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This morning, the U.S. Supreme Court issued its opinion in the King v. Burwell case. At issue were the subsidies for federal health insurance exchanges in states that had not set up their own. In a 6-3 decision upholding the law, the Court ruled that when Congress referenced an exchange “established by the State,” they actually meant “established by the State or the Federal Government.”

Predictably, the dissent—issued by Justice Scalia—pointed out the absurdity of this approach. “Words no longer have meaning,” he wrote, “if an Exchange that is not established by a State is ‘established by the State.'”

But these linguistic gymnastics are part and parcel of the nation’s highest court; calling a “penalty” a tax, as in another Obamacare suit, or claiming that commerce among the several states means any transaction—or potential transaction—by any single individual anywhere, is a drop in the ocean of awful and expansive jurisprudence that has, in its totality, given to Congress a default green light—a presumption of constitutionality for whatever it wants to do.

The degree to which the Court has become disconnected from the founding document it is supposed to interpret and uphold is especially evident in this King opinion, in which the majority opinion says this:

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“No bill of attainder, ex post facto law, or law impairing the obligation of contracts shall be passed.”
—Utah Constitution, Article 1, Section 18 (see also Article 1, Section 10 of the U.S. Constitution)

A fundamental principle of law in our country is that of prospective application—that laws should apply to individuals and actions in the future as opposed to retroactively in the past. For this reason, both the United States and Utah Constitutions expressly prohibit “ex post facto” laws—laws that apply after the fact. This principle was so obvious to the Constitution’s framers that some even opposed its inclusion, arguing that it was unnecessary.

Oliver Ellsworth, a delegate from Connecticut, said “there was no lawyer, no civilian who would not say that ex post facto laws were void in themselves” and James Wilson, a delegate from Pennsylvania, was literally embarrassed at the thought of what other nations would think if the Constitution made explicit something so obvious. He said he was “against inserting anything in the Constitution as to ex post facto laws. It will bring reflexions on the Constitution—and proclaim that we are ignorant of the first principles of Legislation, or are constituting a Government which will be so.”

After ratification of the Constitution, Thomas Jefferson remarked that some state constitutions did not see the need to even mention the prohibition on ex post facto laws because it was so obvious:

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A new study published in the Lancet medical journal—the most comprehensive study of its kind to date—looks at adolescent marijuana use in states with legalized medical marijuana from 1991 to 2014. Using annual, repeated cross-sectional surveys of over one million teenagers, the study finds that marijuana use does not increase when states legalize medical marijuana.

The authors of the study write that “the risk of marijuana use in states before passing medical marijuana laws did not differ significantly from the risk after medical marijuana laws were passed.” The study finds that states with higher rates of teenage marijuana use before enacting their medical programs into law were unaffected by the new legal framework.

According to the U.S. Department of Health and Human Services, 40% of adolescents nationwide have tried marijuana at one or more times in their life. In Utah, that number is only 20%. As the new study indicates, based on indicators from over 20 other states, this number is unlikely to rise if Utah’s legislature allows a medical cannabis program.

While a slight uptick in teen use would not have justified denying sick Utahns the medical treatment they need, it is nevertheless a welcome development to have findings indicating that this concern—shared by some Utah legislators—is resolved.

Monday, June 15, 2015 | One comment

Police Body Cameras in Utah

In an age where every cell phone user is a potential videographer, police tactics have come under increased scrutiny from the public as headlines of law enforcement confrontations gone wrong are captured by citizen bystanders. These stories underscore the growing call for reforms in policing tactics and transparency through department-issued body-worn cameras for officers. Some want to see increased use of body cameras, including mandates for their use all police departments, in the hopes that such transparency will yield a reduction in incidents of force.

Studies in Rialto, California, and elsewhere have shown the benefits of body camera programs—including significant reductions in use of force incidents. For this reason, many police departments are adopting the use of this new technology. The cameras not only help bring transparency and accountability for police actions, but more often than not, they show the good work officers do and frequently exonerate officers against false complaints. Camera footage can also be used as evidence in criminal proceedings and is more reliable than any one officer’s or witness’ memory of events. However, cameras also pose a number of unique challenges. These challenges mean that policies governing the use of cameras need to be well thought out, well written, and enforceable to ensure that cameras are used effectively and in a manner that protect the rights of all involved.

