My Cato colleague John Cochrane – who is way smarter than I am — has a generally excellent op-ed in today’s Wall Street Journal on ObamaCare’s contraception mandate:

Salting mandated health insurance with birth control is exactly the same as a tax—on employers, on Catholics, on gay men and women, on couples trying to have children and on the elderly—to subsidize one form of birth control…

The tax rate and spending debates that occupy the media are a small part of the effective taxes and spending that the government achieves by these regulatory mandates…

The natural compromise is simple: Birth control, abortion and other contentious practices are permitted. But those who object don’t have to pay for them. The federal takeover of medicine prevents us from reaching these natural compromises and needlessly divides our society…

Sure, churches should be exempt. We should all be exempt.

My only quibble is with his claim, “Insurance is a bad idea for small, regular and predictable expenses.”

That’s generally true. But medicine is an area where, potentially at least, small up-front expenditures (e.g., on hypertension control) could prevent large losses down the road. So it may be economically efficient for health plans to cover some small, regular, and predictable expenses. Both the carrier and the consumer would benefit. In fact, that would be the market’s way of telling otherwise uninformed consumers, “Hey! Controlling your hypertension is a really good for you!” And really, if someone is so risk-averse that they want health insurance with first-dollar coverage of everything – and they’re willing to pay the outrageous premiums that would accompany such coverage — why should we take issue with that?

ObamaCare’s contraceptive-coverage mandate demonstrates that government does  a horrible job of picking only those types of “preventive” services for which first-dollar coverage will leave consumers better off. But I also think advocates of free-market health care generally need to let go of the idea that health insurance exists only for catastrophic expenses.

Cochrane on ObamaCare’s Contraceptive-Coverage Mandate is a post from Cato @ Liberty - Cato Institute Blog

Regarding legislation to create an ObamaCare “Exchange” in Virginia, the Richmond Times-Dispatch explains:

Republicans at the General Assembly are falling prey to the fallacy of the false alternative…

[H]ere are the real options facing Virginia: (a) federal bureaucrats determine the form of our exchange, or (b) federal bureaucrats determine the form of our exchange. There is no (c)…

Running a health-insurance exchange would cost a lot of money — money Virginia does not have. Since Washington will dictate how it will be run, Washington should pick up the tab.

RTD: ‘Insurance Exchange: Just Say No’ is a post from Cato @ Liberty - Cato Institute Blog

The right answer to the same-sex marriage question is to remove government from the marriage business altogether.  That’s a legislative matter, however, and not something the courts should decree. Until then, because state and federal laws confer benefits based on marital status, the equal protection provisions of the Fifth and Fourteenth Amendments require that same-sex couples not be subject to discrimination in receipt of those benefits. But that issue was not addressed by the U.S. Court of Appeals in California—a state that permits gay unions and does not discriminate against such unions in conferring “marital” benefits. The specific issue the court decided was whether the label “marriage” could attach to heterosexual but not homosexual partnerships. Quite properly, the court ruled that it could not. That’s a narrow but important step in the right direction. But it does not settle the more significant question whether states may grant benefits to heterosexual couples while granting less or no benefits to homosexual couples.

In fact, there’s a negative aspect of the court’s ruling, which essentially declared Prop 8 unconstitutional because California went further than other states in allowing civil unions. The court held there’s no rational basis for allowing such unions but requiring that they carry a different label. That’s quite different from invoking the Equal Protection Clause to forbid a state from denying gays a right to the benefits of marriage. That issue didn’t arise because California grants such benefits to gays. Regrettably, other states may be dissuaded from following the California civil union model because their voters wish to limit the definition of “marriage” to exclude gays. In this instance, the better may become the enemy of the good.

Gay Marriage Still Has an Uphill Climb is a post from Cato @ Liberty - Cato Institute Blog

Associated Press photojournalist Noah Berger captured this thousand-word image near the Occupy Oakland demonstrations last month.

(AP Photo/Noah Berger)

Many Cato@Liberty readers will get it immediately. They can stop reading now.

