Archive for March, 2012

Rep. Swalm on Auditing RTD, Wayne Laugesen on Tebow v. Peyton

Posted by on Mar 30 2012 | Idiot Box (TV Show), PPC, Transportation

Friday night means the Independence Institute’s public affairs TV show Devil’s Advocate on Colorado Public Television 12. First, state representative Spencer Swalm sits down with me to talk about his recent request for an audit of the Regional Transportation District (RTD). Then Wayne Laugesen, editorial page editor of the Colorado Springs Gazette swings by to discuss Peyton Manning, Tim Tebow and the Denver Broncos. That’s 8:30 p.m. tonight on Colorado Public Television 12. Re-broadcast Monday at 1:30 p.m.

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VIDEO: Dave Kopel on CNN

Posted by on Mar 30 2012 | guns, Media, PPC, Second Amendment

Dave woke up at the crack of dawn this morning to make an appearance on CNN to discuss the ever so popular topic, Stand Your Ground laws, as they pertain to the George Zimmerman, Trayvon Martin case. See the video below:

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Welcome to the Party… We’ve Been Here For Years

Posted by on Mar 29 2012 | Health Care, health control law, Kopelization, obama, obamacare, PPC, U.S. Constitution

Independence Institute research director Dave Kopel reminds everyone on his website that the Independence Institute was some of the first to attend the “Obamacare is unconstitutional” dance party. Thankfully, many more of have joined us since those early days, but it’s worth taking a look back at the scholarship we’ve amassed for the last two-plus years. Below you’ll find Dave’s overview of our work:

When did the Independence Institute explain that Obamacare was probably unconstitutional? Senior Fellow Rob Natelson on Jan. 23, 2010. Research Director Dave Kopel on March 22, 2010 (tax power), and April 2, 2010 (commerce power, constitutional structure). Here is the video of Kopel’s April 28, 2010, debate with former Colorado Supreme Court Justice Jean Dubofsky, who had announced, “I believe that the lawsuit stands little chance of success,” and “The mechanism chosen by Congress to enforce the requirement of health insurance is not unusual.”

Testimony on D.C. Council’s proposed revision to the District’s gun control laws. Kopel argues against a provision which excessively discriminates against people with visual impairments. The testimony also critiques D.C.’s unusual system of long gun registration. Feb. 13, 2012.

Kopel testified on Nov. 17 before the U.S. Senate subcommittee on Crime and Terrorism regarding S. 463, Senator Schumer’s bill to vastly expand the number of people prohibited from owning or temporarily possessing a firearm. 29-page written testimony. Video of subcommittee hearing. Kopel’s 5 minute prepared remarks begin at 72:41. At 103:40, there is a Q&A with Senator Grassley, with leads to follow-up questions with Senator Schumer, in which Kopel explains to Schumer what the Schumer bill actually does. Kopel discusses the bill on NRA News. Media coverage: NPR, ABC, Governing, Albany Times Union.

Kopel testified on Sept. 13 before the U.S. House subcommittee on Crime, Terrorism, and Homeland Security, regarding H.R. 822, which would set up a national system of interstate reciprocity for concealed handgun carry permits. Kopel’s 24-page written testimony. Video of the subcommittee hearing. Cato Institute podcast with Kopel on the issue.

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Nearing the end of the search for the non-existent limiting principles

Posted by on Mar 29 2012 | Commerce Clause, Constitutional Law, federalism, Fifth Amendment, Growth of Government, guns, Health Care, Individual Mandate, Necessary and Proper, New Class, Regulation, supreme court, Taxes, Uncategorized

With the Supreme Court probably voting on the constitutionality of Obamacare (a term the President proudly embraces) on Friday, the health control law’s academic friends are diligently attempting to do what the entire United States Department of Justice could not do after two years of litigation: articulate plausible limiting principles for the individual mandate. Over at Balkinization, Neil Siegel offers Five Limiting Principles. They are:

