Navarette v. California, and Justice Scalia’s dissent

Today the Supreme Court handed down its decision on Navarette v. California, a case that concerns the reasonable suspicion clause of the Fourth Amendment.

Petitioners Lorenzo Prado Navarette and José Prado Navarette sued the state of California. In 2008 they were driving and were pulled over by California Highway Patrol. The officer pulled them over because their vehicle matched the description by a driver who called 911 to report that she was run off the road, and to report that the drivers were driving recklessly and possibly under the influence. The officer followed the vehicle for five minutes but did not find indications of drunk driving. They pulled the car over anyway. When one of the officers went over to talk to petitioners, he smelled marijuana, decided to search the truck, and found 30 pounds of pot. That charge was unrelated to the anonymous 911 tip. The petitioners argued that the tip could not establish reasonable suspicion for a search. The California Court of Appeals ruled against petitioners, who appealed to the Supreme Court.

The Supreme Court affirmed for the California Court of Appeals. Justice Thomas wrote the majority opinion, in a somewhat limited holding for the government: Reasonable suspicion takes into account the “totality of the circumstances,” and that in this case the 911 call was sufficient for the officer to make an arrest.

Police have now a newfound ability to rely on anonymous tips to conduct searches and seizures. The most important line is this in Justice Scalia’s dissent: “All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police.”

Of note are the wild hypotheticals offered by the justices during oral argument. Chief Justice Roberts asked minutes into the argument whether the police would be justified in stopping the vehicle if previous 911 callers said that the driver was throwing bombs out of the window, even when police haven’t observed the drivers throwing bombs. Justice Scalia afterwards upped the stakes, and brought in a nuke: What if someone called to report that the drivers had a nuclear bomb in the trunk and intended to detonate it in the center of Los Angeles?

Justice Scalia wrote the dissent, joined by Justices Ginsburg, Sotomayor, and Kagan. Some of the most important lines:

Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers’, of a people secure from unreasonable searches and seizures.

The tipster said the truck had “(run her) off the roadway,” but the police had no reason to credit that charge and many reasons to doubt it, beginning with the peculiar fact that the accusation was anonymous… When does a victim complain to the police about an arguably criminal act… without giving his identity, so that he can accuse and testify when the culprit is caught?

Who knows what (if anything) happened? The truck might have swerved to avoid an animal, a pothole, or a jaywalking pedestrian.

Lorenzo might have been distracted by his use of a hands-free cell phone… or distracted by an intense sports argument with José… Or, indeed, he might have intentionally forced the tipster off the road because of some personal animus, or hostility to her “Make Love, Not War” bumper sticker. I fail to see how reasonable suspicion of a discrete instance of irregular or hazardous driving generates a reasonable suspicion of ongoing intoxicated driving.

In other words, in order to stop the petitioners the officers here not only had to assume without basis the accuracy of the anonymous accusation but also had to posit an unlikely reason (drunkenness) for the accused behavior.

The crime supposedly suggested by the tip was ongoing intoxicated driving, the hallmarks of which are many, readily identifiable, and difficult to conceal. That the officers witnessed nary a minor traffic violation nor any other “sound indici(um) of drunk driving,”… strongly suggests that the suspected crime was not occurring after all. The tip’s implication of continuing criminality, already weak, grew even weaker.

Whether a drunk driver drives drunkenly, the Court seems to think, is up to him. That is not how I understand the influence of alcohol.

Consistent with this view, I take it as a fundamental premise of our intoxicated-driving laws that a driver soused enough to swerve once can be expected to swerve again – and soon. If he does not, and if the only evidence of his first episode of irregular driving is a mere inference from an uncorroborated, vague, and nameless tip, then the Fourth Amendment requires that he be left alone.

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity…

All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police.

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference.

After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.

The Habeas cases: Boumediene, Hamdi, Hamdan, and Rasul

Since 2004 there have been four important Supreme Court cases related to the right of habeas and the extent of the power of executive detention. In each case plaintiffs were swept up by the War on Terror, detained without trial by the government, and sued for habeas. And in each case the court has ruled against the government’s arguments of the expansive executive power to designate individuals as “enemy combatants” to strip away their rights. The cases are:

Rasul v. Bush (2004) – Four non-citizens were captured in Afghanistan and Pakistan and detained in Guantanamo. They were denied habeas, and they petitioned for recognition of their Fifth Amendment Due Process rights. The government claimed that because Guantanamo was outside of the United States, they can’t seek constitutional relief. The D.C. Circuit affirmed for the government.

The Supreme Court reversed the D.C. Circuit. Justice Stevens wrote that the right of habeas applies at Guantanamo because it’s under U.S. control. Furthermore, habeas does not depend on citizenship status. So the plaintiffs are able to bring suit in federal court.

