Topic: Law and Civil Liberties

How to Repeal ObamaCare through the Same Process that Gave Us ObamaCare

From my latest at Darwin’s Fool:

Republicans won an impressive number of victories last night, including a larger and more conservative House majority and enough wins to give the GOP at least a 52-seat majority in the Senate. As Jeffrey Anderson and Robert Laszewski have noted, Republicans made ObamaCare a major issue in the election  (the New York Times’ denials notwithstanding). Senate Republicans will fall several seats short of the 60-vote super-majority needed to overcome a Democratic filibuster of an ObamaCare-repeal bill, though. ObamaCare opponents are therefore debating whether and how Republicans could repeal some or all of the law via the Senate’s “budget reconciliation” process, which allows certain legislation to pass the Senate with only 51 votes. Some opponents have proposed getting around these difficulties by getting rid of the filibuster entirely. I think there’s a more prudent, targeted way Republicans could put ObamaCare repeal on the president’s desk, give Democrats a taste of their own majoritarian medicine, and convince Senate Democrats of the virtues of restoring the filibuster on legislation and judicial nominations.

It goes like this…

Read the whole thing.

Three Quick Thoughts on the Election’s Implications for the Judiciary

#1: Justice Ruth Bader Ginsburg may be reconsidering her decision not to retire. President Obama or a future President Hillary Clinton will have much less leeway with replacing her in a Republican-controlled Senate.

#2: There will be very few lower court judicial confirmations. Those that get through will be completely uncontroversial. Forget the nuclear option that removed judicial filibusters. At this point, with no political capital, President Obama will only get a small number of milquetoast nominees through the Senate.

#3: Expect even more litigation regarding executive actions. With no chance of getting his expansive regulatory project through Congress, President Obama will increasingly use the executive branch–particularly the EPA, the IRS, and HHS–to advance his policy agenda. That is good news only for litigators.

The 2014 Marijuana Ballot Initiatives

In yesterday’s election, Alaska (52-48%), Oregon (54-46%), and the District of Columbia (69-31%) all passed ballot initiatives that legalize marijuana under state (district) law.  This comes on top of the 2012 legalizations in Colorado and Washington.

Florida’s medical marijuana law failed, but only because it was a constitutional amendment and therefore needed 60 percent support to pass; 58 percent of voters endorsed the measure.

Two big tests remain for marijuana legalization. In 2016, another 5-10 states will consider legalization (plausibly Arizona, California, Delaware, Hawaii, Maine, Maryland, Massachusetts, Montana, Nevada, New York, Rhode Island, and Vermont).  If legalization is successful in most of these states, the pressure for federal legalization will ramp up.

In January 2017, the country will have a new president. That person could order the Attorney General to enforce federal prohibition regardless of state law. That seems unlikely if more states legalize and public support expands.

But until federal law explicitly legalizes marijuana, the risk of interference continues.

Harry Reid’s Nuclear Implosion

How sweet it is. Less than a year ago—on November 21st, to be exact—Harry Reid went nuclear. As he’d threatened, in order to get a few of President Obama’s D.C. Circuit Court nominees past a Republican filibuster—staged because that court for years had had more judges than its workload required—Reid unleashed what had come to be called “the nuclear option.” He ended the availability of the filibuster for most executive branch nominations, not by the two-thirds vote that Senate rules had long required but by a simple majority. With yesterday’s mid-term election results now in, it looks like Reid will have enjoyed his win for less than a year. As I wrote at the time, here, here, and here, stating the obvious, what goes around comes around.

Not that he didn’t get some substantive results over that short period, mind you: After a D.C. Circuit panel struck a major blow against Obamacare in July, for example, followed only hours later by a Fourth Circuit decision going the other way, thus setting up a circuit split suited for Supreme Court resolution, the full DC Circuit, on which Obama’s new appointees were now sitting, vacated the panel’s decision just six weeks later, thus removing the circuit split. The Supreme Court is likely to take up the issue in time in any event, as other circuits weigh in on it. But timing is important on a matter like this. We’ll see.

