Yesterday the Supreme Court heard oral argument in Horne v. USDA, with many Justices skeptical of the government’s position that it can seize nearly half of a family’s raisin crop under a USDA program without creating a “taking” for which it would owe just compensation under the Fifth Amendment of the Bill of Rights. Cato filed an amicus brief on behalf of the raisin-farming Horne family, as it had also done at earlier stages of the protracted case [our earlier coverage; my colleague Trevor Burrus’s write-up from March; Damon Root, Reason] And The Daily Show (“raisin outlaw”).
- In a new Cato podcast, I talk with Caleb Brown about the Court’s pending case on “disparate impact” liability in housing and finance, Texas Dept. of Housing vs. The Inclusive Communities Project [earlier, more]
- Amicus briefs urge Court to recognize regulatory taking in raisin marketing order requisition case Horne v. Department of Agriculture [Trevor Burrus, Ilya Somin, earlier]
- Organized campaign to disrupt Supreme Court sittings is sure to raise the concern of groups devoted to backing judicial independence. Right? [Orin Kerr, Legal Times, earlier on selective vision of some of the latter groups here, here, etc.]
- Under the surface, routine decision in Perez indicates Justices’ changing attitudes toward Chevron, Auer, and agency deference in administrative law [Sasha Volokh]
- Vong v. Aune, arising from Arizona cosmetology board ban on Asian “fish pedicure” techniques, could enable Court to examine economic rationality of regulation [Ilya Shapiro]
- “Justices stick to middle of the road in Omnicare securities opinion” [Alison Frankel/Reuters, Bainbridge]
- Sequel to Harris v. Quinn? In Center for Individual Rights’s Friedrichs v. California Teachers Association case Court could revisit Abood question of public sector agency shop [On Labor, Larry Sand/City Journal]
Very Cato-centric this time:
- Perez v. Mortgage Bankers: yes, agencies can dodge notice and comment requirements of Administrative Procedures Act by couching action as other than making new rule [SCOTUSBlog and more links, earlier; Michael Greve and followup; Daniel Fisher on concurrence by Justices Scalia, Thomas, and Alito and related on Thomas, Alito concurrences in Amtrak case]
- New Jersey high court is unreasonably hostile to arbitration clauses, which raises issues worthy of review [Shapiro on Cato cert petition]
- “When Wisconsin Officials Badger Their Political Opponents, It’s a Federal Case” [Ilya Shapiro, earlier here, here, etc.]
- Richard Epstein on King v. Burwell oral argument [Hoover, earlier]
- With Profs. Bill Eskridge and Steve Calabresi, Cato files probably its last same-sex marriage brief before SCOTUS [Shapiro; Timothy Kincaid, Box Turtle Bulletin]
- On Abercrombie (religious headscarf) case, Jon Hyman sees an edge for plaintiff at supposedly pro-business Court [Ohio Employer Law Blog, earlier]
- A different view on Fourth Amendment challenge to cops’ warrantless access to hotel guest registries [James Copland on Nicholas Quinn Rosenkranz brief; earlier Cato amicus]
- “Why the Court Should Strike Down the Armed Career Criminal Act as Unconstitutionally Vague” [Trevor Burrus]
Above is an introductory video on King v. Burwell, the ObamaCare exchange subsidy challenge, from my Cato colleagues Michael Cannon and Trevor Burrus, introduced by Caleb Brown. Tomorrow you can stream this Cato reaction panel on the Court’s arguments featuring Oklahoma Attorney General Scott Pruitt, Simon Lazarus of the Constitutional Accountability Center, Jonathan Cohn of the Huffington Post; and Michael Cannon, moderated by Ilya Shapiro of Cato.
While I’ve mostly left the analysis of King v. Burwell to others at Cato (aside from gathering links to others’ work here at Overlawyered) I did respond when New York Times columnist Paul Krugman employed what I called “remarkably ugly and truculent” terms to assail the challenge, saying it could succeed only in a “corrupt” Supreme Court.
P.S. While the lawprof amicus brief on behalf of the Obama administration garbs itself in the wolf pelt of severe textualism, Jonathan Adler spies the fluffy sheep beneath.
And: an after-the-argument statement by Ilya Shapiro (“If the government wins here, then not only will Obamacare continue to be rewritten by the IRS, but any executive agency – and any future president – will be able to rewrite any law.”).
Ilya Shapiro comments [link fixed now] on the Supreme Court’s ruling this morning in Yates v. United States that the Sarbanes-Oxley accounting law’s prohibition on evasive destruction of “tangible objects” cannot be used to prosecute a fisherman who discarded undersized grouper in hopes of avoiding enforcement. “How does one make a false entry on a fish?” asked Justice Samuel Alito in a concurrence, while dissenting Justice Elena Kagan, citing Dr. Seuss’s “One Fish Two Fish,” disagreed with the prevailing justices’ view that the statute’s prohibition on destruction of “tangible objects” should be read in conjunction with references elsewhere in its text to files and information. [David Lat/Above the Law; ABA Journal] Earlier here.
