The current cocktail used for lethal injection includes two drugs, one of which (sodium thiopental) is not produced in the U.S. and must be imported. This gave some death penalty opponents the idea to try again, this time alleging that the FDA violated federal law by allowing the importation of sodium thiopental without first ensuring it is effective. They sued in federal district court, and won. In Beaty v. Food and Drug Administration, Judge Richard Leon concluded that because the FDA had not approved sodium thiopental for lethal injection the agency was required to prevent its importation.

The fight’s not over, however, as the FDA plans to appeal. Some states, such as California, also appear ready to resist the ruling and are refusing to return their supplies to the FDA, likely due to hope or anticipation that Judge Leon’s opinion will be overturned on appeal.

A recent essay by Kevin Cave and Einer Elhauge provides a handy example of the misuse of Coase’s work. Cave and Elhauge have sought enlist Coase’s seminal essay in support of the constitutionality of the individual mandate. “A dose of Coase,” they argue, shows that “the issue at stake is not individual liberty, but individual responsibility.” In the process they manage to misapply “The Problem of Social Cost” and misrepresent the law they seek to defend.

Cave and Elhauge start with Coase’s observation that “social costs” are reciprocal. So, for example, where there is a conflict between two neighboring uses, as between ranchers and farmers.

In The Problem of Social Cost, Coase invoked the example of a farmer whose crops are trampled by the neighboring rancher’s cattle. Before Coase, it would have been common to view the rancher as the culprit responsible for imposing costs on the blameless farmer. Coase pointed out that no matter which way the legal rights were allocated, one was imposing costs on the other. If the law forces the rancher to keep his cattle fenced in, the farming imposes fence-building costs on the rancher. If the law gives the rancher the right to let his cattle roam free, then the farmer bears the social cost.

So far so good. Then Cave and Elhauge claim health care costs should be seen in the same way.

it is surprising how little role the core Coasian insight had in the Supreme Court’s recent oral argument about the Obamacare mandate. Much of the discussion seemed to take for granted that this mandate encroaches on individual liberty, depriving individuals of the “freedom” not to purchase health insurance.

But as Coase’s analysis makes clear, framing the issue in terms of individual liberty is deeply misleading. When the uninsured get sick and go to the emergency room for care they cannot afford, someone has to pay the costs. If the law gives the uninsured the right not to buy health insurance, then the costs for their emergency care are imposed on the insured, whose payments must cover the hospital’s costs. If the law instead requires the uninsured to buy health insurance, they become personally responsible for the cost of the care they receive.

In other words, the issue is not whether to have a mandate, but rather on whom the mandate should be imposed. If the Supreme Court strikes down Obamacare, we will simply return to the old mandate, which was imposed on the insured rather than on the uninsured. It is not clear why that mandate would be constitutionally preferable to a mandate that everyone pay his or her own way. It surely does not involve any less of an infringement on liberty.

Where to begin? The reciprocal nature of the conflict between the rancher and farmer arises because the social costs are a consequence of decisions made by both parties. If there are no roaming cattle, no crops get trampled. The same is true if there are no crops. Only if both the rancher and farmer choose their respective courses of action do we have a social cost. In order to see health care costs as reciprocal in the same way we need more than an emergency room visit by an uninsured individual. We also need a requirement that the hospital provide care. Without both pieces, the costs are not reciprocal. That is, we need both the consumption of health care by those unable to pay for it (which, in point of fact, is only a portion of the uninsured) and a requirement that care be provided without regard to ability to pay — and we have both. But what does this have to do with the mandate? Not much. And what does this have to do with the constitutional arguments about the mandate? Even less. Of course the costs of emergency room care can be born either by those who consume such care (through fee-for-service or insurance) or by others, and there are many mechanisms that can be used to achieve either result. Trying to frame the question in Coasean terms does no work toward resolving the underlying legal or policy debate.

Based on their “Coasean” analysis, Cave and Elhauge suggest that the primary purpose and effect of the mandate is to prevent the uninsured from imposing costs on the insured. But this is not so. With or without the mandate, taxpayers will pay for a disproportionate share of emergency room visits. This is because those on Medicaid and Medicare account for the lion’s share of emergency room visits — more than double the proportion of visits by the uninsured. Because the PPACA expands Medicaid coverage, this proportion will only increase — with or without the mandate.

Cave and Elhauge further pretend that imposition of the individual mandate somehow prevents the “insured” from subsidizing the care of others. But this too is false. The point of the mandate is not to reduce public expenditures on emergency room care as much as it is to prevent adverse selection in health insurance markets and force relatively healthy individuals to subsidize insurance for others. In other words, the purpose of the mandate is to offset the predictable consequences of prohibiting medical underwriting (as forthright defenders such as Mark Hall, acknowledge). Insurance companies, in particular, insisted on the mandate to help defray the costs of providing insuring those with preexisting conditions at rates below-expected-cost. So the mandate does precisely what Cave and Elhauge say they are trying to avoid: forcing one group in society be responsible for the health care costs of another. [As an aside, they also try to claim the mandate does not force individuals to buy insurance coverage beyond what they need to avoid imposing costs on others, pointing to high-deductible “bronze” plans, but ignore that even these plans must cover a wide range of services many will never want or need. See Randy's post here.]

But, again, what does any of this have to do with Coase or the questions confronting the Supreme Court? Not much. The reason Coase pointed out that social costs were reciprocal was to show that one could not assume that imposing costs on one party or the other would necessarily increase social welfare. His target was A.C. Pigou, who had argued that the imposition of pollution taxes would maximize the value of production. Coase showed that Pigou was wrong. Specifically, Coase demonstrated that if one assumes transaction costs are zero – as Pigou had – the initial allocation of the entitlement is irrelevant. Coase then went on to show that if one accounts for transaction costs (as Coase urged economists to do) then Pigou’s claim that pollution taxes increase the value of production depends on the particulars of a specific case. In any event, Coase’s aim was to challenge Pigou’s claims about the sorts of policies that would enhance social welfare, not make broader claims about what sorts of policies are desirable, let alone constitutional. Coase’s analysis also has absolutely nothing to say about whether one policy instrument, such as the mandate, is more or less consistent with constitutional constraints than other policy instruments that could produce the same effect, let alone whether a given view of federal power is consistent with the constitutional design. Further, Coase would urge any analysis of this question to engage in a serious comparative analysis that accounts for relevant facts — such as who pays for emergency visits now and how this will actually change under the PPACA and so on — facts of the sort Cave and Elhauge completely ignore.

