Category: judiciary

Categories
judiciary nannyism too much government

A Big Gulp for Bloomberg

New York City Mayor Michael Bloomberg’s much-talked-about prohibition of large-size sugary drinks, like Coke and Pepsi, set to have gone into effect today, has been over-ruled. At least temporarily. New York Supreme Court Judge Milton Tingling put the kibosh on the law, on Monday, enjoining and restraining the city “from implementing or enforcing the new regulations.”

Mayor Bloomberg promises to appeal the ruling. Apparently, he sees this as such an important policy move that spending taxpayers’ money on legal fees is another great thing he can do for the people he’s supposed to serve.

But, until his next assault, let’s appreciate the judge’s ruling:

In halting the drink rules, Judge Tingling noted that the incoming sugary drink regulations were “fraught with arbitrary and capricious consequences” that would be difficult to enforce with consistency “even within a particular city block, much less the city as a whole.”

“The loopholes in this rule effectively defeat the stated purpose of the rule,” the judge wrote.

The judge also censured Bloomberg for overstepping his bounds by cooking up the regs not via the City Council — the city’s legislative body — but from the Board of Health, which just happens to have been appointed by . . . Michael Bloomberg.

The prohibition of larger-sized soft drinks never made much sense. Add onto its limited scope (applying to some vendors, not others) and its core notion (prohibiting sale by dosage, when consumers could with only marginal inconvenience get around the rules) Bloomberg’s legislative hanky panky, and it wasn’t just any Nanny State horror.

It was an autocratic move.

Nicely stopped. For now.

This is COmmon Sense. I’m Paul Jacob.

Categories
First Amendment rights judiciary

Google Vindicated

In 2009, I noted that an Italian court was trying three Google executives for violating Italian privacy laws. The three soon received six-month suspended jail terms for being “too slow” to remove a video from YouTube that depicted the bullying of an autistic child. Google had pulled the video as soon as told about it.

The unjust conviction has now thankfully been reversed.

At the time, Google rep Bill Echikson complained that his colleagues had been convicted although they had neither uploaded the video nor reviewed it before it was posted.

A key word is “review.” Must any Internet host of user-posted content review such content before it is published or else risk incarceration? Of course, “hosted” content covers the gamut of Internet content. Few website publishers provide their own servers.

If a publisher must obtain special approval from Facebook, Google, WordPress or any other platform provider before tossing something onto the web, that’s the death knell for freedom of speech and press on the Internet. At best, the pace of publication would slow to a crawl. At worst, censorship by Web-service providers would become rampant — except when providers suspend their services altogether for fear of non-suspended jail time.

Perhaps if the bad Italian precedent had been allowed to stand, the worst would not have come to pass. Perhaps only rarely would we see a horrific conviction exploiting that precedent, and perhaps only in Italy. But why take even one step down that road?

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights judiciary

The Truth-Telling Defense

In these United States, must you pay $60,000 for the “crime” of publicly telling the truth about someone?

What if you’re a mere blogger rather than a network news anchor?

Back in March of last year, a jury decided that Minneapolis blogger John Hoff must pay $35,000 for lost wages plus $25,000 for emotional distress to Jerry Moore because Hoff had blogged, in 2009, that Moore was involved in mortgage fraud. After Hoff’s post hit the cyberwaves, Moore was booted from the University of Minnesota.

The jury did not find that Hoff had libeled Moore. Instead, Hoff had supposedly committed “tortious interference” with Moore’s employment, presumably by giving the university information that it found convincing and relevant. (Hoff didn’t fire Moore. The university did.)

Luckily, this verdict, though horrific, didn’t provide the final word. The Minnesota Court of Appeals has just overturned it, arguing, in part: “Because truth is an absolute defense to a claim for defamation, truth should also be a defense to a claim for tortious interference with a contract arising out of an allegedly defamatory statement.”

Eugene Volokh of The Volokh Conspiracy judges the case a “big victory for free speech.” Apparently, the First Amendment can take a licking and keep on ticking.

It’s unfortunate, however, that this truth had to be affirmed at the cost of three years of time, trouble and anxiety for Mr. Hoff.

This is Common Sense. I’m Paul Jacob.

Categories
judiciary Tenth Amendment federalism too much government

Resistance Still Possible

According to a majority on the Supreme Court, Obamacare’s penalty for not buying medical insurance is constitutional because it’s a “tax,” not a “penalty.” Hmmm. All taxes may penalize, and penalties sure can be “taxing,” but this similarity doesn’t give us license to swap one for the other.

