Freedom Line Blog

Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.”  Today’s guest lineup includes:

4:00 CDT/5:00 pm EDT: Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute and Editor-in-Chief of the Cato Supreme Court Review: October 2015 Term;

4:30 CDT/5:30 pm EDT: The Honorable Michael Warren, Oakland County (MI) Circuit Court Judge and co-creator of Patriot Week: Civics and Patriotism in America;

4:45 CDT/5:45 pm EDT: Professor Gail Heirot, Member of the United States Commission on Civil Rights and Professor of Law at the University of San Diego School of Law: Immigrant Detention Centers;

5:00 CDT/6:00 pm EDT: Quin Hillyer, Political Expert and American Newspaper Columnist and Writer: Election 2016;

5:30 CDT/6:30 pm EDT: Doug Bronson, Member of the Florida House of Representatives: Looking Behind and Ahead; and

5:45 CDT/6:45 pm EDT: Marita Noon, Executive Director of Energy Makes America Great: House Votes to Lift Oil-Export Ban.

Listen live on the Internet here.   Call in to share your comments or ask questions of today’s guests at (850) 623-1330

In a letter addressed to Senate Finance Committee Chairman Orrin Hatch and Senate Judiciary Committee Chairman Charles Grassley, the Center for Individual Freedom (“CFIF”) this week led a coalition of a half dozen prominent free-market organizations urging opposition to any legislation that grants Puerto Rico “Super Chapter 9” status. 

“‘Super Chapter 9’ would give Governor Alejandro Garcia Padilla a free pass to violate Puerto Rico’s constitution, but would do nothing to bring about meaningful fiscal reform,” the letter reads.

“It is our hope that Congress will instead take the lead on this tough issue by urging the Garcia Padilla Administration to implement real fiscal reform and uphold the constitution before any consideration of restructuring the non-constitutional debt,” the letter continues.  “If necessary, Congress has the legal authority to consider measures such as a federal control board to oversee financial reform.  When, and only when, reform is enacted, Congress can then consider a process that encourages an orderly restructuring of Puerto Rico’s debts that respects the constitutionally-protected bonds and the rule of law.”

In addition to CFIF, the letter was signed by the leaders of Frontiers of Freedom, Hispanic Leadership Fund,  Institute for Liberty, National Taxpayers Union and Taxpayers Protection Alliance.   

Read the letter by clicking here (PDF).

In an interview with CFIF, Clark Neily, Senior Attorney for the Institute for Justice, discusses his latest book, “Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government,” and the importance of and issues surrounding separation of powers, economic liberty, property rights, the Second Amendment, and more.

Listen to the interview here.

Campaign finance reform crusader and aspiring censor Lawrence Lessig is threatening to form an exploratory campaign to seek the Democratic Party’s nomination for president. Because apparently Bernie Sanders and Hillary Clinton aren’t serious or strident enough.

Yes, he is serious.

I want to run. But I want to run to be a different kind of president. “Different” not in the traditional political puffery sense of that term. “Different,” quite literally. I want to run to build a mandate for the fundamental change that our democracy desperately needs. Once that is passed, I would resign, and the elected Vice President would become President.

This is the Presidency as referendum. Our constitution, unlike some states, doesn’t give us a referendum power directly. This hack adds one in. Almost never would it be necessary — in a well-functioning democracy. But when a democracy has lost the capacity to act as a democracy, a referendum president is a peaceful means to force a change that Congress is otherwise not going to make. When the system has become the problem, we need an intervention from the outside.

We are at one of those moments now. In no plausible sense do we have a representative democracy in America today. That fact shows itself in a thousand ways — from #BlackLivesMatter to billion dollar SuperPACs, and none more profound than the deep sense that most Americans have that their government is not theirs. “The system,” as Elizabeth Warren puts it, “is rigged.” And the fundamental challenge for our democracy today is to find a way to fix that rigged system.

The problems here are manifest. Would it be pedantic to point out that the United States was founded as a republic, not a democracy, and that the difference matters? Or to mention that the Constitution was written to limit government as well as democratic impulses? Or to bring up the small fact that direct democracy is a disaster?

(Incidentally, your writer understands that attacks on the initiative, referendum, and recall most often come from progressive quarters nowadays. It wasn’t always so.)

