Archive for April, 2010

The Blueprint (or the Colorado Model if you prefer)

Posted by on Apr 30 2010 | Idiot Box (TV Show)

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The Modern Sophists: “Power to Regulate Commerce” Means “Power to Regulate Non-Commerce”

Posted by on Apr 30 2010 | Health Care, The Founders, U.S. Constitution

A few law professors have been arguing that it’s constitutional to force people to buy health insurance, because the Constitution gives Congress power to “regulate Commerce among the several States.”

Under the very broad formulation of the federal Commerce Power issued by the modern Supreme Court, Congress can regulate not just interstate commerce and certain related activities (as the Founders intended) but also any “economic activities” that “substantially affect interstate Commerce.” This, the new argument goes, includes a power to punish non-activity (i.e., failure to buy insurance).

Let’s examine some of the implications of this novel argument:

* The Constitution grants Congress authority to “provide for the Punishment of counterfeiting. . . ” By the same reasoning, Congress enjoys power to punish anyone who doesn’t counterfeit.

* The Constitution grants Congress authority to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Hence, Congress may punish anyone who does not commit those crimes.

* The Constitution grants Congress’ authority to “declare the Punishment of Treason.” Hence, Congress may “declare the Punishment” for people who do not commit treason.

These examples show how ridiculous such “reasoning” is. Ridiculous, but also dangerous, because it can be used to obliterate meaning from the constitutional language, and, thereby, all constitutional limits on government.

Some of the Founders warned us that unscrupulous advocates would try to subvert the Constitution in this way — by arguments those Founders called “sophistry.”

Sophistry is defined by Merriam-Webster’s Collegiate Dictionary (11th ed.) as “subtly deceptive reasoning or argumentation.” The term comes from the practice of professional mouth-pieces in ancient Greece, who to demonstrate their rhetorical prowess would construct clever arguments for a proposition, and then just as slyly tear it down.

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Debate on constitutionality of Obamacare

Posted by on Apr 29 2010 | congress, Constitutional History, Economic LIberties, federalism, Health Care, supreme court

(David Kopel)

Held on April 28 at the University of Colorado law school, under the sponsorship of the American Civil Liberties Union of Colorado. Arguing in favor of constitutionality was Jean Dubofsky, former Justice of the Colorado Supreme Court. Arguing the other side was me. The video is here. (Video and audio are often out of sync by several seconds.) The format was Kopel presentation, Dubofsky presentation, Kopel rebuttal, Dubofsky rebuttal, and then questions from the audience. Pursuant to the framing of the question, both of us devoted substantial attention to whether Colorado Attorney General John Suthers made the right decision in joining the 20-state coalition lawsuit against the new law. The pro/con presentations take about an hour, and the full program is 1 hour and 36 minutes.


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Q & A With District 1 Denver City Council candidate Larry Ambrose

Posted by on Apr 29 2010 | Denver City Council, Economics

On Tuesday, May 4, there will be a special election to fill the recently vacated Denver District 1 City Council seat.   I met Larry Ambrose, one of ten candidates for the open seat, at a March candidate forum at the Oriental Theater in northwest Denver. When asked what, if anything, he would do about the “proliferation” of medical marijuana dispensaries in Denver, Larry remarked that market forces would eventually “weed out” (and yes, he intended the pun) the dispensary issue.  Since I work for a free-market think thank, and since out of ten City Council candidates, Larry was the only one who noted not only that markets exist, but that they matter, I thought we should chat.

MK: Why City Council?  I mean let’s face it; a lot of us taxpayers and voters are chronically uninformed and love to complain about politicians, especially local ones.  Why do that to yourself?

LA: I have tried to effect change in what does and doesn’t get done with regard to community issues.  I believe what we do here on earth is the measure of our worth, but I’m not interested in earning points for the hereafter.  I also believe that what I leave behind, for the next generation is most important.  I don’t do this for recognition or even necessarily to be understood.  I do it, because it is the right thing to do.  Some people teach, create or involve themselves in other work to make a difference in the world.  I have been involved in Northwest Denver and the greater Denver area and am now running for a Denver City Council seat that has been vacated, because I want to continue to contribute to my community.

MK: This isn’t your first rodeo, you have been active in neighborhood and city issues for a while now, give us the quick version of your resume.