The U.S. Supreme Court will hear oral argument March 23 in the case of Walker v. Texas Division, Sons of Confederate Veterans, which on its face raises a relatively specialized issue — having offered to print specialty license plates for motorists, may the state of Texas then, as its statutes direct, “refuse to create a new specialty license plate if the design might be offensive to any member of the public”? (emphasis added).
The lawfulness of government cooperation in speech, however, should not turn on whether the speech “might be offensive to any member of the public,” a new Cato brief argues. One reason is the potential for subjectivity and inconsistency — Texas currently approves many license plates that would offend some people, but declined to approve one including a tiny version of the Confederate battle flag. But a more fundamental reason is that offensive speech itself can be a valuable part of the marketplace of ideas and should not lose First Amendment protection simply because someone takes offense at it. (The brief takes no position on whether specialty license plates count as a “quasi-public forum” or something else, a question that might keep the Court from needing to reach the offense issue; it also notes that the case at hand does not include any of the exceptions the Court has recognized to speech freedom, such as obscenity, incitement, or “true threat.”)
Like Cato’s brief last year in the “truthiness” Ohio campaign speech case, this one falls into the new category of “funny” brief — including references to jokes and comedy sequences, dropping cites to Full House and America’s Funniest Home Videos, and including among its signers Cato fellow P.J. O’Rourke as well as the Comic Book Defense Fund and noted First Amendment advocates Nat Hentoff, Nadine Strossen, and Martin Garbus. (It also includes a number of words often considered offensive, and which seldom find a place in Supreme Court briefs.)
Ilya Shapiro, counsel of record (joined by co-counsel, and noted First Amendment lawyer, Robert Corn-Revere) writes at the Cato blog:
Not only does the right to be offensive secure the livelihood of our favorite comedians, it protects scientific and medical researchers in their quest to push the limits of human knowledge into fields once considered taboo and enables one religion’s heretic to become another’s prophet. And should a member of a third faith, or no faith at all, wish to define himself as an iconoclast by mocking, degrading, or insulting that heretic cum prophet—be it Muhammad, L. Ron Hubbard, or Mark Steyn — that too, is protected by the First Amendment.
There’s no “offensiveness” exception to the First Amendment and it would be insulting for the Supreme Court to allow Texas to tell us what’s offensive. Those who are offended shouldn’t have a veto over free expression and putative offenders should be judged in the court of public opinion.
Another summary: Ronald Collins, Concurring Opinions.
Time to rethink a traditional law enforcement practice? “In City of Los Angeles v. Patel, which will be argued in the Supreme Court March 3rd, a group of hoteliers have challenged the city’s ordinance requiring them to hand over customer data whenever a police officer wants it.” The innkeepers prevailed in an en banc Ninth Circuit ruling and the case is now before the high court [Jim Harper, Cato] More: Tim Cushing, TechDirt.
For a second time, the Supreme Court has agreed to hear a case in which federal agricultural marketing order regulations compelled the Horne family of California to surrender about half their raisin crop for little if any compensation. [Will Baude, Ilya Somin, Michael McConnell] A previous high court ruling had kicked the case back to the Ninth Circuit for further proceedings [earlier here and here.]
Should the Court deem the requisitions a taking for which compensation is due, the implications for other agricultural programs are considerable. “Similar USDA marketing order programs are in place for almonds, apricots, avocados, cherries (both sweet and tart), Florida and Texas citrus, cranberries, dates, grapes, hazelnuts, kiwifruit, olives, many onions and pears, pistachios, California plums and prunes, many potatoes, raisins, spearmint oil, tomatoes, and walnuts.” [Baylen Linnekin]
Also, wouldn’t this make a good illustration?
Daniel Fisher recounts oral argument in the case of Texas Dept. of Housing vs. The Inclusive Communities Project. Roger Clegg (more) and Terry Eastland comment on a “to exclude one is implicitly to include all others” argument made by some on the liberal side.
Interviewed at HousingWire, Mike Skojec of Ballard Spahr predicts major consequences from the case (including, paradoxically or otherwise, higher costs for the building of “affordable” housing should the liberal side win) and has this to say about how disparate-impact advocates have overplayed their hand:
In some disparate impact cases, the theory has worked effectively to lessen racial discrimination and the perpetuation of illegal segregation. However, the substantial increase in the use of the theory by advocacy groups and HUD for many kinds of claims for which it should not be used, such as how risk is evaluated in selling property insurance or how management companies screen the risk of criminal conduct and other bad acts by possible tenants, has caused the theory to be attacked and probably struck down.
Why “probably” struck down? Well, there are many signals of the Court’s intention:
The Court has wanted to examine this issue, as evidenced by accepting cert three times. It has repeatedly said that it only wanted to look at whether disparate impact applies under the Fair Housing Act and not what standard would apply if it does exist, even though there are many circuit court decisions using disparate impact, and they have used conflicting standards. Typically, the Court would want to decide an issue that is in conflict between the circuits, especially here, where HUD has already tried to resolve the conflicts with a rule. The Court’s refusal to consider a standard suggests that the majority of the justices already know disparate impact will no longer apply under the Fair Housing Act.