1. The Necessary and Proper Clause. “Unlike other purchase mandates, including every hypothetical at oral argument on Tuesday, the minimum coverage provision prevents the unraveling of a market that Congress has clear authority to regulate.” This is no limitation at all. Under modern doctrine, Congress has the authority to regulate almost every market. If Congress enacts regulations that are extremely harmful to that market, such as imposing price controls (a/k/a “community rating”) or requiring sellers to sell products at far below cost to some customers (e.g., “guaranteed issue”) then the market will probably “unravel” (that is, the companies will lose so much money that they go out of business). So to prevent the companies from being destroyed, Congress forces other consumers to buy products from those companies at vastly excessive prices (e.g., $5,000 for an individual policy for a health 35-year-old whose actuarial expenditures for health care of all sorts during a year is $845).

So Siegel’s argument is really an anti-limiting principle: if Congress imposes ruinous price controls on  a market, to help favored consumers, then Congress can try to save the market’s producers by mandating that disfavored consumers buy overpriced products from those producers.

2. The Commerce Clause. “The minimum coverage provision addresses economic problems, not merely social problems that do not involve markets.” This is true, and is, as Siegel points out, a distinction from Lopez (carrying guns) and Morrison (gender-related violence). However, it’s pretty clear under long-established doctrine that the Commerce power can be used to address “social problems that do not involve markets.” E.g.Caminetti v. United States, 242 U.S. 470 (1917) (Congress can use the interstate commerce power to criminalize interstate travel by people intending to engage in non-commercial extra-marital sex); Champion v. Ames, 188 U.S. 321 (1903) (“What clause can be cited which, in any degree, countenances the suggestion that one may, of right, carry or cause to be carried from one state to another that which will harm the public morals?”). Personally, I thought that Chief Justice Fuller’s dissent in Champion had the better argument, but Champion and its progeny are well-established precedents, so proposed limiting principle number two does not work, unless we overrule a century of precedent.

Besides that, #2 does not work for the same reason that #1 does not work. If Congress forced food producers to sell products to some consumers at far below cost, then Congress could (for economic, not social/moral motives) force other consumers to buy overpriced food, so that the producers do not go bankrupt. Imagine that instead of the Food Stamp program (general tax revenue given to 1/6 of the U.S. population to help them buy food), Congress forced grocery stores to sell food to poor people at far below cost. And instead of raising taxes in order to give money to the grocery stores to make up for their losses on the coerced sales, Congress instead forced other consumers to spend thousands of dollars on food from those same stores, which would be sold to those consumers at far above its free market price.

If there’s a limiting principle, the only one seems to be that in order to mandate the purchase of a product, Congress must also inflict some other harm on the producers of the product, which the coerced purchases will ameliorate.

3. “Collective action failures and interstate externalities impede the ability of the states to guarantee access to health insurance, prevent adverse selection, and prevent cost shifting by acting on their own. Insurers operate in multiple states and have fled from states that guarantee access to states that do not.” This is really a policy argument for Obamacare. Hypothesizing that it’s a good policy argument, it’s not a limiting principle. That the advocates of Obamacare think that the policy arguments for their mandate is better than the policy arguments for other mandates does not provide courts with a limiting principle of law.

Moreover, the policy argument is wrong. It’s true that some insurance companies stop operating in states where the law forces them to sell insurance to legislatively-favored purchasers at far below the actuarial cost of the insurance, with the  legislature failing to compensate the companies for the enormous resulting losses. If you make it difficult for companies to operate profitably in your state, then they will eventually stop operating in your state. It’s not a collective action problem; it’s just a problem of several states enacting laws that prevent companies from covering their costs. Any state with guaranteed issue and other price controls can solve the problem immediately by simply using tax revenues pay compensation for the subsidy which the state law forces the insurance companies to provide to certain consumers.

Obamacare is a particularly weak case in which to argue that the federal government is riding the rescue of the states to solve a collective action problem. For the first time in American history, a majority of the States are suing to ask that a federal law be declared unconstitutional. These states are taking collective action to stop the federal government from imposing a problem on them.