For everyone else, this image perfectly illustrates the ethos of what I call the Church of Universal Coverage.

Like everyone who supports a government guarantee of access to medical care, the genius who left this graffiti on Kaiser Permanente’s offices probably thought he was signaling how important other human beings are to him. He wants them to get health care after all. He was willing to expend resources to transmit that signal: a few dollars for a can of spray paint (assuming he didn’t steal it) plus his time. He probably even felt good about himself afterward.

Unfortunately, the money and time this genius spent vandalizing other people’s property are resources that could have gone toward, say, buying him health insurance. Or providing a flu shot to a senior citizen. This genius has also forced Kaiser Permanente to divert resources away from healing the sick. Kaiser now has to spend money on a pressure washer and whatever else one uses to remove graffiti from those surfaces (e.g., water, labor).

The broader Church of Universal Coverage spends resources campaigning for a government guarantee of access to medical care. Those resources likewise could have been used to purchase medical care for, say, the poor. The Church’s efforts impel opponents of such a guarantee to spend resources fighting it. For the most part, though, they encourage interest groups to expend resources to bend that guarantee toward their own selfish ends. The taxes required to effectuate that (warped) guarantee reduce economic productivity both among those whose taxes enable, and those who receive, the resulting government transfers.

In the end, that very government guarantee ends up leaving people with less purchasing power and undermining the market’s ability to discover cost-saving innovations that bring better health care within the reach of the needy. That’s to say nothing of the rights that the Church of Universal Coverage tramples along the way: yours, mine, Kaiser Permanente’s, the Catholic Church’s…

I see no moral distinction between the Church of Universal Coverage and this genius. Both spend time and money to undermine other people’s rights as well as their own stated goal of “health care for everybody.”

Of course, it is always possible that, as with their foot soldier in Oakland, the Church’s efforts are as much about making a statement and feeling better about themselves as anything else.

The Ethos of Universal Coverage is a post from Cato @ Liberty - Cato Institute Blog

The liberty-lovers at New Hampshire’s Josiah Bartlett Center for Public Policy have produced this video of my appearance before the New Hampshire House of Representatives where I argued against creating health insurance “Exchanges”:

(Notice my rapt audience.)

Should New Hampshire Create a Health Insurance Exchange? is a post from Cato @ Liberty - Cato Institute Blog

President Obama is catching some well-earned blowback for his decision to force religious institutions “to pay for health insurance that covers sterilization, contraceptives and abortifacients.” You see, ObamaCare penalizes individuals (employers) who don’t purchase (offer) a certain minimum package of health insurance coverage. The Obama administration is demanding that coverage must include the aforementioned reproductive care services. The exception for religious institutions that object to such coverage is so narrow that, as one wag put it, not even Jesus would qualify. HHS Secretary Kathleen Sebelius reassures us, “I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services.” Ummm, Madam Secretary…the Constitution only mentions one of those things. The Catholic church is hopping mad. Even the reliably left-wing E.J. Dionne is angry, writing that the President “utterly botched” the issue “not once but twice” and “threw his progressive Catholic allies under the bus.”

As I wrote over and over as Congress debated ObamaCare, anger and division are inevitable consequences of this law. I recently debated the merits of ObamaCare’s individual mandate on the pages of the Wall Street Journal. Here’s a paragraph that got cut from my essay:

We can be certain…that the mandate will divide the nation. An individual mandate guarantees that the government—not you—will decide what medical services you will purchase, including contraceptives, fertility services that result in the destruction of human embryos, or elective abortions. The same apparatus that can force Americans to subsidize elective abortions can also be used to ban private abortion coverage once the other team wins. The rancor will only grow.

Or as I put it in 2009,

Either the government will force taxpayers to fund abortions, or the restrictions necessary to prevent taxpayer funding will reduce access to abortion coverage. There is no middle ground. Somebody has to lose. Welcome to government-run health care.

The same is true for contraception. The rancor will grow until we repeal this law.