Lessig likes to cite polls suggesting “96 percent of Americans say it’s ‘important to reduce the influence of money in politics.’” More recently, he’s become fond of citing a MoveOn/YouGov poll that purports to show that 82 percent of Americans of all political stripes agree “the system is rigged.” Many conservatives and libertarians would agree with the latter proposition.

So what? As always, the question must be: what’s the remedy?

Lessig’s answer is the Citizen Equality Act of 2017, which includes such novelties as “a meaningfully equal freedom to vote,” ranked-choice voting; and taxpayer-funded (or, to use his parlance, “citizen-funded”) elections.

Do read the proposal. All three ideas are worth deeper exploration—and sound refutation. In lieu, we have James Taranto at the Wall Street Journal, who made sport of Lessig’s quixotic campaign in Wednesday’s Best of the Web Today:

Lessig would ask Congress (1) to abolish freedom of speech in favor of “equality of speech,” whatever that means, (2) to prohibit state legislatures from engaging in “political gerrymandering,” and (3) who knows what else. It doesn’t seem to occur to him that (1) and (2) have glaring constitutional problems. Maybe he should consult with some law professors.

Oh wait, he is a law professor. At Harvard no less.

Lessig last month stepped down as chairman and of MayDay, the SuperPAC he founded to promote “reform” candidates in the 2014 congressional elections. The effort raised $10 million and had virtually no impact. Only one of the candidates MayDay supported won and that was Rep. Walter Jones, the Republican from North Carolina whose reelection was a mortal lock.

This cycle, he’s been urging the two leading Democratic candidates to go bigger on campaign finance reform. In July, Lessig wrote a memo to Sanders urging on the senator to take advantage of his growing popularity by making “citizen equality” the “first issue — the one change that makes all other changes believable.”

. . “…[A]fter the surge of support for you, the single strongest attack is going to be the ‘reality argument,’” Lessig wrote. “You’re talking about a string of reforms that simply cannot happen in the Washington of today. The ‘system is rigged.’ If that rigging is good for anything, it is good for blocking basically everything you’re talking about.”

Looks like Lessig didn’t get the response he was hoping for.

Now Lessig has launched a “kickstarter-like” campaign (Kickstarter itself doesn’t allow political fundraising) to raise $1 million for his new effort by Labor Day. If he makes it, Lessig vows to give “this run every ounce of my energy.” If he falls short, he’ll give the money back.

He’s raised about $166,000 so far, so who knows? Maybe he can waste another $10 million in service of an ignoble cause.

Elementary concepts of fairness demand that musical artists and performers remain free to negotiate performance rights with broadcasters that seek to play their songs.  Indeed, current law allows artists to mutually bargain with satellite, Internet and cable stations.

The only exception:  traditional AM-FM radio stations, which are unfairly protected by federal law from having to negotiate with artists for performance rights.  This is precisely the sort of crony capitalism against which the American electorate is increasingly irate.

Unfortunately, rather than advocating market reform, some in Congress wish to cement the current protectionist status quo.  Under the so-called “Local Radio Freedom Act,” whose very name contradicts its real-world effect, terrestrial radio’s unjustifiable exemption from having to negotiate performance rights would be made more permanent.  The bill would foreclose bargained-for negotiation between artists and stations for compensation, perpetuating stations’ ability to earn billions by playing songs without paying for them.  And in an example of of supreme chutzpah, the same traditional radio stations benefiting from that loophole turn around and ask Congress to require cable and satellite providers to pay them for retransmission of television programs of stations they happen to own.

The bill’s proponents advance the offensive claim that artists seeking payment should just shut up and appreciate that their works get played over the air, thereby providing them publicity and advertising.  But that’s not something that stations should dictate.  The creators and performers of those songs should be free to determine which market model they prefer – performance for payment or free of charge.  That’s how a free market works.

Accordingly, we at CFIF have joined an array of fellow free-market organizations in a letter to Congress stating our objections to this protectionist and crony capitalist proposed legislation:

We urge you to refrain from co-sponsoring the Local Radio Freedom Act, which sanctions the status quo, and has a chilling effect on the development of a forward-thinking policy that respects the rights of all music producers in all media.  The Constitution protects private property rights and specifically delegates to Congress the authority to protect creative works.  Unfortunately, LRFA closes the discussion about how to best protect property rights by resolving that terrestrial radio should never pay performance royalties on music broadcast on their stations used for raising advertising revenue.  This is not equitable treatment for any musical artist or music distribution service.”

