Author Archive | Jonathan H. Adler

ObamaCare and the Silence of the Liberals

The Hudson Institute’s Christopher DeMuth writes in the Weekly Standard on the practical reality of ObamaCare as it is being implemented.

Obamacare will never achieve its promise of affordable health care for all paid for with improved efficiencies in health insurance and medical care. The initial troubles and compromises have revealed that the program improves “access” mainly by herding millions of people and firms into insurance they do not want or need. A great many will simply refuse, having little to fear for the time being, with the result that government expenditures will be far higher than projected. It is equally clear that the variety and quality of medical care will be seriously restricted for all concerned.

Collaterally, Obamacare is introducing a new form of government—improvisational government, characterized by continuous ad hoc revisions of statutory law by executive decree. This is a reversion to a primitive form that long antedates our Constitution and rule-of-law traditions. Transported to the modern world, it leaves the private sector in a state of constant uncertainty and subjection.

He notes that most of the response to the statute has been reflexively partisan — unified, unyielding and unthinking Republican opposition and near-unanimous Democratic support. As DeMuth sees it, the former is predictable; the latter lamentable. As each day passes, and more about the actual operation of the PPACA is revealed, it becomes increasingly clear that the PPACA itself challenges core liberal values, and yet few liberals raise any real concerns. (And, no, I don’t consider pre-election posturing about insurance renewals to be an expression of genuine concern about the operation of the statute.)


Serious liberals are those for whom the primary purpose of politics is to protect personal liberty and advance social equality. Their liberalism has been the motive force of America’s political history—which is

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Study Linking GMOs to Tumors in Rats Retracted

In September 2012, Food & Chemical Toxicology published a peer-reviewed study purporting to show that rats fed genetically modified corn had a higher incidence of tumors than those that were not.  This was significant, as this study was the first to find evidence of an adverse health effect in any mammal species from the consumption of GM foods.  The study immediately faced a wave of criticism from scientists and experts in the field, who noted the paper’s many methodological failings.  In response to such criticism, Food & Chemical Toxicology retracted the paper on November 28, after the paper’s authors refused to withdraw it on their own. The authors are now threatening suit against the journal, and anti-GMO activists are organizing a boycott, but the editors are standing their ground.

UPDATE: Hoisted from the comments, here’s more from Ars Technicaand an early critique of the study at Respectful Insolence. [...]

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Frivolous Ethics Complaint Against Judge Sykes Dismissed

Last month, Rep. Louise Slaughter, Common Cause, and the Alliance for Justice filed an ethics complaint against Judge Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit claiming that she had violated the Code of Conduct for federal judges by speaking at the annual dinner of the Federalist Society.  A similar complaint, in the form of a letter to the Chief Justice, was lodged against Justice Clarence Thomas who also spoke at this year’s convention dinner.  This complaint is one of a series of frivolous ethics charges made against conservative jurists over the years, including prior complaints about judges or justices speaking at annual dinners of right-leaning organizations or claims that conservative justices need to recuse themselves from high-profile cases because they or their relatives are conservative.  The complaining groups claim to have a non-partisan concern for judicial ethics, and yet never complain when liberal justices engage in precisely the same conduct.

On December 5, the Seventh Circuit’s Chief Judge, Diane Wood, dismissed the complaint against Judge Sykes.  Judge Wood ‘s opinion made quick work of the charges, concluding that “the allegations in the Complaint ‘lack any factual foundation or are conclusively refuted by objective evidence.'”  She further noted that judges speak to equivalent gatherings of lawyers all the time without anyone raising a fuss.  I would like to think this opinion would put an end to the filing of frivolous and partisan ethics complaints of this sort, but I would not bet on it.

(HT: Carrie Severino) [...]

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Politifact’s “Lie of the Year”

“If you like your plan, you can keep your plan” is Politifact’s 2013 “Lie of the Year.” That’s interesting, especially because Politifact previously rated this promise as “true” (when made during the 2008 campaign) and “half-true” (when made in 2009), and claimed challenges to this pledge in 2012 were “false” (here and here). Now, of course, we know that the initial promise was false — and that the White House knew this was the case even as Administration officials (and Politifact) were claiming otherwise. Only in 2013 did Politifact finally acknowledge the “pants on fire” aspect of the Administration’s pledge (here and here).  If a statement Politifact rated as partially true could nonetheless be the “Lie of the Year,” perhaps Politifact needs to reconsider its standards for fact-checking.

