Cato Institute attorney Ilya Shapiro wrote Tuesday about “Thomas Perez, the assistant attorney general for civil rights who personifies . . . this administration’s flouting of the rule of law.” As he notes, Perez “is due this week for a vote in the Senate Health, Education, Labor, and Pensions Committee on his nomination to be Labor Secretary.”
Shapiro provides this “recap of Perez’s nefarious dealings” (drawing on the work of Quin Hillyer, who provides more detail at this link):
- Interference with the Supreme Court case of Magner v. Gallagher, getting the City of St. Paul to dismiss its appeal to prevent what would’ve been a sharp . . . rebuke to the federal government regarding its use of “disparate impact” racial theories in housing policy . . . [CEI discussed Perez's misuse of "disparate impact" law here]
- Refusal to comply with subpoenas from the U.S. Commission on Civil Rights [which CEI discussed here];
- Dismissal of the Justice Department’s already-won prosecution of the Black Panthers for voter intimidation during the 2008 election [which CEI discussed at this link];
- . . . running a department dedicated to the proposition that voting rights and other civil rights law don’t protect white people [CEI discussed an example here];
- Willfully misleading and lying to Congress under oath several times [D.C. District Court Judge Reggie Walton said he made false claims in response to queries about the black panther case];
- Racial abuse of the New York fire department, to the detriment of public safety and qualified minority applicants;
- Hiring for “career” (non-political appointee) slots only attorneys who have demonstrable left-wing credentials—making Alberto Gonzales’s politicized-hiring foibles look like the model of civil service administration [see examples here];
- Trampling on religious liberties to the point the Supreme Court unanimously rejected his arguments in Hosanna-Tabor v. EEOC regarding the “ministerial exception” to employment laws;
- Conducting government business from a personal email account as many as 1,200 times (!) and now refusing to comply with congressional subpoenas to release those emails. [CEI lawyers have repeatedly uncovered such abuses, and the use of false-identity alias email addresses, by Obama administration officials, as you can see here and here].
CEI earlier discussed the Magner case and why the Obama administration’s position in that case could undermine the stability of the financial system and cause future financial meltdowns. (CEI joined in an amicus brief opposing the Obama administration’s position, in the Supreme Court). It also highlighted the Obama administration’s (and Perez’s) massive, ethically dubious payoff to the City of Saint Paul to drop the case. Earlier, CEI discussed the Obama administration’s extreme position in the Supreme Court’s Hosanna-Tabor case and how it would have undermined First Amendment freedoms, religious autonomy and the separation of church and state. CEI also examined the Justice Department’s politicized hiring during the Obama administration.
Earlier, I wrote about how it was a good thing that the Supreme Court blocked foreigners from suing in the U.S. over putative violations of “customary international law” by corporations and other defendants with deep pockets. My conviction has grown stronger, since I learned that the U.N. Committee on the Elimination of Racial Discrimination has ruled that Germany violated international law by not prosecuting a former German legislator for an interview with a cultural journal in which he said negative things about immigration and the alleged dependence on welfare of Turkish immigrants to his country. That ruling illustrates that international-law norms can be inimical to American civil-liberties such as freedom of speech, making it inappropriate for U.S. courts to enforce such foreign norms.
German prosecutors had concluded that the former legislator’s remarks were protected by Germany’s (limited) free-speech guarantees because, while offensive, they were part of a “discussion” of “problems of economic and social nature,” and did not rise to the level of hate speech. (Germany generally bans hate speech; by contrast in the U.S., the Supreme Court voided a hate-speech ordinance in 1992 on First Amendment grounds. A federal appeals court has also ruled that a professor’s racially-charged anti-immigration diatribes were protected speech in the Rodriguez case.) Law professor Eugene Volokh reprints the speech that, “according to the Committee, must lead to a criminal prosecution in countries that have ratified the International Convention on the Elimination of All Forms of Racial Discrimination.” (The U.S. has ratified that convention, but, as Professor Volokh notes, “I am pleased to say that the U.S. has not recognized the competence of the Committee to enforce the Convention, though most European countries have; the U.S. has also ratified subject to a specific reservation in favor of the freedom of speech.”)