4. The Tax Power. “[T]he minimum coverage provision respects the limits on the tax power. The difference between a tax and a penalty is the difference between the minimum coverage provision and a required payment of say, $10,000 that has a scienter requirement and increases with each month that an individual remains uninsured. Unlike the minimum coverage provision, such an exaction would be so coercive that it would raise little or no revenue. It would thus be beyond the scope of the tax power.”

Let’s put aside the fact that, however ingenious the progressive professoriate’s  tax arguments have been, the chances that the individual mandate is going to be upheld under the tax power appear to be at most 1% greater than the chance the Buddy Roemer will be the next President of the United States.

Presuming that Siegel’s tax justification for the individual mandate is valid, it is an anti-limiting principle. Congress can indeed mandate eating hamburgers, smoking, not smoking, not eating hamburgers, or anything else Congress wants to mandate, as long as Congress sets the “tax” at level that will raise a moderate amount of revenue, does not include a scienter requirement, and does not make the “tax” increase each month that the individual refuses to do what Congress mandates.

5. Liberty. “The minimum coverage provision does not violate any individual rights, including bodily integrity and substantive due process more generally. These rights would be violated by a mandate to eat broccoli or exercise a certain amount.” Pointing to the existence of the Bill of Rights is not an example of a limiting principle for an enumerated federal power. The Constitution does not say that Congress may do whatever it wishes as long as the Bill of Rights protections of Liberty are not violated. Ordering New York State to take title to low-level radioactive waste generated within the state (New York v. United States) did not violate any person’s substantive due process rights, but the order was nonetheless unconstitutional because it exceeded Congress’s powers. The federal Gun-Free School Zones Act did not, as applied, violate the Second Amendment rights of Alfonso Lopez, who was carrying the gun to deliver it to a criminal gang. Yet the Act still exceeded Congress’s commerce power. A limiting principle must limit the exercise of the power itself, not merely point out that the Bill of Rights protects some islands of Liberty which the infinitely vast sea of federal power might not cover.

Finally, I certainly agree with Professor Siegel that the Fifth Amendment’s liberty guarantee (and its 14th Amendment analogue for the states) should be interpreted to say that no American government can order people to consume a certain amount of healthy food, or to exercise. But there is no major case that is on point for this. The argument for a new unenumerated right “not to eat the minimum quantity of nutritious food which government scientists have  determined is essential for good health” is something that would have to be built almost entirely by extrapolation from cases that have nothing to do with food. I hope that courts would accept the argument; but if the political culture ever moved far enough so that a nutrition mandate could pass a legislature, I’m not as certain as Prof. Siegel that courts would overturn the mandate. The odds of winning a case against a nutrition mandate will be better if the judges who decide that case have not grown up in a nation where a federal health control mandate is the law of the land.

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Florida’s Self-Defense Laws

Posted by on Mar 27 2012 | Crime Victims Rights, Criminal Law, Criminal Procedure, guns, Self-Defense

Media coverage of Florida’s self-defense laws in recent weeks has often been very inaccurate. While some persons, particularly from the gun prohibition lobbies, have claimed that the Martin/Zimmerman case shows the danger of Florida’s “Stand your ground” law, that law is legally irrelevant to case. So let’s take a look at what the Florida laws actually say.

Fla. Stat. § 776.012. Use of force in defense of person

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

So the general rule is that deadly force may be used only to “imminent death or great bodily harm,” or “the imminent commission of a forcible felony.” A person may only use deadly force if he “reasonably believes” that the aforesaid factual conditions exist. These standards are the norm throughout the United States.

Eventually, a grand jury will issue a report based on its investigation. In the meantime, there are two competing narratives. In one narrative, Zimmerman followed Martin, attacked him, and then murdered him. Let’s call this the “M narrative.” In Zimmerman’s account, he followed Martin,  caught up with him, and then left; while he was leaving, Martin attacked him, knocked him to the ground, and began slamming his head into the  pavement. Let’s call this the “Z narrative.”