LA: I am a 37-year resident and neighborhood advocate of Northwest Denver.  I have a proven track record of accomplishments, knowledge of city/government issues and am founder of Denver dog parks.  I am also a historic preservationist who is not opposed to appropriate development for neighborhoods and business districts.  I hold a B.S. in Business from CU-Boulder, an M.S.B.A. in Arts Administration from UCLA and a J.D. from DU.  I am President of the Sloan’s Lake Neighborhood Association and Co-Chair of the Inter-neighborhood Cooperation Parks and Recreation Committee.

MK: We have talked before about City Council putting Denver taxpayers on the hook financially for “public/private” projects.  You used the Renaissance Uptown Lofts (a Colorado Coalition for the Homeless project) as an example.  What would you do to protect the city (and thus Denver taxpayers) from ending up financially responsible should projects like this fail to pay for themselves?

LA: I would ask city council to limit the city’s liability with regard to financing such projects.  This particular project will require taking hundreds of thousands of dollars from Denver’s Human Services budget for at least 20 years.  We have learned that even the nation’s largest financial institutions are vulnerable to complete collapse.  Although, Colorado Coalition for the Homeless is a successful organization, they are a non profit organization with close to a $40 million budget* dependent on funding from both private and public sources. They are heavily invested in real estate and have significant liabilities associated with their investments.  Although the city’s investment would be collateralized by the property, because the Renaissance project has so little parking, it is possible that should it fall on hard times, its value would be discounted for use as apartments or condominiums.  Any wise business decision should be based on the worst case scenario, not just the best. The city’s liability for funding should not extend beyond the lifetime of CCH and the project’s use as homeless/low income housing.

(*Only the 2008 Annual Report is available:  there was $35.5+ million in revenue, almost $13.4 million in assets, but no liabilities listed.)

MK: How about zoning in Denver parks as part of the new zoning code?

LA: As part of the new zoning code, the administration decided to take away control of zoning in Denver parks from the City Council and give it to the Manager of Parks and Recreation.  The current City Council, of course, was willing to go along with this.  A group of us (citizens) fought this unprecedented usurpation of legislative authority and the code was adjusted to allow Council to make decisions about structures larger than a 3000 sq. ft. footprint and 35 feet high.  In my opinion, this is still much too large and tall a building in a park about which a bureaucrat, even one with good intentions, should be able to make a decision.

Ballots for the District 1 special election were mailed out April 15 and must be received by 7 p.m. on May 4 (postage is 61 cents).

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Bloggers can’t agree on anything about fiscal commission, or political impact of Wall Street bill

Posted by on Apr 29 2010 | congress, National Journal poll political bloggers, Politics

(David Kopel)

This week’s National Journal poll of political bloggers asked about the impact of the Wall Street reform issue on the midterm elections. Ninety-four percent of the Left bloggers thought that it would help Democrats a lot or a little. The Left was evenly divided between expecting the issue to hurt Republicans a little, or to have no impact. My guess was that it would hurt Republicans a little, although the result might depend on the substance of what the Republicans do: “Republicans would be wrong, as a matter of policy and of politics, to oppose reforms which would reduce the ability of Wall Street to make the public pay for losing bets on complex financial instruments. It would be politically self-destructive for anyone to vote for a bill which provides congressional pre-authorization for more bailouts, including bailouts of the creditors of an insolvent Wall Street firm.” And yes, I’m aware the the bailout fund is now gone from the bill; but the bill still has authority for the executive branch to take money from prudent banks and give it to the reckless creditors of imprudent banks. In general, the bankruptcy laws provide a fair and orderly process to terminate the operations of a bankrupt financial services company; the Dodd bill, in contrast, provides nearly limitless executive power, almost no due process protections, and tremendous opportunity for abusing the system to help politically-favored creditors, or to threaten political opponents with federal destruction of their company.

Asked about what areas the President’s deficit reduction commission should focus on, the bloggers split. A hundred percent of the Left, and 50% of the Right (including me) wanted the commission to consider defense budget cuts. Huge majorities of the Right, and 36–46% of the Left wanted consideration of cuts in domestic discretionary spending, social security, and medicare. (I was for considering cuts in all these.) Eighty-seven percent of the Left, but only 37% of the Right, wanted consideration of tax increases. I favored an alternative approach: “Instead of tax increases, elimination of corporate welfare could raise a great deal of new revenue.”

p.s. Readers looking for good ideas on corporate welfare cuts could start with this collection of materials, from my colleagues at the Cato Institute.