The larger issue, however, is that there will be other nominations over the next two years, and not only for life-time appointments on our federal courts. There is, for example, a looming vacancy at the Department of Justice: Attorney General Eric Holder has said he will stay on until his successor is confirmed. Among those under serious consideration for that post is one Thomas Perez, whose stints as the current secretary of labor and, before that, as assistant attorney general for civil rights have raised enough concerns to keep the new Republican Senate Judiciary Committee’s staff occupied for some time.

And where will those remaining Democratic senators who voted for Harry Reid’s nuclear option be sitting? Why on the minority side, watching Republicans enjoy their newly acquired power not only to hold and control hearings but, should a Republican win the White House in 2016, to confirm nominees by the vote of a mere majority—all because of Harry’s hubris. But it wasn’t Harry’s alone. As the Wall Street Journal editorializes this morning, after his victory speech following his 2012 re-election, President Obama walked off the stage and made separate calls to Nancy Pelosi and House Democratic campaign chairman Steve Israel, telling them “he would spend the next two years helping Democrats retake the House in 2014.” In politics as in life, hubris has its price. We will now have a proper vetting of the president’s nominees, and that is good.

The Endangered Species Act Isn’t Meant to Ignore the Human Species

While California endures its worst drought in a century, a small, finger-sized fish with no known redeemable qualities, the delta smelt, has become the centerpiece of extensive litigation. The U.S. Fish and Wildlife Service (FWS) classifies the delta smelt as “threatened,” and since 2008 it has said that large amounts of water should not be pumped out of the delta smelt’s habitat—the wetlands north of San Francisco—and into the state’s drought-stricken central and southern regions.

That “imported” water from northern California has become vital to the state’s important agricultural business, and the FWS’s decision has substantially harmed California’s farms, farm-laborers, and millions of others dependent on the water supply. In short, in order to protect the 3-inch fish, the state has pumped billions of gallons of water straight into the ocean rather than using it to help California’s struggling farmers.

The farmers, represented by the Pacific Legal Foundation, filed a lawsuit in response to these draconian measures to save the irrelevant fish. The farmers argued that the FWS should not have ignored the harsh financial and human costs of the FWS’s “reasonable and prudent alternatives” to pumping water out of the northern wetlands. The U.S. Court of Appeals for the Ninth Circuit disagreed, holding that the FWS’s decisions deserve deference and that the “FWS is not responsible for balancing the life of the delta smelt against the impact of restrictions” on water pumping. Congress, wrote the court, has already decided that the FWS should protect endangered species “whatever the cost.”

In an attempt to get the Supreme Court to review their case, the farmers argue that the circuit court misread the history of the Endangered Species Act (ESA) and should not have ignored the economic impact of so-called “reasonable and prudent alternatives.” Cato, joining the National Federation of Independent Business, filed a brief in support of their petition. We argue that the ESA has changed since the Supreme Court ruled, in 1978, that species must be protected “whatever the cost.”

The ESA has been amended many times and now commands the FWS to take “into consideration the economic impact” of its proposals. Moreover, the 1978 case that required species to be protected “whatever the cost” has been limited by subsequent decisions.

Finally, we argue that the Ninth Circuit’s decision is in conflict with the Fourth Circuit, which in 2013, vacated an FWS determination because it failed to take into account the economic impact of the reasonable and prudent alternative. This conflict between circuits should be rectified by the Supreme Court, and the ESA should be rightly interpreted as requiring the FWS to take into account the economic impacts of its decisions.

No offense to the delta smelt, but we prefer human beings.

The Supreme Court will decide whether to take the case of Stewart & Jasper Orchards v. Jewell later this year or early in 2015.