Meanwhile, the Administration is once again delaying some of the statute’s implementation deadlines, and “urging” insurers to provide retroactive coverage to individuals who enroll in, but fail to pay for, insurance coverage beginning January 1. [...]

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Notre Dame Refiles Suit Against Contraception Mandate “Compromise”

Yesterday, the University of Notre Dame re-filed its lawsuit challenging the contraception mandate “accommodation” offered to religious institutions by the Department of Health and Human Services. Notre Dame had filed suit before, but that suit was dismissed as the Administration had announced plans to adopt an accommodation for objecting religious institutions. The WSJ reports on the suit here.

As I noted in prior posts (here and here), the Administration had a difficult time finding a way to accommodate the objections to the contraception mandate of religious institutions, including universities and social service organizations, that are not themselves houses of worship or their auxiliaries. The accommodation ultimately offered by HHS is that if a religious institution objects to paying for insurance coverage that covers methods of contraception that are contrary to the teachings of that religion, the institution may certify that it objects, and then the institution’s insurer will provide a separate contraception-only insurance policy. The problem for an institution like Notre Dame, as detailed in its complaint, is that it self-insures. (Many large institutions self-insure, and many religious ones do so, in part, to avoid state-level contraception mandates.) To address this, the final accommodation shifted the obligation to the third-party administrator of the insurance plan. Assuming this shift of obligation is even legal (as the administrator is not acting as an insurer, and has to provide the contraception at no cost to the insured), Notre Dame still objects because the provision of contraception is still tied to Notre Dame’s decision to provide insurance in the first place and Notre Dame’s decision to certify that it is an objecting institution results in the designation of the third-party administrator as the provider of contraception. According to Notre Dame, this requires the university to “become entangled with and facilitate” [...]

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Federalism and Marijuana Event

Many constitutional conservatives were critical of the Supreme Court’s decision in Gonzales v. Raich, holding that the federal government’s Commerce Clause power could reach the intrastate use and possession of marijuana for medical purposes authorized under state law. Now that an ever-growing number of states has chosen to authorize marijuana use and possession — some even for recreational use — how should those on the Right respond?

On Tuesday, I’ll be in Washington, D.C. to moderate a panel that will explore this and related questions. The panel, entitled “Marijuana and the States: How Should Federalism Principles Inform the Federal Government’s Response to State Marijuana Initiatives?” is co-sponsored by the Federalist Society’s Practice Groups and the Center for Business Law and Regulation at the Case Western Reserve University School of Law. The panel will include former DAG George Terwilliger, Professor John Eastman, the Buckeye Institute’s Robert Alt and Colorado Assistant SG Michael Francisco.

Here’s the panel description:

In 2013 voters in Colorado and Washington legalized the possession of marijuana under state law. Several other states allow the possession and use of marijuana for medicinal purposes. Yet marijuana remains illegal under federal law. The Justice Department has not sought to preempt these decisions, and has outlined a new enforcement policy that largely defers to state law enforcement on the assumption that states will effectively regulate the sale and possession of marijuana. Are the Justice Department’s efforts to accommodate state decisions about marijuana policy prudent or irresponsible? Could it do more? Should the federal government defer to state voters on the desirability of marijuana prohibition? How should principles of federalism inform the federal government’s response to state initiatives on marijuana? Can the federal government allow states to decriminalize marijuana possession and sale without undermining the rule of law?

The event is at [...]

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Another ObamaCare Delay: SHOP Exchange Enrollment

Politico reports:

The Obama administration today announced a one year delay of online enrollment for small businesses looking to purchase health coverage through federal Obamacare exchanges, another high-profile setback for

It’s the second delay for online small business enrollment, which the administration had said would begin this month. . . .