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The Colorado Model

Posted by on Apr 29 2010 | Capitol Crazies, Idiot Box (TV Show)

Did you hear the one about the three millionaires who flipped Colorado from a red state to a blue state? Check out Independent Thinking this week as co-authors Adam Schrager and Rob Whitwer sit down with me to talk about their new book, The Blueprint: How the Democrats Won Colorado (and Why Republicans Everywhere Should Care). That’s this Friday, April 30 at 8:30 P.M. on KBDI Channel 12. Rebroadcast the following Monday at 1:00pm.

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Centralization of Private Information: a Political Love Story

Posted by on Apr 28 2010 | Health Care, Transparency

Senate Democrats are overjoyed with themselves. Their health care “transparency” bill, HB 1330, is currently on its way to the Senate floor for a final vote. If passed, the bill will create a centralized database of medical information. Whose medical information you ask? OUR medical information. The people of Colorado who visit a doctor, dentist, or pharmacy – that’s who.

This massive invasion of medical privacy is meant to “help” us by “making the system more transparent and cost effective.” Okay, so then we get a choice in what information gets collected and centralized right? Wrong.

The bill does not allow entities to opt out of the database. There is no restriction on the information that can be collected. The state can share individual data in any way it deems appropriate. The state can demand detailed data from an individual’s medical or insurer records (the bill calls them provider and payer records). Those data may include information on physical functioning, medical treatment, mental stability, addictions, adherence to government health recommendations, family structure, sexual habits, and financial arrangements. Unlimited fines may be levied on those who refuse to comply.

Health Care Policy Center director Linda Gorman deconstructed the bill and uncovered five major issues that should concern any Colorado resident who cares about their health and privacy.

The bill tasks the Center for Improving Value in Health Care (CIVHC) with managing the database of information. They happen to be one of the many “public-private” entities that politicians love so dearly.  Public in the sense of state-created and controlled.  Private in the sense of little to no accountability.  What’s not to love right?

And let’s be real, how much do you trust your most private medical information in the hands these people?

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Mayor Daley and other Mayors: Seek “redress against the gun industry” in the World Court

Posted by on Apr 28 2010 | guns, International Court of Justice, International Law, Richard Daley, World Court

(David Kopel)

April 27 was the tenth annual “Richard J. Daley Global Cities Forum,” held in Chicago. Over a hundred mayors and other local government leaders assembled to discuss global issues. As reported in the Chicago Sun-Times, “Daley convinced more than a dozen of his counterparts from around the world to approve a resolution urging ‘redress against the gun industry through the courts of the world’ in The Hague.”

At a news conference, Daley explained, “This is coming from international mayors. They’re saying, ‘We’re tired of your guns, America. … We don’t want those anymore because guns kill and injure people.’”

Among the supporters of the Daley resolution was Mexico City Mayor Marcelo Ebrard Casauban, who said that “85 percent” of Mexican drug cartel guns come from the United States. Philadelphia Mayor Michael Nutter also endorsed a World Court case, because “I love the 2nd Amendment,” but “I have a 1st Amendment right not to be shot.”

In 1998, Chicago Mayor Daley and New Orleans Mayor Marc Morial filed the vanguard of what would become three dozen municipal lawsuits against the firearms industry. The lawsuits were not successful in court, but they did come very close to convincing firearms manufacturers to capitulate. The suits were finally ended by the Protection of Lawful Commerce in Arms Act, signed into law in 2005.

So what are the rules in the International Court of Justice (which is informally called “the World Court”)? Chapters 36 and 37 of the ICJ statute define the Court’s jurisdiction.

The classic World Court case is a nation vs. nation dispute in which both parties have submitted to the Court’s jurisdiction. For example, Jamaica and the Bahamas ask the World Court to settle their disagreement about who owns some tiny islands in the Caribbean. A World Court ruling in such a case is binding.

In these state v. state cases, no other party participates, but the World Court can receive information from NGOs, government agencies, and so on.

Thus, the plaintiff in a ICJ might be the state of Mexico itself. In a state v. state case, a state can assert the interests of its nationals. For example, Mexico might assert the interest of Mexicans who are allegedly harmed by firearms manufacturers which are permitted to operate in the United States or in other nations.