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One way the current political climate discourages hiring is by turning problem employees into potential lawsuits for the employers who take the risk of hiring them. The legal climate has gotten much worse over the past several years due to the appointment of more left-wing, anti-employer judges by President Obama, and an increasingly out-of-control Equal Employment Opportunity Commission, which sues employers for terminating bad employees who fall into “protected classes,” and for sensible hiring decisions that most judges would consider perfectly legal, since the plain language of federal civil-rights laws permits them. The EEOC even sues employers for using hiring criteria required by state law, such as health and safety codes.
The EEOC’s abusive, out-of-control behavior is a point of agreement among lawyers who agree on little else, liberal and conservative alike. The liberal lawyer “Loki,” writing at the Volokh Conspiracy, observes:
Without going into too much detail, I recently had the bizarre experience of the EEOC first arguing that the plain language of the statute didn’t matter. Then we dug up their own policy, which contradicted their stated litigation position. They argued that their own policy didn’t matter. The issue hadn’t been litigated much, but we found case law directly on point contradicting them (and for which they had been sanctioned). They argued that the case law didn’t matter. Then we found prior DOJ opinions on the issue- guess what? The EEOC said the DOJ opinions didn’t matter.
The judge? He thought it mattered.
I wish this was a one-off experience, but it’s not. Every single time I have dealt with the EEOC, it’s something similar. It’s gotten to the point where I fully expect them to be pissing on my leg so they can tell me it’s raining. And note that I’m not reflexively anti-government; I’ve dealt with the DOJ and SEC (among others) and have nary a bad word to say with the attorneys I’ve dealt with. . .I honestly don’t know what it is in the water at the EEOC. . . I had to do a lot of research on EEOC cases, and I found so many cases where the trial courts just got fed up with the EEOC it wasn’t funny.
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Earlier, I wrote about the Supreme Court’s closing the door on lawsuits by foreigners alleging nebulous violations of “human rights” or international norms by multinational corporations. (It did that in the course of dismissing a lawsuit by Nigerians against three oil companies affiliated with Shell.)
George Mason University law professor Michael Greve agrees, saying that prior to the Supreme Court’s ruling, the Alien Tort Statute [ATS] had “become a playpen for a cabal of international law enthusiasts and plaintiffs’ lawyers.” If the Supreme Court were to adopt the expansive view of the ATS pressed by international-law enthusiasts (including the ability to sue over violations of “customary international law,” including vague international norms not contained in any treaty ratified by the U.S. Senate), he notes, that would create the potential for foreign employees working overseas to sue corporations and corporate employees in the U.S. over run-of-the-mill workplace discrimination and harassment claims that should be resolved elsewhere.
(They would sue here, rather than in their home country, because the U.S. is more favorable to trial lawyers and plaintiffs in permitting things like punitive damages, which are forbidden in much of the world. The U.S. also more broadly permits corporate liability for the unauthorized acts of corporate employees than do the laws of most countries. That encourages foreigners to try to sue in America rather than in their home country, even though the evidence and witnesses in their case are located thousands of miles away in their home country, making a suit here inefficient and at times unfair. The federal appeals courts have split over whether foreigners can sue corporations for the wrongdoing of corporate employees under the ATS, with the D.C. Circuit saying they can, and the Second Circuit categorically saying they cannot, since the ATS is a vehicle for bringing lawsuits over violations of international law, which itself does not provide for corporate liability.)
Here are some additional reactions to the Supreme Court’s decision Wednesday: Julian Ku/Opinio Juris (“this means that the ATS wars over corporate liability are almost over”) and more (discussing death of “universal civil jurisdiction” idea, and speculating that the narrower rationale for rejecting the lawsuit contained in the four justice concurrence by the generally pro-trial-lawyer liberal justices was an unsuccessful attempt to pick up potential swing vote Anthony Kennedy, who joined the five-justice majority opinion authored by Chief Justice Roberts); Roger Alford (ATS “as we know it is dead… [Kiobel] has destroyed an entire cottage industry”; transnational state-court torts and choice of law likely to rise in importance as replacement); Ilya Shapiro, Cato Institute; Eugene Kontorovich (academics scoffed when “foreign-cubed” ATS lawsuits were called into question, yet all nine justices have now rejected them).