The administration originally delayed online enrollment in the federal-run small business exchanges just days before the failed Oct. 1 launch of At the time, HHS said online enrollment would be available “sometime in November.” But now, it won’t be ready until November of next year.
The latest delay applies only to the federal-run SHOP exchanges in almost three dozen states. With a few exceptions, SHOPs in states running their own exchanges have had a smoother rollout.

Wonkblog has more. [...]

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A Recount in Virginia?

CNN reports on a possible election recount in Virginia:

The Republican in Virginia’s attorney general race will request a recount after the official results released Monday showed state Sen. Mark Obenshain behind Democratic state Sen. Mark Herring by a razor-thin margin of about .007%.

Obenshain lost by 165 votes out of 2.2 million, marking the closest statewide race in Virginia’s history. . . .

If a candidate loses by less than 1% in Virginia, he or she is allowed to petition the Board of Elections for a recount after the votes are certified. And because the margin was less than .5%, the counties involved in the recount will cover the costs.

A three-judge court, sitting in Richmond, Virginia, will supervise the recount. It will also set the dates and terms of the recount, and confirm the officers of election and coordinators for the recount, according to Obenshain’s campaign.

Bring on the lawyers. [...]

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Supreme Court to Hear Two Contraception Mandate Cases

This morning the Supreme Court agreed to hear two cases in which for-profit corporations are challenging the so-called “contraception mandate” under which employer-provided group health insurance plans are required to fully cover all FDA approved forms of contraception and sterilization.  The two cases accepted for review are Sebelius v. Hobby Lobby Stores, Inc., in which the U.S. Court of Appeals for the Tenth Circuit ruled for the employer, and Conestoga Wood Specialties Corp. v. Sebelius in which the U.S. Court of Appeals for the Third Circuit went the other way. Both appeals principally involve free exercise of religion claims under the Religious Freedom Restoration Act (RFRA).

The Tenth and Third Circuits are not the only appellate courts to have confronted the underlying RFRA claims, including the question whether a corporation may assert free exercise claims under RFRA. The U.S. Court of Appeals for the Sixth Circuit rejected a corporation’s free exercise claim in Autocam Corp. v. Sebelius. The U.S. Court of Appeals for the Seventh Circuit held for the corporate plaintiffs in Korte v. Sebelius and the U.S. Court of Appeals for the D.C. Circuit ruled against the mandate, on behalf of the owners of a closely held corporation but not the corporation itself, in Gilardi v. U.S. Department of Health and Human Services. [...]

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Who “Won” the Nuking of Filibusters?

Last week Senate Democrats voted to end filibusters of all executive branch and lower court nominees.  The filibuster of Supreme Court nominees will almost certainly follow if and when there is a filibuster of a Supreme Court nominee. [That is, it will be eliminated as well.]  Who wins and loses from this change in the rules?  It depends who you ask.  Steve Hayward argues conservatives are the winners.  Scott Lemieux says that liberals won.  Eric Posner writes that centrists are the real losers, while The Hill says the biggest loser could be Kathleen Sebelius.

UPDATE: Additional thoughts from Judge J. Harvie WIlkinson III.

[Note: Post revised as indicated above.] [...]

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Don’t Cry for Argentina (Again)

Argentina remains upset that some of its creditors are none too happy with the South American nation’s 2001 default on its debt obligations.  As I noted here, some of Argentina’s creditors unhappy with the way in which Argentina sought to restructure its debt filed suit in the U.S. and prevailed, prompting Argentina to file multiple appeals and cert petitions.  In August,  the U.S. Court of Appeals for the Second Circuit rejected Argentina’s challenge to a district court injunction  barring Argentina’s payment of restructured debt without also making payments to holders of unrestructured debt.  This past week, the Second Circuit denied Argentina’s petition to rehear hear the case en banc.  This is not too surprising. Not only is en banc review quite rare, but it would also be odd for a court to grant such review to a petitioner which has pledged it will refuse to comply with an adverse ruling.  A petition for certiorari will certainly follow.   Like Ed Whelan, I am not sure Argentina’s position will help it obtain Supreme Court review.


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Nukes for the NYT, But Not for Thee

In May 2005, the NYT editorial board insisted that the filibuster of judicial nominations was “part of the Senate’s time-honored deliberative role and of its protection of minority rights.” Invocation of the “nuclear option,” the Times insisted, would “desecrate” this tradition. “The damage would be incalculable,” the Times warned.