Coase’s argument was expressly confined to the welfare economics paradigm he was challenging. Yet, as Coase readily acknowledged, most questions of public policy implicate normative questions well beyond what policy is more or less efficient. At the close of his essay Coase explicitly called for the policy debate to be “carried out in broader terms,” recognizing that in such a debate questions of welfare economics would “dissolve into a study of aesthetics and morals.” If Cave and Elhauge want to make the case for the mandate on these terms, all the better, but they should not pretend Coase has anything to do with it, nor claim that “The Problem of Social Cost” somehow shows the mandate is constitutional.

These incidents appear to be only the latest and most extreme examples of efforts to silence political and ideological opponents by any means necessary. Comments Jim Geraghty:

Notions like “SWATing” feel like a dangerous escalation of already excessive expressions of ideological rage; once the genie is out of the bottle, then every extremist who feels the ends justify the means will use the tactic against those they hope to harass (or worse). The options for police are truly grim; must they become skeptical or wary about 911 calls describing violent situations?

The only real solution is to catch the perpetrators and prosecute them to the fullest extent of the law. If I were a prosecutor, and some malcontent was manipulating my city’s police force to be their own tool for harassment, I’d be hell-bent on finding the persons responsible.

One thing I do not comprehend about either story is the apparent reticence of local authorities. I would think local law enforcement would move heaven and earth to uncover who sicced SWAT on Patterico’s home and it is unconscionable the local authorities in Montgomery County, Maryland would sit by and allow the continued abuse of legal process that has victimized Worthing.

UPDATE: RAdley Balko comments:

Dear God. I hadn’t been following all of this. Patterico and I have had some heated, downright ugly exchanges in the past, but let’s be clear on this: What’s happening to him right now is terrifying. It’s an attempt to terrorize political opponents into silence.

A couple commenters here have suggested there’s some sort of lesson in all of this about SWAT teams or police or something or other.

No. There are no lessons here. The sociopaths who are harassing Patterico and the other bloggers involved need to be arrested and charged with about a dozen different crimes.

Congress violated constitutional standards on legalized bigotry when it denied federal benefits from same-sex spouses and excluded domestic partners of state employees from long-term health coverage, a federal judge ruled Thursday.

The decision by U.S. District Judge Claudia Wilken of Oakland was the second by a Bay Area judge this year to strike down the Defense of Marriage Act, the 1996 law withholding more than 1,000 federal benefits – such as joint tax filing, Social Security survivor payments and immigration sponsorship – from gays and lesbians legally married under state law.

Wilken also overturned another 1996 law that denied federal tax benefits to long-term health insurance plans for state employees if they included domestic partners.

Specifically, the court found that Section 3 of DOMA “violates the equal protection rights of . . . same-sex spouses.” The opinion is available here.

Civility and respect for order – nay, demand for order – have always been tenets of conservatism. The most prominent work of history’s most prominent conservative, Edmund Burke, was a reaction to the anger and hatred that swept France during the revolution. It would eventually rip the country apart and plunge all of Europe into decades of war. Such is the rotted fruit of mass-produced hate and rage. Burke, not incidentally, was a true Tea Party supporter, risking everything as a member of Parliament to support the rebellion in the United States.

All of today’s right-wing darlings got there by mastering what Burke feared most: screaming “J’accuse! J’accuse!” Turning people against each other. Taking seeds of fear, anger and hatred and planting them to grow a new crop.

That the other side may or may not have done it first is no excuse. If civility and tolerance are virtues — and I believe they are — than one should be civil and tolerant, without regard to what one’s opponents do. More Fumento:

Incivility is hardly the domain of the new right. American society grows ever coarser. But this is cold comfort. Conservative ideology demands civility of conservatives; demands, yes, self-policing. Let others act as they will, bearing evidence of the shallowness of their positions. It also demands respect for official offices, such as the presidency. When our guy is in office, you give him that modicum of respect – and when your guy is in office, we do the same. The other party is to be referred to as “the loyal opposition,” not with words the FCC forbids on the air.

Fumento also suggests this approach can get in the way of meaningful reforms, and I think he has a point here too.

The new right cannot advance a conservative agenda precisely because, other than a few small holdouts like the American Conservative magazine or that battleship that refuses to become a museum, George Will, it is not itself conservative. Pod people are running the show. It has no such capability; no such desire. I find that disturbing for obvious reasons. But, based on my own conversations with liberals, I think – nay, I know – that if more of these allegedly godless, treasonous people understood real conservatism a lot would embrace many conservative positions.

Thus everybody realizes government spending has lost its airbrakes. But while the new right screams the most about big government, it nonetheless supported President George W. Bush as he presided over the largest expansion of government spending since uber-liberal FDR and left us with a massive debt before President Obama was sworn in. Why? Silly rabbit! Because the left opposed him.

It is often said that politics is the art of the possible. The problem with too many politicians is not that they compromise, but that they have no principles to guide them. The American political system is structured to make dramatic change extremely difficult. Major reforms take time, and must often be achieved step by step. Blind ideological rigidity, such as to an anti-tax pledge that would prevent Congress from repealing ethanol subsidies, is no help, and is certainly not conservative. This is not a call for moderation, but for prudence. One can seek dramatic, even revolutionary, changes in the size and scope of government without resort to the tactics Fumento finds so distasteful.

In apparent panic at the tenor of the Supreme Court argument over the constitutionality of the Affordable Care Act (aka ObamaCare), liberal law professors have exploded with anticipatory denunciations of the court’s conservative justices—claiming that it would be “hypocritical” and “partisan” of them to invalidate legislation passed by Congress when they generally oppose “judicial activism.”