Libertas Institute has put in hundreds of man hours behind the scenes in an ongoing effort to develop and implement such policies in Utah. While the potential benefits of cameras are clear, we do not favor an approach that mandates all departments use them; implementation is very costly. The public budgets that govern police expenditures should control the decision-making process for each department. However, the inevitability is that law enforcement agencies see the immense value of cameras and adopt their use in the absence of a mandate to do so. As this has happened in recent years, the policies that govern the use of body cameras vary from department to department. While this might be reasonable for policies governing other equipment like vehicles or handcuffs, when the privacy rights of all Utahns are at stake—and when officers are often, if not primarily, enforcing state laws—it becomes a state issue.

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As industrialization of America’s food system has increased in the past half a century, so too has its centralization. The average person has become almost totally disconnected from their food supply.

This distance between farm and fork has led to a lengthy list of regulations, intended to protect the health of the uninformed consumer who does not, and cannot, know anything about the safety, security, or quality of what they are buying.

Such regulations are unnecessary, and therefore should not be required, of producers who sell directly to informed consumers who can either inspect the farm’s assets and processes, or buy a product knowing that it is free of regulation.

Freeing up small farmers will increase their number, reduce restrictive compliance costs, and protect the freedom of both parties, thereby confining regulation to its proper domain.

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“[Medicaid expansion] you came into my heart
So tenderly
With a burning love
That stings like a bee”
          -“Where Did Our Love Go,” The Supremes, 1964

The following is in response to a recent post that appeared on Utah Poverty News, entitled: “On the issue of Medicaid expansion, like so many things, we can’t go back to 1964.”

We appreciate the opportunity to respond to recent points and to clarify why Medicaid expansion is so worrisome a path for Utah to follow. In a humorous critique of our recent letter opposing Medicaid expansion, proponents of Medicaid expansion imply that our opposition is misplaced and that we would have to go back in time to 1964 when Medicaid was first started to fix our frustrations. This is not so. Medicaid expansion on its face represents significant federal micromanagement in state health care policy and has proved disastrous for many states. The line from The Supremes’ 1964 hit “Where did our love go,” referenced above, describes the problems already being felt by Medicaid expansion in some states. The promises from Washington were rosy and “tender” as they penetrated the “burning” hearts of state lawmakers around the country, but the result of implementation has, “like a bee,” stung state budgets and the truly needy.

At least 7 of the 29 expansion states have experienced cost overruns as enrollment projections were vastly under-predicted. More troubling is the way in which expansion has left state programs strapped for cash and unable to provide critical care to those most medically needy. Moreover, as more enrollees seek care from a limited pool of doctors that accept Medicaid, needy patients will find themselves further and further down the waiting list for actual care. While the temptations of rosy feelings of love for a program that promised so much for so little led states to expand, the fiscal and economic realities for these states have ruled supreme and couldn’t “get us” or “make us love” it in the end.

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Recently we wrote about some of the problems with Medicaid expansion and reasons why the Governor and legislature should not proceed with the Healthy Utah proposal. Simply put, the discussion over Utah Medicaid expansion under “Obamacare” ignores the fundamental policy question about whether Utah should be providing taxpayer-funded health insurance or health care for able-bodied, childless, working-age adults at all.

Historically, the state has never done so, and policy makers have made little effort to do so until now. Many agree that such a program falls well outside the traditional limits of government policy. Nothing has changed about the fundamentals of this debate.

The incentives, however, have changed; under Obamacare, the federal government has promised to the states that it will pick up all or part of the fiscal tab for such a policy—at least for a period of time. We warn that this is a false and empty promise—one that is predicated on burdening future generations with debt by expanding unsustainable deficit spending. It is a promise that leaves our children and grandchildren exposed to serious future fiscal problems. It is a promise that leaves existing needy patients exposed to doctor shortages. For these reasons, we join with others to call on the legislature to protect Utahns from the problems associated with Obamacare’s Medicaid expansion.

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Editor’s note: The following is a lightly edited interview with Michael Martinez, a former caseworker with the Utah Division of Child and Family Services (DCFS) who was recently terminated for his personal beliefs and personal advocacy for marijuana policy reform.

The comments in this interview do not necessarily reflect the views of Libertas Institute.

Libertas Institute: Tell us a little bit about yourself and your job with DCFS.

