Archive | 2010

President to Recess Appoint James Cole as Deputy AG

The President today announced that he would recess appoint James M. Cole as Deputy Attorney General.  His nomination has been pending since May–reportedly the longest delay in confirming a DAG nominee in 30 years, but in the context of nominations in the last decade or so (some of which have dragged on for years), an all-too-typical delay.  A synopsis of the controversy over the Cole nomination here. The President also recess appointed ambassadors to Azerbaijan, the Czech Republic, Turkey, and Syria (the last was controversial because some complained it was rewarding Syria’s bad behavior by sending an ambassador; there has been no ambassador to Syria since 2005).  My favorite of the current crop is the recess appointment of William Boarman to be Public Printer of the United States, mainly because you’d think you could get a printer confirmed without a kerfuffle, but no. Get the skinny here.  Eventually the national security implications of not having a confirmed Public Printer are grave enough that it forces the President’s hand.  The appointments will last until the end of the next session of Congress. 

The Senate rose sine die on December 22, so these are intersession recess appointments. Whether they are intersession or intrasession appointments doesn’t make a material difference here, because the Senate is out for two weeks until January 5, an amount of time that traditionally has been considered (by the Executive Branch, at least) sufficient even to make intrasession recess appointments. The main significance of the inter/intra distinction is that once the Senate rises sine die there’s no question that the Senate is in recess and so everyone isn’t focused on whether the duration of Congress’s adjournment is sufficient that it is a “recess” for purposes of the Recess Appointments Clause. That and the fact [...]

Continue Reading 46

Ohio Supreme Court Upholds State Preemption of Local Gun Laws

“We hold that R.C. 9.68 [the preemption statute] is a general law that displaces municipal firearm ordinances and does not unconstitutionally infringe on municipal home rule authority.” City of Cleveland v. State. The court reversed the Ohio Court of Appeals’ decision striking down the law on state home rule and separation of powers grounds.

The Ohio Constitution provides that, “Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary, and other similar regulations, as are not in conflict with general laws.” The Ohio Supreme Court has held that, to be general, a statute must (among other things) “be part of a statewide and comprehensive legislative enactment.” The court of appeals held that the state preemption statute “is not comprehensive, because it leaves a ‘great deal of firearm activity unregulated.'” But the Ohio Supreme Court concluded — quite sensibly, in my view — that “A comprehensive enactment need not regulate every aspect of disputed conduct, nor must it regulate that conduct in a particularly invasive fashion.” “There is no requirement that a statute must be devoid of exceptions to remain statewide and comprehensive in effect” (quoting another case). Likewise, “the fact that some states have more regulations than Ohio does not warrant a conclusion that Ohio’s statutory scheme for regulating firearms is not comprehensive.”

The court of appeals also held that the law “violates the separation of powers [under the state constitution] by usurping judicial discretion in the award of attorney’s fees and costs,” and “invites unwarranted litigation and attempts to coerce municipalities into repealing or refusing to enforce longstanding local firearm regulations using the significant burden of financial litigation penalties.” As I blogged when the court of appeals decision was handed down, that can’t be [...]

Continue Reading 70

Death of a Deregulatory Democrat

Economist Alfred Kahn died this week at 93.  Kahn had a remakrable career as an academic, administrator, and government official.  A noted regulatory scholar, he served as Dean of the College of Arts and Sciences at Cornell and Chairman of the New York Public Service Commission.  In 1977, President Carter tapped Kahn to chair the Civil Aeronautics Board where he had a profound effect on the shape of the airline industry.  Though a liberal Democrat, Kahn oversaw deregulation of the airline industry and championed reforms that eventually shuttered the CAB.

Though air travel is often no picnic, and the  industry is more turbulent than it was in the days of price regulation, it’s much cheaper thanks to Kahn’s efforts.  By some estimates, airline deregulation saves consumers as much as $20 billion per year and helped democratize air travel.  Airfares have climbed of late but, as this WSJ editorial notes, “fares are still lower today in real terms than they were in the 1970s.”

Kahn leaves an important legacy that illustrates the pro-consumer side of deregulation. He understood that deregulation is often the best way to help the “little guy.”  Regulatory agencies may be erected to advance the public interest, but are often “captured” and serve incumbent firms instead.  Competition, on the other hand, can discipline industry participants and help protect consumers.  Kahn also counseled care in deregulatory efforts.  He discovered the devil is in the details, and that partial deregulation can be worse than staying put.  A “mixed system” of partial deregulation, he warned, can be the “worst of all possible worlds” — a lesson regulators and deregulators alike would do well to remember. [...]

Continue Reading 46

The Durbin Amendment Is Unconstitutional

So says Richard Epstein in today’s Washington Times. Richard argues that by depriving debit card issuers of a reasonable rate of return the Durbin Amendment capping debit card fees, as interpreted by the Federal Reserve, is unconstitutional.

In related news, Chase announced (even before the Fed announced its unexpectedly onerous price caps) that in response to the Durbin Amendment in Feb. 2011 it would start phasing out its rewards debit cards, imposing new fees on checking accounts, and scaling back on the availability of free checking.  In light of the Fed’s announcement that debit fees will be slashed much more than expected, consumers can expect to feel an even greater pinch with new bank fees and fewer bank services than was originally predicted. [...]

