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May 21, 2010 8:51AM

Who’s Crying Socialist?

Dana Milbank of the Washington Post complains that Senate Republican leader Mitch McConnell "held a news conference in the hallway outside the Senate and all but called Obama a socialist." And what exactly did McConnell say? Milbank goes on:

"They're running banks, insurance companies, car companies, taking over the student loan business, taking over health care, now, apparently doing to the financial services industry what they did to the health-care industry, doubling the national debt in five years, tripling it in 10," he railed. "They've got people over at the FCC trying to take over the Internet. This is a massive government overreach."

So McConnell didn't call anybody a socialist. He just listed President Obama's policies — accurately, it seems to me. And Milbank listened to that list and said "hey, you're calling him a socialist!"

We've been cautious here at Cato about calling anybody a socialist. But if Milbank thinks a description of Obama's policies amounts to "all but calling him a socialist," I'll just let his analysis stand.

May 20, 2010 8:33PM

Objectivist‐​Libertarian Summer Conference

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I'll be speaking at Free Minds 2010, along with Nathaniel Branden, Anne Heller, David Kelley, Tibor Machan, Henry and Erika Holzer, Nigel Ashford, and two dozen more scholars and practitioners of Ayn Rand's ideas and other libertarian thinkers. The conference will be held in Alexandria, Virginia, near Washington and Reagan National Airport, June 30 to July 8. If that's too long, you can register for either the pre-July 4 or the post-July 4 half of the seminar. Either way, you can spend July 4 wandering the city the Founders established and wondering what they would think.

Check it out.

May 20, 2010 8:33PM

Update on the Legal Challenges to Obamacare

Since I first issued my challenge to debate "anyone anytime anywhere" on the (un)constitutionality of Obamacare, a lot has happened.  For one thing, Randy Barnett and Richard Epstein, among many others, have published provoctive articles looking at issues beyond the Commerce Clause justification for the individual mandate -- such as the argument that Congress's tax power justifies the mandate penalty and that the new Medicaid arrangement amounts to a coercive federal-state bargain.  (Look for to a longish article from yours truly due to come out in next month's issue of Health Affairs.)  For another, as Michael Cannon noted, seven more states -- plus the National Federation of Independent Business and two individuals -- have joined the Florida-led lawsuit against Obamacare.  Perhaps most importantly, such legal challenges are gaining mainstream credibility.

Here's a brief look at some important legal filings from the past 10 days:

  1. On May 11, the U.S. government filed a response to the Thomas More Center's lawsuit asking a federal court in Michigan to enjoin Obamacare on various grounds, including, distinct from other suits I've seen, religious liberty violations from having to pay for abortions.  The government argues that the plaintiffs lack standing because it's unclear whether the individual mandate will harm them and in any event this provision doesn't go into effect until 2014 at the earliest. The government also predictably argues that the mandate is a valid exercise of Congress's power to regulate interstate commerce and to provide for the general welfare.  There is nothing surprising here and we now await the court's preliminary ruling.
  2. On May 12, the U.S. Citizens Association (a conservative group) and five individuals filed a new suit in Ohio, as Jacob Sullum notes.  In addition to the government powers arguments that are being made in most Obamacare lawsuits (most notably the state suits), this suit claims a violation of: the First Amendment freedom of association (the government forces people to associate with insurers); individual liberty interests under the Fifth Amendment; and the right to privacy under the Fifth Amendment's liberty provision, Ninth Amendment retained rights, and the rights emanating from the First, Third, Fourth, Fifth, and Ninth Amendments (such is the Court's convoluted jurisprudence in this area).  I'll add that the attorney filing this suit, Jonathan Emord, worked for Cato over 20 years ago.
  3. On May 14, Florida filed an amended complaint that, along with adding seven states, two individuals, and the NFIB -- so all potential standing bases are covered -- beefs up relevant factual allegations and, most importantly, shores up a few legal insufficiencies to the previous claims.  This is a solid complaint, and alleges the following counts: (1) the individual mandate/penalty exceeds Congress's power under both the Commerce Clause and taxing power and, as such, violate the Ninth and Tenth Amendments; (2) the mandate violate's the Fifth Amendment's Due Process Clause; (3) the mandate penalty is an unconstitutional capitation or direct tax because it is unapportioned; (4) the Medicare expansion constitutes a coercive federal-state bargain that commandeers state officials; (5) a different formulation of coercion/commandeering; and (6) interference with state sovereignty and functions under the Tenth Amendment.   After further briefing, oral arguments on the government's expected motion to dismiss are scheduled for September 14 in Pensacola.
  4. At least one enterprising analyst has determined that the 2,400-page bill lacks a severability clause.  This means that if one part of the bill is struck down as unconstitutional, the whole thing falls! -- and would mean that the drafters committed legal malpractice of the highest order.  I guess it goes to show that nobody has read the whole thing.