There are four modes of state consent to ICJ jurisdiction:

First, the parties themselves can ask the ICJ to hear the case.

Second, the Court has jurisdiction over “matters specifically provided for … in treaties and conventions in force.” That is, a treaty may declare that it gives the ICJ the authority to resolve disputes arising under the treaty.

Third, a state may make a general declaration that it will accept ICJ jurisdiction.  When the case of Nicaragua v. United States was brought during the Reagan administration, the United States withdrew from ICJ jurisdiction. The decision was made by Executive authority, and could be changed by Executive authority.

Finally, jurisdiction can be based on tacit consent (forum prorogatum).

Besides issuing legally binding opinions in state v. state cases, the ICJ can also issue advisory opinions. Certain United Nations agencies and bodies have the authority to ask the ICJ for an advisory opinion. For example, the United Nations General Assembly asked the ICJ for an advisory opinion about Israel’s defensive wall. The ICJ condemned Israel’s anti-terrorist barrier as a violation of international law.

An ICJ advisory opinion is not, in itself, legally binding. However, other courts may accept the ICJ opinion as a definitive statement of international law. So the courts which do have power to compel the state (e.g., a nation’s own Supreme Court; or the European Court of Justice) could take the ICJ opinion, and then issue their own order requiring the national government to comply with international law as persuasively declared by the ICJ.

The ICJ has already shown itself to be willing to get involved in weapons control. In the 1996 case Legality of the Threat or Use of Nuclear Weapons, the ICJ was asked by the UN General Assembly for an advisory opinion on the legality of the use of nuclear weapons. The Court ruled 11–3 that nuclear weapons per se are not prohibited by any international law, but held  that most uses of nuclear weapons would be prohibited by general laws of warfare (e.g., the prohibition on targeting civilians).  Further the Court held that there was a legal obligation for complete nuclear disarmament: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”

A court which feels competent to mandate complete nuclear disarmament may not feel reluctant about granting the relief sought by Mayor Daley’s international allies.

Of course whether Mexico (or some other nation, such as Brazil, whose President Lula is an ardent advocate of gun prohibition) would bring an ICJ case is at present unknown. Likewise unknown is whether the US would consent to suit, or whether the ICJ would infer some kind of tacit consent. It is also unknown whether Mayor Daley and his allies could accomplish some of their objectives by suing other nations (perhaps with the consent of the nominal “defendants”) which have domestic firearms industries which export to the United States civilian market, and which have explicitly consented to ICJ jurisdiction.

A 2003 article by Joseph Bruce Alonso in the Journal on Firearms & Public Policy explores the legal interplay between international and domestic law in legal cases involving gun control. The short answer is that the Second Amendment might provide some protection in US courts, but would offer little protection from international court actions taken against US nationals–such as the seizure of foreign assets owned by US corporations.


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Correction on Obama Care Constitutionality Debate

Posted by on Apr 27 2010 | education, Health Care, Kopelization

A quick correction.  The debate between Independence Institute Research Director Dave Kopel and former Colorado Supreme Court Justice Jean Dubofsky on the constitutional merit of the Attorneys General lawsuit over Obama Care is tomorrow night, April 28th, and not April 27th as we previously posted.  Time remains 7 to 9pm in the Wolf Law Room #204. Details available here.  The ACLU of Colorado will be live streaming the event on their website.

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Obama Care Constitutionality Debate Tomorrow

Posted by on Apr 27 2010 | Events, Health Care, Kopelization

Tomorrow night, our Research Director Dave Kopel will be debating former Colorado Supreme Court Justice Jean Dubofsky on AG Suthers’ Obama Care lawsuit. Dave will be taking the pro-lawsuit, state’s rights side of course. Jean will be taking the position against AG Suthers’ lawsuit, as she has said in the past that the lawsuit cannot win and is a waste of time.

So the showdown is set for the two sides at the Boulder County ACLU board meeting tomorrow, Wednesday, April 28th at 7 p.m. The debate will be on the CU-Boulder campus’ Wolf Law building, room 201 (corner of Baseline and Broadway – but must turn on Regent to access parking lot).

Both sides will have their say and there will be ample time for what is sure to be a riotous Q and A. There is no need to RSVP and the event is FREE!

No reservations are necessary. Just show up. No charge.

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