Topic: Law and Civil Liberties

International Trade in Online Medical Services

By
Simon Lester

The hard-working Cato interns pointed me to this article discussing a constitutional challenge to restrictions on the online provision of veterinary services:

A retired Texas veterinarian has filed a federal lawsuit challenging state regulations that bar him from evaluating animals and giving veterinary advice over the Internet.

Since 2002, Ronald Hines, 69, of Brownsville, Tex., has used his website to provide veterinary advice—sometimes for free and sometimes for a flat $58 fee. Sometimes his clients are overseas with limited access to veterinary services. He gets lots of questions from people who find wounded birds and want to nurse them to health. Over the course of his career, he developed an expertise with monkeys, and said he still gets a lot of monkey questions.

…

Last month, the Texas veterinary board suspended Hines’ license for a year after finding that his Internet practice violates state laws. Texas regulations require a vet to establish a “veterinarian-client-patient relationship,” and they explicitly state that such a relationship cannot be established solely through the telephone or Internet.

Hines’ lawyers at the Arlington, Va.-based Institute for Justice say the rule infringes on their client’s free-speech rights and is an unreasonable restriction on the profession.

Jeff Rowes, an attorney with the institute, said the case could set a precedent in fields that extend well beyond veterinary medicine. He noted that telemedicine continues to be an emerging field and that regulations restricting Internet speech could affect a number of professions, including law, psychology and investment advice.

More details here, here and here.

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Topics: 
International Economics and Development, Law and Civil Liberties, Regulatory Studies

Social Conservatism, the GOP’s Key To Unlocking Black Votes? Don’t Believe It.

By
Walter Olson

Among politically active social conservatives, there’s a remarkably durable myth that Republicans can make inroads with black voters if only they hold fast to hard-line positions on issues like same-sex marriage. That notion cropped up again this week as part of a widely publicized letter to Republican National Committee chair Reince Priebus in which thirteen officials with social-conservative groups threatened that their followers will leave the GOP or stay home in future elections unless the party pledges to continue its staunch line against gay marriage, a stance now widely unpopular in public opinion polls and among many Republican demographics such as those under 50. 

The letter, which you can read here, portrays the issue as vital in GOP minority outreach, which they said should “focus on issues where there is mutual agreement like traditional marriage.”  (It does not mention that black opinion, once lopsidedly opposed to same-sex marriage, has swung closer in polls to an even split on the issue). To support this claim, it cites real-world examples from three states: Illinois, Ohio, and my own state of Maryland. 

On Ohio, the letter repeats longstanding claims that President George W. Bush’s campaign stance on marriage made the difference in his narrow Buckeye State win in 2004. My colleague David Boaz has already examined those claims in this space, and found the evidence surprisingly thin. The Illinois example, for its part, is self-evidently beside the point: the letter correctly notes that some minority elected officials in that state oppose same-sex marriage, but that does nothing to show that any Illinois blacks are ready to stop voting Democratic because of their concern for the issue.  

That leaves Maryland. And in the course of analyzing last November’s Maryland vote in some detail, and writing a series of articles on the results of my research, I feel some confidence in saying that no one has been able to offer evidence that the ballot fight over same-sex marriage did the Maryland Republican Party any overall good with black voters in the state.

As I noted in this December article in The Blaze, Prince George’s County in suburban Washington, which has a substantial black majority among registered voters and has won national attention as a microcosm of black political trends, was hard fought territory in Maryland’s Question 6 fight. In the end, the county split about evenly, Question 6 trailing by just 1 point; the measure was carried to a 5-point statewide win by a strong showing elsewhere in the Baltimore-DC corridor, notably including many Republican suburbs.  

Because P.G. is so large and has so many overwhelmingly black precincts, it afforded an opportunity to investigate whether black voters with socially conservative views are any more likely to vote Republican than those with more socially liberal inclinations. Toward that end, I identified those black-dominated precincts with the strongest social-conservative leanings, as measured by the size of the margins by which they disapproved Question 6. If the “GOP minority inroads” thesis was correctly identifying a genuine trend, you would expect to see signs of a healthy black crossover vote for GOP candidates in those precincts. Instead, the black precincts that most strongly opposed Question 6 were also among those where the GOP got buried most completely, with Mitt Romney getting only (in typical showings) 3, 5, or 6 percent of the overall vote. The down-ticket Maryland GOP candidates, who all happened to be strong social conservatives, were getting beaten just as decisively, including in Senate and House races where all the relevant candidates were white. The GOP’s social-conservative senate hopeful, for example – who ran well enough to carry 13 of 23 counties statewide against lackluster white liberal Sen. Ben Cardin – did even worse in P.G. than Romney, winning only 6 1/2 percent of the vote county-wide and a good bit less than that – as little as 2 percent in one precinct – in the most socially conservative black P.G. neighborhoods.  

