Tag: repeal

Prop 19, Employment at Will, and Social Peace

Writing at CNN, my colleague Jeffrey Miron puts his finger on one reason for the disappointing defeat of California’s Prop 19:

Prop 19 failed also because it overreached. One feature attempted to protect the “rights” of employees who get fired or disciplined for using marijuana, including a provision that employers could only discipline marijuana use that “actually impairs job performance.” That is a much higher bar than required by current policy.

Like so many other developments in employment law in recent years, this would have chipped away at the basic principle of employment at will, which holds that in the absence of a contract specifying otherwise, either party to an employment relation may end that relation at any time for any reason or for no reason at all.

It was no doubt inevitable that the proposition would fare poorly among self-identified conservatives and older voters. But the “users’ rights” provisions were enough to raise doubts even among liberty-minded thinkers like David Henderson, who predicted that by signaling hostility toward freedom of association, such provisions would “make the drug-legalization hill even steeper.”

Marijuana of course remains illegal under federal law, which means that its consumption would at one and the same time have been 1) protected under employment-discrimination rules, and 2) illegal and subject to prison sentences. If this paradox seems vaguely familiar, maybe it’s because not that many years ago – before the Supreme Court’s 2003 decision in Lawrence v. Texas – there were localities where consenting homosexual conduct was simultaneously protected under one set of laws, and unlawful under another. Indeed, there were more than a few advocacy groups that worked to promote the new controls over employer decisionmaking and yet never troubled themselves to work for repeal of the still-on-the-books anti-gay prohibitions. If the goal is to achieve social peace, however, rather than wage constant culture war on each other, you’d think the “leave people alone” message would hold more appeal than the “fall in line or you’ll hear from our lawyers” message.

Jeffrey Miron surmises, no doubt rightly, that the problem of undislodgeable tenured stoners in the workplace would be more the exception than the rule. Yet it’s worth noting that the issue has already arisen in various lawsuits in which workers with a doctor’s note recommending marijuana use have contested firings. Lawyers have also eagerly cobbled together suits over related issues, as with this class action noted less than two years ago at my other website, Overlawyered:

Starbucks’s job application asked prospective baristas if they’d been convicted of a crime in the past seven years and added for “CALIFORNIA APPLICANTS ONLY”, at the end, that minor marijuana possession convictions more than two years old didn’t have to be disclosed, in accord with a state law along those lines. Entrepreneurial lawyers then tried to steam-press $26 million or so out of the coffee chain on the following theory: that the clarification was placed too far down the application after the original question; that Starbucks had therefore violated the California Labor Code; and that each and every Starbucks job applicant in California since June 2004, perhaps 135,000 persons, was owed $200 in statutory damages regardless of whether they had suffered any harm. Per John Sullivan of the Civil Justice Association of California, the lawyers also took the position that “it didn’t matter that two of the three job applicants who signed on as named plaintiffs testified in court that they read the entire application and knew they didn’t have to mention a marijuana conviction (which neither had anyway!)” The court refused to certify the class and made the following observations (courtesy CJAC blog):

* “There are better ways to filter out impermissible questions on job applications than allowing ‘lawyer bounty hunter’ lawsuits brought on behalf of tens of thousands of unaffected job applicants. Plaintiffs’ strained efforts to use the marijuana reform legislation to recover millions of dollars from Starbucks gives a bizarre new dimension to the every day expressions ‘coffee joint’ and ‘coffee pot.’”… “The civil justice system is not well-served by turning Starbucks into a Daddy Warbucks.”

Ilya Somin at Volokh Conspiracy notes that “the case against the War on Drugs and other ‘morals’ regulations is very similar to the standard conservative critique of economic regulation.” But if a much-needed rollback of morals regulation is made the excuse for an expansion of economic regulation, there may be grounds to wonder whether the goal is truly freedom at all.