It appears the professors’ idea of sound jurisprudence is that their favored justices are free to invalidate statutes that offend their sensibilities whether or not the words of the Constitution have anything to say on the matter, as in the case of same-sex marriage or partial-birth abortion, and even if the Constitution seems to endorse it, as in capital punishment. But if conservative justices have the temerity to enforce actual limits on government power stated in Article I, Section 8—over liberal dissents—then they are acting as shameless partisans.

It seems unlikely this one-sided definition of “activism” will persuade anyone. Judicial review might be aggressive and it might be deferential, but there cannot be one set of rules for liberal justices and another set for conservatives.

His brief piece goes on to explain how the argument against the mandate is grounded in the bedrock constitutional principle that ours is a federal government of limited and enumerated powers — and that the enumeration of certain powers presupposes powers not enumerated. Opponents have argued that the mandate transgresses the limits of federal power (not, as critics have claimed, that the mandate violates any independent limitation on federal power, such as due process or any enumerated rights). Supporters of the mandate, on the other hand, have failed to offer any principled constitutional theory that would allow for the Court to uphold the mandate without giving Congress a blank check. This failing is what doomed the Gun Free School Zones Act in United States v. Lopez, and it’s what has placed the mandate in jeopardy as well. The Solicitor General and others have tried to explain why health care is “different” but none of these arguments are “grounded in any principle based in constitutional text, history or theory.”

In somewhat related news, Exorcist author William Peter Blatty is suing Georgetown University in Catholic court alleging the school has abandoned its Catholic faith and violating church teaching. According to this report, the “last straw” was Georgetown’s invitation to HHS Secretary Kathleen Sebelius to address graduating students.

there is a bit of a rub for Google, some scholars say. The kind of reasoning Mr. Volokh uses in his paper could come into conflict with one of Google’s policy priorities — the so-called net neutrality rules that call for everyone to get equal treatment on the Internet.

Since Google is not connecting users to the Internet, it is vital for its business that the companies that provide access to the Internet do not play favorites. Yet, if those providers could somehow qualify for First Amendment protection, then the government would have a harder time mandating “net neutrality.”

Mr. Volokh never mentions net neutrality in the paper, but a Duke law professor, Stuart M. Benjamin, who has written an academic paper casting doubt on First Amendment protection for mere transmitters of information like Internet service providers, said he saw a clear connection.

Mr. Benjamin said an Internet provider like Comcast, for example, could offer “a family friendly Web,” which would filter out content considered inappropriate for children; by doing so, “they have now gone to protected speech.”

But he also suggested there was a potential for Mr. Volokh’s reasoning to extend First Amendment protections to transmitters that do even less — for example, those that simply provide faster speeds to companies that pay more money. That is the kind of behavior net neutrality rules are meant to prevent.

The more the First Amendment is applied to how information is transmitted via the Internet, Mr. Benjamin said, the harder it is to regulate. “Whether that is a good or bad thing depends on your political perspective,” he said.

Thus far, the Roberts Court has stood pat on standing, neither raising nor lowering the hurdles to Article III standing. In this case, it will be interesting to see whether this trend continues.

Orin also blogged on this case here and here.

UPDATE: Speaking of asset forfeiture abuse, George Will had a column last week on another disturbing case.

SECOND UPDATE: Given Ilya’s post above, I thought I’d add a slight clarification. When I wrote that asset forfeiture is “constitutional” as currently practiced, I meant this as shorthand for “constitutional under existing Supreme Court doctrine.” Like Ilya, I am quite sympathetic to the dissenters in Bennis v. Michigan, and suspect much civil asset forfeiture would transgress a proper application of the due process clause, though I have not delved sufficiently deeply into this area to have a more fully-formed view on the limits the due process clause places on asset forfeiture. That many current practices are outrageous does not necessarily mean that they are unconstitutional.

: In Northwest Austin Municipal Utility District No. One v. Holder, 129 S. Ct. 2504 (2009), the Supreme Court raised serious questions about the continued constitutionality of section 5 of the Voting Rights Act of 1965. Section 5 prohibits certain “covered jurisdictions” from making any change in their voting procedures without first demonstrating to either the Attorney General or a three-judge district court in Washington that the change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.” 42 U.S.C. § 1973c(a). The Supreme Court warned that the burdens imposed by section 5 may no longer be justified by current needs and that its geographic coverage may no longer sufficiently relate to the problem it targets. Although the Court had no occasion to resolve these questions, they are now squarely before us. Shelby County, Alabama, a covered jurisdiction, contends that when Congress reauthorized section 5 in 2006, it exceeded its enumerated powers. The district court disagreed and granted summary judgment for the Attorney General. For the reasons set forth in this opinion, we affirm.

Senior Judge Williams dissented. His opinion begins:

Section 5 of the Voting Rights Act imposes rather extraordinary burdens on “covered” jurisdictions—nine states (and every jurisdiction therein), plus a host of jurisdictions scattered through several other states. See Voting Section, U.S. Dep’t of Justice, Section 5 Covered Jurisdictions, http://www.justice.gov/crt/about/vot/sec_5/covered.php (last visited May 9, 2012) (listing the covered jurisdictions). Unless and until released from coverage (a process discussed below), each of these jurisdictions must seek the Justice Department’s approval for every contemplated change in election procedures, however trivial. See 42 U.S.C. § 1973c. Alternatively, it can seek approval from a three-judge district court in the District of Columbia. See id. Below I’ll address the criteria by which the Department and courts assess these proposals; for now, suffice it to say that the act not only switches the burden of proof to the supplicant jurisdiction, but also applies substantive standards quite different from those governing the rest of the nation.

Section 4(b) of the act states two criteria by which jurisdictions are chosen for this special treatment: whether a jurisdiction had (1) a “test or device” restricting the opportunity to register or vote and (2) a voter registration or turnout rate below 50%. See 42 U.S.C. § 1973b(b). But § 4(b) specifies that the elections for which these two criteria are measured must be ones that took place several decades ago. The freshest, most recent data relate to conditions in November 1972—34 years before Congress extended the act for another 25 years (and thus 59 years before the extension’s scheduled expiration). See id. The oldest data—and a jurisdiction included because of the oldest data is every bit as covered as one condemned under the newest—are another eight years older. See id.