I am not making any judgment about which narrative is more plausible. The grand jury will do that. For now, it should be noted that neither the M narrative or the Z narrative has anything to do with a duty to retreat. The retreat issue would only be relevant if Martin were the aggressor, and Z had the opportunity to escape from Martin in complete safety. Then, and only then, would different state standards about retreat be relevant. Simply put, everyone who has claimed that Florida’s retreat rule affect the legal disposition of the controversy is either misinformed or mendacious.

The core Florida law on deadly force in self-defense leads to clear results. If M is true, then Zimmerman’s firing of the gun was a criminal homicide. If Z is true, the act was lawful self-defense. The results would be the same in every other state.

Under Florida law, there is another set of circumstances in which deadly force is permitted is:

(2) Under those circumstances permitted pursuant to  s. 776.013

The cross-references is to a statute involving self-defense in one’s home or automobile. Neither of these is relevant to the Martin-Zimmerman case.

Fla. Stat. § 776.013. Home protection; use of deadly force; presumption of fear of death or great bodily harm

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

The home/automobile law allows use of deadly force against intruders who unlawfully enter the victim’s home or occupied automobile. The law makes specific exceptions if the intruder has a legal right to be there, or is lawfully exercising child custody rights, or if the person in the home/automobile is engaged in illegal activity, or if the intruder is law enforcement officer who has identified himself as such.

Again, the home/automobile provisions have no relevance to Martin/Zimmerman case.

Next is the issue of retreat:

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Again, this is irrelevant to the Martin/Zimmerman case. A duty to retreat, if it existed, would apply to a crime victim, who would be required to retreat than to use force in self-defense, if retreat were feasible. In the M version of the case, Zimmerman stalked and shot Martin; Martin never attacked Zimmerman. Accordingly, Zimmerman never had any lawful right of self-defense. Only Martin had violently and feloniously attacked Zimmerman would there be an issue (in any jurisdiction) as to whether Zimmerman had a duty to retreat. In the Z version of the case, there was such an attack, but it was impossible for Zimmerman to retreat. Thus, duty to retreat law has no bearing on the case.

Historically, American states have been split as to whether there is ever a duty to retreat, and under what circumstances. Richard Maxwell Brown’s excellent book No Duty to Retreat: Violence and Values in American History and Society (1994) details the strong trend in American courts in the late 19th and early 20th centuries against a duty of retreat. The U.S. Supreme Court said the same thing in Beard v. United States, 158 U.S. 550 (1895):

[Beard] was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack upon him with a deadly weapon, in such a way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.

Beard involved a victim on his own land. The Court unanimously re-affirmed Beard‘s no-retreat rule in Alberty v. U.S., 162 U.S. 499 (1896), which involved a person in his own home. Allen v. United States, 164 U.S. 493, 502 (1896), involved a victim who was on someone else’s property; there, the Court upheld a jury instruction in favor of a duty to retreat.

Finally, in Brown v. United States, 256 U.S. 335 (1921), Justice Holmes writing for a unanimous Court that included Louis Brandeis (the greatest Progressive jurist), explained:

Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt. The law has grown, and even if historical mistakes have contributed to its growth it has tended in the direction of rules consistent with human nature. Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not succeeded the bounds of lawful self defence. That has been the decision of this Court. [cite to Beard.] Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him Rowe v. United States, 164 U. S. 546. The law of Texas very strongly adopts these views as is shown by many cases, of which it is enough to cite two. Cooper v. State, 49 Tex. Cr. R. 28, 38, 89 S. W. 1068. Baltrip v. State, 30 Tex. App. 545, 549, 17 S. W. 1106.

It is true that in the case of Beard he was upon his own land (not in his house,) and in that of Rowe he was in the room of a hotel, but those facts, although mentioned by the Court, would not have bettered the defence by the old common law and were not appreciably more favorable than that the defendant here was at a place where he was called to be, in the discharge of his duty. [Defendant Brown was an employee at a federal navy yard, where Hermis attacked him with a  knife.]

