Paring Back Leviathan, One Case at a Time

By
Roger Pilon

In an email this morning, Institute for Justice President William “Chip” Mellor was crowing, and rightly so, about IJ’s latest win for economic liberty – a decision by Milwaukee Circuit Court Judge Jane Carroll striking down the city’s 20-year-old taxicab law prohibiting competition in the taxi market. That adds one more city to the string: IJ’s attorneys have brought an end to similar taxi monopoly statutes in Denver, Indianapolis, Cincinnati, and Minneapolis.

What caught my eye here, however, was the attorney who won the case, Anthony Sanders, working out of IJ’s Minneapolis office. Back in the summer of 2002, after his first year of law school, Anthony did a bang-up job at Cato helping us put together the very first volume of the Cato Supreme Court Review.

But that’s hardly the only IJ/Cato connection. The one I’m most proud of goes back to 1989 and my very first summer intern, Scott Bullock, now an IJ senior attorney. Just last January Scott won an important civil asset forfeiture case up in Boston – that’s an obscure issue we’ve worked for years to bring to the fore. And in March, Scott won a crucial Fifth Circuit economic liberty case, resulting in a circuit split on the issue and hence a good chance that the Supreme Court will at last revisit its jurisprudence concerning this “second-class” right.

We train ’em, Chip sends ’em out to do battle in the courts, and little by little we pare back Leviathan.

Topics: 
Law and Civil Liberties

Reason.com: ‘6 Reasons Why States Should Continue to Oppose ObamaCare’

By
Michael F. Cannon

Drawing from my white paper “50 Vetoes: How States Can Stop the Obama Health Law,” Reason’s Peter Suderman highlights six reasons why states should refuse to implement any part of ObamaCare. Here are two:

3. Refusing to create an exchange potentially protects a state’s businesses from the law’s employer mandate.Obamacare fines any business with 50 or more employees that does not offer health coverage of sufficient value—as determined by the federal government—$2,000 per employee (exempting the first 30 workers).  The employer penalties, however, are triggered by the existence of the law’s subsidies for private health insurance. And as Cannon notes, the text of Obamacare specifically states that those subsidies are only available in states that choose to create their own exchanges. The IRS has issued a rule allowing for subsidies in states that reject the exchanges, but a lawsuit is already under way to challenge it. 

4. States also have the power to protect as many as 12 million people from the law’s individual mandate—the “tax” it charges individuals for not carrying health insurance. Obamacare requires that nearly everyone maintain health coverage or pay a penalty—a “tax,” according to the Supreme Court’s decision upholding the law last year. But Obamacare also exempts individuals who would have to pay more than 8 percent of their household income for their share of their health insurance premiums. So if states bow out of the exchanges, and as a result the law’s private insurance subsidies are no longer available, then the mandate will no longer apply to the low and middle income individuals who would have to pay more than 8 percent of their income to get health insurance. Cannon estimates that if all 50 states were to decline to create exchanges, a little more than 12 million low and middle-income individuals would be exempt from the law’s mandate.

Topics: 
Government and Politics, Health Care

Max Baucus, ObamaCare’s Lead Author, Sees ‘Huge Train Wreck Coming Down’

By
Michael F. Cannon

I should probably just turn this one over to Sam Baker at The Hill:

Sen. Max Baucus (D-Mont.) said Wednesday he fears a “train wreck” as the Obama administration implements its signature healthcare law.

Baucus, the chairman of the powerful Finance Committee and a key architect of the healthcare law, said he’s afraid people do not understand how the law will work.

“I just see a huge train wreck coming down,” Baucus told Health and Human Services Secretary Kathleen Sebelius at a Wednesday hearing. “You and I have discussed this many times, and I don’t see any results yet.”

Baucus pressed Sebelius for details about how HHS will explain the law and raise awareness of its key provisions, which are supposed to take effect in just a matter of months.

“I’m very concerned that not enough is being done so far — very concerned,” Baucus said.

He pressed Sebelius to explain how her department will overcome entrenched misunderstandings about what the healthcare law does.

“Small businesses have no idea what to do, what to expect,” Baucus said.

Citing anecdotal evidence from small businesses in his home state, Baucus asked Sebelius for specifics about how it is measuring public understanding of the law.

“You need data. Do you have any data? You’ve never given me data. You only give me concepts, frankly,” Baucus told Sebelius.

Sebelius said the administration is not independently monitoring public awareness of specific provisions, but will be embarking on a substantial education campaign beginning this summer.

Baucus is facing a competitive reelection fight next year, and Republicans are sure to attack him over his role as the primary author of the healthcare law.

A messy rollout of the law’s major provisions, just months before Baucus faces voters, could feed into the GOP’s criticism.

Wednesday’s hearing wasn’t the first time Democrats — including Baucus — have raised concerns about the implementation effort. But while other lawmakers have toned down their public comments as they’ve gotten answers from Sebelius, Baucus said Sebelius has not addressed his fears.

“I’m going to keep on this until I feel a lot better about it,” Baucus told Sebelius…

Enrollment in the healthcare law’s insurance exchanges is slated to begin in October, for coverage that begins in January. Baucus, though, said he’s worried exchanges won’t be ready in time.

“For the marketplaces to work, people need to know about them,” Baucus said. “People need to know their options and how to enroll.”

Who knew that running the health care sector would be hard.

Topics: 
Government and Politics, Health Care

Supreme Court Wisely Rules that U.S. Law Doesn’t Apply Outside the U.S.

By
Ilya Shapiro

As Walter Olson notes below, today the Supreme Court correctly ruled in Kiobel v. Royal Dutch Petroleum that the Alien Tort Statute, like any federal law not explicitly stating otherwise, does not cover actions occurring outside the United States.  That is, you can’t bring a suit in U.S. court just because it involves a “violation of the law of nations” (the conduct that the ATS addresses).