Americans are justifiably fed up with the sort of protectionism and cronyism that this proposed legislation represents.  We accordingly urge Congress to reject it, and that our hundreds of thousands of supporters and activists across the country to contact their representatives in Congress and express their opposition as well.

One of the more disturbing stories of political censorship of the past half-decade just came to a close in Wisconsin. The state’s Supreme Court ruled 4-2 on Thursday that a section of Wisconsin’s campaign finance law is “unconstitutionally overbroad and vague.” Moreover, the court said, a special prosecutor appointed by Milwaukee District Attorney John Chisolm to probe allegedly unlawful coordination between Governor Scott Walker and independent activist groups during the 2011 and 2012 statewide recall campaigns ended up investigating perfectly legal activities.

In short, the political fishing expedition against Badger State conservatives is finished.

Here are a few backgrounders on the investigation, which made prime targets of Wisconsin Club for Growth executive director Eric O’Keefe and at least 28 other activist groups.

A (very) short version: In 2013, the Milwaukee DA’s office and special prosecutor Francis Schmitz began hitting activists with subpoenas demanding everything from emails and memos to donor lists. As one judge would later put it, Schmitz’s subpoenas were “so extensive that they make the fruits of the legendary Watergate break-in look insignificant by comparison.” Although the subpoenas just happened to coincide with the beginning of Walker’s reelection campaign for governor, prosecutors denied any political motivation for the probe. (What? Did you think they would affirm a political motive?)

O’Keefe and Wisconsin Club for Growth sued Schmitz, et. al., contending the state’s investigation violated their First Amendment rights. A federal court last year agreed, halting a probe that had involved—among other things—SWAT teams conducting pre-dawn raids on citizens’ homes as if they were no different than drug peddlers or mob capos. Such abuses were made possible by Wisconsin’s “John Doe” law, which allows prosecutors to operate in secret—and thus without any meaningful public scrutiny or accountability.

As the Milwaukee Journal-Sentinel reports, “Large sections of court filings have been blacked out—which is highly unusual” because of the law, which lets prosecutors the power to compel people hand over documents and give testimony while forbidding them from speaking about the investigation with anyone except their lawyers. Such proceedings may be common in national security and certain criminal cases, but applying the law to a campaign-finance law investigation smacked of political persecution—which the court recognized.

Writing for the majority, Justice Michael Gableman blasted Schmitz’s conduct of the investigation and made a vigorous defense of political liberty. Here’s the key passage from the ruling:

It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing. In other words, the special prosecutor was the instigator of a ‘perfect storm’ of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them. It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution. Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.(Emphasis added.)

Although Thursday’s ruling is a triumph for the First Amendment, a peculiar censorious instinct remains alive and well among Madison’s progressive elite. In dissent, Justice Shirley Abrahamson wrote her colleagues’ theme music ought to be “Anything Goes.”

“The majority opinion adopts an unprecedented and faulty interpretation of Wisconsin’s campaign finance law and of the First Amendment,” Abrahamson wrote. “In doing so, the majority opinion delivers a significant blow to Wisconsin’s campaign finance law and to its paramount objectives of ‘stimulating vigorous campaigns on a fair and equal basis’ and providing for ‘a better informed electorate.'” It’s hard to see how pre-dawn raids and secret proceedings lead to “fair and equal” campaigns or a “better-informed” electorate, rather than a chilled political climate where dissenters from received partisan wisdom risk incurring the wrath of zealous prosecutors.

Wisconsin’s legislature is turning its attention to overhauling the state’s campaign-finance laws. In particular, some Republicans would like to do away with the “John Doe” provisions. Eliminating arbitrary and capricious rules from the statute books shouldn’t be a partisan matter. Wisconsin has seen what a political prosecution looks like. Avoiding a repeat of such abuses would seem to be a cause both parties could support.

The last couple of weeks have delivered huge news from the U.S. Supreme Court on contentious questions ranging from the definitions of “state,” “marriage,” “legislature,” “jiggery pokery,” and “cruel and unusual punishment,” to the scope of the EPA’s power to regulate emissions from coal plants and the use of a “disparate impact” standard in housing discrimination cases.

But one of the biggest pieces of SCOTUS news emerging from the term’s final hours was the court’s decision to take a case out of California that could severely curtail the political power of America’s teachers unions.

