Two First Amendment cases from last Term addressed when content regulation is justified by particularly compelling interests. The answer implied by both cases is: not often.
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DNA Database Trawls and the Definition of a Search in Boroian v. Mueller
CONVICTED offenders have brought dozens of constitutional challenges to statutes establishing DNA databases for law enforcement. Not one has succeeded. In United States v. Weikert, the United States Court of Appeals for the First Circuit rejected a Fourth Amendment challenge from a probationer who objected to providing the government with a sample of his DNA, explaining that
the government’s important interests in monitoring and rehabilitating supervised releasees, solving crimes, and exonerating innocent individuals outweigh Weikert’s privacy interests, given his status as a supervised releasee, the relatively minimal inconvenience occasioned by a blood draw, and the coding of genetic information that, by statute, may be used only for purposes of identification.
By “identification,” the court meant trawling through the national database of stored DNA profiles from offenders—now exceeding nine million—for possible matches to any of the hundreds of thousands of DNA profiles of samples found at crime scenes or on victims.
But how long can past offenders constitutionally be subject to this information-gathering practice? Is there no way an offender can escape “lifelong genetic surveillance”? Weikert prominently left open the question of extended retention and trawling of biometric information. The court wrote that it was
withholding judgment on whether retaining a former conditional releasee’s DNA profile in [the national database] passes constitutional muster. The distinction in status between a current and a former offender clearly translates to a change in the privacy interests at stake. A former conditional releasee’s increased expectation of privacy warrants a separate balancing of that privacy interest against the government’s interest in retaining his profile in [the database].
Now, in Boroian v. Mueller, the First Circuit has held that the government can keep a convicted offender’s DNA profile in a law enforcement database even after he has paid his metaphorical debt to society. This outcome is hardly surprising. Long-lasting, collateral consequences of convictions have become pervasive, and continuing to trawl for matches to unsolved crimes after a convicted offender is no longer subject to confinement or supervision adds significantly to the power of DNA databases.
Much more surprising is the doctrinal path that the First Circuit elected to follow. The court repudiated the notion that it needed to reexamine the balance of individual and state interests. Instead, it reasoned that continuing to trawl the database for hits to crime scene DNA profiles did not rise to the level of a search that would be subject to the strictures of the Fourth Amendment. The court’s explanation of this conclusion was rather terse, consisting of but a few sentences. This Essay starts to fill the gap in the opinion. It indicates how the no-search label reflects a settled understanding of the constitutional protection from unreasonable searches and seizures. In this way, it supplies a deeper structure that supports the retention and reuse of DNA profiles beyond the sentencing period.
Decoupling?
In “The Case for For-Profit Charities,” Professors Malani and Posner urge an end to the coupling of certain tax benefits and the nonprofit corporate form. Unlike many theoretical essays in taxation, they conclude with rather concrete policy proposals. As a first best option, they suggest that if the government is going to give tax advantages to community-benefit activities, then it should extend those advantages across corporate forms. For the weak of heart, they propose as a second best, less dramatic alternative that the IRS relax constraints on the ability of nonprofits’ managers to take incentive pay. Malani and Posner have failed, however, to make the affirmative case for their broad recommendation. The case for relaxing the constraints on incentive pay is stronger, though not, as I suggest below, without problems.
Malani and Posner intend their arguments to generalize to all community-benefit activities, whether charitable or commercial, and often speak generically about “tax breaks.” For purposes of this Response—and in keeping with the authors’ primary focus in their essay—I will limit my discussion to charitable firms and to the specific federal income tax benefit of the deduction for charitable contributions under Section 170 of the Internal Revenue Code. Malani and Posner conceive of the charitable firm as involving three parties: a donor, an entrepreneur, and a beneficiary. The charitable firm on this view is essentially a conduit, with the entrepreneur channeling funds from the donor to the beneficiary. Focusing on these parties and on the particular tax benefit of the charitable deduction for contributions to the firm, one can sharpen the authors’ policy proposals as follows: Their broad proposal would permit the deduction of contributions to firms even where the nondistribution constraint is relaxed with respect to entrepreneurs and donors. The narrower proposal entails that contributions to firms should be deductible where the nondistribution constraint is relaxed with respect to entrepreneurs.
I consider these two proposals below, but as an initial matter I note that the current nonexistence of “for-profit charities” presents something of a puzzle for Malani and Posner. Their argument is one that sounds in efficiency. Tax differentials in the current system, they argue, prevent optimal incentives. They are of the view that removing these distortions could yield substantial efficiency gains. Moreover, the authors claim that “for-profit charities” do not exist because of tax disadvantages (the chief disadvantage being the inability to receive deductible contributions). But this fails to acknowledge important nuances in the charitable deduction under Section 170. For decades that deduction has been capped. Currently, one may not deduct more than 50% of adjusted gross income. Although it is extremely difficult to know how much donors contribute to nonprofit organizations in excess of the cap, it is commonly accepted that at least some donors do so. If the efficiency advantages that Malani and Posner claim for “for-profit charities” in fact have value, then one would expect a sorting of donors and contributions. That is, one would expect at least some contributions that are non-deductible in any event to flow to for-profit charities, in light of their supposed advantages. But the form essentially does not exist. Why? I think there are a couple of possible explanations for the puzzle, both of which run against the grain of the basic proposals in the Essay. One possibility is that the form of “for-profit charity” is problematic in terms of corporate law. It would be disfavored, that is, even if the tax law did not disadvantage it. Another possibility, of course, is that the efficiency gains are simply not to be had.