Republicans who imagine that catering to the most vehement social conservatives within the party will result in a harvest of new black votes are deluding themselves. 

 

Topics: 
General, Law and Civil Liberties

Academic Rehabilitation

By
Roger Pilon

Who says crime doesn’t pay? Just look at academia. The blogosphere was abuzz last week after the New York Post ran a piece about former Weather Underground radical Kathy Boudin, 69, who spent 22 years in prison for an armored-car robbery that killed three people, including the first black police officer on the Nyack police force, and left nine children fatherless. After her parole in 2003, Boudin was awarded a prestigious adjunct professorship at Columbia University (my alma mater) and this year was named the Sheinberg Scholar-in-Residence at NYU Law School.

The context for the story? As the Post puts it, “Boudin’s bounce-back into respectability … comes to light a week before the release of Robert Redford’s movie ‘The Company You Keep,’ loosely based on the $1.6 million heist.”

For a fuller account of the academic/Hollywood route to respectability, you can turn, of all places, to this afternoon’s “Daily Beast.” There you’ll find former Reason magazine senior editor Michael Moynihan’s “How 1960s Radicals Ended Up Teaching Your Kids,” a catalog of academic “rehabilitation” efforts.

With their Obama connections, former Weather Underground bombers Bill Ayers and Bernadine Dohrn, the husband-and-wife team at the University of Illinois, Chicago, and Northwestern Law School, respectively, are well know, of course. (As Moynihan writes, Dohrn was “also a former Sheinberg Scholar-in-Residence at NYU, which must consider bomb-making skills when making its selection.”) But did you know about Howard Machtinger at the University of North Carolina? Or Ericka Huggins at California State University, East Bay? The account of her doings will curdle your blood. Now she lectures on “human rights.”

And how are the universities handling these, well, delicate histories? As Moynihan writes:

Boudin’s Columbia University biography doesn’t mention her violent past, describing her simply as “an educator and counselor with experience in program development since 1964, working within communities with limited resources to solve social problems.” Neither does an official NYU press release announcing her new gig, instead explaining that Boudin “has been dedicated to community involvement in social change since the 1960’s.” Well, that’s one way of putting it.

So it is. But if you thought the Daily Beast has gone soft for running this piece, just look at the comments. They must have wanted simply to tweak their natural audience.

Topics: 
Law and Civil Liberties

Yay Authoritarianism!

By
Michael F. Cannon

Cato-at-Liberty readers who are enjoying—or, at least, chronicling—our nation’s slide down The Road to Serfdom will have to add Neil Irwin’s Washington Post Outlook piece, “Why the financial crisis was bad for democracy,” to their travelogue:

In a democratic society, there will always be tension over which decisions should be made by expert appointees, and which by those with the legitimacy and accountability that come with competing for citizens’ votes. The technocrats can make complex decisions quickly, quietly and efficiently. The words “quick, “quiet” and “efficient” are rarely applied to the U.S. Senate or the Italian Parliament — but these institutions are imbued with an authority that comes directly from the people, the explicit consent of the governed.

So, in a crisis, which do you want: unaccountable decisiveness or inefficient accountability?

Consciously or not, we’ve made our choice: The financial crisis and its long, ugly aftermath have marked the triumph of the technocrats…

None of this is a great way to run a society. Like most journalists, I believe in transparency and accountability. I wish the Federal Reserve’s policy meetings were broadcast on C-SPAN. Instead, we get written transcripts five years later. (That still beats Europe, where such information is under lock and key for 30 years.)

Yet, when the world is on the brink, decisive problem-solving trumps the niceties of democratic process. I won’t like it much — but I’ll take it.

Authoritarianism cannot take hold without intellectual support, and Friedrich Hayek couldn’t have described the rationale better himself. Just equally well. Almost verbatim, actually.

For more, see my paper (with Diane Cohen) on IPAB and this Cato policy forum on IPAB and Dodd-Frank. And of course, read Hayek’s The Road to Serfdom while it’s still legal.

