Freedom and Federalism

Judge Andrew P. Napolitano*

One of the bedrocks of our governmental infrastructure is federalism. This is the constitutional recognition of the legal origins of the United States as a union of independent states. America started, of course, with 13 colonies, which became 13 states, and gradually added 37 additional states.

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Though the federal government is a behemoth today, it was created when each of those states ceded some of their sovereignty to the federal government. They did this in writing. The writing is the Constitution, and it explicitly states that the governmental powers not ceded are retained by the states.

President Reagan reminded us of the origins of the country in his first inaugural address when he stated, “All of us need to be reminded that the federal government did not create the states; the states created the federal government.” He also said that the beauty of the retention of powers by the states is that they are likely to exercise those powers differently and become laboratories of democracy -- hence, Reagan’s famous quip that one of the benefits of living in the U.S. is federalism, because “you can vote with your feet.”

So, if you don’t like the over-regulated Massachusetts, you can move to New Hampshire, and if you don’t like the over-taxed New Jersey, you can move to Pennsylvania. This is easier said than done, but the principle subsists, and as long as we have not surrendered the freedom to travel, we can still move to more freedom-friendly states.

This is not an academic theory; it has real-world consequences for my Fox News colleague Jana Winter. Jana is an investigative reporter for Like all good folks on her end of journalism, Jana has developed sources. In the course of investigating the July 20, 2012, slaughter in a movie theater in Aurora, Colo., Jana learned from sources to whom she promised confidentiality that the alleged murderer, James Holmes, sent a notebook to his treating psychiatrist at the University of Colorado, a state-owned school. This information was earth-shattering for the Holmes case because it triggered the argument that a government psychiatrist ought to have known of Holmes’ violent ideations a week before he allegedly carried them out in a movie theater.

At the time Jana learned and reported about the Holmes notebook, all witnesses in the Holmes case were under a court order not to speak with anyone, least of all reporters. When Holmes’ lawyers learned that Jana reported on the notebook, they subpoenaed her notes, and lawyers for Fox moved to quash the subpoena. Fox’s lawyers argued that her sources were protected by a Colorado shield law. That law compels lawyers who are seeking the names of reporters’ confidential sources to seek them elsewhere before approaching the reporter. That law also permits the incarceration of reporters who decline to obey any court order compelling the production of the names of their sources.

Holmes’ lawyers apparently want the names of Jana’s sources because they believe them to be law enforcement personnel who violated the gag order. Criminal defense lawyers can have a field day on cross examination of cops when they have caught the cops breaking a law they have sworn to uphold. On the other hand, the press, which is the eyes and ears of individuals, a role it enjoys under the First Amendment as interpreted by numerous Supreme Court cases, would be fruitless if reporters could not promise confidentiality to sources. This goes back to the Pentagon Papers case in which the Supreme Court held that matters of material public interest in the hands of reporters -- no matter how acquired -- may “freely” be published. Freely means free from government retribution.

Here is where federalism enters the picture. Jana lives and works in New York. She was ordered by a state judge in Colorado to reveal her sources and threatened with incarceration. New York law does not permit incarceration for failure to reveal sources. So, Fox’s legal team filed an application in a New York state court to block the order of the Colorado state judge. That application was denied by a trial judge, and that denial was upheld by an appeals panel by a 3-to-2 vote, and earlier this week, the case was argued before New York’s highest state court, the Court of Appeals.

This should be a no-brainer. Jana voted with her feet and chose to live and work in the most First Amendment-friendly state in the union. She should be protected by New York law. If she is not, then all reporters will lose their confidential sources, and all Americans will be in the dark when whistleblowers know awful truths but are unwilling to pay the price of public revelation.

In this era of the Internet, all information is available everywhere all the time. Just because the information in the Holmes case was about an event in Colorado does not mean that Colorado law should control the fate of a New York reporter. The controlling factor should be freedom: the freedom of sources to reveal truths, the freedom of reporters to publish truths, and the freedom of sources and reporters from government retribution.

There is always a common theme in these reporter sources cases, and Jana’s is no different. Invariably, the awful truth is about a failure of government -- in this case a government psychiatrist. The government hates and fears the truth. Yet, if the government could control the flow of news, it would only tell us what makes it look good, and we would lack the knowledge with which to make prudent judgment about its policies. Thomas Jefferson once remarked that he’d prefer newspapers without government to government without newspapers.

A proper application of federalism could save the values of the First Amendment and the freedom of Jana Winter. If not, we face the ancient spectacle of a courageous reporter being jailed not for committing a crime, but for telling a truth. And the confidential sources will dry up, and the whistleblowers will clam up, and the government will control more of our lives.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is "Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom."