Friedrichs v. California Teachers Association seeks to overturn the court’s 1977 decision in Abood v. Detroit Board of Education, which upheld public-sector “union shop” rules and maintained that unions could charge non-members for collective bargaining activities. The Friedrichs plaintiffs argue that the rule requiring public employees to opt out of contributing a portion of their dues to union political activity — as opposed to allowing them to opt in — violates their First Amendment rights.

If Rebecca Friedrichs and her colleagues prevail, public-sector union membership would no longer be compulsory.

The Cato Institute’s Jason Bedrick points out, “Federal law allows dues-payers to opt out of the portion dedicated to express political activities (e.g. – lobbying), but the petitioners argue that public-sector collective bargaining itself is inherently political.”

Cato also filed an amicus brief in the case, which makes a powerful point:

[W]hen it comes to public-sector unions, it is somewhat bizarre to say that some of the spending is “political” and some isn’t. A teachers union may run political ads advocating for particular public policy positions, but it also collectively bargains in order to fight for similarly “political” gains, such as class size, school year length, and teacher qualifications. In a sense, a teachers union is just another political party that lobbies the government for preferred policies, and, whether it is spending on political ads or collectively bargaining, both are “political.”

The National Education Association and its California affiliate are not pleased with this news. The unions on Monday issued a joint statement with the American Federation of Teachers, the Service Employees International Union, and the American Federation of State, County and Municipal Employees, decrying the court’s decision to take the case:

We are disappointed that at a time when big corporations and the wealthy few are rewriting the rules in their favor, knocking American families and our entire economy off-balance, the Supreme Court has chosen to take a case that threatens the fundamental promise of America—that if you work hard and play by the rules you should be able to provide for your family and live a decent life.

The Supreme Court is revisiting decisions that have made it possible for people to stick together for a voice at work and in their communities—decisions that have stood for more than 35 years—and that have allowed people to work together for better public services and vibrant communities.

The fundamental promise of America says nothing about compelling workers to join a union or pay for a union’s political agenda. And although the Abood decision is nearly 40 years old, the First Amendment is quite a bit older.

The unions are right to worry and it’s no wonder they’re trying to change the subject. As Larry Sand reported at City Journal California last year:

If the Supreme Court overturns Abood, it would change the political landscape drastically. When Wisconsin’s Act 10 made teacher union membership voluntary, the unions in that state lost about one-third of their membership and a substantial amount of clout. If the same percentage of teachers quit the California Teachers Association, the union would lose approximately $62 million a year in dues. Considering the teachers’ union spent more than $290 million on candidates, ballot measures, and lobbying between 2000 and 2013—by far the most of any political player in the Golden State—such a loss would be crushing. And it’s no secret that CTA spending moves almost exclusively in a leftward direction. Between 2003 and 2012, the union gave $15.7 million to Democratic candidates and just $92,700 to Republicans—a ratio of roughly 99 to one. CTA has also spent millions promoting controversial causes such as same-sex marriage and single-payer healthcare, while opposing voter ID laws and limitations of the government’s power of eminent domain.

But a Supreme Court decision wouldn’t be limited to California, of course. As Sand pointed out, “The National Education Association, which hauled in nearly $363 million in forced dues in 2013–2014 and spent about $132 million of it on issue advocacy, would have to curtail its political largess considerably.”

The court in 2013 seemed to lay the groundwork for doing away with Abood in Harris v. Quinn, which held that home healthcare workers couldn’t be forced to pay agency shop fees to the SEIU. Justice Samuel Alito writing for the court made a distinction between the home workers and “full-fledged” public employees. But he suggested in the ruling that there also may be a distinction to be made between private-sector union collective bargaining and public-sector union collective bargaining.

“Collective bargaining concerns the union’s dealings with the employer; political advocacy and lobbying are directed at the government,” Alito wrote. “But in the public sector, both collective bargaining and political advocacy and lobbying are directed at the government.” By that logic, it wouldn’t be much of a stretch to make mandatory fees voluntary in California and 25 other states where union-shop rules prevail.

The Court returns the first Monday in October. In the meantime, you can read the petitioners’ and respondents’ briefs here and here and here.

Last December, we detailed how Google sought to exploit last year’s cyberattack against Sony for its own self-interested purposes:

Instead of joining the rest of the responsible online community in addressing the important issues of cybersecurity and the way in which the Internet is increasingly exploited to invade privacy, commit theft, sabotage and even terrorize, Google seeks to malign a very serious investigation into its own questionable Internet conduct.  Specifically, it remains under scrutiny by federal and state authorities for years of alleged anticompetitive conduct and invasion of privacy, as well as for potentially facilitating theft, fraud, illicit sale of drugs and even human trafficking.  The allegations are obviously serious, and Google is even more obviously worried enough about them to exploit the Sony cyberattack for its benefit.”