Topics: 
Finance, Banking & Monetary Policy, General, Government and Politics, Health Care, Law and Civil Liberties, Political Philosophy

Ohio, Missouri Introduce the Health Care Freedom Act 2.0

By
Michael F. Cannon

Ohio Reps. Ron Young (R-Leroy Twp.) and Andy Thompson (R-Marietta), and Missouri Sen. John Lamping (R-St. Louis County), have introduced legislation—we call it the Health Care Freedom Act 2.0—that would suspend the licenses of insurance carriers who accept federal subsidies through one of the Patient Protection and Affordable Care Act’s (PPACA) health insurance Exchanges. At first glance, that might seem to conflict with or otherwise be preempted by the PPACA. Neither is the case. Instead, the HCFA 2.0 would require the IRS to implement the PPACA as Congress intended.

Here’s why. Under the PPACA, if an employer doesn’t purchase a government-prescribed level of health benefits, some of its workers may become eligible to purchase subsidized coverage through a health insurance “exchange.” When the IRS issues the subsidy to an insurance company on behalf of one of those workers, that payment triggers penalties against the employer. Firms with 100 employees could face penalties as high as $140,000.

Congress authorized those subsides, and therefore those penalties, only in states that establish a health insurance Exchange. If a state defers that task to the federal government, as 33 states including Missouri and Ohio have done, the PPACA clearly provides that there can be no subsidies and therefore no penalties against employers. The IRS has nevertheless announced it will implement those subsidies and penalties in the 33 states that have refused to establish Exchanges. Applying those measures in non-establishing states violates the clear language of the PPACA and congressional intent. See Jonathan H. Adler and Michael F. Cannon, “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA,” Health Matrix: Journal of Law-Medicine 23 (2013): 119-195.

Whether legal or illegal, those penalties also violate the freedoms protected by the Health Care Freedom Amendment to Ohio’s Constitution, and Missouri’s original Health Care Freedom Act, which voters in each state ratified by overwhelming majorities. The Ohio (HB 91) and Missouri (SB 473) bills would protect employers and workers from those penalties, and thereby uphold the freedoms enshrined in Missouri statute and Ohio’s Constitution, by suspending the licenses of insurance carriers that accept those subsidies.

The question arises whether the PPACA would preempt such a law. It does not. The HCFA 2.0 neither conflicts with federal law, nor attempts to nullify federal law, nor is preempted by federal law.

The HCFA 2.0 concerns a field of law—insurance licensure—that has traditionally been a province of the states under their police powers. In preemption cases, courts “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009). Courts then must determine whether the state law in question is nevertheless trumped by express or implied federal preemption.

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Topics: 
General, Government and Politics, Health Care, Law and Civil Liberties

Spinning the News

By
David Boaz

A headline in Roll Call, the newspaper and website that has been “the source for news on Capitol Hill since 1955,” over an article by long-time journalist and editor David Hawkings, reads

D.C. Could Take Lessons From Hartford on Gun Control Deal

What’s the lesson? That when legislators buckle down and work hard, they can pass “the strongest gun control law in the nation.”

This reflects two articles of faith that seem to be devoutly held by mainstream journalists:

1. Passing laws is good. Passing more laws is better. The purpose of a legislative body is to pass laws.

2. Gun control is good.

On the first point, just consider the large number of stories, especially this past December and January, on “the least productive Congress in history.” The assumption is that “productivity” for Congress is passing laws—laws that in most cases will raise taxes, raise spending, increase regulation, and/or intrude the federal government into more aspects of our lives. 

As for gun control, the enthusiasm of the national media for such measures is pretty obvious. I was struck by NPR’s hourly news roundup last week, which began: 

More than 100 days after the shootings in Newtown, Connnecticut, that killed a total of 28 people including 20 elementary school students, Congress has still not passed new gun registration legislation.

“What are they waiting for?” the news anchor implies. I suppose the news report could have begun:

Just five years after the Supreme Court ruled that the Second Amendment protects the individual’s right to bear arms, members of Congress are seeking to pass gun control legislation.

But I’m not holding my breath. It’s just a reminder that the language used even in straight news stories can frame the issue in the minds of readers and listeners.

Topics: 
General, Government and Politics, Law and Civil Liberties

Kopel on Obama’s ‘Common Sense’ Gun Controls

By
Tim Lynch

Dave Kopel has a new piece over at NRO.  Here’s an eye-catching excerpt:

Public-opinion polls about “universal background checks” for gun sales show widespread support. While President Obama and Mayor Bloomberg talk about “gun sales,” the actual legislation moving through Congress aims to regulate far more than sales. It would turn almost every gun owner into a felon. The trick is that the language under consideration applies not only to sales but also to “transfers,” which are defined to include innocent activities such as letting your spouse borrow your gun for a few hours.

 

Topics: 
Law and Civil Liberties

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