Continue Reading

The New York Times On Fire!

Not literally, of course. But coverage by New York Times reporters of the health care lawsuits and the Repeal Amendment has been extraordinarily fair and balanced. Here is an excellent story by Kevin Sack today on the Necessary & Proper Clause issues raised by the health care challenge. And here is a straight journalistic account of the Repeal Amendment by Kate Zernike.

Meanwhile, Monday on the editorial page, the New York Times editors opined on the wisdom of the Repeal Amendment:

With public attention focused on taxes, the deficit, gays in the military and nuclear arms reduction, little attention has been paid, so far, to the Tea Party’s most far-reaching move to remake American governance. It is contained within a bill, called the repeal amendment, that was introduced in Congress after the election. The bill won the support of the incoming House majority leader, Eric Cantor, and is supported by legislative leaders in 12 states.

The proposal is sweeping, expressing with bold simplicity the view of the Tea Party and others that the federal government’s influence is far too broad. It would give state legislatures the power to veto any federal law or regulation if two-thirds of the legislatures approved.

The chances of the proposal becoming the Constitution’s 28th Amendment are exceedingly low. But it helps explain further the anger-fueled, myth-based politics of the populist new right. It also highlights the absence of a strong counterforce in American politics.

With the Equal Rights Amendment as a model, it demonstrates the scope of the Tea Party’s ambition to drive politics and law far to the right. The E.R.A. failed to win passage, but it influenced Congress and the courts in equalizing the law’s treatment of gender.

Under the Tea Party proposal, the states would have much greater power than the president

Continue Reading

“Sleep Less, Think More” at the IHS Summer Seminars

Applications for the Institute for Humane Studies Summer Seminars are now being accepted. If you are a student with an interest in liberty, take advantage of these wonderful seminars. While still a prosecutor in the Cook County States Attorney’s office, I lectured in one of these seminars in 1980, the very first year they were held. The stimulation of that experience led me to leave practice and seek a teaching position. Here is the description:

Learn more about liberty this summer! Explore the ideas that shaped the modern world—ideas that helped end slavery, introduce religious freedom, and inspire the women’s suffrage movement. Discuss the fundamental, yet-still-contested idea that individual rights precede governments. From breakfast ‘till the evening reception, debate the ideas of liberty with peers from around the world and exceptional professors.

This summer — Sleep Less. Think More.

IHS Summer Seminars provide an opportunity to learn about classical liberal ideas, such as individual rights and free markets, and apply these ideas to topics in history, economics, philosophy, law, and other disciplines. Choose from 12 weeklong, interdisciplinary seminars that vary according to topic complexity, career path, and academic interest.

You can find details on dates and topics, as well as application procedures here. (H/T Laura Barnett) [...]

Continue Reading

C-SPAN Interviews Justice Kagan

Very much worth watching.

Also of note, Mike Sacks makes an argument that I’ve alluded to in a few posts: The interesting parallels between Kagan and Roberts on one hand and Sotomayor and Alito on the other. (My own posts on this theme are here and here.) I had meant to blog more on the theme, but now I don’t have to: Mike’s post captures the point pretty well. I think Mike’s post overdoes it slightly with the comparison of Alito and Sotomayor – neither of them are “rough around the edges” (!), and they have quite different styles — but the comparison is still an interesting one for Court-watchers to ponder. [...]

Continue Reading 54

North Carolina Supreme Court on Two-Mother Families

In Boseman v. Jarrell (Dec. 20), Julia Boseman and Melissa Jarrell decided to raise a child together:

Plaintiff [Boseman] and defendant [Jarrell] met in 1998. At that time, plaintiff lived in Wilmington, North Carolina, and defendant lived in Rhode Island. The first time they met, they “discussed their desires to have children.” Roughly one month later, the parties began a romantic relationship. From the outset, the parties continued to voice their desires to have a child. In the spring of 1999, defendant moved from Rhode Island to Wilmington, and the parties began living together as domestic partners.

In May of 2000 the parties initiated the process of having a child. They decided that defendant would actually bear the child, but both parties would otherwise jointly participate in the conception process. The parties agreed to choose an anonymous sperm donor and researched and discussed the available options. They also attended the medical appointments necessary both to impregnate defendant and to address her prenatal care. Plaintiff read to the minor child “in the womb and played music for him.” Plaintiff also cared for defendant during the pregnancy and was present for the delivery. Defendant eventually gave birth to the minor child in October of 2002, and the parties jointly selected his first name.

Following the child’s birth, the parties held themselves out as the parents of the minor child. They gave the minor child a hyphenated last name composed of both their last names. They also “had a baptismal ceremony for the child at the plaintiff’s church during which they publicly presented themselves to family and friends as parents of the child.” Further, each of the parties integrated the minor child into their respective families and each family accepted the minor child.

The parties raised the child together, and in 2004-05 [...]

Continue Reading 151

21st Century Jobs 1: Higher Ed ROI Planning?