Dating back to 2011, Google admitted to illegally facilitating and profiting from advertising by Canadian pharmacies unauthorized to sell to U.S. consumers.   The charges were so grave that Google agreed to pay a half-billion dollar settlement.  State-level investigations, however, continued.  But instead of cooperating with authorities and remedying its wrongdoing, Google utilized documents exposed by the North Korean cyberattack against Sony to ask a federal court to halt further investigation into possible violation of state consumer protection laws.  Specifically, Google sought injunction prohibiting Mississippi Attorney General Jim Hood from looking into allegations that it advertised and provided access to such illegal products and services as false government IDs and even child prostitution.  A federal judge unreasonably accepted Google’s petition based upon a strained reading of a federal statute, the Communications Decency Act.

The baselessness of that injunction is vividly illustrated by the fact that some forty state attorneys general – a bipartisan alliance of 23 Republicans and 17 Democrats – petitioned the court this week to vacate the injunction.  Sustaining the ill-advised injunction, they emphasized, “would provide a roadmap for any potential wrongdoer subject to a legitimate state law enforcement investigation to attempt to thwart such an inquiry.”

Former U.S. Solicitor General Paul Clement, who has worked alongside CFIF in the past, captured the essence of the matter in a separate brief on behalf of the Digital Citizens Alliance:

The preliminary injunction entered below is the wrong remedy in the wrong court at the wrong time.  Google will enjoy ample opportunities to protect its rights if the Attorney General’s investigation is allowed to progress.  But if that investigation is halted before it begins in earnest, there will be no later opportunity to vindicate the public interest in seeing criminal misconduct investigated and stopped.  Because Google has no federal right to block a state investigation into its suspected wrongdoing, and because in any case the other relevant factors weigh unmistakably against a preliminary injunction, the decision below cannot stand.”

Mr. Clement stands among the top legal minds in America, and he hits the bullseye on this count.  When such an overwhelming bipartisan group of attorneys general joins a broad alliance of Internet safety groups, the balance of justice on this question is even more clear.

Under current law, recording artists remain free to negotiate performance payment rights with Internet, cable and satellite stations.  Due to an unfair exception, however, artists cannot negotiate in the same manner with traditional AM-FM radio.  Unfortunately, proposed federal legislation backed by broadcasting interests would cement that anomaly.  Deceptively entitled the “Local Radio Freedom Act” (“LRFA”), the bill would stifle a potentially freer marketplace and foreclose future negotiation for payment to musicians for songs.

If successful, that would perpetuate terrestrial radio broadcasters’ ability to exploit a legal loophole allowing them to earn billions of dollars by playing songs whose artists would remain uncompensated.  Exacerbating matters, those same terrestrial broadcasters simultaneously ask Congress to require cable and satellite providers to pay them for retransmission of television programming from stations that they own.  That similarly violates straightforward concepts of fairness and intellectual consistency.

This past January, CFIF joined an array of other free-market organizations in a letter to Congress opposing the LRFA and setting forth the policy basis for our objection:

The Constitution protects private property rights and specifically delegates to Congress authority to protect creative works.  Unfortunately, LRFA closes the discussion about how best to protect property rights by resolving that terrestrial radio should never pay performance royalties on music broadcast on their stations used for raising advertising revenue.  That is not equitable treatment for any musical artist or music distribution service.”

Fortunately, there’s a superior alternative also before Congress.

Representative Marsha Blackburn (R – Tennessee), perhaps the most reliable advocate of property rights in Congress, has joined Representatives from both parties in introducing the Fair Play, Fair Pay Act of 2015.  This bill would correct the existing unfairness described above by finally requiring terrestrial broadcasters to negotiate with artists who seek compensation for broadcast of their creative works.

Advocates of LRFA claim that artists have no reason to complain when terrestrial radio plays their works without compensation, since that provides them publicity and free advertising.  But that’s something for artists and broadcasters to freely negotiate, rather than have broadcasters make that decision for them and deprive them of choice in the matter.  Some artists may indeed opt to allow their works to be broadcast for free.  But as Taylor Swift just illustrated in standing up for her rights, other artists have a right to disagree and negotiate payment for those playing their songs.