Hamdi v. Rumsfeld (2004) – Yaser Hamdi, an American citizen, was arrested in Afghanistan and transferred to Virginia. He was detained indefinitely without trial or access to an attorney. His father brought suit. The government argued that the executive branch had to be allowed to detain in wartime. The Fourth Circuit ruled for the government.

The Supreme Court reversed. Justice O’Connor ruled that enemy combatants have the right to seek review by a neutral decisionmaker.

Hamdan v. Rumsfeld (2006) – Salim Ahmed Hamdan was Osama Bin Laden’s former chauffeur. He was captured and detained in Guantanamo. He filed for habeas, and a military commission designated him an enemy combatant. Plaintiff argued that he was protected by the Geneva Conventions and that military commission was unauthorized by Congress. The D.C. Circuit ruled for the government.

The Supreme Court reversed. Justice Stevens wrote that military commissions violated the Geneva Conventions and the Uniform Code of Military Justice. Therefore the his trial by military commission was declared illegal.

Boumediene v. Bush (2008) – Boumediene is the furthest-reaching of these cases. Lakhdar Boumediene was an Algerian in Bosnia who was seized by police and turned over to American authorities. The government designated him an enemy combatant and detained him at Guantanamo. Furthermore, Congress had passed the Military Commissions Act to expressly eliminate federal courts’ jurisdiction to hear habeas claims made by those designated as enemy combatants. Boumediene sued for habeas. The D.C. Circuit ruled for the government.

Boumediene was on a hunger strike in Guantanamo when the Supreme Court reversed the D.C. Circuit. Justice Kennedy wrote that the Military Commissions Act was unconstitutional and that all prisoners confined at Guantanamo had a right to habeas through the U.S. court system.

The Coase Theorem according to Deirdre McCloskey

The Coase theorem is subtle. Deirdre McCloskey gives a good explanation of it here.

Here’s a summary:

  • The Coase theorem implies that one cannot in general efficiently internalize an externality by taxing or subsidizing whoever is generating the externality, because in light of transactions costs, this would generally not result in the right to the resource affected going to the person who values it the most.
  • Another way of putting it, as Coase does, is to point out that “whoever generates the externality” is not a useful notion. Who “causes” the burnt fields of corn — the railway which makes the sparks, or the farmers who plant imprudently to the line?
  • The presence of ears is as much a cause for nuisance as jet engines.

The standard formulation is more confusing. Here’s how Wikipedia describes it:

  • Version 1: A clear delineation of private property rights is an essential prelude to market transactions.
  • Version 2: As long as private property rights are well defined under zero transaction cost, exchange will eliminate divergence and lead to efficient use of resources or highest valued use of resources.
  • Version 3: The allocation of resources is invariant to the assignment of private property rights under zero transaction cost and zero income effect.

Eminent Domain: Nollan and Dolan

Few eminent domain cases go without citing Nollan v. California Coastal Commission and Dolan v. City of Tigard. Respectively, they govern the doctrines of “essential nexus” and “rough proportionality.” The best concise explanation of the two is by Damon Root’s discussion of Koontz v. St. Johns River Water Management District in Reason.

In 1987 the U.S. Supreme Court ruled against a California regulatory agency for trying to force homeowners to grant the government a right-of-way over their land in exchange for a necessary building permit. This requirement, the Court held in Nollan v. California Coastal Commission, was “not a valid regulation of land use but ‘an out-and-out plan of extortion.’”

Several years later, in the case of Dolan v. City of Tigard (1994), the Supreme Court nullified a similar regulatory shakedown from Oregon. In that case, local officials told a business owner she would not be allowed to expand her store unless she also handed over part of the property to the city for a totally unrelated public use. Thankfully, the Supreme Court put a stop to the scam. “Government may not require a person to give up a constitutional right—here the right to receive just compensation for a public use,” Chief Justice William Rehnquist held for the majority, “in exchange for a discretionary benefit conferred by the government where the benefit has little or no relationship to the property.”

Taken together, these two decisions stand for the rule that when land-use agencies impose conditions on the issuance of a permit, those conditions must bear a close relationship to the intended use of the property and its expected impact on the environment. In legal terms, Nollan requires an “essential nexus” between permit conditions and property use while Dolan requires a “rough proportionality” between the two.

Or at least that’s what the Supreme Court has had to say about it. The St. Johns River Water Management District of Florida has a different view of the matter. In a case dating back to 1994, that agency refused to permit the commercial development of a small piece of property located in Orange County, Florida, unless the owner first agrees to transfer the title to 75 percent of the lot to the government for conservation purposes and also fund costly and unrelated improvements to 50 acres of public land located between 4.5 and 7 miles away. The owner, Coy Koontz Sr. (now deceased), agreed to the first condition but balked at the second. Had Koontz agreed to fund the uncompensated upkeep of state land, the agency admits, “the exact project [he] proposed would have been permitted.”