One Signature Closer to a Vote on Obamacare Repeal

This morning, in a column for National Review Online, I criticized a number of Democrats and Republicans who voted against Obamacare but had not signed a discharge petition that would force a floor vote on repealing the new health care law. One of the Republicans I singled out was Rep. Castle of Delaware, who is now seeking the GOP nomination for US Senate. This afternoon, Rep. Castle’s staff informed me that he intends to sign that petition as soon as he returns to Washington after the recess. That leaves five Republicans who have not signed.  For the record, they are: Mark Kirk of Illinois, Joseph Cao and Charles Boustany of Louisiana, David Reichert of Washington, and Shelley Moore Capito of West Virginia.

Obamacare Lawsuits Gain Steam

David Boaz already noted Missourians’ overwhelming rejection of the individual mandate yesterday.  That, combined with Monday’s decision in Virginia’s lawsuit – where the judge denied the government’s motion to dismiss, ruling that Virginia had standing to make its claims and that those claims had sufficient merit to proceed – should embolden Missouri’s Lieutenant Governor Peter Kinder.  Kinder, in his personal capacity and joined by several other individuals, filed an Obamacare lawsuit last month.

I mention the Kinder suit to remind everyone that there are more challenges out there than just Virginia’s and the Florida-led 20-state suit.  I have personal knowledge of groups and individuals who have sued in Michigan, Ohio, and D.C. – and there are plenty of others, I’m sure (for example, the Goldwater Institute will be filing in Arizona soon).  As Michael Cannon has noted, the D.C. suit, filed by our friends at the Pacific Legal Foundation, has as its plaintiff a 29-year-old artist and former National Guardsman who served two tours in Iraq.  PLF will host a liveblog to discuss their case starting at 3 p.m. today.  You can read the complaint here.

Finally, PLF principal attorney and Cato adjunct scholar Tim Sandefur has a nice refutation of the argument that “well, gee, George Washington required able-bodied men to buy muskets and prepare for militia service under the Militia Act of 1792.”  The upshot: sure, but 1) the Militia Act was passed under the Constitution’s militia clauses (not under the Commerce Clause, taxing power, or anything else being claimed as authority by Obamacare proponents); and 2) to say that the Constitution does not protect “a freedom from government-mandated purchases” is to read the Constitution backwards because the burden is on the government to prove that it has the constitutional authority to force people to do things they don’t want to do.

Repeal now.

Taking the Constitution Seriously

Today Politico Arena Asks:

Is Health Care Repeal Gaining Steam?

My Response:

It’s striking how POLITICO Arena contributors on the left like Professors Skocpol and Jost blithely dismiss the idea that the Constitution could actually limit what Congress may do in the area of “social welfare” – including such monstrosities as ObamaCare. It’s as if they had no conception, despite their years of schooling, of what the Constitution is all about. It’s not a document that authorizes the federal government to do whatever may be in “the public interest,” as conceived by those in power at any moment. It’s a carefully crafted plan for government that both grants and limits power, so that individuals may plan and live their own lives.

Judge Henry Hudson got it exactly right when he wrote: “While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate – and tax – a citizen’s decision not to participate in interstate commerce.” The left may ridicule the suits that have been brought against ObamaCare by more than 20 states and others, but in doing so they ridicule nothing less than the American heritage of limited constitutional government. If ObamaCare revives that heritage, it will all have been worth it.

ObamaCare Is Unpopular: a Response to Maggie Mahar

The Century Foundation’s Maggie Mahar is one of the Left’s more knowledgeable and insightful health policy wonks.  Today, she blogs about my colleague Michael Tanner’s claim – made in his recent white paper, “Bad Medicine: A Guide to the Real Costs and Consequences of the New Health Care Law” – that ObamaCare, which became law in March, “remains deeply unpopular.  Recent polls show substantial majorities support repealing it.”  To support that claim, Tanner cites a May poll showing support for repeal at 63 percent.

Mahar says Tanner is “cherry picking”:

Bad Medicine was released July 12. Why didn’t Tanner include June numbers? Instead, he  hand-picked the one poll, over a seventeen week span, that shows support for repeal running as high as 63 percent…Indeed, the May 22 poll turned out to be a “bounce”—merely a blip on the screen. Over the next five weeks, the number of respondents who favored repeal fell, while opposition to killing the bill rose.