CFIF believes that property rights, including intellectual property (IP) rights for artists and musicians, must be fiercely defended.  America’s foundation of strong IP protections is one reason we’re the most innovative and artistically productive nation in human history.  Accordingly, we encourage our supporters and activists to contact their representatives, demanding that they reject the dangerous LRFA and support Rep. Blackburn’s PRMA.

In our federalist system of government, individual states constitute laboratories of democracy and remain free to enact laws as they see fit, absent explicit federal power over a particular area.  That’s a fundamental value of conservatism and libertarianism, so it was disappointing this week to see that Senators Lindsey Graham (R – South Carolina) and Marco Rubio (R – Florida) were among those reintroducing proposed legislation that would impose a blanket, nationwide prohibition of online gaming.

Such a law would commandeer states’ historical and constitutional right to regulate gaming, never mind that it would mean yet another imposition of federal power into citizens’ entertainment choices and how they spend their own hard-earned dollars.

Stated simply, individual states across the nation have authorized online poker and various other forms of Internet wagering for citizens within their own borders, with many more considering similar moves. Unfortunately, the ill-advised new proposed federal legislation introduced by Senators Graham and Rubio would upend that state of affairs.  The so-called Restoration of America’s Wire Act of 2015, which wouldn’t “restore” the Wire Act to its original meaning but rather significantly expand its reach contrary to the Fifth Circuit and Justice Department rulings, aims to impose a de facto prohibition on online gaming in all 50 states and thereby increase federal regulatory power.  Proponents claim that the new bill would protect children and problem gamers, but the more realistic consequence would be shutting down existing law-abiding companies and driving commerce toward criminal sites and unaccountable overseas entities less interested in restricting minors or problem gamers.

The better option is to maintain existing law, which rewards law-abiding domestic companies and ensures greater safety and security.  And as noted above, the proposed legislation would grossly violate the concepts of state sovereignty, free-market principles and individual consumer freedom.  The last thing we need right now is even more federal regulation of states and legal commerce, particularly within the flourishing Internet sector.

Conservatives, libertarians and Americans of every other political persuasion should therefore oppose the so-called Restoration of America’s Wire Act, and contact their Senators and Representatives to demand the same.

A couple of additional points on the need to tread carefully on criminal justice reform, the topic of my commentary this week.

First, Michael Barone, the dean of American politics, emphasizes that same theme in his column today:

Are we seeing a reversal of the 20-year decline in violent crime in America?  A new nationwide crime wave?  Heather MacDonald fears we are, and as a premier advocate and analyst of the policing strategy pioneered by Rudy Giuliani in New York City and copied and adapted throughout the country, she is to be taken seriously.  And the statistics she presented in an article in last weekend’s Wall Street Journal are truly alarming.

Gun violence is up 60 percent in Baltimore so far this year compared to 2014.  Homicides are up 180 percent in Milwaukee, 25 percent in St. Louis, 32 percent in Atlanta and 13 percent in New York in the same period.

Why is this happening?  MacDonald writes, ‘The most plausible explanation of the current surge in lawlessness is the intense agitation against American police departments over the past nine months.'”

Barone concludes:

We must hope that the fire does not spread and dies down.  Perhaps it will if police resume the tactics that have proven so successful.  The alternative, for those of us who have witnessed the last half-century, is terrifying.”

Second, Rick Perry’s entry into the 2016 presidential race highlights another example of the danger of overzealous prosecution and overcriminalization.  Recall that Perry was preposterously charged with felonies for simply exercising his powers as governor.  Specifically, he merely threatened to veto funding for a state district attorney’s office unless one of its prosecutors who had been arrested for driving while intoxicated and behaving abusively toward officers – all captured on profane video – resigned or was fired.  As today’s Wall Street Journal notes, “Unlike many of President Obama’s actions, this was a constitutional exercise of executive power.”  The awful tale of the late Senator Ted Stevens (R – Alaska) is yet another example.  Stevens was convicted on the basis of prosecutorial corruption, he subsequently lost his reelection bid by an extremely narrow margin (which proved the decisive vote in passing ObamaCare), but then was cleared after his death and his prosecutors were themselves disciplined.

Barone’s piece and those two additional examples help confirm that we need criminal justice reform, but that we must do so carefully.

The Obama administration got a rare piece of good news today when the U.S. Supreme Court declined to overturn a Ninth Circuit Court of Appeals decision upholding part of ObamaCare.