Finally, if anybody is reading this is in Seattle, I'll be debating Obamacare at the University of Washington Law School next Thursday, May 27 at 4:30pm.  This debate, sponsored by a number of groups, including the law school itself and the Federalist Society, is free and open to the public.  For those interested in other subjects, I'll be giving a different talk to the Puget Sound Federalist Society Lawyers Chapter the day before at 6:30pm at the Washington Athletic Club ($25, rsvp to Michael Bindas at mbindas@ij.org).  The title of that one is "Justice Elena Kagan?  What the President’s Choice Tells Us About the Modern Court and Confirmation Process."  Please do introduce yourself to me if you attend either event.

May 20, 2010 6:37PM

Indur Goklany’s Double Play in the New York Times



Indur Goklany's great book, The Improving State of the World: Why We're Living Longer, Healthier, More Comfortable Lives on a Cleaner Planet, has been cited this week by both John Tierney and Andrew Revkin in the New York Times.

But neither of them really says much about it. Don't bother with the articles, just go buy the book. It's a compelling, comprehensive case -- with more than 100 charts and tables -- for the case made in the title, which deserves to be bullet-pointed. It shows that the state of the world is improving because

  • We're Living Longer,
  • Healthier,
  • More Comfortable Lives
  • on a Cleaner Planet

Check out the evidence.

May 20, 2010 5:11PM

U.S. Antidumping Régime Restrains U.S. Export Growth

In honor of World Trade Week—and for its decreed purpose of educating Americans about trade—this post is about U.S. trade policy working at cross-purposes with other policies or goals of the administration. So numerous are these examples of trade policy dissonance, that a committed wonk could devote an entire website to the task of documenting them.

If the administration were serious about making trade policy work—rather than just paying it lip service—it would compile its own exhaustive list of laws, regulations, policies, and practices that actually undermine its stated objectives of facilitating economic growth, investment, and job creation through expanded trade opportunities. Then, it would make the changes necessary to ensure that our policies are paddling in the same direction. But that is not happening—at least as far as I can see.

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May 20, 2010 3:40PM

Justice Kennedy Discusses Cato’s View on Use of Foreign Law

One quick addendum to my previous commentary on this week's decision in Graham v. Florida the use of foreign law by U.S. courts: Toward the very end of Justice Kennedy's majority opinion, in part D where he gratuitously nods to world opinion about juvenile life-without-parole (LWOP) sentences, he takes issue with one of the lesser arguments we make in our brief, that no international treaty prohibits such sentences.  (See page 31 of the Graham opinion -- note that Cato itself is not mentioned because we were one of 13 groups signing the brief -- and pages 14-16 of our brief.)  Kennedy says that the issue of whether international law prohibits the United States from imposing the juvenile LWOP sentences is beside the point, that the proper question to ask is whether such sentences are "cruel and unusual." 

Well, yes, that's the correct standard under the Eighth Amendment, and I'm glad that Justice Kennedy did not side with opposing amici and those in the legal academy who argue that various international conventions (or customary international law) do require such a prohibition.  But Kennedy's point here raises a further question: why is what someone in France or Japan or Brazil or Saudi Arabia says on the matter relevant to what is cruel and unusual under U.S. law?