The Supreme Court today refused to allow Nigerians to sue Dutch and other corporations in U.S. court over alleged abuses in Nigeria that occurred under the rule of Nigeria’s former military dictator. These abuses, which allegedly violated international norms, were supposedly assisted by company employees who provided Nigerian troops “with food, transportation,” etc., and allowed “the Nigerian military to use” company “property.” As the Supreme Court put it, “Nigerian nationals residing in the United States, filed suit in federal court under the Alien Tort Statute, alleging that respondents—certain Dutch, British, and Nigerian corporations—aided and abetted the Nigerian Government in committing violations of the law of nations in Nigeria. The ATS provides that ‘[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.’”
In its decision today in Kiobel v. Royal Dutch Petroleum Co., the Supreme Court held that the statute does not reach conduct within foreign countries (as opposed to piracy on the high seas), in light of the strong presumption against extraterritorial application of U.S. law (it cited the Morrison case, in which CEI filed an amicus brief urging the Court to curb extraterritorial application of U.S. law to enrich trial lawyers at companies’ expense.). The court of appeals had dismissed the lawsuit on an alternative ground, ruling that international law only holds individuals (including corporate employees) liable, not the corporations they work for.
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To comply with a World Trade Organization ruling in a tuna-dolphin complaint brought by Mexico, the U.S. proposed new regulations that would tighten the requirements for allowing tuna to be labeled “dolphin safe.”
The proposal was issued for comments by the National Oceanic and Atmospheric Administration on April 5. It would revise the Dolphin Protection Consumer Information Act (DPCIA) of 1990, which established a dolphin-safe labeling standard for certain tuna products.
Under the original rule, a “dolphin-safe” label could be used only for tuna that was caught without using purse-seine, encircling methods. But for tuna caught in the Eastern Tropical Pacific Region (ETPR), additional certification was required that “no dolphins were killed or seriously injured” while catching the tuna.
In the U.S. regulations, NOAA also established a domestic tracking and verification program that provides for the tracking of tuna labeled dolphin-safe.
In a case brought by Mexico in 2008, Mexico challenged in the WTO the U.S. dolphin-safe labeling system as violating provisions of the WTO’s General Agreement on Tariffs and Trade 1994 and its Agreement on Technical Barriers to Trade (TBT Agreement).
Mexico’s tuna fishermen catch their fish in the ETPR using purse-seine vessels and complained to the WTO that the U.S. rules unfairly discriminated against Mexico. In the case, US-Tuna II, the WTO Dispute Settlement Body on June 13, 2012, adopted earlier WTO reports finding that the U.S. labeling system did indeed discriminate against Mexican tuna and violated the WTO Agreement on Technical Barriers to Trade.
In its proposed rule, NOAA would expand its current requirements so all tuna products labeled dolphin-safe — not just tuna harvested by large purse seines in the ETP — would be required to have verification statements from captains, and in some cases observers, that “no dolphins were killed or seriously injured” while harvesting the tuna. In addition, there are new storage requirements so tuna caught using gear designated as dolphin-safe has to be stored separately from tuna caught in non-dolphin-safe gear from the time of capture through unloading.
This case is an important one as some countries use non-tariff barriers to protect their domestic industries or to advance environmental goals. (See a 1996 CEI article about the Basel Convention’s impact on international trade.)
Under the First Amendment, the government has far less power to restrict speech when it acts as a sovereign (such as when it criminally prosecutes people for their speech) than when it uses non-criminal disciplinary tools to regulate speech in its own government offices or (in certain circumstances) the public schools.
For example, a federal appeals court recently ruled in In re Kendall that the Virgin Islands Supreme Court couldn’t constitutionally jail a trial judge for his uppity speech against it, even if his speech was inappropriate for a judge, since “the government’s broader authority to” to control inappropriate judge or lawyer “speech about ongoing proceedings” did not “also permit the government to hold a judge in criminal contempt for” such speech. As the federal appeals court observed, “Criminal contempt is no mere disciplinary tool. It derives, like all crimes, from a government’s power as sovereign. Because the government’s use of the criminal-contempt power is the sine qua non of a sovereign act, the government has no greater authority to hold someone in criminal contempt for their speech about ongoing proceedings than it would to criminally punish any speech.”