The above cases all involved federal common law, applied to the federal Territories and to federal property. States, of course, are free to chart their own course. Judges can revise the common law, and legislatures can enact statutes which differ from the common law. Under the English common law of Blackstone, there was no duty to retreat in the home, and no duty to retreat when the use of force was necessary to commit a forcible felony, such as arson. Retreat was required, if practicable, in cases “of a sudden brawl or quarrel” outside the home. See also Hawkins, Pleas of the Crown, sects. 106-07; Bishop’s Criminal Law, sect. 850 (most influential American criminal law treatise of latter 19th century; person who is victim of murderous attack has no duty to retreat).

In sum, Florida’s non-retreat rule is not some 21st century novelty. It is consistent with a long tradition of American law, in which different states have had a variety of rules about when, if ever, retreat might be required.

Even among the most restrictive states, such as New York, retreat in safety is not required before using deadly force in the home; to prevent a burglary (if the person reasonably believes that the criminal would use force to thwart the person’s termination of the burglary) ; to prevent a robbery ; or to prevent a kidnapping, forcible rape, or other forcible criminal sexual attack.  Thus, whether you are in Lake Placid, New York, or Lake Placid, Florida, and someone attempts to rob you when you are walking down the street, you have no duty to retreat before using deadly force to thwart the robbery.

Back to the Florida statute, which then provides some additional legal standards for home/automobile defense:

 (4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(5) As used in this section, the term:

(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

The next part of the Florida Code concerns “Use of force in defense of others.” Fla. Stat. § 776.031:

A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.

Deadly force is permitted only when “reasonably” believed “necessary to prevent the imminent commission of a forcible felony.” The no-retreat rule is the same as for self-defense.

We have now covered the entire relevant sections of Florida’s self-defense statutes. Not one word of them provides the slightest legal protection to Zimmerman, if the M version of the events is true. The grand jury will decide whether there is plausible evidence in support of the M theory.

Florida law provides some protections for persons who have lawfully used force against a criminal attack.

Fla. Stat. § 776.032. Immunity from criminal prosecution and civil action for justifiable use of force

(1) A person who uses force as permitted in  s. 776.012 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

So if a person used force lawfully in self-defense against a criminal attacker, then his actions are justified (not merely excused), and he may not be arrested, criminally prosecuted or sued. It seems obvious that persons who have obeyed the law should not be arrested or prosecuted. Nor should criminals or a criminal’s relatives be able to harass the victim by filing a civil suit.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

The Sanford police said this is why they did not arrest Zimmerman: they did not have probable cause to believe that he had broken the law. In fact, the statute does not change the law, but it apparently is effective at reminding law enforcement officers of the standard they are required to obey. Regarding arrests, the United States Constitution requires that “The right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the . . . persons . . . to be seized.” As judicially interpreted, the Fourth Amendment does not require a warrant for some arrests, but the probable cause requirement remains enforceable. The normal rule in American law is that a police officer must have “probable cause” in order to arrest someone.

Another protection:

(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

So if a lawful defender is sued, then the court will attorney’s fees and costs to the victim of the improper suit, who was, of course, also the crime victim.

Finally, Florida law guaranteeing self-defense rights express excludes anyone who “Initially provokes the use of force against himself or herself.” Fla. Stats. 776.041. As is typical in other states, the provoker can only regain self-defense rights  if:

(2)(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

The only way that this statute would be relevant would be if Zimmerman initially attacked Martin, and then withdrew. Zimmerman has made no such claim, nor does the M narrative.