Of course sometimes a skilled dart-thrower can hit the bull’s eye throwing a dart backwards over his shoulder. As I will try to show below, Congress hasn’t proven so adept. Whether the criteria are viewed in absolute terms (are they adequate in themselves to justify the extraordinary burdens of § 5?) or in relative ones (do they draw a rational line between covered and uncovered jurisdictions?), they seem to me defective. They are not, in my view, “congruent and proportional,” as required by controlling Supreme Court precedent. My colleagues find they are. I dissent.

Next stop, the Supreme Court.

White finds Toobin’s account “preposterous.” As White notes, the day before the argument the NYT editorial page inveighed against the “wide array” of “sweeping” and “dangerous” claims made by Citizens United. Likewise SCOTUSBlog’s Lyle Denniston noted CU was asking the Court for “a sweeping rejection of congressional authority to regulate campaign spendingby corporations.” A CNN analyst named Jeffrey Toobin made the same point, opining the day of the oral argument that CU has “a pretty good case” and that the Court could “either say you have to come up with another way to regulate or this kind of regulation is simply unconstitutional.”

According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters – even when the quorum is constituted electronically. In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold that the challenged rule is invalid.

On December 22, 2011, the National Labor Relations Board published a rule that amended the procedures for determining whether a majority of employees wish to be represented by a labor organization for purposes of collective bargaining. Two of the Board’s three members voted in favor of adopting the final rule. The third member of the Board, Brian Hayes, did not cast a vote. Because Hayes had previously voted against initiating the rulemaking and against proceeding with the drafting and publication of the final rule, the Board nevertheless determined that he had “effectively indicated his opposition.”

In this suit, Plaintiffs – the Chamber of Commerce of the United States of America and the Coalition for a Democratic Workforce – challenge the final rule on myriad grounds. The Court, however, reaches only their first contention: that the rule was adopted without the statutorily required quorum. Absent limited circumstances not present here, the Board must muster a quorum of three members in order to act. Because Member Hayes did not participate in the decision to adopt the final rule, Plaintiffs argue, the other two members of the Board lacked the authority to effect its promulgation. The NLRB, on the other hand, maintains that all three members participated in the rulemaking in the relevant sense and, accordingly, that the quorum requirement was satisfied. The agency has now filed a Motion for Summary Judgment and an Alternative Partial Motion to Dismiss, and Plaintiffs have filed a Motion for Summary Judgment.

Plaintiffs are correct. Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough. Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up. At the end of the day, while the Court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle. Regardless of whether the final rule otherwise complies with the Constitution and the governing statute – let alone whether the amendments it contains are desirable from a policy perspective – the Board lacked the authority to issue it, and, therefore, it cannot stand. The Court, consequently, will grant Plaintiffs’ Motion and deny Defendant’s.

What makes this decision particularly interesting is the procedural posture of the case, the appeal of a denial of a writ of habeas corpus, as the Sixth often splits along ideological lines in habeas cases. Here, however, the judges did not split along traditional ideological lines. Chief Judge Alice Batchelder delivered the opinion of the court denying habeas relief with an opinion for a seven judge plurality. Judges Boggs, Gibbons, Sutton, Cook, McKeague, and Griffin joinedthe Chief Judge. Judge Moore concurred in the judgment only, joined by Cole and Clay, as did Judge White. Judge Kethledge dissented, joined by Judges Martin, Norris, Rogers and Stranch.

Democrats have held conference calls and hosted activists from around the country to say the reason fewer federal judges have been confirmed during the last three years is clear: Republicans in the Senate have used their powers to stall most of the president’s nominees, even the noncontroversial ones.

But as a window appears to be closing at least temporarily to send any new judicial nominees to Capitol Hill, law professors and advocacy groups say Obama could have had more judges confirmed to the bench had he simply made more nominations over his first three-plus years in office.

Since Obama took office, he’s had a chance to make nominations for 241 federal judgeships. Some of them — 55 — were vacant slots held over from the Bush administration. Obama has nominated 188 judges, and the Senate has approved 147 of them. That leaves a current total of 94 vacancies — 77 vacant slots and 17 held by judges who have said they plan to retire. (The president can nominate a new judge before the position becomes vacant.)

At this point in their presidencies, George W. Bush had nominated 220 judges for 236 positions, and Bill Clinton had nominated 231 out of 260, according to a report by the Alliance for Justice, a left-leaning court advocacy group.

And despite filibuster threats and other behind-the-scenes delaying tactics, senators have confirmed Obama’s judicial picks at the same rate — roughly three out of four — as during the Clinton and Bush terms.

This is not a new observation, but it’s worth repeating. Without question Republicans have made it difficult to move judicial nominees, much as Democrats did when Presidents Bush and Bush were in the White House. Republicans have also resorted to the filibuster, prompting some on the other side to reconsider its use for judicial nominations. GOP opposition may have prompted more careful and extensive vetting and discouraged the naming of controversial nominees. In any event, obstruction of nominees is now the norm — and this norm is unlikely to change unless there is a pre-election deal, perhaps like the one I outlined here. Until such a deal can be made, judicial nominees will get slow-walked to the bench no matter which party is in charge.

Ezra Klein thinks Bondurant makes a “strong case.” I don’t, and I don’t think this suit will go anywhere. The first obstacle is standing. The failure of the Senate to pass a bill is not a legally cognizable injury, even if that bill appears to have majority support. The second obstacle is the political question doctrine. This obstacle is particularly large given that the Constitution expressly gives each house of Congress the power to set its own rules, so there is a textual commitment of this question to a coordinate branch. All of the cases upon which Bondurant relies to establish justiciability involved challenges to legislation or other acts that passed Congress and altered pre-existing rights and obligations, so they offer little support for Common Cause’s claims. Even were a court to get beyond these justiciability concerns, the suit would likely fail on the merits. If the Constitution authorizes the Senate to set its own rules, there’s no reason why the Senate cannot opt to include supermajority rules in its procedures.