Yes, Florida, the Constitution Protects Property Rights

David and Susan Kentner own residential lots along San Carlos Bay in Sanibel, Florida. Because their property is along the high-tide line, the Kentners enjoy an age-old common-law right to build docks over the water abutting their property, subject to reasonable regulation. But Sanibel passed an ordinance forbidding the Kentners and others from taking advantage of this common-law right. The city claimed that the ordinance was necessary to protect seagrass, which it called an “invaluable natural resource.”

Whether or not seagrass is invaluable, the city passed the ordinance without considering whether seagrass was actually present in the areas subject to the ordinance and whether modern technology could effectively be used to avoid harming the seagrass. Moreover, there is evidence that the city passed the ordinance in order to satisfy the aesthetic preferences of certain interest groups and to enhance the property values of other dock-holders. On top of that, in 2006 the city issued itself an exemption to build a dock in San Carlos Bay, explaining that it should be allowed to build a dock because no seagrass was found on the site.

The Kentners, represented by the Pacific Legal Foundation, challenged the ordinance on the ground that it did not substantially advance any legitimate government interest. In other words, the Kentners claimed that the ordinance violated the due-process rights to their property, which is lawyer-speak for laws that don’t have a good-enough justification. Both the trial and appellate judges held that property rights aren’t “fundamental rights” protected by due process, thus ruling that the government didn’t need a good reason to pass these restrictions. In other words, property rights simply don’t enjoy protection against irrational government regulations.

On appeal to the Supreme Court, the Kentners argue that the lower courts were mistaken in treating property rights as no-class—not even second-class—rights. In support of the Kentners’ petition to have the Supreme Court hear the case, Cato joined the National Federation of Independent Business, Owners Council of America, and Rutherford Institute on a brief arguing that the lower courts were gravely mistaken in classifying property rights as not deserving of due-process protections. The Fourteenth Amendment, after all, explicitly says that no state shall deny “life, liberty, or property” without due process of law.

Further, the Court should review the case to clarify and solidify longstanding precedents that treat property rights as on par with other rights. After all, if the government is allowed to violate property rights with no justification whatsoever, then any ordinance that confiscates, destroys, or restricts property will be simply unassailable, regardless of how unreasonable or shocking it may be. The high court should take this case to reaffirm that property rights are indeed constitutionally protected and cannot be abridged with impunity by opportunistic, corrupt governments.

The Supreme Court will decide later this year or early in 2015 whether to take Kentner v. City of Sanibel.

Presidents, Precedents, and Perpetual War

Good news: after nearly three months of airstrikes in Iraq and Syria, the branding’s finally caught up to the bombing. Our latest war in the Middle East finally has a name: “Operation Inherent Resolve” is what we’re calling it, the Pentagon recently announced. DoD planners had initially rejected that name as uninspiring and “just kind of bleh,” but after several weeks of fruitless searching, they’ve decided it’s the best we can do.

Get Excited! (Photo Credit: Dept. of Defense)Here’s Defense.gov’s banner graphic for “Operation Inherent Resolve”: simple, spare, sort of Sisyphean. 

Actually, with its air of uninspired resignation, “Inherent Resolve” suits well enough, even if something like “Operation Eternal Recurrence” might have fit better. But it surely says something that, as with hurricanes, we’re running out of cool names for the wars presidents launch.

Now that we know what to call it, what should we make of Obama’s latest military intervention and how it fits into the president’s emerging legacy on constitutional war powers? Jack Goldsmith and Matthew Waxman have an important piece on that subject in the New Republic, arguing that “it is Obama, not Bush, who has proven the master of unilateral war.” “The war powers precedents Obama has established,” they explain, “will constitute a remarkable legacy of expanded presidential power to use military force.”

It’s a remarkable legacy, all right, though I might put somewhat less emphasis on “precedent” as such. Taken individually, as Goldsmith and Waxman acknowledge, very few of Obama’s actions are wholly unprecedented. But taken as a whole, the president’s approach to war powers begins to look like something new under the sun. As I argued recently at The Federalist, Obama will “go down in history as a ‘transformational’ president, having completed America’s transformation into a country where continual warfare is the post-constitutional norm.”