute arson cases involving apartment buildings on the grounds that the real estate market is part of interstate commerce. But of course the use of the commerce clause is the merest pretext: nobody thinks that Congress was trying to regulate the real estate market by making arson a federal crime.

The Founders did not establish our two-level federal system on a whim. They did it to protect individual liberty. In Federalist 51, Madison argued that federalism (along with separation of powers) would create "a double security . . . to the rights of the people." Constitutional scholar Akhil Reed Amar has argued that the states can "act as a remedial cavalry" by riding to the rescue of citizens victimized by federal power. That's true in a general sense, but given the supremacy of federal law, the states are powerless to help those citizens prosecuted under federal statutes. The nearly un-checked power of federal prosecutors has led, inevitably, to abuse.

Consider the 2002 conviction of Arthur Andersen, which put tens of thousands of innocent people out of work, only to be overturned on appeal. In 1994, a Michigan property developer was arrested for having contractors excavate some sand and place it in a ditch--all on his property--without seeking approval from the Army Corps of Engineers. For this dastardly crime, federal prosecutors sought a sentence of sixty-three months--more than five years. The trial judge flatly refused to put a man behind bars for "mov[ing] some sand." The government appealed, and the case was ultimately settled.

It's true that Holder cannot unilaterally take federal laws off the books -- only Congress can do that. But neither Holder not his boss, President Obama, seem troubled by the unconstitutional breadth of federal criminal law today. Instead, they blame prison overcrowding on racism.

In a speech at the annual meeting of the American Bar Association in San Francisco, Holder cited a recent "deeply troubling report" indicating that black male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes. That is troubling - but it's not the root cause of overcrowding; besides by taking aim at mandatory sentences, Holder is targeting the one part of the justice system that is necessarily color-blind. We won't improve the sorry state of federal prisons while this administration refuses to concede that the real cause of prison overcrowding is rampant over-criminalization.

This post was originally published on Ricochet.com.

In what appears to be an attempt to scare wavering voters into supporting the president, New York Times columnist Paul Krugman argues that if Hurricane Sandy had arrived under a Romney administration, the victims would have been left without any government assistance. And by "government," Krugman means the federal government because, of course, only the federal government can respond to emergencies.

After discussing past Republican attempts to devolve disaster relief to the states, Krugman concludes "if Mr. Romney had been president these past four years the federal response to disasters of all kinds would have been far weaker than it was." And to prove the virtue of federal intervention, Krugman evokes "the scene in flooded Hoboken, with the National Guard moving in the day after the storm struck to deliver food and water and rescue stranded residents."

There's just one problem: the National Guard is a unit of state government, not the federal government. Indeed, it is the successor to the state militias. Krugman might have taken a moment to consult the Pentagon's own website discussing post-Sandy relief: "The National Guard takes its missions from the governor, and they're supporting the first responders," reports the DoD, quoting Army General Frank Grass.

Governor Christie called up the New Jersey Guard; Governor Cuomo, the New York Guard. It appears that FEMA played a role in getting other states to contribute guardsmen to the relief effort, but it is preposterous to think that such cooperation would not have occurred without Uncle Sam.

The Constitution empowers the president to summon the state militias "to execute the laws of the union, suppress insurrections, and repel invasions." But none of those conditions applies at present and (to my knowledge) President Obama has not asserted the power to call up the National Guard for post-Sandy relief. But when there are cheap political points to be scored, Krugman is not one to be distracted by the Constitution -- or the facts.

France's socialist premiere Francois Hollande has a plan to ensure that young Frenchmen don't inadvertently develop a work ethic: ban homework.

Hollande argues that homework just isn't "fair." Why not? As David Azerrad reports at Heritage's Foundry, it is because homework "gives kids who get help from their parents a leg up on those who come from families where the parents are either absent or can't help." As David concludes, this perfectly illustrates how "equality of opportunity" can be twisted into "sameness of opportunity."