The problems with this legal challenge are further magnified by Common Cause’s decision to challenge the use of the filibuster to block substantive legislation. The argument that the use of filibusters violates some unstated-albeit-enforceable constitutional norm is stronger with regard to items on the executive calendar (such as nominations) than it is with legislation. One could argue that the Senate’s obligation to “advise and consent” presumes an obligation to act — specifically, an obligation to hold an up-or-down vote — and that the filibuster prevents the Senate from fulfilling this duty. It is much harder to argue that the Senate must hold follow rules that allow for substantive votes on legislation. While it’s likely a challenge to nomination filibusters would also be found non-justiciable, it is more plausible than the claim Common Cause filed.

I’m sympathetic to the view that the filibuster is overused, particularly for nominations, but quite skeptical of any lawsuit claiming the filibuster is unconstitutional.

UPDATE: Common Cause’s Bob Edgar explains the suit here. Ian Millhiser likes the argument but doesn’t think the suit is justiciable. Gergory Koger is more circumspect.

Regulators, politicians and news reporters are hysterical at the news of J.P. Morgan’s recent $2 billion trading loss. The Securities and Exchange Commission is investigating to see whether laws were broken.

We appear to be on the verge of making it a crime for a business to lose money. The truth is that nobody should care about J.P. Morgan’s loss—nobody except J.P. Morgan stockholders and a few top executives and traders who will lose their bonuses or their jobs in the wake of this teapot tempest. The three executives with the closest ties to the losses are already out the door.

After the $2 billion in losses, J.P. Morgan still had $127 billion in equity. This means that J.P. Morgan could lose another $100 billion and creditors would still have an equity cushion that could absorb 10 times the losses that the bank suffered on this trade. The trading loss wasn’t close to apocalyptic even for shareholders. J.P. Morgan’s shares dropped 9.28% in the wake of the loss. A shareholder with a $100,000 investment in J.P. Morgan would see the value of his investment reduced to $90,720, hardly a financial Chernobyl.

The $2 billion loss also resulted from trades designed to hedge against the threat of even bigger losses. Macey also explains why JP Morgan’s loss is not a justification for additional government regulation.

The real lesson of what J.P. Morgan CEO Jamie Dimon has called the bank’s “egregious failure” in risk management is that hedging is far more difficult to do in real life than it appears to be in theory—because the real world is a complicated place. The trades that J.P. Morgan made were extremely complex, and it certainly appears that they did not work the way that they were supposed to. But the reason that markets work better than central planning is because market participants learn from experience, and they learn fast and thoroughly because they suffer significant losses when their investments, whether they be hedges or not, turn out badly.

Thus, far from serving as a pretext to justify still more regulation of providers of capital, J.P. Morgan’s losses should be treated as further proof that markets work. J.P. Morgan and its competitors will learn from this experience and do a better job of hedging the next time. They will learn because they have to: In the long run their survival depends on it. And in the short run their jobs and bonuses depend on it.

The heart of Toobin’s article tells the story of how Citizens United metastasized from a narrow case about the application of federal campaign finance law to an obscure conservative documentary to a significant decision vindicating the First Amendment rights of corporations. As Toobin tells the tale, after the case was first argued Chief Justice Roberts drafted a narrow opinion that would have held for Citizens United on statutory grounds, but leaving the statutory regime intact. The vote would still have been 5-4, but it would have been a far less significant case. Justice Kennedy was not happy with this result, however, and authored a concurrence calling for a broader holding that would rest on First Amendment grounds. Kennedy’s concurrence apparently swayed enough of the court’s conservatives that Roberts initially acquiesced. Such a broad ruling would be improper, the court’s liberals complained, as the broader First Amendment questions had not been briefed and were not properly before the Court. Yet as there was no interest in a narrower holding, the Court ordered a reargument with supplemental briefing that would place the First Amendment question front and center.

Toobin dwells on Justice Stevens’ complaint that the Court’s broad holding in Citizens United was unnecesary, as the Court could have held for the petitioners on narrower, statutory grounds. Yet as Toobin’s own reporting confirms, no one other than Chief Justice Roberts had any interest in resolving the case on such grounds. Even when the case was first argued, not a single liberal justice was prepared to side with Citizens United, in no small part because the statutory argument was so weak.

Toobin criticizes the Deputy Solicitor General Malcolm Stewart for a concession at the first oral argument that may have sealed the government’s fate.

Since McCain-Feingold forbade the broadcast of “electronic communications” shortly before elections, this was a case about movies and television commercials. What else might the law regulate? “Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?” Alito said. Could the law limit a corporation from “providing the same thing in a book? Would the Constitution permit the restriction of all those as well?”

Yes, Stewart said: “Those could have been applied to additional media as well.”

The Justices leaned forward. It was one thing for the government to regulate television commercials. That had been done for years. But a book? Could the government regulate the content of a book?

“That’s pretty incredible,” Alito responded. “You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?”

“I’m not saying it could be banned,” Stewart replied, trying to recover. “I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its—” But clearly Stewart was saying that Citizens United, or any company or nonprofit like it, could not publish a partisan book during a Presidential campaign. . . .

Stewart was wrong. Congress could not ban a book. McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment.

Yet here it is Toobin who is wrong, not Stewart. The statutory provision at issue was limited to broadcast, cable and satellite communications, and the film at issue was to be shown as a cable on-demand program, but the government never sought to defend the law on the basis that it was limited to electronic media. After all, the point of the was to limit the role of money in campaigns, not limit television advertising. The position the government was defending was that Congress could limit corporate expenditures related to campaigns, not that it could regulate TV. Under this theory, a corporate-funded book with impermissible campaign-related content would receive no more First Amendment protection than a corporate-funded video or film, just as Stewart said. If this is an incredible proposition, that says more about the position the government sought to advance than it does Stewart’s oral argument. Campaign finance activist Fred Wertheimer made the same concession when pressed by the NYT. It’s true that Solicitor General Elena Kagan would back away from this position when it was her turn to argue the case at the second oral argument, but not without first acknowledging that the statute’s language could apply to “full-length books” and that there would, in the government’s view, be no problem with banning corporate-funded pamphlets.

Like many of the decision’s critics, Toobin suggests Citizens United is best seen as the product of the “aggressive conservative judicial activism” of Chief Justice Roberts and the court’s conservative majority.