I’m not sure why Tanner didn’t include more recent numbers, but it may have been because it often takes 6 weeks for a paper to emerge from Cato’s publishing process.

More important, while Mahar is correct that the 63-percent figure is so far the high water mark for repeal, it was hardly “merely a blip.”  She herself reports that support for repeal was 60 percent in the very next Rasmussen poll.  Nor is it quite accurate to say that support for repeal fell over the next five weeks.  Support for repeal reached 60 percent again on July 1, and at no point does Rasmussen show support for repeal falling below 52 percent.  In fact, Rasmussen today reports that support for repeal climbed three points to 56 percent in its July 16-17 poll, while opposition to repeal fell by four points to 38 percent.  It would be more accurate to say that Rasmussen finds opposition to repeal hovering between 32-42 percent, and support for repeal hovering between 52-63 percent, with no clear trend on either side.  But Rasmussen does find far greater intensity on the pro-repeal side: in the July 16-17 poll, 47 percent “strongly favor” repeal, while only 25 percent are “strongly opposed.”

Mahar then selects her own polls to support the Left’s theme that the more Americans learn about ObamaCare, the more they like it.  But when we take all available polls into account (as I did earlier today using Pollster.com), we see that opposition to ObamaCare still leads support and the trendline is not moving in the direction Mahar says it is.  When we look only at polls of likely & registered voters, opposition to ObamaCare commands a slight majority and leads support by a consistent 9-point margin.

Tanner may have picked the most dramatic numbers, but he didn’t need to.  ObamaCare remains deeply unpopular – in spite of Mahar and major media outlets misleading the public by claiming that the law makes preventive care (and other services) available to patients “free of charge.”

House GOP Announces First Vote to Repeal ObamaCare

House Republicans say they will force a vote to repeal ObamaCare’s individual mandate, which will subject nearly all Americans to fines and/or imprisonment if they do not purchase a government-designed health insurance plan.  They are soliciting public feedback on their America Speaking Out website, which explains:

We need to repeal and replace the health care law with common sense reforms that will actually lower health care costs and let Americans keep the plan they have and like. That’s why Republicans are offering a proposal to repeal the requirement forcing Americans to buy government-approved health insurance. Twenty states and the nation’s leading small business organization agree that this law is unconstitutional and that’s why they are suing to overturn it. The federal government shouldn’t be in the business of forcing you to buy health insurance and taxing you if you don’t.

I’d rather see the entire law repealed – including the price controls on health insurance, the trillions of dollars in health insurance subsidies, the CLASS Act, etc..  Why not do it all at once, just so you don’t miss anything important?

But this vote is unlikely to succeed, so I suppose there will be time for votes repealing the whole thing.

The Economist: “Efforts to Challenge Obamacare Are Gaining Momentum”

From a recent news item in The Economist:

[M]illions of Americans…think that Barack Obama’s health-insurance laws must be overturned…[P]olls suggest that many Americans still dislike them…

At the federal level Republican leaders in Congress have jumped on every bit of negative news—for example, a recent report from the Congressional Budget Office suggesting that the reforms will cost more than originally forecast—as just cause for overturning them…

The real action is outside Washington, though. Virginia, Utah and Idaho have outlawed the new individual mandate, which will require everyone to purchase health cover, and other states are looking at similar measures. Elsewhere, opponents have taken to the ballot box. Missouri will hold a referendum in August on the matter. Perhaps half a dozen other states may see a constitutional amendment blocking Obamacare on the ballot in November.

Critics have also filed various lawsuits challenging the constitutionality of health reform. In the most prominent nearly two dozen states, almost all led by Republicans, have banded together. Their chief legal argument is that the new individual mandate is unconstitutional. On May 14th the National Federation of Independent Business, a trade group representing small companies (who worry especially about the costs of compliance with the new law), declared that it too would join in.

Repeal the bill.

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