Before you say "it can't happen here," consider Larson v. Burmaster, a 2006 case in which a Wisconsin student and his father alleged that summer homework assignments violated the Due Process Clause of the Fourteenth Amendment. The plaintiffs cited a series of "substantive due process" cases holding that the Constitution protects parents' right to direct their children's education and upbringing. (I discuss this case in the opening chapter of my book, The Naked Constitution). And yes, it was tossed out by the trial court and the appellate court, but then, they laughed at the tobacco lawsuits at first.

The chief executive of Illinois's Cook County, which includes Chicago, has come up with a nifty idea to curb gun violence: tax guns and ammunition in amounts that would equal a 200% tax on .22 caliber ammunition. There's just one catch, as I explain over at National Review Online: fundamental rights cannot be unduly burdened by taxation. As I argue, the holding of various First Amendment cases can be applied to prohibit government from taxing Second Amendment rights out of existence.

As Ted Frank pointed out in his recent post, the self-proclaimed "fact checkers" in the media seem to have no interest in correcting the president's distortions regarding the Ledbetter Act.

Here's another whopper that has escaped the media's attention. When discussing Arizona's immigration law (SB 1070), Obama said: "Part of the Arizona law said that law enforcement officers could stop folks because they suspected maybe they looked like they might be undocumented workers and check their papers." In fact, the law allows police officers to request papers only upon "reasonable suspicion" -- a well-established standard -- and specifically states that police may not consider "race, color, or national origin" in forming a reasonable suspicion. At oral argument before the Supreme Court, Chief Justice Roberts asked the Solicitor General Donald Verrilli: "No part of your argument has to do with racial or ethnic profiling, does it?" And Verrilli replied "that's correct, Mr. Chief Justice."

But perhaps the strangest assertion from the president was this: "You know a major difference in this campaign is that Governor Romney feels comfortable having politicians in Washington decide the health care choices that women are making." That is, of course, an odd assertion from somebody who believes that the 15 members of the Independent Payment Advisory Board should be empowered to "decide the health care choices" for an entire nation, men and women. But then, by way of explanation, Obama stated that Romney would allow employers to decide what sort of health coverage to provide their employees -- even giving employers the freedom to choose health plans that don't cover contraception.

Apparently, Romney's refusal to impose a national contraception mandate on employers puts power in the hands of "politicians." Obama never attempted to back up his preposterous claim about "health care choices" -- and you can bet that the media will never challenge him.

In last night's vice presidential debate, Joe Biden purported to "guarantee" that no Obama-nominated judge would ever vote to overturn Roe v. Wade. Never mind what this "guarantee" is backed up by -- Joe's dental work? -- it demonstrates the Obama administration's view of the Judiciary. As I argue over at NRO's "Corner," the very idea that a president could guarantee the actions of an independent branch of government ought to be too unseemly to mention, even for Joe Biden. The former Judiciary Committee stalwart also claimed that overturning Roe would "outlaw abortion" -- in fact, it would simply return the issue to the states, as I also explain at NRO.

The one thing that was clear during yesterday's Supreme Court argument in Fisher v. University of Texas -- a case involving affirmative action -- was that the Court's liberal bloc is terrified at the prospect of overruling Grutter v. Bollinger, a 2003 precedent holding that public universities can use racial preferences in admissions (a blatant violation of the Equal Protection Clause) because "diversity" is a "compelling state interest."

A substantial diversity industry has been built upon Grutter, which explains why liberal justices, the media, and college deans' offices are desperate to see it upheld. But what emerged from yesterday's oral argument is that Grutter is an incoherent mess. Trying to shoehorn the Texas system into Grutter's "logic," the university's lawyer argued that the university had not achieved a "critical mass" of minorities -- then refused to say what a critical mass would constitute. My full analysis of yesterday's oral argument and why Grutter must go is posted here at NRO Bench Memos.