Michael Martinez: I recently graduated with a bachelors degree in social work from the University of Utah, and had previously interned with DCFS as part of my academic requirements to graduate. Last September I was hired on full time with DCFS and worked as a caseworker, helping client families work through issues when their children were at risk or when they were taken from their homes.

I really enjoyed my job and particularly enjoyed helping my clients and seeing them become successful and getting their children back. I was hired under a contract program where I committed 18 months to the state in return for tuition assistance I had received during the last two years of my education. I was about one-third of my way through the 18 months when they terminated me for “inappropriate use of social media” and “inappropriate conversations with staff and clients” based on my views about marijuana policy.

I was a great employee and had great reviews from my supervisors throughout my time at DCFS.

I was completely floored when they terminated me. I was a great employee and had great reviews from my supervisors throughout my time at DCFS. They even had a meeting about three weeks before I was fired, where one of my supervisors told me I was the topic of discussion in their meeting. When I asked “what about?” A supervisor said that the supervisor of the CPS department, where I had transferred to, was telling the rest of the supervisors and the building director how great a job I was doing. I enjoyed my job and felt like I was making a difference in people’s lives. I was sad to leave.

LI: What led to you being fired?

MM: About a week before I was fired, I was holding a Child and Family Team Meeting (CFTM) on behalf of an adult client (a citizen who DCFS is involved with), where I was handing off the case to a long-term “permanency” social worker, and in that conversation marijuana came up because my client had been using marijuana as a way to get off of meth. The client was ordered into treatment, and before the client could get into that treatment, the client needed to test negative for all drugs. So the client decided to use marijuana to help get off of meth, and then planned on curtailing the use of marijuana until their drug tests came out clean.

This client personally felt that using marijuana would help them reduce their meth use, and it was working. Well, the other caseworker at the CFTM, when she heard what the client was doing to get off of meth, told the adult client and her parents that marijuana was a gateway drug. I didn’t say anything at that time in the meeting and tried to change the subject. However, I felt pretty disturbed by that comment and felt badly for the client because based on all of the research I did for four years while in college, I disagreed strongly with that caseworker’s opinion.

A day later when I met with the client’s parents, I expressed to them my personal view that I did not believe marijuana was a gateway drug, and didn’t want them to be misinformed by the comments of the other caseworker the day before. They told me that they agreed with my view about marijuana not being a gateway drug.

The other caseworker who expressed that they felt marijuana was a gateway drug was free to make their opinion known—but I wasn’t.

I feel strongly that marijuana is not a gateway. It is disheartening because the other caseworker who expressed that they felt marijuana was a gateway drug was free to make their opinion known—but I wasn’t. I don’t know if this is related to a cultural bias, but it certainly isn’t based on facts.

Well, later on Facebook I made a personal post to my friends and fellow drug reform advocates sharing this basic story. I didn’t use any names or confidential information about the client or caseworker in the post. I simply said that a co-worker told my client’s parents that marijuana was a gateway drug and that the next day I had expressed my view that I disagreed and that they agreed with my view.

Here is the actual word for word language that I used in that Facebook post: “I was so bugged all last night after a co-worker told an adult client of mine and the parents, that marijuana was a gateway drug. So bothered that when I paid the parents a visit today, I told them where I stood and they agreed 100%, and they told me that they could see how pained I was the previous day, when I didn’t correct the co-worker. We laughed. Good honest connection made! Don’t fear the leaf.”

One of my Facebook friends from the office must have brought this to their attention and might have said something like I was “talking about work” on the web. But, the post I made didn’t identify anything about DCFS or anybody in particular. There is no way anybody could have guessed anything about who the post was about. It was simply observations I was making about how people commonly have misconceptions about marijuana.

LI: Did they give you a chance to explain yourself, or just fire you based on the accusation of a co-worker?

MM: A week after making that post, the director of our office in West Valley where I work, Ray Harris, called me into a meeting with with him and my supervisor. As I walked in I immediately noticed that my supervisor appeared really upset and sad. I asked what was going on and Ray said “I hear you made a post about something you said to your clients, and something about “don’t fear the leaf?” I responded “yes, I’m an advocate for the legalization of marijuana.” (I have a Facebook group called “Don’t Fear the Leaf.”) He then asked me if I posted something online about a co-worker? And I replied “no, not about a co-worker, I just posted about a situation I encountered at work.”