The case, Coons v. Lew, is an Arizona-based challenge to the Independent Payment Advisory Board (IPAB), the 15-member group of experts empowered to reduce Medicare spending below a certain threshold.

In declining the plaintiffs’ appeal, the Supremes did not in any way indicate that this case is without merit. Rather, it may have been filed too early. Courts are typically loathe to strike down parts of laws that have yet to go into effect. IPAB won’t be making any decisions until 2019 at the earliest.

As usual, the issue is whether IPAB is constitutional. “Its decisions cannot be overridden by Congress without a super-majority and cannot be challenged in court,” explains a report in Politico. If that sounds like near monarchial power for an unelected bunch of experts, well, this is the Obama administration after all.

For now, IPAB is a dormant legal issue. Time will tell if it becomes a political rallying cry in next year’s presidential election.

Mark your calendars because today the Fifth Circuit Court of Appeals granted the Obama administration’s plea to grant a fast-track appeal of a lower court decision blocking a controversial amnesty program for illegal immigrants.

The next stop on the constitutional carousel occurs April 17, when lawyers from the Texas Attorney General’s office representing 26 states square off against counterparts from the federal government. At issue will be whether to overturn a district court order halting implementation of an executive action granting work permits and deportation waivers to an estimated five million people in the United States without authorization.

Granting the fast-track petition doesn’t necessarily mean that the Fifth Circuit – widely considered the most conservative jurisdiction of the federal judiciary – will side with the Obama administration. More likely, it’s a courtesy gesture to the executive branch acknowledging that a resolution to this dispute is needed sooner rather than later. Even still, a final decision could take months to appear and both sides have indicated they will litigate all the way to the Supreme Court to vindicate their position.

In the end, what today’s announcement probably means is that the Supreme Court will hear an appeal next fall instead of the following spring. Just in time for presidential primary season.

Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.”  Today’s guest lineup includes:

4:00 CDT/5:00 pm EDT:  Patrick Hedger, Policy Director of American Encore – Preserving the Work Requirement for Welfare Act and Proposed IRS Rules to Police Nonprofits;

4:30 CDT/5:30 pm EDT:  Michael Brickman, National Policy Director at the Thomas B. Fordham Institute – “Free Community College”;

5:00 CDT/6:00 pm EDT:  Jason Kimbrell, Leslie Coleman and Leah Taylor, Santa Rosa County Chamber of Commerce – Excellence in Business and Leadership Conference; and

5:30 CDT/6:30 pm EDT:  Professor John Eastman, Director, Center for Constitutional Jurisprudence, Henry Salvatori Professor of Law and Community Service, Chapman University Dale E. Fowler School of Law – Texas Immigration Case.

Listen live on the Internet here.   Call in to share your comments or ask questions of today’s guests at (850) 623-1330.

It’s gotten so bad in Iraq that Iranian-backed militias are fighting ISIS soldiers for control of large swaths of territory. And while these two factions redraw the map of the Middle East, American military advisors and the Iraqi army have been rendered largely irrelevant.

That prompted Richard Haas, president of the Council of Foreign Relations, to give this grim analysis: “I think [Iran] will win this battle, but… I think we have to understand, Baghdad and the south are now part of Greater Iran. This is what it is… ‘Iraq’ is over. Rest in peace. The era where you had an intact Iraq and an intact Syria is over. So what you’re looking at is an Iraq where part of it is an extension of Iran…”

Maybe this is why President Barack Obama is so repulsed by Senator Tom Cotton’s letter to Iran: It threatens our dependence on a known sponsor of terror.

Charen:  It’s Not Just Iran You Can’t Trust
Malkin:  Obamacare’s 1095-A Nightmare
Lee:  Innovation Act: Much-Needed Patent Litigation Reform While Protecting IP Rights
Ellis:  Tom Cotton Schools Obama, Iran Leaders on the Constitution
Sowell:  The ‘Disparate Impact’ Racket

Podcast:  Third Time’s a Charm to Strike Legal Blow to ObamaCare?
Jester’s Courtroom:  Sizzling Hot Lawsuit Fizzles Out

Editorial Cartoons:  Latest Cartoons of Michael Ramirez
Quiz:  Question of the Week
Notable Quotes:  Quotes of the Week

If you are not already signed up to receive CFIF’s Liberty Update by e-mail, sign up here.

