David Boaz

Cato founder/president/CEO Ed Crane and Board member/senior fellow Bob Levy take on “the president’s bogus claims of limitless executive power” in his battle with Congress over the Terrorist Surveillance Program:

Abiding by the Constitution will not always shield us from bad laws. Nonetheless, even if the Constitution is not a sufficient guidepost, it is certainly a necessary guidepost.

For many years, we were at risk of losing important civil liberties through unchecked transgressions by the executive branch. Maybe we are still at risk. But thanks to the media, the courts and — belatedly — an energized opposition in Congress, the administration has finally resigned itself to a semblance of congressional oversight, even if judicial scrutiny remains inadequate.

The president’s bogus claims of limitless executive power are, for now, on hold. That’s the right constitutional precedent even if it ultimately produces the wrong policy outcomes. Longer term, the precedent is more important than temporal policy judgments. Justice Sandra Day O’Connor’s plurality opinion in the Hamdi case nicely captured the key principle: “Whatever power the U.S. Constitution envisions for the Executive … in time of conflict, it most assuredly envisions a role for all three branches of government when individual civil liberties are at stake.”

A few weeks ago, when I introduced ACLU executive director Anthony Romero at a Cato Book Forum, I began by asking

which right the American Founders considered most basic, that is, indispensable to securing all the others. Is it the right to property, which Arthur Lee described as “the guardian of every other right,” because without it we are all at the mercy of whoever controls all the resources Is it the right to keep and bear arms, without which resistance to the state is rendered toothless Is it, as Thomas Jefferson said, the right to trial by jury that protects citizens from the arbitrary power of the state Is it the case that, as Winston Churchill said – not an American Founder, of course, but always good for a quote – “A free press is the unsleeping guardian of every other right that free men prize” Or could it be the writ of habeas corpus, known as the Great Writ, which in 1969 the Supreme Court called “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action”

Afterward, my smarter colleague said, “It’s habeas.”

So that’s why it’s good that the ACLU has declared today a “Day of Action to Restore Law and Justice.” ACLU members and others are rallying on Capitol Hill and visiting congressional offices asking Congress to restore the right of habeas corpus.

One of the most frightening elements of the powers asserted by the Bush administration in the war on terror is the power it claims to arrest American citizens and hold them without access to a lawyer or a judge. The conservatives of the American Freedom Agenda have joined the ACLU in calling for repeal of the Military Commissions Act and restoration of the right of habeas corpus. Cato adjunct scholar Richard Epstein petitioned Congress not to curtail habeas corpus as it considered the Military Commissions Act last fall, to no avail. This issue will provide a good test of the proposition that divided government is a good thing. Will the Democratic Congress do the right thing and restore our constitutional rights

A headline in the Saturday Washington Post reads:

Russia’s Gazprom Purchases Siberian Gas Field From BP

The story begins:

The state-controlled energy giant Gazprom on Friday bought a vast natural gas field in Siberia from a unit of British-based petroleum conglomerate BP, continuing the Kremlin’s policy of shifting control of the country’s major energy projects from foreign to state hands.

The last part of the sentence begins to hint at what really happened, a truth that is concealed by words like “purchases” and “bought.” In fact, the Russian government and its giant energy firm Gazprom forced BP to sell, as it has forced other companies to turn valuable properties over to Gazprom and the oil company Rosneft, often through the use of trumped-up tax or regulatory issues.

Journalists should be straightforward about such things. Gazprom did not “purchase” a gas field from BP. This was no “willing buyer, willing seller” transaction. It would more accurately be described as a seizure, a confiscation, or at best a forced sale.

The Wall Street Journal used similar language. The New York Times, to its credit, was more honest and clear: Its headline read, “Moscow Presses BP to Sell a Big Gas Field to Gazprom,” and the story began, “Under pressure from the Russian government, BP agreed on Friday to sell one of the world’s largest natural gas fields to Gazprom, the natural gas monopoly, in the latest apparently forced sale that benefited a Russian state company.”

Footnote: Today is the second anniversary of the Kelo decision, in which the U.S. Supreme Court ruled that states could take private property for the benefit of other private owners such as developers. In a stinging dissent, Justice Sandra Day O’Connor wrote:

The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory. …Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

The United States is not Russia. But O’Connor’s warning that “the beneficiaries [of forced takings] are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms” is certainly borne out — not just by a new Institute for Justice report on eminent domain in action — but by the actions in Putin’s Russia.

A headline in the Los Angeles Times reads,

GOP senators getting visit from boss on immigration

And who is the boss of 49 Republican senators Minority Leader Mitch McConnell 50 million voters No, the Times is referring to President Bush. Thankfully, the suggestion that the president is the “boss” of the Senate appears only in the headline, not in the text of the article. But even headline writers should remember that Congress is created by Article I of the Constitution, and the president by Article II.