Citizens United is a distinctive product of the Roberts Court. The decision followed a lengthy and bitter behind-the-scenes struggle among the Justices that produced both secret unpublished opinions and a rare reargument of a case. The case, too, reflects the aggressive conservative judicial activism of the Roberts Court. It was once liberals who were associated with using the courts to overturn the work of the democratically elected branches of government, but the current Court has matched contempt for Congress with a disdain for many of the Court’s own precedents. When the Court announced its final ruling on Citizens United, on January 21, 2010, the vote was five to four and the majority opinion was written by Anthony Kennedy. Above all, though, the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.

As Toobin tells the tale, Citizens United is emblematic of the current Court’s assault on precedent and the prerogatives of the political branches. It’s a nice story, but it’s not true. “Judicial activism” is a notoriously malleable charge, but if “judicial activism” is shorthand for striking down federal statutes and overturning judicial precedents, the Roberts Court is the least “activist” court of the post-war period. As a New York Times analysis showed, the Roberts Court strikes down statutes and overturns Court precedents at a slower rate than any of is post-war predecessors, and it’s not even close. “Activism” is also a peculiar charge to make about this case, as the dissenting justices were just as reluctant to embrace a narrow statutory holding and were just as willing to overturn precedent as those in the majority. They just sought to move the law in the opposite direction. If Citizens United is supposed to be evidence of unprecedented “activism,” it’s not clear what “activism” means.

The most interesting parts of Toobin’s article are those that disclose how Citizens United was handled inside the Court. This is great stuff, and testament to Toobin’s skill as a reporter, but I still have some misgivings. We don’t know the identities of Toobin’s sources, and some of his claims are difficult to check. His story may reflect how some justices or clerks saw the case, but there may well be another side, and we won’t know until such time as the relevant court documents are released. I also cannot help but wonder whether some of Toobin’s sources, such as former Supreme Court clerks, may have violated their own ethical obligations in disclosing portions of the Court’s internal deliberations. Even if Toobin’s sources were sitting or former justices, there is something unseemly about the selective disclosure of what went on inside the Court on such a recent case.

In any event, the article is still worth reading — as I am sure Toobin’s book will be as well. Some portions will just go down better with a healthy dose of salt.

UPDATE: Tom Goldstein has a similar reaction to Toobin’s narrative about Chief Justice Roberts:

The theme of the piece is that Chief Justice Roberts orchestrated the case’s metamorphosis from a narrow ruling about statutory construction to a much broader constitutional decision with sweeping implications for campaign finance.

I should disclose that I am naturally inclined towards that reading of the history. I think that the Chief Justice is quite conservative and a brilliant tactician, including in undoing significant pieces of the legacy of the Court’s O’Connor era. I also disagree with the Citizens United decision.

But despite that, while the article is a fascinating and full accounting of the case and the background of the Court’s rapid movement to the right, the facts reported by Toobin don’t seem to support his conclusions about the Chief Justice.

UPDATE: Kissinger told James Taranto there was “nothing untoward” about his search and that the patdown was necessary because of his leg brace.

Plaintiff-appellant Electronic Privacy Information Center (“EPIC”) filed a Freedom of
Information Act (“FOIA”) request with the National Security Agency (“NSA”) seeking disclosure of any communications between NSA and Google, Inc regarding encryption and cyber security. NSA issued a Glomar response pursuant to FOIA Exemption 3, indicating that it could neither confirm nor deny the existence of any responsive records. EPIC challenged NSA’s Glomar response in the district court, and the parties cross-moved for summary judgment. The district court entered judgment for NSA, and EPIC appealed. We affirm.

UPDATE: BLT reports on the case here.

The problem with the President’s position is that it cannot be reconciled with the Administration’s stance on the constitutionality of the Defense of Marriage Act. According to Attorney General Eric Holder, he and the President concluded that the constitutionality of legal distinctions based upon sexual preference cannot be defended. In their view, because DOMA precludes federal recognition of same-sex marriages, it violates the constitutional guarantee of equal protection under the Fifth Amendment. Further, according to Holder’s statement, they concluded that no “reasonable” constitutional argument could be made in DOMA’s defense. Yet if DOMA is unconstitutional under equal protection, which applies to the state and federal governments equally, then how could any state law barring recognition of same-sex marriages survive constitutional scrutiny? In other words, while the President says he believes that states should be allowed to reach “different conclusions at different times” on the question of same-sex marriage, the administration’s legal position is that a state’s refusal to treat opposite-sex and same-sex couples alike is unconstitutional. So while the President may say he’d like to leave this question to the states, that’s an option his administration has already taken off the table.

[NOTE: Edited the post to make clear that equal protectioon is guaranteed as against the federal government through the Fifth Amendment and as against the states through the 14th Amendment, but the standard is the same.]

UPDATE: Here’s the full ABC transcript, in which the President suggests he was also influenced by a concern that DOMA federalizes a traditional state concern. Lyle Denniston comments here, suggesting the President’s legal position does not threaten state laws. Calvin Massey disagrees here. Massey is right.

The official statements from the Justice Department do not raise any federalism concerns and rest the conclusion that DOMA is unconstitutional (and that no reasonable arguments may be made in its defense) on the basis that distinctions based on sexual preference are subject to intermediate scrutiny, that there are no important government interests in maintaining a traditional definition of marriage, and that animus may have contributed to DOMA’s passage. While there are other arguments that could challenge DOMA without threatening state laws (such as those suggested by Will Baude), the Adminsitration’s arguments, were they to prevail against DOMA, would be the death knell for state laws as well. If a federal law supported by Senators Biden, Dodd, Reid and Wellstone — and signed into law by President Clinton — were impermissibly tainted by anti-gay animus, it’s hard to see how state laws barring same-sex marriage would not be as well.