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With time running out for the Senate to act on a continuing budget resolution, members are trying to find some magic pot of money that would mask the fact that our government spends far more than it raises in revenue. Tonight, it looks like Sen. David Vitter has resurrected an old proposal to ban what are known as reverse payment patent settlements — agreements in which brand name drug manufacturers pay generic firms not to challenge patents on the innovators’ drugs.
Critics, including the Obama administration and the Federal Trade Commission, call these settlements “pay-for-delay,” and argue that successful patent challenges would get generics to market sooner. In turn, they claim, that could save federal health programs billions of dollars every year, which is why the proposal is so popular with both Democratic and Republican members of Congress. A CBO analysis scored a ban proposed in 2011 as saving federal health programs $2.68 billion over 10 years.
The problem is, any alleged savings from a ban on these patent settlements is illusory because reverse payment settlements actually have the effect of getting generic drugs on the market sooner, thereby lowering drug costs, not raising them.
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Philadelphia magazine published an article called “Being White in Philly,” with the subtitle, “Whites, race, class, and the things that never get said.” Compared to many articles about race relations, it was pretty bland, and not hateful, although it was not very insightful, either. (It would be protected by the First Amendment even if it were hateful. See R.A.V. v. St. Paul (1992).) But the Mayor of Philadelphia, Michael Nutter, thinks the magazine should be investigated merely for running it. In a letter to the Philadelphia Human Relations Commission, the mayor claims:
[T]he First Amendment, like other constitutional rights, is not an unfettered right, and notwithstanding the First Amendment, a publisher has a duty to the public to exercise its role in a responsible way. I ask the Commission to evaluate whether the “speech” employed in this essay is not the reckless equivalent of “shouting ‘fire!’ in a crowded theater,” its prejudiced, fact-challenged generalizations an incitement to extreme reaction.
Labeling protected speech as akin to “shouting fire” in a crowded theater is the classic lame excuse for restricting free-speech rights. The mayor’s understanding of the First Amendment is just wrong: Even “incitement to extreme reaction” is protected by the First Amendment unless it is an intentional incitement of immediate violence or unlawful action, under the Supreme Court’s decisions in Brandenburg v. Ohio, 395 U.S. 444 (1969) and Hess v. Indiana, 414 U.S. 105 (1973). The fact that speech leads to extreme but non-violent actions (which the article has not even done) doesn’t make it unprotected.
These First Amendment principles fully apply to civil-rights investigations with purely civil penalties (like a Human Relations Commission investigation), not just criminal cases. In White v. Lee, 227 F.3d 1214 (9th Cir. 2000), a federal appeals court held that federal officials could be sued under the First Amendment for a lengthy civil-rights investigation that threatened civil penalties against citizens who publicly spoke out against a housing project for protected-class members (a project protected by the federal Fair Housing Act). This was so even though penalties were never actually imposed, since a lengthy investigation would chill a reasonable person’s speech (even though it did not actually succeed in shutting the citizens up).
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We live in a culture where harsh but truthful criticism, or exposure of wrongdoing, is viewed by some as “bullying,” especially when it affects someone’s inflated “self-esteem.” For example, “DePaul University has punished a student for publicizing the names of fellow students who admitted to vandalizing his organization’s pro-life display,” classifying his speech as “bullying.” When historian Michael Bellesiles’ academic fraud was exposed by fellow historians, resulting in his forced resignation, a leading “anti-bullying” expert, who shared Bellesiles’ progressive political views, got him a new job at her university, claiming that he “was the victim of a “mobbing” or group “bullying” campaign by his fellow historians, who were distinguished people across the political spectrum. The Minister of Education in Ontario, the most populous Canadian province, has sought to define pro-life advocacy in religious schools as gender-based bullying. Self-styled crusaders against “workplace bullying” want to impose broad definitions of bullying at the expense of free speech and use existing overly broad school bullying rules as models for laws against workplace bullying that would hold employers and co-workers liable for compensatory and punitive damages for speech and expressive conduct deemed to be bullying — something that disturbs groups such as the Chamber of Commerce. Activists claim bullying is an “epidemic” and a “pandemic.” But in reality, bullying and violence have steadily gone down in the nation’s schools.
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