Chief Justice John Roberts reportedly flip-flopped about whether the Obamacare mandate is unconstitutional — perhaps in fear of left-leaning politicians and pundits. (“We’re not going to like you if you hinder our tyrannical medical regime by applying constitutional principles!”)John Roberts, flip/flop

The chief’s formal opinion states that under the Constitution the wisdom of legislation is a “judgment . . . reserved to the people.” Whoa. Hasn’t Marbury been decided? Doesn’t the courts’ power of judicial review help ensure that constitutional restraints on government power continue to restrain?

Well, just because the Roberts Court refuses to do its job doesn’t mean we must twiddle our thumbs in response. We can fight for an anti-Obamacare majority in Congress and the White House in November.

We can also urge our state governments to decline to cooperate with Obamacare right now. As wretched as it is, the court’s ruling at least overrules the new law’s attempt to force states to massively expand Medicaid. Almost immediately after the ruling, Florida Governor Rick Scott, who had refused to cooperate with other aspects of the law, announced that Florida will not expand Medicaid eligibility. A dozen or so other governors have made similar commitments.

What about your governor? Do you need to make a phone call?

This is Common Sense. I’m Paul Jacob.

Categories
judiciary tax policy too much government

Supreme Oxymorons

With the Supreme Court’s decision in National Federation of Independent Business v. Sebelius, the Patient Protection and Affordable Care Act has achieved its first milestone: The repudiation of logic, the Orwellian assertion that A both is and is not A.

The reform package, popularly known as Obamacare, requires that individuals buy medical insurance. If you fail to do so, the law imposes a fine.Justice Roberts

The zillion page legislation refers to this financial penalty 18 times. It never refers to a tax.

Its principal booster, President Obama, repeatedly insisted it wasn’t a tax. And as Justice Antonin Scalia wrote in his dissent, “We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty.”

But Chief Justice John Roberts, a George W. Bush-nominee, joined the four liberal justices to declare that what was not a tax, when proposed and passed, now is a tax — so that it could be declared constitutional under Congress’s taxing power. Roberts explains:

Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act.

Only were Obamacare not a tax could it be litigated at this time under the Anti-Injunction Act. Accordingly, the majority says it is not a tax. But it can only be ruled constitutional if it is a tax. So, the High Court calls it a tax and not a tax at the same time.

The dissent called this “remarkable.” Stronger words spring to mind.

This is Common Sense. I’m Paul Jacob.

Categories
judiciary national politics & policies term limits

Reform Follows Function

Waiting for this week’s Supreme Court decision on Obamacare, which most folks expect to strike down the mandate and perhaps the entire law, George Washington University Law Professor Jonathan Turley argues in the Washington Post that the court should be expanded from nine justices to 19.

FDR, no doubt sitting up in his grave listening for details, would find Turley’s suggestion of allowing each of the next five presidents to choose two new justices very politic, even sneaky.Jonathan Turley

One reason to add more justices, Turley hazards, is the damage caused to popular government when controversial issues are decided narrowly. Predicting a 5-4 vote on Obamacare, he unaccountably thinks it would be less controversial to then give the President two new justices so that this law (or other Obamanisms) would be upheld 6-5.

If I have my arithmetic correct, there can be legal cases decided by a single justice with any odd number of justices . . . nine, eleven, 13, 15, etc. That is why we choose odd numbers, if not odd justices.

Prof. Turley is correct, however, in addressing the awesome power of each Supreme Court justice, the fierce political battles each nomination now engenders and the ensuing politicization of the Court. He simply applies the wrong medicine.

A better reform would be to end lifetime tenure for justices on the High Court (but not for lower level federal judges). By requiring rotation no one could lock in a majority on the court for decades without sustained majority support of the people.

Turley informs us that 60 percent of the public already favors this approach. But the Washington elite? No such support.

This is Common Sense. I’m Paul Jacob.

Categories
judiciary U.S. Constitution

Liar in Chief

When you hear the word “unprecedented,” reach for your . . . dictionary.

As I’ve noted before, the word no longer sports its traditional meaning.

On Monday, President Barack Obama commented on the possibility that the Supreme Court would strike down the 111th Congress’s Patient Protection and Affordable Care Act by saying that such a move would constitute “an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” Yesterday, a three-judge panel of the Fifth Circuit Court of Appeals ordered the Justice Department to clarify the president’s statement. By Thursday.

Does the president — who happens to have taught constitutional law — really think the courts do not have the power to review and disqualify law on the basis of constitutionality?

As reported on CBS News’s Crossroads site, “Overturning a law of course would not be unprecedented — since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional.”