As Chief Justice Roberts said in announcing the decision, even a claim that a foreigner committed such an international-law violation against another foreigner isn’t enough to counter the presumption that laws don’t have extra-territorial application.  Indeed, in such a case – and Kiobel’s allegations of human rights abuses by Nigerians against Nigerians in Nigeria is such a case – there is even less of a reason to invoke the jurisdiction of American courts than if some American dimension existed (e.g., the citizenship of one of the parties or the location of the conduct).  

Nothing in the text of the ATS overcomes that basic presumption against extra-territoriality and the Court’s fascinating historical exposition demonstrates why the First Congress – the ATS was enacted in 1789 as one of our first laws – wouldn’t have wanted to change that practice or make the fledgling republic a “uniquely hispitable forum for the enforcement of international norms.”

As Cato’s amicus brief argued, the Founders understood “the law of nations” to provide a methodology for defining the extraterritorial scope of ATS jurisdiction. Their understanding of jurisdiction rested on the nexus between territory and sovereignty; the law of nations as of 1789 recognized a territorial nexus between the state asserting jurisdiction and the claim asserted. That the law of nations permits jurisdiction over piracy on the high seas or in other unique circumstances doesn’t mean that a U.S. court may assert jurisdiction over conduct occurring entirely within the territory of a foreign sovereign.

Finally, the Court correctly noted that the mere fact that corporations are present in the case – the original issue was whether the ATS recognized corporate liability – doesn’t somehow change the extraterritorial-applicability calculus.  In Kiobel, even the corporations were foreign (Dutch and British oil companies), with nobody alleging that so much as a U.S. subsidiary was involved.

At the end of the day, this was an exceedingly complicated case with a relatively simple solution.  Well done, Supreme Court.

Topics: 
Law and Civil Liberties

SCOTUS Gets It Right in Kiobel

By
Walter Olson

My reaction to today’s Supreme Court decision in Kiobel v. Royal Dutch Petroleum:

Just as the United States should not play policeman to the world, so our courts should not play tort-suit venue to the world. Today the U.S. Supreme Court unanimously and decisively buried the misguided, decades-long hope of some lawyers and academics that they could turn the Alien Tort Statute (ATS) into a wide-ranging method of hauling overseas damage claims into American courts. All nine Justices agreed with the Second Circuit that the statute does not grant jurisdiction for our courts to hear a controversy over alleged assistance in human rights violations outside the U.S. against non-U.S. plaintiffs by a non-U.S. business.A majority of five justices reiterated and relied on our law’s strong traditional presumption against extraterritoriality, that is to say, presumption against applying the law to actions that take place in other countries. While parting from this reasoning, four concurring justices nonetheless endorsed a view of ATS as applicable extraterritorially only to very extreme misconduct comparable to piracy, and also as sharply limited by considerations of comity with foreign sovereigns.

It is a good day for a realistic and modest sense of what United States courts of justice can successfully do, namely: do justice within the United States.

Topics: 
Law and Civil Liberties

Don’t Fall For Obama’s Gun Control Folly

By
Tim Lynch

Washington Post Columnist Courtland Milloy says he isn’t falling for Obama’s gun control proposal.  Here’s an excerpt from his column today:

Politicians would do well to learn how the real war on gun violence is being fought. For example:

In federal court last week, 23-year-old Ezra Griffith was convicted of unlawful possession of a firearm by a felon. D.C. homicide detectives had confiscated a 9mm Glock with an extended 30-round magazine during a search of Griffith’s apartment in Southeast Washington. The U.S. Attorney’s Office successfully prosecuted the case.

Another gunman off to jail. Another gun off the streets. That’s how it’s done. Go after the criminal. Take his illegal gun. Leave everybody else alone.

The proposed national gun control legislation would make it harder for law-abiding citizens to purchase guns — and, if passed, would surely be hailed as a victory over the “gun lobby.” But it would do nothing to curb gun violence where the problem is at its worse — in black neighborhoods. Nor would it do much to stop the kind of carnage that occurred in Newtown last year.

Topics: 
Law and Civil Liberties

Obama’s Hospital Admission

By
Michael F. Cannon

My latest, at National Review Online:

Buried deep within President Obama’s $3.77 trillion budget is a tiny little proposal to increase Medicaid spending by $360 million. In a budget as large as this one, $360 million is scarcely worth mentioning. It amounts to less than one-hundredth of one percent of total outlays. But this 0.01 percent is worth mentioning, because it proves the president’s health-care law will not work…

With this proposal, President Obama has admitted that:

1. The PPACA is not likely to reduce uncompensated care in 2014…

2. The PPACA won’t reduce the deficit…

3. Hospitals can stop crying poverty…

4. States don’t need to expand Medicaid to protect hospitals.

The Washington Post reports that rescission of the DSH cuts “could make it a bit easier for states not to expand the Medicaid program. If they know the additional dollars are coming in, there’s a bit less worry about turning down the Medicaid expansion funds.” At the same time, the president has undercut expansion supporters by admitting that expanding Medicaid will not reduce uncompensated care.

The president’s budget shows that the brave state legislators who have been fighting the Medicaid expansion in states like Ohio and Florida were right all along — and it makes expansion supporters, like Governors Rick Scott (R., Fla.) and John Kasich (R., Ohio), look rather silly.

This relatively small spending item is a big admission that the president’s health-care law simply won’t work, and it should provide encouragement to state officials who are still resisting the massive increase in deficit spending, government bureaucracy, and health-care costs the PPACA embodies.

Read the whole thing.

Topics: 
Government and Politics, Health Care

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