Yet whatever his faults, James Hansen’s central climate policy recommendation is a sound one. For years he has called for a simple and straightforward approach: A revenue-neutral carbon tax and an end to fossil energy subsidies. As he writes in today’s NT:

We need to start reducing emissions significantly, not create new ways to increase them. We should impose a gradually rising carbon fee, collected from fossil fuel companies, then distribute 100 percent of the collections to all Americans on a per-capita basis every month. The government would not get a penny. This market-based approach would stimulate innovation, jobs and economic growth, avoid enlarging government or having it pick winners or losers. Most Americans, except the heaviest energy users, would get more back than they paid in increased prices. Not only that, the reduction in oil use resulting from the carbon price would be nearly six times as great as the oil supply from the proposed pipeline from Canada, rendering the pipeline superfluous, according to economic models driven by a slowly rising carbon price.

But instead of placing a rising fee on carbon emissions to make fossil fuels pay their true costs, leveling the energy playing field, the world’s governments are forcing the public to subsidize fossil fuels with hundreds of billions of dollars per year. This encourages a frantic stampede to extract every fossil fuel through mountaintop removal, longwall mining, hydraulic fracturing, tar sands and tar shale extraction, and deep ocean and Arctic drilling.

This is the sort of policy that could reduce greenhouse gas emissions and provide incentives for innovation (particularly if combined with things like prizes) without requiring the erection of a vast new bureaucracy or imposing substantial new burdens on the economy.

Conservatives have called for shifting the tax burden from labor and wealth creation to consumption, and that is precisely what Hansen’s proposal would do. Further, as shown by the experience of other jurisdictions, implementing a carbon tax of this sort is far less complicated than trying to erect a Waxman-Markey-type cap-and-trade scheme. A basic carbon tax would also be less susceptible (on the margin) to special interest rent-seeking than a cap-and-trade scheme, particularly if emissions allowances are to be doled out to reduce the economic impact of the regime. For a variety of reasons, excise taxes tend not to be carved up by interest groups the way income tax schemes are.

I’ve also argued that a revenue-neutral carbon tax would be easier — or at least no less difficult — to enact than a cap-and-trade scheme. Both involve increasing the cost of energy, but the revenue-neutral carbon tax would do so in a simpler, less-regressive, more transparent, and less economically burdensome way, and could not be characterized (a la Waxman-Markey) as implementing expansive government control over the energy sector for the benefit of special interests. Of course, we won’t know whether this is true until political leaders have the guts to push for this sort of policy.

I wish that environmental activists would follow Hansen’s lead (rather than, say, Krugman’s) and embrace this approach as a superior alternative to increased regulation or Waxman-Markey-style cap-and-trade. Alas, many Greens seem more interested in expanding government power than reducing greenhouse gas emissions. I also wish more forward-looking Republican leaders would embrace this sort of policy and recognize how it’s consistent with limited government principles. Alas, few on the right take environmental policy seriously enough to do more than bash bureaucrats. So I guess I’ll be wishing for awhile.

The Justice Department last month told the Court that it had provided faulty information in that case about U.S. immigration policy, but it suggested that the Court need not do anything about it. Now, however, a group of immigrants’ rights lawyers have asked the Court to actually modify the opinion after the fact, so that lower courts do not rely upon the error, with a negative impact on immigrants’ rights.

The Court has formally accepted the Justice Department’s letter expressing regret over the development, as well as the lawyers’ letter filed last Friday asking for a change in the ruling. That letter, though, was not filed for a party in the case — the immigrant Jean Marc Nken or the federal government — but rather on behalf of several immigrants’ rights groups who took part in the Nken case three years ago as amici — not a direct role. The Department has already made clear it sees no need for a modification, and Nken may have no reason to seek it, since in the meantime he has been granted asylum to stay in the U.S.

When a factual error upon which the Court had relied in Kennedy v. Louisiana was disclosed, and both the SG’s office and Louisiana sought rehearing, the Court altered the wording of its opinion, but not the result. with Nken, on the other hand, the time for rehearing has passed, but the consequences of the Court’s error may be significant.

for the immigrants’ rights lawyers, they have told the Court that this is not just a matter of procedural inconvenience or nicety. Various lower courts have relied upon the incorrect statement in the Court’s Nken opinion to deny an immigrant’s plea to remain in the U.S. until that individual has a chance to challenge deportation in court, they said. Moreover, the attorneys’ letter said, there is reason to doubt even the Justice Department’s assurances to the Court that the government now has a policy that it will allow a deported non-citizen to return to the U.S. if he or she wins a challenge to being sent away. “There is still substantial agency discretion” about that outcome, the letter argued.

What’s more, the letter said, the government can give no assurance that, in the future, some other administration may rely on what the Court had said in Nken about the right of return, and thus feel justified in refusing a non-citizen’s re-entry. The government, it added, has made no commitment “to a permanent, legally binding policy.”

It will be interesting to see how the Court responds.

Justice Hugo Black once wrote, “I was brought up to believe that Scotch whisky would need a tax preference to survive in competition with Kentucky bourbon.” Dep’t of Revenue v. James B. Beam Distilling Co., 377 U.S. 341, 348-49 (1964) (Black, J., dissenting). While there may be some truth to Justice Black’s statement that paints Kentucky bourbon as such an economic force that its competitors need government protection or preference to compete with it, it does not mean a Kentucky bourbon distiller may not also avail itself of our laws to protect its assets. This brings us to the question before us today: whether the bourbon producer Maker’s Mark Distillery, Inc.’s registered trademark consisting of its signature trade dress element—a red dripping wax seal—is due protection, in the form of an injunction, from a similar trade dress element on Casa Cuervo, S.A. de C.V.’s Reserva de la Familia tequila bottles. We hold that it is. The judgments of the district court in this trademark infringement case are AFFIRMED.

Then, earlier this year, Heartland was the target of directed smear campaign after the Pacific Institute’s Peter Gleick surreptitiously obtained internal Heartland documents by impersonating a board member. Gleick anonymously distributed the purloined documents together with a forged memorandum purporting to provide further evidence of Heartland’s internal dealings. Progressive bloggers trumpeted the materials, and the forged memo in particular, as evidence of Heartland’s sinister machinations. While it seems likely that Gleick himself forged the memo (or knows who did) Heartland may have difficulty seeking legal redress for his actions. I posted on what some call “Fakegate” here and here.