The president is not the boss of the Congress. Nor is he the commander-in-chief of the United States, as Sen. John McCain has said. Small-r republicans need to keep reminding people that what Gene Healy calls “the bipartisan romance with the imperial presidency” is not rooted in the American system.

Juanita Swedenburg, the Virginia winemaker who took her battle for economic liberty to the Supreme Court and won, died June 9 at the age of 82. Clint Bolick, who argued her case as a lawyer for the Institute for Justice, discussed it in his new book David’s Hammer:

My curiosity was sparked, however, during a visit in the early 1990s to a small winery in bucolic Middleburg, Virginia. The proprietor was a striking older woman, Juanita Swedenburg, who owned and operated the winery with her husband. She produced several good wines, including a chardonnay with the toastiest nose I can remember. We got to talking and Mrs. Swedenburg asked me what I did for a living. When I told her that, among other things, I challenged regulatory barriers to entrepreneurship, she exclaimed, “Have I got a regulation for you!”

Most states, it turned out, prohibited direct interstate shipments of wine to consumers. So that if tourists from another state visited Mrs. Swedenburg’s winery and asked how they could obtain her wines back home, she would have to reply, “You can’t.” …

As a descendant of settlers who fought in the American Revolution, Mrs. Swedenburg was outraged that such a stupid law could exist in a nation with the greatest free-enterprise system in the world.

Eventually, Bolick writes, the Institute for Justice took Mrs. Swedenburg’s case to the Supreme Court. He argued against a New York law, and Stanford law school dean Kathleen Sullivan (who also spoke recently at the Cato Institute) argued against a similar Michigan law. The Court ruled 5-4 that such laws “deprive citizens of their right to have access to the markets of other States on equal terms.” When Bolick launched his new book at the Cato Institute in April, Mrs. Swedenburg was sitting in the front row.

Juanita Swedenburg was the kind of citizen a free republic needs. After a career in the foreign service, she and her husband “retired” to a Virginia farm that had been in business since 1762. They set up a winery and worked seven days a week to make it a success. As the Washington Post says, “Mrs. Swedenburg did not take the Constitution for granted.” She knew that there was something wrong with a law that prevented willing customers from buying the fruits of her labors, wherever they lived. And when she found a lawyer who shared her enthusiasm for both wine and constitutional liberty, she pressed him to take the case on behalf of her and her customers.

Like John Peter Zenger, Rosa Parks, Allan Bakke, Michael Hardwick, Bill Barlow, and many others, Mrs. Swedenburg made our constitutional rights real by using them. Raise a glass to her memory.

At an appearance in Iowa this month, the Washington Post reports, Sen. John McCain went out of his way to declare his support for President Bush:

“There’s only one commander in chief of the United States, and that’s George W. Bush,” he told the crowd.

No, senator. This is a constitutional republic, and we don’t have a commander in chief. According to Article II of the Constitution, “The President shall be Commander in Chief of the Army and Navy of the United States.”

That’s an important distinction, and it’s disturbing that any candidate for the presidency would miss it. If McCain wants to be commander in chief of the whole country, of you and me, and to direct us the way the president directs the officers and soldiers of the armed forces, he needs to propose an amendment to the Constitution–an amendment that would effectively make the rest of the Constitution irrelevant, since it was designed as a Constitution for a limited government of a free people.

Next McCain will want us to bow and curtsy.

Jacob Grier, the blogger-barista-magician with a highly coveted Vanderbilt degree, has been writing about Montgomery County’s plans to evict Barry’s Magic Shop from the site in Wheaton, Md., where it has survived for 31 years. As he wrote last June:

The real story is that simply because a few county planners have decided that the land could be better used to attract developers than as a magic store, the man who owns the building has had his property forcibly taken from him and a small business that has thrived for decades is being evicted years before its lease is up.

The county used eminent domain to take the building in order to build a walkway as part of a grand plan for Wheaton. The plan has been in the works for years, and there are no immediate plans for actually building the walkway, but the building has been seized.

But today there’s good news! For Barry’s and its customers, anyway, if not for Maryland taxpayers and property owners. In addition to spending over $2 million to take the building and build the walkway, taxpayers — in the person of Montgomery County Executive Isiah Leggett — are also going to spend $260,000 to relocate the magic shop.

So first the county spends taxpayers’ money to seize private property in the name of its own vision of what that corner of Wheaton should look like. Then it spends more taxpayers’ money to subsidize a small business.