To me it seemed clearly a reaction to my un-remorseful belief and advocacy for marijuana legalization. I was shocked.

Ray seemed surprised about the title of the page and he repeated the name of it: “Don’t fear the leaf?” I said, “Yes, that is what is it called” and he stopped talking at that point and said “well, we can’t have that here… we are going to have to terminate you.” I was going to explain further but Ray just said I was terminated. To me it seemed clearly a reaction to my un-remorseful belief and advocacy for marijuana legalization. I was shocked. They didn’t even give me an opportunity to explain. I don’t think he ever even saw the post I made—a post which I still have online. The post clearly does not give any confidential information at all. It is a generic post.

It seemed to me that he was expecting me to not admit to being a personal advocate for legalizing marijuana. However, I explained that everyone knew I was an advocate for marijuana reform. I told him that it was common knowledge. By the look on his face I could tell that really bothered him. I suppose he comes from that point of view where marijuana is bad and is a gateway drug.

LI: Did he ever read anything from the employee manual or state what the policies were and explain what policies you violated?

I was terminated for my personal advocacy for drug reform—simple as that.

MM: No, nothing like that. I was terminated for my personal advocacy for drug reform—simple as that. I wasn’t even really given a chance to explain the post in question. It is because I wouldn’t apologize for my advocacy. I am not sure what the director wanted me to say. My supervisor was in tears and sad for me. I told my supervisor that I would be alright and not to worry about me.

LI: Did you ever receive employee training on social media policies? Do they have any employee policies like that?

MM: No, nothing I have seen. I haven’t been told anything like that or trained on anything like that. But I know enough about proper confidentiality not to violate anyone’s confidentiality.

LI: What about policies regarding confidentiality?

MM: Well, yes there are professional ethics related to confidentiality that all social workers learn about and we sign papers when we open new cases related to confidentiality. But, that was never brought up here and there was never a hint about any of that. If that had been brought up at all, I would have showed him the post online so he could see none of the confidentiality standards had been violated.

LI: When you say you are an “advocate” for marijuana policy reform, what do you mean? What do you do?

After my wife passed away in 2009 after becoming addicted to prescribed pain killers… I became an advocate for legalizing [marijuana].

MM: Well, after my wife passed away in 2009 after becoming addicted to prescribed pain killers, anti-anxiety meds, sleeping pills, and ADHD pills—over seven medications that led her to her death—I researched marijuana in all its forms and discovered its medicinal worth, and became an advocate for legalizing it. I personally believe strongly that marijuana should be de-criminalized. I advocate heavily on Facebook to my friends, other fellow advocates, acquaintances, and in my personal circles for drug policy reform. I make frequent Facebook posts that point out problems with our society’s approach to marijuana. I post numerous critiques of failed drug policies.

For example, I point out how there is no such thing as marijuana “overdoses,” or deaths related to marijuana, and how marijuana is not associated with violence, domestic violence, and date-rape like alcohol is. I make posts like that all the time. That is the nature of my online advocacy for marijuana legalization. I even have a leaf sticker on the back of my car. Everybody knows this about me. When I was a student in college and studied social work I did every research project on a topic related to marijuana if possible. I have researched it a ton.

LI: How does drug policy tie into the work at DCFS? Does that create a conflict?

MM: No, I don’t think it creates a conflict at all. I don’t tell people at work they can or should use drugs. I just think we need to reevaluate our approach to marijuana in this country. At DCFS we actually deal with drug users caught up in the law all the time. First of all, we don’t take kids away from parents just for using marijuana. Instead we set up a safety plan and explain to parents that they cannot use drugs around the kids and if they happen to use drugs they need to make sure their kids are not home. They also have to make sure that if they decide to use drugs that the drugs are locked so that the kids cannot get to them. So in a way, or actually, we advocate for the safe use of marijuana. We don’t try to preach to parents that they are doing something wrong by using, we just tell them they need to use it safely when it comes to their children.

When we receive calls or complaints about parental drug use it is usually because the drugs are in a drawer that might be accessible to children. In that type of case I might get sent out as a CPS worker to clear the threat of children being able to gain access to marijuana or ensure that drugs are not being used around children.

We talk about drugs almost every single day in our office because the people we work with and help are often struggling with drug addiction and drug use.

