Caleb Brown interviews me for this new Cato podcast on a knotty question: when should a state attorney general decline to argue in court in defense of a law he thinks unconstitutional? On the one hand, the legal profession’s norms strongly favor giving every client and cause its day in court, and practical dysfunction might result were cases routinely handed over to others to defend or dropped entirely. On the other hand, attorneys general like other officials take an oath of office to the constitution, which calls in doubt whether they should (or even may) use their skills on behalf of unconstitutional measures. Complicating matters: how should unconstitutionality be assessed, by way of the AG’s own judgment, by way of predicting how the highest relevant court would rule, or by some other method? What kind of difference should it make whether the assessment appears certain, very probable, or more ambiguous than that?
In recent weeks about a half-dozen Democratic AGs around the country have declined to defend their states’ bans on same-sex marriage, on the grounds that they are inconsistent with the Supreme Court’s Windsor decision of last year, while other AGs both Republican and Democratic have argued in defense of those laws. (Today, Kentucky’s attorney general announced that he will not appeal a federal court ruling requiring the state to recognize out-of-state marriages, although the state’s governor is stepping in to do so.) Finding either liberals or conservatives who have preserved entirely consistent positions on the issue, though, is not always easy. Former attorney general Ken Cuccinelli, a strong conservative, declined to defend a state education reform law last year, while in 2011 Wisconsin Gov. Scott Walker and Attorney General J.B. Van Hollen declined to defend a state domestic partnership registry they deemed unconstitutional. In a case like the latter it was liberals who tended to criticize the refusal to defend a law, and conservatives who applauded — patterns that to some extent have been reversed this time around.
A secret special prosecutor wielding “kitchen-sink” subpoenas takes aim at persons and groups who supported Wisconsin Gov. Scott Walker in his recent showdown with public employee unions. “The probe began in the office of Milwaukee County Assistant District Attorney Bruce Landgraf, though no one will publicly claim credit for appointing Mr. Schmitz, the special prosecutor. The investigation is taking place under Wisconsin’s John Doe law, which bars a subpoena’s targets from disclosing its contents to anyone but his attorneys. … [Wisconsin Club for Growth director Eric O'Keefe] adds that at least three of the targets had their homes raided at dawn, with law-enforcement officers turning over belongings to seize computers and files.” [WSJ "Review and Outlook"]
According to Ed Schulze, an employee of the Society of St. Francis animal shelter in Kenosha, Wisconsin, nine state agents and four deputy sheriffs were “armed to the teeth” and appeared “like a SWAT team” when they descended without warning on the shelter two weeks ago. Their target? A fawn that shelter employees had rescued and planned to release into a wildlife preserve the next day. Possession of wildlife is unlawful in Wisconsin, and officials proceeded to euthanize (kill) the juvenile deer. [WISN]
Asked later why the action was staged as a surprise raid, supervisor Jennifer Niemeyer told WISN, “If a sheriff’s department is going in to do a search warrant on a drug bust, they don’t call them and ask them to voluntarily surrender their marijuana or whatever drug that they have before they show up.”
Much of the reaction to this story concentrates on sympathy for the deer, which is understandable, but please spare some thought for what happens to humans when such police conduct comes to be accepted as normal. Our coverage of Radley Balko’s new book on police militarization, Rise of the Warrior Cop, is here, here, here, etc.
For a second time, labor unions and their allies have failed to unseat a member of the majority on the Wisconsin Supreme Court, which badly undercuts their chances of getting the court to invalidate Gov. Scott Walker’s Act 10. I’ve got details at Cato at Liberty.
The Toronto Globe and Mail prints my letter to the editor correcting some misrepresentations of U.S. labor law by Canadian Auto Workers union economist Jim Stanford. The text of the letter as it ran, slightly abridged, in the paper:
Jim Stanford says that in the 23 states with “right to work” laws, unions are “effectively prohibited; indeed, in right-to-work states, private-sector unionism is virtually non-existent” (Wisconsin’s Disease Crosses The Border – July 3).
This would come as a surprise to millions of employees in those 23 states who join and are represented at their workplace by unions. In Alabama, for example, which has had a right-to-work law since 1953, 183,000 workers (about 11 per cent of the labour force) are represented by unions, including 84,000 workers in the private sector. (source)
Emboldened or otherwise, Republicans in the states have no authority to alter the 1935 Wagner Act or other federal laws. In states like Wisconsin, they have sought to alter laws prevailing in about two-thirds of states that prescribe collective bargaining by public employees; these laws are of much more recent vintage than the New Deal, often dating to the 1960-85 period. Given Franklin Roosevelt’s well-documented skepticism toward collective bargaining by government employees, it is no surprise that he did not see fit to build any such element into his New Deal.
Walter Olson, senior fellow, the Cato Institute, Washington
Another infuriating extension of asset forfeiture law. [Radley Balko, Huffington Post]
Mitt Romney, following a long tradition of GOP candidates unable or unwilling to resist the continued expansion of employment discrimination law, has pre-emptively blessed Congress’s 2009 enactment of the ill-advised Lilly Ledbetter Fair Pay Act gutting statutes of limitation. Hans Bader offers reasons why he should consider drawing the line. [Examiner] More: Ted Frank.
Related: Wisconsin Gov. Scott Walker signs bill repealing duplicative damages law passed by his Democratic predecessors, thus contradicting the accepted narrative in which the scope of available damages in job-bias suits is supposed to be revisable only in an upward direction.