"Obama's Property Grab"
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Over at the Bloomberg View, I call attention to the Obama administration's attempt to convince the U.S. Supreme Court that the federal government can deny landowners the use of their property for years -- decades if need be -- without ever paying compensation.

Deputy Solicitor General Edwin Kneedler advanced this remarkable proposition during oral argument in Arkansas Game and Fish Commission v. United States, a case involving the damage wrought by the Army Corps of Engineers in its operation of the Clearwater Dam in Arkansas. The administration's argument poses a grave threat to the vitality of the Fifth Amendment's takings clause, which requires the government to pay "just compensation" when it takes property for public use. I explain why this argument is dead wrong here.

In the wake of last Tuesday's presidential debate, the pundits have been obsessed with Romney's zingers and Obama's deer-in-the-headlights performance. But the defining moment of the evening was provided by the debate stage itself.

When asked to define the role of the federal government, Romney said, "look behind us: the Constitution and the Declaration of Independence," pointing to the stage backdrop which featured excerpts from the founding documents. Fidelity to the principles of the Founding Fathers emerged as a key theme for Romney, but was utterly ignored by former ConLaw professor Obama. (I recently discussed these differing visions of the federal government on Fox & Friends, here.)

Unlike most presidential debates in recent memory, Tuesday's gave the candidates an opportunity to lay out their philosophy of government at length. With an entire segment (or "pod" to use host Jim Lehrer's oddly futuristic term) devoted to the proper role of a central government, each man had the chance to address the core issue of American politics; the very question that brought the delegates to Philadelphia in 1787.

To that question, the president said not a word -- not one -- about the Constitution: the document that creates and defines the federal government. The Founders devised a central government whose powers would be "few and defined," as James Madison put it. Instead of referring to the document which he took an oath to uphold, Mr. Obama said that the role of the federal government is limited only by its "capacity" -- a fancy way of saying that Washington can do anything within its brute power.

According to the president, federal power must be used to create "ladders" and "gateways" of opportunity, and "frameworks" for success; all of this suggesting that individuals and businesses cannot succeed without help from Capitol Hill. This makes perfect sense if you believe that entrepreneurs don't actually build their own businesses. But it makes no sense if you consult the enumerated powers of the federal government. Although Congress can regulate interstate commerce, it has no overarching power to impose its own concept of opportunity and success on a diverse nation.

The president then moved on to that familiar euphemism: the federal government must make "investments," i.e., it should spend like there's no tomorrow. Education not up to snuff? No problem: "let's hire another hundred thousand math and science teachers," said the president. And community colleges get a piece of the action, too. They should have vocational training programs, which, of course, "require" federal support. There's just one thing missing from this narrative: "education" is simply not within the federal government's constitutional powers.

When Lehrer turned to Mitt Romney, the contrast could not have been sharper. Not only did Romney refer explicitly to the Constitution, but he also explained that both individuals and states have "rights" against the federal government -- another concept overlooked by the president (in fact, Obama did not mention "rights" once in this debate on domestic policy).

Romney agreed that hiring more teachers is a good thing, but pointed out that "every school district, every state should make that decision on their own." He cleverly hijacked the president's vague references to "opportunity" and "success," making the point that these are matters of individual initiative. What government has to do, as the governor put it, is uphold the right of individuals "to pursue their dreams, and not to have the government substitute itself for the rights of free individuals."

In an earlier segment on health care, Romney took the president to task for "whisking aside the 10th Amendment" by imposing a national health care mandate. The 10th Amendment is the provision that reinforces the right of states to conduct their own affairs, except in those areas specifically delegated to the federal government. Mr. Obama did not see fit to address this concern.

At one point in the debate -- once he had regained something of his usual professorial manner -- the president intoned that the differences between the candidates are "instructive." You can say that again.

The Supreme Court kicked off the October Term on Monday - the first Monday of October. Here's a quick roundup of the big issues up before the Court.