Reuters is reporting that Speaker John Boehner (R-OH) and a bipartisan group of House members sent a letter to President Barack Obama this week urging him to send weapons to the Ukrainian government in order to send a message to Russia.

“In the face of Russian aggression, the lack of clarity on our overall strategy thus far has done little to reassure our friends and allies in the region who, understandably, feel vulnerable. This needs to change,” wrote the lawmakers.

But here’s the irony. According to Reuters, “The House and U.S. Senate voted unanimously late last year for a bill authorizing Obama to provide weapons to Kiev but he has yet to decide whether to send any.”

That is, Congress voted to give Obama the discretion whether or not to send weapons to Ukraine. Now, some members are upset that he won’t enact their preferred strategy.

Just like immigration policy, Congress has the ability to limit the president’s options by passing laws that spell out exactly what he can and cannot do. Unlike immigration – where Obama’s amnesty programs are deliberately in conflict with federal law – in the case of Ukraine the president appears to be clearly within his power not to act.

It’s a sad commentary when leading members of Congress are reduced to relying on third-party lawsuits and strongly-worded letters instead of their inherent, constitutional power to create the laws of the land.

No wonder this president ignores them.

After weeks of failing to pass a bill blocking implementation of President Barack Obama’s unilateral amnesty for millions of illegal immigrants, Republican leaders in Congress called it quits.

A so-called “clean” bill – one without the amnesty prohibition – passed the House of Representatives 257 – 167 yesterday, with all of the no votes coming from Republicans. The bill is expected to pass the Republican-controlled Senate quickly.

Though much of the blame is being focused on House Speaker John Boehner (R-OH), it seems the media is conveniently forgetting that new Senate Majority Leader Mitch McConnell (R-KY) let a presidential attack on constitutional separation-of-powers supersede a Senate debating procedure known as the filibuster. If the roles were reversed it is inconceivable that Harry Reid would let a procedural rule he controls thwart his sense of constitutional propriety.

By elevating a Senate tradition above Congress’ constitutional duty to make the laws, McConnell has effectively neutered his 54 member majority since it lacks the 60 votes it needs to actually govern.

Welcome to the Republican Senate. Its work product looks an awful lot like its Democratic predecessor.

Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CST to 6:00 p.m. CST (that’s 5:00 p.m. to 7:00 p.m. EST) on Northwest Florida’s 1330 AM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.”  Today’s guest lineup includes:

4:00 CST/5:00 pm EST:  Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute – SCOTUS and King v. Burwell;

4:30 CST/5:30 pm EST:  Evan Moore, Senior Policy Analyst at the Foreign Policy Initiative – Iran/Secretary Kerry, ISIS’ Continued Threats, Mall of America, and Syria-bound Schoolgirls;

5:00 CST/6:00 pm EST:   Quin Hillyer, Contributing Editor of National Review magazine, a Senior Editor for The American Spectator magazine, and a nationally recognized authority on the American political process – Politics Today.

5:30 CST/6:30 pm EST:  Timothy Lee, CFIF’s Senior Vice President of Legal and Public Affairs – FCC’s Proposed Regulation of the Internet under Title II.

Listen live on the Internet here.   Call in to share your comments or ask questions of today’s guests at (850) 623-1330.

President Barack Obama seemingly loves to invite controversy and criticism for using executive discretion to rewrite or ignore federal law. He and his allies apparently believe that when critics say his actions violate the Constitution, most people assume the dispute is too complex to understand or simply motivated by ideology.

So perhaps what’s needed to focus the public’s attention is a straightforward line of argument that shows Obama deliberately disregarding a bright line rule.

If so, Judge Andrew Hanen may have found it.

On Tuesday, Hanen granted a temporary injunction to Texas and more than twenty other states suing to stop Obama’s unilateral amnesty from going into effect. The reason is simple. By announcing the plan without any advance notice, Obama violated the Administrative Procedure Act.

The APA is a very important but little known federal law that tries to rein in the administrative state by requiring agencies to give notice and accept comments before implementing changes in policy. Because Obama did not comply with this very simple rule, his amnesty plan is, in effect, illegal.

The Obama administration is already working on an appeal to the Fifth Circuit, and time will tell whether this very straightforward application of the law to the facts is undone somehow with lawyerly sleight-of-hand.

In the meantime, critics of the Obama administration’s disregard for the rule of law can enjoy the fact that, for the moment at least, the most activist president in modern times is being stymied by the very Act that makes governmental activism possible.