SCOTUS

Supreme Court Refuses the Speedier Route for Health Care Appeal

by Kathryn Ciano on April 27, 2011

in Economy, Healthcare, Legal, Regulation

Monday morning the Supreme Court rejected Virginia Attorney General Ken Cuccinelli’s request to speed up the process for a ruling on Virginia’s health care appeal.

By rejecting Virginia’s unusual request, the Court denied Cuccinelli’s request that its appeal bypass usual legal procedures to go directly before the nation’s highest court. Instead, the Fourth Circuit Court of Appeals will hear Virginia’s appeal, scheduled for May 10.

So far five federal judges have heard challenges to Obama’s sweeping healthcare overhaul. Judges in Florida and Virginia have declared the law unconstitutional, while Democratic appointees in Michigan, Virginia, and Washington, D.C. have upheld Obamacare.

Virginia’s chief complaint with Obamacare is the individual mandate. Twenty-six states joined Florida’s appeal that Congress grossly overstepped its authority with this unprecedented requirement that individuals buy health insurance or pay a penalty to the government if they do not purchase coverage.

No justices sat out of Monday’s denial of fast-track process. Yet the slow route is new for Obamacare, a highly contested sweeping legislation that passed only when then-speaker of the  House Nancy Pelosi invoked a bizarre, constitutionally-dubious “deem and pass” procedure that unseated civics as we know it and “deemed” the bill popular rather than put it to popular vote the way the American Constitution requires.

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CEI Podcast — November 15, 2010: Free Speech and Video Games

by Ryan Young on November 15, 2010

in Culture, Legal, Nanny State, Personal Liberty, Podcast, Regulation, Tech & Telecom

Associate Director of Technology Studies Ryan Radia gives his take on a Supreme Court case concerning California’s ban of violent video game sales to minors. Keeping such things away from children is traditionally a job for parents. Have a listen here.

The case has implications that reach far beyond video games. Because censorship is such a subjective thing, allowing it could have a chilling effect on forms of expression from art to music to film. The First Amendment specifically prohibits the government from sanitizing culture. That is up to the people themselves.

Photo credit: bhschenker’s flickr photostream.

Justice Kagan, Please Be a Judicial Activist

by Ryan Young on August 6, 2010

in Legal, Personal Liberty

Over at the Daily Caller, I explain why newly-minted Justice Kagan should be a judicial activist — but not in the way most people use the term. True judicial activism doesn’t mean legislating from the bench. It means standing up to the executive and legislature and striking down unconstitutional laws. Unfortunately, Justice Kagan seems like she would rather defer to the branches that gave her her new job:

There is a reason why the Supreme Court is filled with Justices eager to defer to the political branches. It’s because the political branches get to pick who sits on the bench. No president would nominate a judge who might nullify his administration’s signature achievements. No Senator would vote to confirm a judge who might strike down an important bill that she wrote. There is a selection bias favoring judicial passivists.

But there is light at the end of the tunnel:

Justice Kagan was nominated and confirmed because of her judicial passivism. But now that she’s in, she’s in for life. She can stand up for the judicial branch if she wants to. If a case comes before her involving a law that is clearly unconstitutional, her rightful duty is to strike it down.

In many cases, it’s as easy as just saying no.

A Good Day for Freedom of Speech

by Ryan Young on January 21, 2010 · 3 comments

in Legal, Personal Liberty, Politics as Usual, Regulation

“If the First Amendment has any force, it prohibits jailing citizens for engaging in political speech.”

-Justice Anthony Kennedy, introducing today’s Citizens United decision.

Precisely. The correct way to rebut unwelcome speech is not to silence it. It is to counter it with more speech. Let the best arguments win. Advocating speech restrictions is a fancy way of saying, “my arguments are too weak to withstand criticism.” Get better arguments, then!

Free speech issues aside, there is a reason why McCain-Feingold is informally known as the Incumbent Protection Act. It stacks the deck against challengers. No wonder so many incumbent politicians from both parties have come out against today’s decision. It’s bad for their job security.

LibertyWeek 51: Watch for Falling Rupees

by Richard Morrison on July 14, 2009

in CEI Projects, Podcast

Your host Richard Morrison brings you Episode 51 of the LibertyWeek podcast, along with special guest co-host Jeremy Lott and Fellow in Regulatory Studies Ryan Young. We start with Judge Sotomayor in the Senate hot seat, a privacy threat from “smart” passports and why Rep. Dan Lipinski has decided your suitcase is too big. The discussion continues with Rep. John Murtha’s expanding corruption scandal, beer news from the Beaver State and the arrival of Wal-Mart in India. We wrap up with this week’s dose of brothel-themed Olympic News.