Asset Forfeiture and Equitable Sharing: Is the Federal Government Encouraging Police to Steal?

Jaba Tsitsuashvili*

The War on Drugs has spawned a lot of debate and a lot of unintended consequences. One such unintended consequence is the perverse incentive structure created by federal asset forfeiture laws. The current state of federal law is based on the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”). CAFRA established a “preponderance of evidence” burden of proof on the government where virtually no burden existed before. The problem is that this remains a low threshold for the government to meet, and the onus is still on property owners to bring the court action. The Act does not provide for appointment of counsel unless the owner is simultaneously charged with a crime, which is not usually the case. And although section 2 of the Act does provide an “innocent owner defense,” the “substantial connection” standard that governs the extent to which the property need be “tainted” gives police and courts tremendous discretion, usually at the expense of property owners.[1]   

Practically speaking, asset forfeiture creates perverse incentives for police departments to misappropriate people’s cash and property. Without getting into the effectiveness or the desirability of the War on Drugs, I think most people would agree that its purpose is not to fill police coffers. But forfeiture laws permit (and encourage) police departments to make attenuated (read: fabricated) claims that link cash and property to drug transactions in order to seize them. The problem is that the owner need not ever be charged with a crime, and the burden is on the owner to sue to prove that the money was obtained legitimately. These cases are inadequately contested because usually such  property owners cannot afford the attorney fees that litigation would require, which would often exceed the value of the assets forfeited.

It is these circumstances that led to police in Wisconsin confiscating the cash that a mother scraped together from her disability payments and tax return to bail her son out of jail, the justification being that a police dog alerted to  the scent of drugs on the cash. The cash, which had just been withdrawn from ATMs, was likely part of the estimated 90 percent of cash in the United States which contains traces of cocaine.

One stated purpose of asset forfeiture laws is to catch and prevent the sale of drugs. But it is hard to take that claim seriously when police have a habit of waiting until drugs are sold and then busting the criminals because they would rather take the cash than the drugs. Or worse yet, police often simply rely on racial profiling to pull over black and Latino drivers, take their cash, and tell them that unless they sign forfeiture waivers they will be prosecuted for drug charges (in this case even after a police dog did not alert to any drugs).

Earlier this year in Massachusetts, a motel owner won a years-long legal battle to keep his property and his livelihood. The government was trying to seize the Caswells’ motel because 15 drug-related crimes were committed on the premises over a 14-year period. But as the judge properly noted, there was no evidence that the Caswells had reason to know of the crimes or that they ever did anything to interfere with law enforcement.

One could compile volumes of similar anecdotal evidence of the abuse perpetrated by police throughout the country. A March 2010  study by the Institute for Justice gave every state a grade based on the level of protection afforded to property owners, with only three states receiving a B or better (New York got a D). Fortunately, some states have safeguards to disincentivize abuse, such as requiring that at least a significant percentage of the money go into a general state fund, education, or drug rehab programs, rather than directly to the departments and agencies that make the raids. However, the federal government has undermined these reforms and increased the potential for abuse with a program known as equitable sharing.

Under the equitable sharing scheme, state police merely turn the case over to federal law enforcement, such as the DEA, which then handles the paperwork and allows the state police to keep 80 percent of the value of the confiscated property. Section 5 of CAFRA stipulates that when property is first seized by state authorities, no warrant is required for federal seizure. It is this nifty end-around that allows police to evade state law limitations on abuse.

One would think that the Fourteenth Amendment’s prohibition against depriving any person of property without due process of law would render these abuses unconstitutional. Unfortunately, the Supreme Court upheld their constitutionality in Bennis v. Michigan. Chief Justice Rehnquist relied on the airtight logic that these actions are “too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced.” The Chief Justice may have been relying on Justice Oliver Wendell Holmes’s tongue-in-cheek observation that sometimes “a page of history is worth a volume of logic.” If only he had instead heeded Holmes’s warning that “certitude is not the test of certainty. We have been cocksure of many things that were not so.”

So even if a state passes a reform like the one recently proposed in Tennessee, which would require a warrant before seizure and a criminal conviction to allow seized property to be kept, the federal government’s equitable sharing program ensures that police will continue to commit highway robbery. It is time for comprehensive reform of this broken system. Criminals should obviously be stripped of their ill-gotten fortunes. But innocent people should not be subject to the whims of corrupt police departments.

[1] This Miami Law Review article by Brant Hadaway provides a clear and thorough analysis of CAFRA.

*Jaba Tsitsuashvili is a J.D. Candidate at New York University School of Law, Class of 2015