Instead of trying to retain the moral high ground by defending the substance of its views, Heartland took adopted the tactics of its most unhinged critics, purchasing a billboard comparing those who believe in global warming to the Unabomber. According to Heartland, this was to be the first in a series featuring famous “global warming alarmists,” including Osama Bin Laden, Fidel Castro and other “rogues and villians.” Heartland explained the campaign this way:

what these murderers and madmen have said differs very little from what spokespersons for the United Nations, journalists for the “mainstream” media, and liberal politicians say about global warming. They are so similar, in fact, that a Web site has a quiz that asks if you can tell the difference between what Ted Kaczynski, the Unabomber, wrote in his “Manifesto” and what Al Gore wrote in his book, Earth in the Balance.

The point is that believing in global warming is not “mainstream,” smart, or sophisticated. In fact, it is just the opposite of those things. Still believing in man-made global warming – after all the scientific discoveries and revelations that point against this theory – is more than a little nutty. In fact, some really crazy people use it to justify immoral and frightening behavior.

The response to this ad was quite negative from friend and foe alike, prompting Heartland to pull the ad within 24 hours. Heartland now claims the billboard was an “experiment.”

“This provocative billboard was always intended to be an experiment. And after just 24 hours the results are in: It got people’s attention.

“This billboard was deliberately provocative, an attempt to turn the tables on the climate alarmists by using their own tactics but with the opposite message. We found it interesting that the ad seemed to evoke reactions more passionate than when leading alarmists compare climate realists to Nazis or declare they are imposing on our children a mass death sentence. We leave it to others to determine why that is so.

Well lots of folks didn’t get the joke, including many of Heartlands friends and funders. Several speakers have withdrawn from Heartland’s annual climate conference, including Rep. James Sensenbrenner and IPCC critic Donna Laframboise. (More reactions here and here.) E&E News also reports the publicity stunt is costing Heartland financial support, and could prompt staff departures too.

Even if the billboard was initially designed as an “experiment,” it was a stupid idea. The implicit argument of the billboards is completely unjustifiable. So what if some tyrants and whackjobs believe in global warming. This is like arguing someone should eat meat because Hitler was a vegetarian. Lots of evil, crazy, and stupid people believe plenty of sensible things (and lots of brilliant people have embraced nutty ideas). Heartland’s justifiable anger at the vitriol spewed by its most extreme or unhinged opponents does not justify sinking to their level. If the folks at Heartland believe there is a double-standard — and I believe there is, even though I also believe anthropogenic global warming is a real problem — then they should explain why. There’s no need to provoke and offend countless commuters and others by suggesting that a believing in global warming makes one like the Unabomber. It was a know-nothing message, and not just because most so-called “skeptics” actually believe in global warming too, and only reject apocalyptic climate projections. I expect this sort of stunt from extreme animal rights groups, not those who purport to want an open and honest scientific debate. However angry the Heartland folks may be with some of those on the other side, this stunt was unjustified and unwise — and by all accounts it looks like it will cost Heartland dearly.

A senior federal investigator says he was denied access to a White House official and full email records as he tried to determine whether a BP oil spill report was intentionally edited to erroneously suggest outside experts supported the Obama administration’s deepwater drilling moratorium. The experts, in fact, did not endorse the moratorium the administration ordered after the 2010 spill. The White House and Department of Interior later said the mistake was inadvertent, a result of an early-morning edit that moved some material from the body of the report to the executive summary.

Although some e-mails were provided eventually, the IG’s office was never able to validate their authenticity or completeness, the investigator claims. He also alleges the White House did not allow the IG to interview a White House official involved in editing the report. An official in the IG’s office told the Times Picayune that his office “does not have authority to compel” White House cooperation with its investigation.

A former governor of New Mexico, he was re-elected by that state’s voters, left office popular after two terms, and therefore has the most executive experience of any Libertarian Party presidential nominee. He can also cite the state he ran as evidence that nothing radical happens when he’s put in charge. An economic conservative and social liberal, he represents a new direction for a party that has long wrestled with its paleo-libertarian wing. And yet he too is certain to lose on Election Day, as third-party candidates in American presidential elections do. The question is whether he can match his party’s 1980 high-water mark and win 1 percent or more of the vote, and whether he might win even more in the key swing state of New Mexico, where voters already know and have cast ballots for him.

The news just keeps getting worse — at least as far as financing a legal education goes.

Law School Transparency has recalculated its estimates of the debt that law students stand to incur after discovering that a number of schools had low-balled the cost-of-living figures that they provided to U.S. News & World Report. On average, schools underreported those expenses — upon which the organization pegged its initial estimates — by $5,000, according to the Law School Transparency’s executive director, Kyle McEntee.

Additionally, the organization made several mistakes in its handling of the U.S. News data, which contributed to the problems, he said.

Here is the post that led to this story.

It trenches on the federal government’s war powers and violates conditions under which Virginia and other states have received billions of dollars of federal funding. It has dangerous symbolic and practical consequences and undermines the cooperation necessary to disrupt and defeat al-Qaeda plots on our shores. . . .

The Virginia legislation, and similar legislation in other states, violate the U.S. Constitution. It has nothing to do with states’ rights. It is a dangerous mistake, perpetrated by groups and people who misunderstand detainee law, including the NDAA, or who, since Sept. 11, have viscerally opposed the laws-of-war paradigm. Whatever their motivations, they are wrong, and their efforts should be strongly opposed.

This is an odd argument. It’s black letter law that the federal government may not “commandeer” state officers to enforce or implement federal law. This is true without regard to the purpose of the requirement. If a particular federal policy is that important, the federal government can expend its own resources and direct its own officers to implement and enforce the law. This is true even if, as Rivkin and Stimson maintain, that Virginia’s legislation is premised upon mistaken assumptions about what federal law authorizes or requires.

Rivkin and Stimson imply that Virginia’s new law violates conditions imposed on funds Virginia willingly accepted from the federal government. Maybe so, but this does not make Virginia’s law unconstitutional. It just means Virginia may have to give up some federal funds, provided that the conditions were clear when Congress authorized and Virginia accepted the relevant funds. There is no general requirement that states enforce all federal policies just because they accept some federal funds. And just because a policy is enacted pursuant to the “war on terror” does not mean that states have to go along.