Affirmative action: The court will revisit its 2003 ruling (Grutter v. Bollinger) which upheld certain affirmative-action programs at universities. In the new case, Fisher v. University of Texas, the Court will consider a white student's challenge to the admissions policy at UT Austin that allows race to trump other merit-based factors. As John Yoo recently argued, the Court should overturn Grutter as a "blemish" on our constitutional law.

Gay Marriage: It's considered likely that the Court will address gay marriage, although the Justices have not made an announcement yet. Actually, there are two distinct issues: (1) can Congress define "marriage" for federal law purposes? and (2) can states define marriage as the union of one man and one woman?

The first issue relates to the Defense of Marriage Act (DOMA). There is at least a decent Tenth Amendment argument that DOMA is unconstitutional. If the federal government wants to make certain benefits contingent on being married, so be it, but the feds have to defer to the states to supply the definition of marriage.

The second issue, which relates to California's Proposition 8, presents a much greater threat to our constitutional order. The liberal argument is that the Constitution requires state recognition of same-sex marriage and, therefore, divests states of their historic power over the definition of marriage. According to the liberal spin, as the Washington Post's Robert Barnes reports in typically unbiased fashion, the question is "whether society's growing acceptance of same-sex unions warrants constitutional protection." I guess society's "growing acceptance" is somehow reflected by the 37 states that have passed laws defining marriage as limited to a union between one man and one woman. As I have said before, the liberal argument here is pure judicial activism.

ObamaCare, Part II? There is at least a possibility that the Affordable Care Act will come back to the Court this term. The Court is considering a petition by Liberty University to reconsider the university's challenge to ACA's employer mandate on religious freedom grounds, but also as exceeding Congress's power. Although the Court often summarily rejects such petitions, it has kept this one under advisement all summer, and now has asked the Obama administration to respond - raising the likelihood that the Court will agree to revisit this law.

Takings. The case is Arkansas Game and Fish Comm. v. United States. The issue is whether government regulations that impose recurring flood invasions constitute a "taking" within the meaning of the Takings Clause, even if the flooding isn't permanent.

Voting rights. Overlapping with the recent Voter ID controversies are a series of cases challenging Section 5 of the Civil Rights Act, which requires states and localities with a history of discrimination to get federal approval of any changes in their voting laws. In a 2009 ruling, the Supreme Court expressed concern about "serious constitutional questions raised by Section 5's intrusion on state sovereignty." Clearly this is the case for state and local elections. But even for federal elections, the Constitution gives states the power to define "the times, places, and manner" of choosing congressmen. Granted, Congress has the power to amend such regulations, but that's very different from forcing states to ask Congress's permission before changing their voting laws.

Alien Torts. On Monday, the Court heard argument on the scope of the Alien Tort Statute (ATS), a venerable 1798 law that allows aliens to bring lawsuits in federal court for violations "of the law of nations or a treaty of the United States." As far as we know, it was enacted to cover very minor gaps in the law, like the assault of a diplomat in the U.S., or piracy committed by Americans in international waters. The law was virtually unused until the 1980s, when it was revived as a nifty way to use American courts to pursue alleged human rights abusers.

In the new frontier, the international rights bar is arguing that the ATS gives courts jurisdiction over suits that have no connection to the US; that is, cases in which foreign plaintiffs sue foreign defendants over conduct that occurred outside of the U.S. The case is Kiobel v. Royal Dutch Petroleum.

In Monday's argument, the Justices showed skepticism of the expansion of the ATS and their questions sought some principle to limit ATS. Justice Sotomayor seemed inclined to endorse an interpretation put forth by the European Union in an amicus brief, which argues that US courts should allow ATS lawsuits with no connection to the US, provided the parties have exhausted all other remedies. As a matter of policy, that might or might not be sensible, but it is disturbing that even one Supreme Court Justice believes that a 214-year-old American law should be interpreted according to a policy formula dreamed up in Brussels.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.