Fast forward eight years and, as Patterico notes, the NYT‘s is singing a different tune. Yesterday’s NYT editorial on Senate Democrats’ invocation of the “nuclear option” insisted there was “ample precedent for this kind of change” and cheered the move for heralding “a return to the democratic process of giving nominees an up-or-down vote, allowing them to be either confirmed or rejected by a simple majority.”

UPDATE: The NYT first came out in favor of eliminating the filibuster of nominees in this January 2012 editorial.   I had forgotten this, which is funny given that I blogged about it at the time.

TPM claims the WSJ flipped as well, but I’m not sure I read their editorial the same way.  It’s critical of Senate Democrats, to be sure, but it also chides those Republicans who had opposed the GOP going nuclear in 2005 out of fear it might prompt Democrats to do the same. [...]

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Senate Goes Nuclear, Expect Fallout

As threatened, Senate Majority Leader Harry Reid invoked the so-called “nuclear option” to end the filibuster of presidential nominations. The Washington Post reports:

The vote to change the rule passed 52 to 48. Three Democrats — Sens. Carl Levin (Mich.), Joe Manchin III (W.Va.) and Mark Pryor (Ark.) — joined 45 Republicans in opposing the measure. Levin is a longtime senator who remembers well the years when Democratic filibusters blocked nominees of Republican presidents; Manchin and Pryor come from Republican-leaning states.

Levin denounced both Republicans and Democrats in a floor speech after the vote. He said GOP obstruction of Obama’s nominees has been “irresponsible” and “partisan gamesmanship.” Republicans “are contributing to the destruction of an important check against majority overreach,” he said.

But Democrats have used the filibuster in the past, and “changing the rules by fiat” means that “there are no rules” in the Senate any longer,” he said. “Today we are once again moving down a destructive path,” Levin said.

According to Reid, the rules change only applies to executive branch and lower court judicial nominations, and does not apply to Supreme Court nominations.  That idea is a joke, as Levin’s comments imply  While there are colorable arguments as to why the Senate might want to have different rules for executive branch and judicial nominations, the line drawn by Senator Reid will not stand.  As several Republicans threatened before the vote, if and when there is a Republican majority in the Senate again, there will be no filibuster of a President’s Supreme Court nominees.

As I noted earlier today, I would have preferred a deal in which, say, nominees were swapped to end the impasse (as was done to end the blockade of President Bush’s Michigan nominees to the U.S. Court of Appeals for the [...]

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A Time to Go Nuclear?

In February 2003, Miguel Estrada became the first ever nominee to a federal appellate court to be successfully filibustered when a majority of Senate Democrats voted against cloture on his nomination.  Estrada had been nominated to fill on a seat on the U.S. Court of Appeals for the D.C. Circuit, and was widely seen as a potential Supreme Court nominee. He was the first appellate nominee to be felled by a filibuster, but he would not be the last. During the Bush Administration, Senate Democrats successfully blocked cloture on 10 of President Bush’s appellate nominees.  All ten enjoyed majority support and would have been confirmed on a bipartisan vote had they not been filibustered.  Five of these nominees were eventually confirmed after the Gang of 14 deal and a swap of nominees for the U.S. Court of Appeals for the Sixth Circuit. The other five were not.  (For more on the history of judicial nominations, see this post and the links therein.)

During the Obama Administration, Senate Republicans have returned the favor, initially blocking cloture on Ninth Circuit nominee Goodwin Liu, followed by D.C. Circuit nominee Caitlin Halligan. This year, Senate Republicans have successfully filibustered three more nominees to the D.C. Circuit, arguing that the Obama Administration’s insistence on filling these three seats is an effort to tilt the ideological balance of the D.C. Circuit (particularly given that the court’s workload is down and there are unfilled judicial emergencies on other courts).  As I noted here, the arguments Republicans make in support of this move parallel the arguments once made by Senate Democrats to justify their obstruction of judicial nominees during the last three Republican presidents.  I don’t find these arguments compelling when made by either side, but what’s sauce for the goose is sauce for the gander. [...]

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