ObamaCare highlights a choice that religious organizations — such as the United States Conference of Catholic Bishops, where my grandfather served as counsel — have to make. Either they stop casting their lots with Caesar and join the fight to repeal government health care mandates and subsidies, or they forfeit any right to complain when Caesar turns on them. Matthew 26:52.

Contraceptives Mandate Brings ObamaCare’s Coercive Power into Sharper Focus is a post from Cato @ Liberty - Cato Institute Blog

That’s how Charlie Arlinghaus, president of New Hampshire’s Josiah Bartlett Center for Public Policy, describes the decision confronting states about whether to create an ObamaCare Exchange in this op-ed for the New Hampshire Union-Leader.

‘We Are Not Deciding between Regulation and Autonomy, We Are Deciding Whether or Not We Want a Puppet Government’ is a post from Cato @ Liberty - Cato Institute Blog

Roger Pilon has been doing good, quick work on New Gingrich’s pronouncements on the role of the judiciary in interpreting the Constitution. (Roger read Newt’s 54-page “white paper” so you don’t have to!)

I have nothing to add to that assessment of the former House Speaker’s legally questionable and politically unwise views. Instead, I want to share a snippet from this lighter take by Mark Steinberg:

The Supreme Court today held that the United States Congress is unconstitutional and must vacate the Capitol no later than January 1, 2012.

The 8-1 vote followed closely on the heels of statements by Newt Gingrich, now leading the race for the GOP presidential nomination, that as president he would ignore decisions by the courts if he was having “a really bad day”; that Congress should have the power to subpoena and impeach federal judges whose jibs the legislators found un-seaworthy; and that the judiciary is “a twig on the governmental tree that the president and Congress can prune and burn in the backyard.”

The piece reads like something from The Onion.

Funny, when I heard that Gingrich was discoursing on the law, I thought he’d be proposing the appointment of sentient robots to be our judicial overlords…

Happy Holidays, everyone!

Truth Is Stranger Than Fiction, Gingrich Division is a post from Cato @ Liberty - Cato Institute Blog

About a week ago, I wrote that people in western nations need the freedom to own guns just in case there are riots, chaos, and social disarray when welfare states collapse.

Much to my surprise and pleasure, this resulted in an invitation to appear on the National Rifle Association’s webcast to discuss the issue.

As I noted in the interview, I’m just a fiscal policy wonk, but the right to keep and bear arms should be a priority for anyone who believes in freedom and responsibility. And even though I only have a couple of guns, you can see that I’m raising my kids to have a proper appreciation for the Second Amendment.

I don’t think we’ll ever get to the point where we suffer societal breakdown, but I won’t be too surprised if it happens in some European countries. We’ve already seen the challenges faced by disarmed Brits during recent riots in the United Kingdom.

In the NRA interview, I pointed out that law enforcement is one of the few legitimate functions of government, so it is utterly despicable when politicians fail to fulfill that responsibility and also deprive households from having the ability to protect themselves.

Last but not least, watch this video if you want to be inspired about protecting the Second Amendment. Pay close attention around the five-minute mark.

Will You Be Able to Protect Your Family if Politicians Destabilize Society? is a post from Cato @ Liberty - Cato Institute Blog

That’s the topic of my latest op-ed, in the Daily Caller.  Here’s the list:

1. The individual mandate
2. Medicaid coercion
3. The Independent Payment Advisory Board
4. The Chrysler bailout
5. Dodd-Frank
6. The deep-water drilling ban
7. Political-speech disclosure for federal contractors
8. Taxing political contributions
9. Graphic tobacco warnings
10. Health care waivers

For descriptions of what makes these things so constitutionally bad, read the whole thing.

Obama’s Top 10 Constitutional Violations is a post from Cato @ Liberty - Cato Institute Blog

On its first day of business this past January, the Republican House majority adopted a new rule requiring every bill to include a so-called constitutional authority statement, listing the part(s) of the Constitution that give Congress the power to do what the bill says. 