(Note:  In a series of posts running until around the New Year, and maybe beyond, I plan to rampantly speculate on new jobs and career tracks that might emerge in the next years and couple of decades.  Straight from my fevered brain to VC!)

The higher education bubble – both undergraduate and professional education – has raised issues of whether the academy has priced itself out of the earnings power, now and into the future, of its customer base.  The basic phenomenon has been described at length, on both supply and demand.  Federal subsidies accrue mostly to universities to raise prices rather than subsidize and lower effective prices to students; the shift to loans, however, meant in large part that the federal government became not a subsidy so much as an intermediary that subsidizes the higher ed cartel on the front end, but in the end largely intermediates the cost as future loan payments by consumers.  One has to wonder whether the inability to discharge student loan in bankruptcy, if properly priced as a regulatory adjustment on the risks and interest rate of a loan, might swallow any remaining implicit federal subsidy to students, at least for important sectors.

Beyond the funding subsidy and federal intermediation, numerous articles and analyses have appeared seeking to quantify the earnings power of various degrees, career tracks, etc., set against the costs of such education.  These studies are important in raising the social issue of the “four c’s” of financial bubbles: conflicts (of interest), complexity (of pricing information), complacency (of easy money) and, not least, cupidity.  They raise the questions of social over-investment in higher education – over-investment for several possible and overlapping reasons (it will be seen that I am focusing on the liberal arts, not the technical fields of math, [...]

Continue Reading 67

Kudos to Starwood Preferred Guest

I occasionally post my consumer complaints on this blog, so I should also give credit where it’s due. I recently discovered that I had managed to forfeit 33K Starpoints through inactivity, in part because I had inadvertently opened multiple accounts. While SPG’s phone rep. wasn’t very helpful (she offered me 1K points), a short email to SPG and my miles were restored. In return, when the choice of lodging on a trip to Argentina came down to another international chain and a Sheraton, I stayed at the Sheraton.

(It turns out that the Sheraton Buenos Aires Hotel and Convention needs some serious attention to noise control given its location on top of a very busy street, but that’s another story.) [...]

Continue Reading 6

The Proposed Activity/Inactivity Distinction and the Child Pornography Laws

One of the interesting arguments raised in the litigation over the individual mandate is whether courts should adopt a new activity/inactivity distinction in Commerce Clause doctrine. As I understand the argument in favor of the proposed distinction, the Commerce Clause permits Congress to punish you for doing something that it prohibits but should be construed so that Congress cannot punish you for not doing something that it requires.

Unfortunately, I’ve had a hard time getting proponents of this theory to explain exactly what it means, so I thought an example might be helpful to help us work through some of the issues. Federal criminal law imposes a mandate upon any person who comes into innocent possession of child pornography. If a person comes into innocent possession of child pornography — for example, if you receive an unsolicited book in the mail, or an e-mail with an attachment, that contains child pornography — the law requires you to act to avoid criminal liability. Specifically, the person must:

promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof—
(A) [take] reasonable steps to destroy each such visual depiction; or
(B) report[] the matter to a law enforcement agency and afforded that agency access to each such visual depiction.

18 U.S.C. 2252(c). If a person does not do this, then he or she is guilty of a federal felony crime that has quite severe sentences.

I have two questions for proponents of the activity/inactivity distinction. First, in your view, does this law extend beyond Congress’s power by regulating inactivity?

Second, if you think that this mandate exceeds the Commerce Clause power, what law must be struck down? The quoted statute, 18 U.S.C. 2252(c), is a statutory exemption [...]

Continue Reading 319

More “Life Imitates ‘Rehabilitating Lochner'”

In a previous post, I noted that in my forthcoming book, I point out that academics invented the notion of a “Lochner era” in which the U.S. Supreme Court was single-mindedly determined to invalidate all manner of economic regulation. In doing so, they conflated a host of different constitutional provisions–due process, commerce clause, nondelegation doctrine, general welfare clause, and so on. They also distorted the Court’s actual record, on the one hand portraying a much more “activist” Court than the actual historical records supports, and on the other counter-factually separating the Court’s “good” due process decision, such as Pierce v. Society of Sisters, from it’s “bad” due process decisions like Lochner, even though Pierce relied on the same reasoning as Lochner, and ultimately on Lochner itself.

As I note in the book, the reason for this distortion of the historical record was to shore up the post-New Deal liberal consensus–pro-New Deal, pro-economic regulation, pro-non-economic individual rights. Conflation and distortion allowed elite lawyers to “elide debate over the meaning of the relevant constitutional provisions, and to reject out of hand the notion that the Old Court may have interpreted some of them correctly as a matter of text and history.”

I provided some examples of how this dynamic is playing out in the debate over the constitutionality of health care reform. Here’s an even better example, the final sentence of an op-ed by one Simon Lazarus, which summarizes the theme of the entire piece: “If conservative jurists invalidate this linchpin of the most important domestic legislation in perhaps half a century, they will restore Lochner — letter, spirit, the whole nine yards.”

I’m not sure what the “spirit” of Lochner is, but the letter of Lochner is that certain maximum hours laws (the Court upheld [...]

Continue Reading 113