Here’s an idea: Why not let the market decide where businesses locate, without subsidizing the businesses and without seizing their property As Jacob says,

This is a story that should make people angry. Angry that George Chaconas had his land taken from him. Angry that Barry Taylor and Suzie Kang are being evicted years before their lease is up. Angry that this is all being done with taxpayers’ money to subsidize the developers who will eventually move into the area, just because some guy named Joseph Davis thinks that’s the way things ought to be.

Montgomery County, Maryland: Where everything goes according to plan. Or else.

Back during a blogosphere brouhaha about “libertarian Democrats,” Jesse Walker of Reason offered this advice to Democratic candidates who wanted to attract libertarian votes:

The short answer — and this applies to Republican candidates too — is: (a) Don’t be as bad as the other guy, and (b) Be actively good on at least one important issue.

He went on to urge Democrats to “Be good on the issues where the left is supposed to be good.” Like, you know, peace and civil liberties. And the problem for libertarians who are tired of being yoked to an increasingly less libertarian Republican party is that the Democrats aren’t following this advice. Not only have they seized on their narrow 2006 victory to start pushing for national health insurance, more regulation, public housing, and a budget that implicitly requires a massive tax increase, they have dithered about the war in Iraq and completely ignored real civil liberties reforms. Democrats are far more concerned about the firings of eight U.S. attorneys than about the authority the president claims to arrest American citizens and hold them without access to a lawyer or a judge.

Now two leading lefty pundits have called the Democrats out on these issues. Arianna Huffington wants to know when the Democratic presidential candidates are going to say something about the war on drugs. She’s embarrassed to have to admit that a conservative Republican senator from Alabama, Jeff Sessions, thinks the penalties for crack cocaine use are excessive, while liberal Democrats look the other way.

And John Nichols of the Nation thinks Democratic candidates ought to be able to endorse a package of constitutional reforms being supported by the chairman of the American Conservative Union. The American Freedom Agenda, endorsed by several prominent conservatives, envisions such reforms as

• Restore habeas corpus to prevent the illegal imprisonment of American citizens;
• Prohibit torture and extraordinary rendition;
• Prohibit unconstitutional wiretaps, email and mail openings via warrantless searches.

Nichols thinks Hillary Clinton, Barack Obama and John Edwards don’t endorse such goals because they’re cautious politicians. Maybe. Or maybe it’s because they want to be president, and they want to exercise just as much power as President Bush exercises.

So far it’s hard to find the issue(s) on which Democrats are “actively good.” Maybe their 2008 strategy for attracting moderates, centrists, and libertarian-leaning voters is to hope the Republicans keep on spending, centralizing, preaching, incarcerating, and struggling in Iraq.

Cato senior fellow Randy Barnett writes in Saturday’s Wall Street Journal about the latest court decision on medical marijuana. After the Supreme Court ruled in 2005 that the application of the Controlled Substances Act to personal medical use of marijuana did not exceed the federal government’s constitutional authority, Angel Raich went back to court to argue that the ban violated her fundamental right to preserve her life. Alas, the Ninth Circuit Court of Appeals rejected that claim, too.

But as Barnett notes, the court did seem unhappy with the decision it was forced to reach:

For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last 10 years 11 states have legalized the use of medical marijuana, that day may be upon us sooner than expected. Until that day arrives, federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.

Pity a panel of judges forced to tell that to a suffering plaintiff.

It’s being overshadowed by the Bong Hits 4 Jesus case, but there’s an important property rights case before the Supreme Court today. Timothy Sandefur, author of Cornerstone of Liberty: Property Rights in 21st-Century America, writes about the case in Legal Times today.

The case involves a dispute that arose when Harvey Frank Robbins bought some land in Wyoming. The Bureau of Land Management claimed to have an easement on the land, but that wasn’t recorded on the deed. The government demanded that Robbins agree to the easement, and he resisted. Government agents promised him “a hardball education,” and they delivered — harassment, citations for minor offenses, belligerent visits, and criminal charges for interfering with government agents, charges of which he was acquitted after 30 minutes of jury deliberation. Sandefur takes the story from there:

After enduring years of such treatment, Robbins sued, arguing, among other things, that the BLM agents had violated his Fifth Amendment right to exclude others from his property. The trial court and the U.S. Court of Appeals for the 10th Circuit agreed, but the government asked the Supreme Court to reverse in Wilkie v. Robbins. “No court,” said Solicitor General Paul Clement in his brief, has “ever recognized a constitutional right against retaliation . . . in the context of property rights.”

This astonishing argument is potentially far more dangerous to the rights of property owners than the notorious Kelo v. New London decision two years ago, which held that government can use eminent domain to transfer property from one private owner to another whenever politicians think doing so would be in the public interest.

If the Court rules against Robbins, home and business owners would find it much harder to resist when the government demands their property.

Harvard Law professor Laurence Tribe argued the case for Robbins, with the Justice Department defending the BLM. Watch for news stories later today.