At the time, I analyzed the requirement, as did Cato’s chairman emeritus Bill Niskanen, and what effect it might have on congressional action.  We noted that, while it was a good thing for people (and especially elected officials) to be paying attention to the Constitution, the practical effect may be negligible because legislators would overwhelmingly cite the General Welfare Clause, Commerce Clause, and Necessary and Proper Clause — all part of Article I, section 8.  To minimize this result, Cato ran an ad in Politico and other publications explaining what these clauses could and could not justify.  Here are the points we made:

• Contrary to modern readings, the General Welfare Clause does not grant Congress an independent power to tax and spend for the “general welfare.” If it did, there would be no need to enumerate any other powers.  Rather, it authorizes Congress to enact the specified taxes for the specified purposes—headings more precisely defined by the 17 enumerated powers or ends that follow. And Congress’s power to tax for the “general welfare” precludes it from taxing to provide for special parties or interests.
• The Commerce Clause too does not authorize Congress to regulate anything and everything, which again would put an end to the idea of a government of enumerated and thus limited powers.  Under the Articles of Confederation, states had erected tariffs and other protectionist measures that were impeding interstate commerce. To end that and ensure free interstate commerce, Congress was given the power to regulate, or “make regular,” such commerce—the main sense of “regulate” at the time. Were Congress thought to have the all but unbounded regulatory power it exercises today, the Constitution would never have been ratified.
• The Necessary and Proper grants Congress the means to execute its enumerated powers or ends and those of the other branches. It adds no new ends. And the means must be “necessary and proper.”  That means they must respect the Constitution’s structure and spirit of limited government; they must respect federalism principles; and they must respect the rights retained by the people.

So, nine months later, what happened?  The Republican Study Committee – essentially the GOP House Caucus’s conservative sub-caucus — has come up with the following analysis (analyzing 3042 bills through September 16, some of them counted more than once in the below statistics):

• 3 bills cite only the Preamble to the Constitution.
• 84 bills cite only Article 1, which creates the Legislative Branch.
• 58 bills cite only Article 1, Section 1, which grants all legislative powers to Congress.
• 470 bills cite only Article 1, Section 8, which is the list of specific powers of Congress, without citing any specific clause.
• 539 bills cite [the General Welfare Clause].
• 567 bills cite [the Commerce Clause].
• 247 bills cite [the Necessary and Proper Clause], without citing a “foregoing power” as required by [Article I, section 8,] clause 18.
• 309 bills cite two or more of the “general welfare” clause, commerce clause, or the “necessary and proper” clause.
• 87 bills cite Article 1, Section 9, Clause 7, which provides that no money shall be drawn from the Treasury, but in consequence of appropriations made by law.
• 210 bills cite Article 4, Section 3, which provides that Congress shall have the power to make rules and regulations respecting the territory or property of the United States.
• 252 bills cite an amendment to the Constitution.  For example, 54 cite the 10th Amendment (powers not delegated to the federal government), 30 cite the 14th Amendment (“equal protection, etc.”), and 64 cite the 16th Amendment (income tax).

Pretty thin gruel and, as I noted above, not unexpected.  Then again, if the constitutional authority statement requirement has caused even one House member to waver over what he has the power to propose — let alone to refrain from offering a bill — this minor legislative rule will have been an improvement on the status quo ante.

Whither Constitutional Authority Statements? is a post from Cato @ Liberty - Cato Institute Blog

Yesterday Cato hosted a book forum on Joe Gibson’s new book, A Better Congress: Change the Rules, Change the Results. The author had a lot of thoughtful ideas, and the event is worth watching (its also a short book, easy read). Several of the book’s proposals move toward getting greater consensus in Congress and more agreement across the parties. Which got me thinking, if you want consensus, why don’t you start by just requiring it. Something like a 300 vote requirement in the House with a 80 vote requirement in the Senate. There’s nothing in our Constitution that requires simple majorities (or 60 for that matter), at least for routine business (yes there are rare exceptions). This would not stop every bad law, far from it, but it would require laws to have more support, with the result that would have more legitimacy in the eyes of the public.