In sum: there is not a shred of support for the claim that Florida law protects, or has protected Zimmerman, if he unlawfully attacked Martin. If Zimmerman’s story is true (Martin attacked him, putting him in imminent peril of grave bodily injury, with no opportunity to retreat), then Zimmerman’s self-defense claim would be valid under the laws of Florida, New York, or any other Anglo-American jurisdiction. The particular legal changes resulting from Florida’s “Stand Your Ground” and “Castle Doctrine” laws (deadly force in the home/automobile; no duty to retreat in public places; Fourth Amendment arrest standard affirmation; protection from civil suits) simply have nothing to do with whether Zimmerman’s actions were or were not lawful.

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Dave Kopel on Obamacare Oral Arguments 3/26

Posted by on Mar 26 2012 | Constitutional Law, Health Care, health control law, Kopelization, PPC, supreme court, U.S. Constitution

Independence Institute Research Director David Kopel, who is also a constitutional law professor at DU Law School, offered the following comment on today’s Supreme Court oral argument:

Today the Justices strongly indicated that they will address the merits of the health control law, and will reject the argument that the Anti-Injunction Act prevents them from deciding the constitutionality of the individual mandate. Although the Justices had different rationales, they appeared to be unanimous in their result. Notably, the one Justice who said he agreed with an expansive interpretation of the Anti-Injunction Act was Justice Breyer, and he said that the Act did not apply at all, because the individual mandate penalty is not a “tax.”

The oral argument also highlighted how badly the health control law was drafted, even in its most important provision, the penalty for not purchasing health insurance from the congressionally-favored oligopoly. Solicitor General Verrelli, representing the Obama administration, had to perform numerous verbal contortions in order to defend the administration’s interpretation of the penalty, leading Justice Kagan to ask, “Is your whole point that this was inartful drafting by Congress . . . ?” Today’s argument is a reminder that when Congress enacts a lengthy statute which was, apparently, never read in its entirety by a single congressperson who voted for it, the statute will probably create numerous unintended consequences, which even the government cannot justify.

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VIDEOS: Sean Paige, Jim Manley on My Show

Posted by on Mar 26 2012 | Government Largess, guns, Idiot Box (TV Show), PPC

First, Sean Paige joins me to discuss his new project Monkey-Wrenching America.

Then Jim Manley from Mountain States Legal Foundation joins me to talk about winning the CU gun ban case in court:

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Get the Truth About Fracking

Posted by on Mar 21 2012 | energy, Environment, PPC

Have you heard the one about hydraulic fracturing (”fracking”) depleting our water supplies? Yeah, I’ve heard that one too. There are a dozen myths out there regarding fracking for every truth you hear. It’s time someone set out to dispel as many as possible. Well, we’ve got just the guy to do it. Donovan Schafer is an Energy Policy Center research associate and an expert on the process of hydro fracturing. The Energy Policy Center is debuting a series which aims to provide the public with the truth about fracking. Here is the first part in the series and it concerns the myth that fracking depletes our water supplies. Stay tuned for the rest of the series over on our Energy Policy Center blog.

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Halfway Through, What’s Going On Over There?

Posted by on Mar 19 2012 | Idiot Box (TV Show), PPC

So we’re halfway through the 2012 Colorado legislative session and you might be wondering how your liberties and freedoms have fared thus far (and if they’ll make it intact until the end). I had a couple of reporters on my show last Friday to address those legitimate concerns – Charles Ashby from the Grand Junction Sentinel and Shaun Boyd from CBS4Denver. Take a look at the video below for a halftime update from our state Capitol.

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GMU Law Professor on Why the Individual Mandate is Unconstitutional

Posted by on Mar 16 2012 | Constitutional History, Constitutional Law, Constitutional Theory, Health Care, health control law, Legal professor, obamacare, PPC, U.S. Constitution

George Mason University law professor, Volokh Conspiracy blogger, and colleague of our constitutional scholar Dave Kopel, Professor Ilya Somin joined in the fight against Obamacare and its individual mandate. Professor Somin authored this amicus brief against the mandate, which, like our individual mandate amicus, focuses a lot on the necessary and proper clause.

Here is Professor Somin discussing his case against the mandate and prognosticating on the future of Obamacare with

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