I’d like to take a moment and thank the president . . . for help making the Constitution a live topic of conversation these days. But there’s something worrisome here. The president knows better. This is even worse than, say, Newt Gingrich totally messing up his comments on “activist judges,” making hash of law and interpretation. This is a president with a Harvard-established reputation on the subject saying something patently untrue.

He could only have been “fibbing.” And hoping to get away with it . . . apparently on the supposition that Americans are so miseducated we wouldn’t even notice.

We noticed.

This is Common Sense. I’m Paul Jacob.

Categories
judiciary property rights

Pest Control for Pesky Evidence

Should courts be outlawed from thwarting outlaws?

The Environmental Protection Agency has acted to unilaterally ban a pesticide in use for decades. Writing for the Cato Institute’s blog, Ilya Shapiro notes that the agency’s move exemplifies “a growing trend among federal agencies and courts to incrementally expand the government’s enforcement power by adopting statutory interpretations that go beyond their plain meaning and intent.”

The pesticide is carbofuran, used to protect crops since 1969. What is the evidence that carbofuran poses a hitherto un-comprehended threat to human well-being? Federal law requires EPA to provide for a “notice and comment” period before altering an established legal threshold for pesticide residues on food. If “material issues of fact” are then raised, the agency must conduct a public evidentiary hearing. National Corn Growers indeed raised “material issues of fact” regarding the alleged hazards of carbofuran. So an evidentiary hearing is mandatory.

The DC Circuit ruled, however, that scientific disagreements are insufficient to trigger judicial review and that decisions about new residue tolerances should be left entirely to the EPA. If upheld, the decision means the agency could determine all by itself whether its regulatory actions are consistent with law. Even when they obviously aren’t.

Along with the National Corn Growers and other industry groups, the Cato Institute and Pacific Legal Foundation are challenging this latest assault on property rights and the rule of law — an assault you might even call a pestilence.

This is Common Sense. I’m Paul Jacob.

Categories
initiative, referendum, and recall judiciary

Rights and Democracy

Democracy and constitutional rights fit together better than some people think.

Most people don’t think of democracy as some hyper-pure system where two wolves and a lamb decide whom to eat for dinner. They envision a constitutional republic that protects fundamental rights while also democratically controlling government’s legitimate decisions and policies.

Increasingly, our representative bodies — from city councils to Congress — have attacked both our rights and our votes.

We need a direct democratic check on government; we need voter initiative and referendum.

Yet, even when citizens vote directly on an issue, the courts remain there to provide an additional check. Recently, Federal Judge Vaughn Walker struck down California’s Prop 8, a state constitutional amendment banning gay marriage. He said the measure violates the 14th Amendment’s requirement of “equal protection of the laws.”

Controversial? Yes. Sensible? Also yes.

Not so sensible, though, have been some criticisms.

My friend Joe Mathews, no initiative enthusiast he, wrote in the Washington Post: “Perhaps the spectacle of a federal judge overruling such a momentous electoral result will force Californians to reckon with the fact that their initiative process is at odds with norms of American civil rights and government.”

But this is about rights, not procedures. The vast majority of states have bans just like California’s. Banning same-sex marriage has been popular with both legislatures and voters.

Politicians can be wrong. Voters can be wrong. Judges can be wrong. But with each checking the others, we will be better off.

This is Common Sense. I’m Paul Jacob.

Categories
judiciary Ninth Amendment rights U.S. Constitution

Rights Retained by All But Kagan

When grilled by the Senate Judiciary Committee, Supreme Court nominee Elena Kagan didn’t have to go out on a limb to dismiss the rights affirmed in the Declaration of Independence. Most liberals and conservatives share the view that a judge’s job is to interpret the law, not defend “natural rights.”

Yet, our Founders regarded natural rights as an important restraint on government.

Not so with progressives today and yesterday. As scholar Jim Powell noted in The Daily Caller, progressives don’t like natural rights, or the function they serve. Powell quotes Teddy Roosevelt: “I don’t think any harm comes from the concentration of power in one man’s hands.”

TR was wrong. Progress depends not on unlimited power for leaders and bureaus, but on limiting those powers so voluntary co-operation can work its wonders.

Progressives from TR to Kagan oppose natural rights because they run dead against progressivism.

Even the enumerated rights in the Bill of Rights limits government too much for progressives, so they twist words to get rid of their practicality.

The idea of natural, basic rights find their most concise defense in the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The question to ask Supreme Court candidates — indeed, any person who must swear to “uphold the Constitution” — is how “the people” can retain their unenumerated rights.

The question is almost never asked.

To our detriment.

This is Common Sense. I’m Paul Jacob.