Now the biggest problem with this proposal would be that it favors the status quo, as changing the status quo would become far more difficult. The solution is to require every federal program and authority to have a sunset date, something like 5 or at most 7 years. If you can’t get broad consensus to keep a program, then it sunsets and goes away. If the program is much loved, then it should have no problem staying. Worth keeping in mind that the vast majority of bills pass the Senate by unanimous consent, almost in effect requiring 100 votes. So I don’t see either of these changes being that disruptive to the Senate and would likely improve the process in the House.

Requiring Consensus in Congress is a post from Cato @ Liberty - Cato Institute Blog

The Washington Post offers today a critical look at independent fundraising and spending in the 2012 campaign.

The article states independent groups are raising money “in response to court decisions that have tossed out many of the old rules governing federal elections, including a century-old ban on political spending by corporations.”

But the century-old ban is on campaign contributions by corporations, and it is intact. Spending on elections was not prohibited to some corporations until much later.

Other spending by corporations, like the money spent by The Washington Post Company to produce the linked story, has never been regulated or prohibited by the federal government.

The article mentions a “shadow campaign” and refers to Watergate. It states “independent groups are poised to spend more money than ever to sway federal elections.” Surely something is amiss here! Or at least the causal reader of the Post might conclude that.

But what is going on? A spokesman for one of the independent groups says they are trying to influence the debt ceiling debate and that as far 2012 goes: “We’re definitely working to shape how the president is perceived, because how he is perceived will have a huge impact on how this issue is resolved.”

It sounds like the group is engaging in political speech on an issue, speech that could have some effect on next year’s election. What is amiss about that? Isn’t the right to engage in such speech a core political right under our Constitution?

The article also argues that independent groups, being independent, may fund speech that may harm a candidate they are trying to help. Candidates, in a sense, have lost some control over their campaigns and their messages.

Of course, absent limits on contributions to candidates and parties, the money going to independent groups might go to…candidates and parties. Liberalizing speech, not suppressing independent groups, might be a good way to prevent groups from airing ads that harm or misrepresent candidates for office. Finally, candidates do have the power to repudiate independent ads.

Expect more news stories like this one over the next 18 months. The cause of campaign finance reform is in desperate straits. Reformers in the media are going to construct a narrative that says: money is destroying democracy in 2012, all because of Citizens United. They hope thereby to set the stage to restore restrictions on campaign finance.

The First in a Long Series is a post from Cato @ Liberty - Cato Institute Blog

I ask this question in today’s Richmond Times-Dispatch:

Virginia Republican Gov. Bob McDonnell…says Obamacare is unconstitutional and therefore illegitimate. Yet he has created a state commission to study whether Virginia should implement an illegitimate law. Since the answer does not appear self-evident to commonwealth officials, let’s walk through the reasons Richmond should refuse to create any new health-care bureaucracies.

Didn’t this guy take an oath to support the U.S. Constitution?

Why Is Virginia Gov. Robert McDonnell Implementing ObamaCare? is a post from Cato @ Liberty - Cato Institute Blog

• Few GOP presidential candidates have proposed specific budget cuts.
• “Peace is in the interest of Taiwan, China, and the U.S. … But the U.S. should view continuing arms sales to Taipei as perhaps the best means to maintain stability and peace across the Taiwan Strait.”
• Market liberalization has transformed newly independent states that formerly comprised Yugoslavia.
• President Obama is simply the new standard-bearer for the bipartisan contempt for constitutional limits on power.
• Cato chairman Robert A. Levy makes the libertarian case for marriage equality:

Thursday Links is a post from Cato @ Liberty - Cato Institute Blog

• The whole of the waterboarding debate is pointless posturing.
• We should be funding transportation initiatives with user fees, not federal taxes.
• Gun control advocates suggest impropriety at gun shows and sporting goods stores put weapons in the hands of Mexican drug cartels — but we should be asking how deterring a Soviet presence in Latin America in the 1980s contributed to the problem.
• “Presidents have an obligation to obey the Constitution and the law.”
• When you factor in unfunded liabilities, the U.S. government is closer to $120 trillion in debt:

Wednesday Links is a post from Cato @ Liberty - Cato Institute Blog

The Patriot Act extension passed by Congress this week did not become the law of the land. It is void and without effect.

