June 19, 2006 1:57PM

Wetlands Ruling

As Jerry notes, today’s ruling is welcome news.


Justice Scalia writes the main opinion and here are a few gems: “The U.S. Army Corps of Engineers exercises the discretion of an enlightened despot.” The Corps’ power to grant property owners a permit to do things on their own property relies upon “such factors as “economics,” “aesthetics,” “recreation,” and “in general, the needs and welfare of the people.” Scalia notes “the average applicant for an individual permit spends 788 days and $271,596 in completing the process.”


Full Supreme Court ruling here. Cato brief in the case here. For more evidence of the despotism, go here or here.


It should be noted that the Bush administration was once again pushing a wildly expansive view of federal power in this case. Fortunately, it lost this one.

June 19, 2006 1:56PM

Slovak Election Update

Much of the world’s media portrayed the victory of the populist socialist party in the Slovak elections as the voters’ rejection of the free market reforms pursued by the center‐​right government of Prime Minister Mikulas Dzurinda. Not exactly.


First, the election turnout was only 55 percent (down from 70 percent in 2002). It is true that the socialists increased their support from 13.46 percent in 2002 to 29.14 percent in 2006. But the low election turnout means that the socialists had their program endorsed by only about 14 percent of eligible voters – hardly a ringing endorsement of a return to socialism.


Second, Dzurinda’s party did better than last time. It received 15.09 percent in 2002 and 18.35 percent this year. So did its coalition partners. Christian Democrats were up from 8.25 percent to 8.31 percent and the Hungarian minority party was up from 11.16 percent to 11.68 percent.


The real shockers were the reduction in the support for the Movement for Democratic Slovakia of the former Prime Minister Vladimir Meciar, which was down from 19.5 percent to 8.79 percent, and the rise of the Slovak National Party, which was not represented in the last parliament, but managed to get 11.73 percent in this year’s election.


The communists, who got 6.32 percent in 2002, did not make it to parliament. Unfortunately, the liberals who got 8.01 percent in 2002, did not make it to parliament either.


So, what does all of this mean?


As has been predicted, the three parties of the center right can count on 65 seats in the Slovak parliament of 150. They will thus be 11 seats short of a majority. The socialists will have 50 seats, but need 76 to form a government. With their racist, homophobic and socialist policies to the left of the communist party, the Slovak National Party will have 20 seats. That leaves Meciar and his 15 seats in the role of the kingmaker.


Ironically, Meciar’s worst electoral performance coincides with a huge increase of his party’s relevance for the future of Slovakia. If he throws his weight behind the socialist leader Robert Fico, he will, once again, take the country down the wrong path. If he goes into coalition with the center‐​right, the continuity of the liberal reforms will be assured. (Note: The Christian Democrats stated that they will not be in government with Meciar, because of his past authoritarianism. But, they might agree to give him in a largely symbolic role of the chairman of the Slovak parliament.)


The upshot is that under the Slovak electoral system, elections don’t conclude the process of political horse‐​trading. They begin that process. True, Fico, the socialist leader, will get the first crack at forming a government, but that does not mean much. Both in 1998 and in 2002, it was the second largest party in parliament that formed the government. In both cases, that party was Dzurinda’s party.


One can only hope that history repeats itself.

June 19, 2006 11:20AM

Supreme Court Deep‐​Sixes Federal Wetlands Regulation

From a news bulletin I just received from the enviro trade publication Greenwire:

Supreme Court limits reach of Clean Water Act in 5 – 4 ruling

A divided Supreme Court ruled this morning that Clean Water Act protection of “waters of the United States” is limited to “permanent, standing or continuously flowing” water. The ruling limits protection for wetlands separated from “navigable waters” or their tributaries.


Justice Anthony M. Kennedy cast the swing vote in the 5 – 4 ruling in the joint case, Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers.

This is a big win for the good guys!


More here.

June 19, 2006 10:46AM

Thud, Part II

In an email, Stuart Butler of the Heritage Foundation took issue with my characterization of his proposal (which has now been introduced as federal legislation) to foster health policy experimentation among the states. So I thought I might elaborate. (Readers can get the particulars of the proposal in Stuart’s paper.)

The system Stuart proposes seems predisposed to increase government health care spending and to produce little or no free-market reform.

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June 18, 2006 5:13PM

Gambling Advocacy Now Illegal in Washington State

Earlier this month, I posted about a disturbing new law in Washington State that would impose up to a five‐​year prison term for people who gamble online. The law’s supporters said not to worry: no one would be breaking into homes to arrest individual gamblers (though even before the law took effect, there was some evidence to the contrary). Now we find out that not only are Washington State authorities willing to go after individual gamblers, they’re using the law to go after people who merely write about gambling. A Seattle Times columnist writes:

The first casualty in the state’s war on Internet gambling is a local Web site where nobody was actually doing any gambling.


What a Bellingham man did on his site was write about online gambling. He reviewed Internet casinos. He had links to them, and ran ads by them. He fancied himself a guide to an uncharted frontier, even compiling a list of “rogue casinos” that had bilked gamblers.


All that, says the state — the ads, the linking, even the discussing — violates a new state law barring online wagering or using the Internet to transmit “gambling information.”


“It’s what the feds would call ‘aiding and abetting,’ ” says the director of the state’s gambling commission, Rick Day. “Telling people how to gamble online, where to do it, giving a link to it — that’s all obviously enabling something that is illegal.”


Uh‐​oh. This is starting to get a little creepy.

I’ll say. It gets worse. The state’s puritans anti‐​gambling cops also lashed out at the Seattle Times itself:

Gambling officials told me The Seattle Times may be afoul of the law because we print a poker how‐​to column, “Card Shark,” by gambler Daniel Negreanu. He sometimes tells readers to hone their skills at online casinos. And at the end of each column is a Web address, full​con​tact​pok​er​.com, where readers can comment.


If you type in that address, you whiz off to Negreanu’s digital casino based in the Antilles.


It’s a tangled Web, isn’t it? The state says we’d best do our part to untangle it.


“My suggestion to you is to remove from your paper any advice about online gambling and any links to illegal sites,” Day said.


So even this column could be illegal?

Unfortunately, columnist Danny Westneat closes the piece by arguing that the state’s law against online gambling is “legitimate;” it’s only the act of extending it to people who write about gambling, he asserts, that crosses the line. But as we’ve seen with the drug war, once you’ve given the state the power to enforce consensual crimes that take no victims, it’s only a matter of time before government makes the case that it can’t enforce those laws unless it’s given the power to encroach on other civil liberties.

June 16, 2006 5:18PM

More on Exclusionary Rule

I add a couple of provisos to Tim's post below. Justice Kennedy's concurrence makes clear there are not five votes to limit the exclusionary rule in other areas:

Today's decision determines only that in the specific context of the knock-and-announce requirement, a violation is not sufficiently related to the later discovery of evidence to justify suppression. (emphasis added)

That being said, its true that Justice Scalia's reasoning could be extended to other areas of the law if there is another retirement from the Court. Scalia's arguments against exclusion are:

(1) that police discipline and public interest lawsuits are an effective deterrent to violations;

(2) that the costs of its application -- letting the guilty go free on a technicality -- are large;

(3) the violation is causally attenuated when the police could have discovered the evidence if they had complied with the law in a hypothetical counterfactual world.

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