Given that context, we talk about drugs almost every single day in our office because the people we work with and help are often struggling with drug addiction and drug use. Nearly every one of my clients was using either heroin or meth. So it blew me away that one of the allegations against me was having an “inappropriate conversation” about drug policy. There was no inappropriate conversation—that never happened. The DWS adjudicator looked into my termination, and made a finding that I was not at fault for my termination.

LI: What happened with the adjudication? Did DCFS terminate you for cause?

MM: No, I was terminated without good cause. The adjudicator said that DCFS claimed to have given me a warning in December of last year—this was a flat out lie by DCFS, and it never happened. If anyone had ever said anything to me about my advocacy for marijuana legalization, I would have talked with them about it and came up with a solution that worked for both of us. It never happened. I was never given a chance to explain myself. I have never been written up or given warnings for anything at all.

I am being silenced for my personal beliefs.

In fact, the director, Ray Harris, was actually sitting in on my five-month job review, and he was witness to the comments being made by both my trainer, my supervisor, and my lead worker, about how good of a job I was doing. I liked working for DCFS and wanted to do well and be successful there. I would have toned my advocacy down a bit if I had been asked. None of this had anything to do with my work performance.

LI: Has this impacted your free speech rights?

MM: Yes, definitely. I am being silenced for my personal beliefs. I feel like this is almost a bully tactic to keep people like me silent.

LI: If you were advocating for same-sex marriage rights do you think you would have been treated differently?

MM: As a matter of fact, I was in Judge Shelby’s courtroom the moment he made the ruling legalizing same-sex marriage in Utah as part of my social work studies. I posted about it a lot on Facebook too. I can only imagine what the push back would have been had I already been an employee of DCFS.

LI: What would you tell state legislators if you had the chance?

MM: Well, two weeks after I was terminated from DCFS, I read an article citing Governor Herbert of Utah being open to legalizing medicinal marijuana. I sarcastically thought to myself: “Wait!? A state employee just gave his personal opinion while at work—he should be fired!”

I would tell the legislature that if they would regulate, educate, tax the sale of, and decriminalize marijuana in Utah, they could save the state millions of dollars in law enforcement, court costs, and incarceration costs related to marijuana. I admit to trying marijuana as a coping mechanism, for sleep, and for relaxation during the year I grieved for my wife. I think this shows how it has not affected me negatively to this date—I have had good jobs and gone back to school to finish my degree. I don’t use marijuana now, but if I ever needed it in lieu of dangerous pain or sleep medications, I would use marijuana instead.

Prohibition laws turn over 100 million Americans into criminals. I would quote for them Dr. Martin Luther King Jr.’s comment he made from the Birmingham jail where he said “One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.” Our marijuana policies in this country are unjust.

The benignly-named “Campaign for Accountability” has made a few waves this week for filing complaints against Representative Ken Ivory for “engaging in an illegal scheme to defraud local government officials out of taxpayer funds.”

Now that’s quite a lede.

It hinges, however, on this: the organization “alleges Rep. Ivory has solicited funds from local officials, falsely claiming the federal government can be forced to transfer public lands to the states.”

Clearly, Ivory’s organization is largely funded by taxpayers, with county governments paying large sums of money to support an effort their elected leaders wish to see succeed. This is not in dispute. So this issue really hinges only on the final part, namely, Ivory’s purportedly “false claims” that his effort to transfer public lands to state control is realistically possible.


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Each summer, local media outlets produce stories about the level of per pupil spending in Utah, pointing out that Utah comes in last place across the country in per-pupil funding. These stories aren’t really news since Utah has been this way for years; perhaps the statistics are meant to scare Utahns into demanding that legislators allocate more of the taxation pie to the government education bureaucracy. If only it were that simple.

Utah is subject to some unique factors that yield relatively lower levels of available funds for education as compared to other states. Most notable are the larger families with more children. Other issues include the level of federal land ownership and lower income levels per pupil from which to draw. While the public education lobby, like any government bureaucracy, is diligent in advocating for its own growth, the issues underlying school finance in Utah are not remedied by simply throwing more tax dollars at them.

Few headlines about education spending point out the state’s efficiency when you compare academic achievement per dollar spent. This blind focus on total dollars as a supposedly important metric ignores the most central issue for government schools: are the children learning?

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