LibertyWeek 41: SCOTUS Scurry

by Richard Morrison on May 5, 2009

in CEI Projects, Podcast

Richard Morrison and Cord Blomquist team up with special guest co-host Jeremy Lott to bring you Episode 41. We begin with a farewell to famed quarterback, Republican Congressman and former CEI Distinguished Fellow Jack Kemp. We then move on to China’s flu-related roundup of Mexican nationals, the race to replace Justice Souter and the new opportunity to SuperPoke the President of the United States. We round out the show with Andrew Cuomo’s allegations of scandal and a modest helping of Olympic News.

LibertyWeek 33: Drinking Our Way to Economic Health

by Richard Morrison on March 10, 2009

in CEI Projects, Podcast

Welcome to Episode 33 of the LibertyWeek podcast, with your hosts Richard Morrison and Cord Blomquist and technical producer (and this week’s special guest) Ryan Young. After bidding our friend Thor Halvorssen a very happy birthday, we get a fresh recap from Ryan Young on the events of the Free State Project’s recent Liberty Forum in Nashua, New Hampshire (photos). Google’s CEO spurns Twitter (transcript via TechCrunch) in Technology News, John McCain and Richard Shelby say that the government should end the bailouts and let poorly-managed banks go bankrupt, and brewers pin their hopes on robust St. Patrick’s Day sales in this week’s edition of Beer News. Next, we go abroad for Scandal Watch where the Chinese government is cracking down on sub-optimal milk quality and finally back home to America for Olympic News, where the head of the U.S. Olympic Committee is calling it quits.

The honor of Tweet of the Week™ goes to dan_hayes of Reason.tv!

Did the Supreme Court “Botch” Wyeth v. Levine?

by Alex Harris on March 5, 2009 · 1 comment

in Healthcare, Legal, Precaution & Risk, Regulation

I was initially going to post this as a comment to Greg Conko’s recent post arguing against the Court’s recent decision in Wyeth v. Levine, but the comment system didn’t work correctly for me.

I appreciate the force of Greg’s argument (and I certainly agree that this particular case should have been decided much earlier on different grounds), but I think there is room for reasonable disagreement within the libertarian community about whether FDA preempting state tort law is good or bad. This is one of these questions about what to do in the real world, where first-best solutions just aren’t politically possible.

Most libertarians would likely agree that there should be only one system to deal with injuries caused by products, including drugs: the tort system. The tort system only operates once there has been an actual injury, not just some scared politician’s prediction of a harm. And it doesn’t ban anything; it just forces manufacturers to internalize the external costs of the injuries their products cause. If the benefits of the product outweigh the total (social) costs, the product will keep being made. This is the optimal outcome. And, further, the injured consumers will not simply be ignored; they get compensated for their harms, restored to a position as good as they’d be in had they not been harmed.

Unfortunately, however, we don’t just have the tort system. We also have the FDA and other prospective regulatory agencies that pass judgment on products before they hit the market, banning some and restricting how others can be marketed and sold. If the FDA isn’t going away, what should we do?

Greg’s answer is essentially the one I gave in the context of internet regulations: “multiple levels of regulation [are] always worse than… only one.” There is a difference between multiple levels of regulation and a tort system plus a regulatory system, though. If the FDA gets lots of stuff wrong, but the tort system functions ideally (a big, and admittedly untrue, assumption), then the FDA should not be able to preempt the tort system. If the FDA allows a drug that nonetheless causes injuries, the tort system has not failed or “overregulated” if it correctly assesses and assigns damages. It has internalized costs that would otherwise be external.

If the Court had found preemption, however, then there would be calls for the FDA to regulate even more heavily, banning every drug that might cause any problem. The tort system currently functions as a safety net. Remove it and politicans and voters will demand more stringent protection from the system left – the regulatory one.

However, finding no preemption emphasizes the point that the FDA is not infalible and that the tort system does a better job, at least sometimes. Unfortunately, it only does this in one direction, and does nothing to expose the much more common and deadly – but largely invisible – type I error. Still, I think though the tort system may get some stuff wrong and incorrectly over-compensate, this risk is more acceptable than the risk of further entrenched and onerous FDA regulation.