Rockwell Kent (and my internship at the Philadelphia Museum of Art)

Hardly a week goes by without my thinking of my internship at the Philadelphia Museum of Art. I remember it with such fondness. I had an incredible mentor, smart and caring, and it was good in so many ways. Here’s a post about a bit of that experience and about the work of an artist I like whom I discovered there.


The PMA is the most gorgeous place I’ve ever worked at. I liked being in a big intern class. There were around 40 of us scattered in different departments.  The overwhelming majority were art history majors. My department was an exception. I was a strategic planning intern in the Executive Offices, and worked with three people, all of them grad students: a Duke Law second-year worked for the general counsel; a Cooperstown student worked for government affairs; and a Wharton MBA second-year worked for the director of the museum. I was a sophomore working for the Assistant Director for Administration, developing a strategic plan for the museum over the next decade.

I commuted home every day with a student from NYU and a student from Stanford. We all took the Warminster Line into the suburbs. It was fun getting to know the arts majors from liberal arts colleges.

I applied to be a PMA intern in 2012 because of its museum studies program. I’ve never really studied art or spent much time in art museums, and wanted to spend a summer to correct that. The coolest part of the internship were the tours of the galleries conducted by the curators who managed them. As an intern for strategic planning I worked in administration, but received an education in art every day I was there.

In the second week of the internship we were taken on a tour by a curator to a new exhibit. It was there that I found an artist that I’m still moved by.

His name was Rockwell Kent. I hadn’t ever heard of him before. He was from New York, was active in the war years, and never got much involved in some of the crazier movements of his time. He can’t really be identified as an expressionist or a surrealist, though there are elements of the fantastic in most of his art.

He’s lived an interesting life. He was very active as a socialist, and was later Soviet sympathizer who won a Lenin Peace Prize. He also spent significant chunks of life in complete solitude in the wilderness of Alaska, Newfoundland, and Greenland.

Fun fact: He was plaintiff in the Supreme Court case Kent v. Dulles. The government denied him a passport to use to attend a conference in Finland. He sued for declaratory relief, saw summary judgment issued against him, and then won in the Supreme Court in a 5-4 decision.

Here’s why I like his art.

Kent made a lot of prints of otherworldly figures in enormous spaces. They usually stood alone, undressed, against a massive backdrop. That backdrop was often a starry sky, the desert, or the ocean. But they’re usually nothing other than background. The figures usually take up more than a majority of the print.


It’s as if these figures have conquered a massive part of nature. In fact they look like triumphant heroes. Except often they have looks of anguish. They look utterly, utterly alone. And they’ve mastered the loneliness.


You get a sense that the figures are content with loneliness. Either that or the total opposite: they’ve given in to despair. I find them tremendously moving.


They look supernatural, floating in space.


He also sketched for Life magazine four of his conjectures for how the world might end. One of them was that gravity might stop working.


The other was that the sun would flare.


Kent was a socialist, and you can imagine these people as heroes of resistance. But I can’t help also to think of them as Randian figures: alone, and having conquered the need to be with others. Doesn’t that apply?

Anyway, Kent also painted and did some sketches as satirist in the ‘20s. He also made some illustrations of Moby Dick, which are wonderful

Here’s the PMA’s online archive of Kent’s work.


The limits on the president’s Article II powers to conduct war

The President has vast Article II powers to conduct war. But that power isn’t limitless. The best explanation of that limit is found in Federalist 69 written by Alexander Hamilton; it’s also explained well more recently in the dissent written by Justice Scalia and joined by Justice Stevens in Hamdi v. Rumsfeld. That dissent states that the commander in chief clause makes the President the top general whenever Congress starts wars.

Here’s the relevant passage written by Scalia in the Hamdi dissent:

Congress’s authority “[t]o raise and support Armies” was hedged with the proviso that “no Appropriation of Money to that Use shall be for a longer Term than two Years.” U.S. Const., Art. 1, §8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. As Hamilton explained, the President’s military authority would be “much inferior” to that of the British King:

“It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature.” The Federalist No. 69, p. 357.

When Congress authorizes a war, the President becomes its top prosecutor. Except when the country is facing imminent attack, the President cannot start wars without statutory authorization. And his power is still somewhat limited if in fact he does act unilaterally. The War Powers Resolution forbids the military to be in a hostile area for over 60 days without congressional authorization.

And here is the relevant text in the War Powers Resolution on when the President may conduct war:

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to
(1) a declaration of war,
(2) specific statutory authorization, or
(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.