So may argue some future defendant whose conviction rests on evidence gotten under Patriot Act powers during the extended period Congress sought to establish in the bill it passed this week.

President Obama is at a meeting in Europe, so he had the bill signed by auto-pen. Representative Tom Graves (R-GA) has written a letter inquiring of the president whether he was presented the bill and truly intended to sign it.

Article I, Section 7 of the Constitution says:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it…

Is presentment and signing a quaint formality? Something to put aside in light of modern technology and time-constraints? Or is it an important step in the law-making process, to be executed quite literally without deviation from past practice?

The answer lies mostly in consideration of what a signature is, and what it does. I looked into signatures, among many other identifiers and security techniques in my book, Identity Crisis.

Wikipedia has a definition of “signature” that’s good enough: “A signature is a handwritten (and sometimes stylized) depiction of someone’s name, nickname, or even a simple ‘X’ that a person writes on documents as a proof of identity and intent.” Key words: identity and intent.

In the world of identification and security, a signature is classed as a “behavioral biometric identifier.” That is, it’s a product of a given person’s bodily action that is distinctive enough to create strong evidence of the person’s presence.

A signature does many things, and inferences spill out from the presence of a mark on paper that is sufficiently similar to other marks made by a particular person. Because it’s left on the paper, a signature indicates that the person was in the presence of the document. This means in most cases that he or she could review it and had the opportunity, barring some exigency, to affirm its accuracy and completeness. By long-standing custom, absent duress or fraud, the signature indicates the giving of one’s assent or the placing of authority behind the content of the document. A signature supplies evidence—imperfect, to be sure—that a given person approved a given document.

Does a signature by auto-pen create the same inferences? Almost none of them. To know that President Obama indeed meant to affirm the bill, one would have to investigate how he was apprised of the bill’s content. Were there security measures in place to ensure that the communication about the document and the giving of assent were not altered or forged in transit from Washington, D.C. to Europe? One would need assurance that the controller of the auto-pen applied its mark to the exact document that the president was apprised of, and that no substitute document was inserted. All these problems are solved by bringing the person with authority into the same room with the document to manually apply the signature.

I haven’t a whiff of doubt that President Obama intended to sign the bill. The authority of the president and the gravity of bill-signing are such that I’m confident security measures were in place to control the security issues noted above.

But the question in a court case dealing with the presentment and signing requirement is not what happened with this particular bill. It is what should happen in all cases to help exclude the risks of fraud and duress in law-making—with much longer bills, for example, or some future circumstance when the president’s whereabouts or capacity might be unknown.

The authority of the president and the gravity of bill-signing actually cuts the other direction: The president should be in the same room as the actual document, applying his genuine signature to the artifact of a United States public law’s creation. It’s that important a function of the presidency.

Until biometrics and encryption are good enough that we can sign our mortgages remotely, it’s not too much to ask, having the president to sign legislation in person. If a criminal or two go free in the future because of the inadequacy of the process here, it will be worth it for the small security against fraudulent passage of legislation in a future full of uncertainties.

“If He Approve, He Shall Sign It…” is a post from Cato @ Liberty - Cato Institute Blog

Thanks to star libertarian lawprof and Cato senior fellow Randy Barnett for pointing out something that has needed saying for a while: most proposals in the U.S. Congress to address medical malpractice law run into serious federalism problems.

Most medical malpractice suits go forward in state courts under state law. If the U.S. Congress wishes to impose a nationwide rule on these suits, such as by limiting damages for pain and suffering, it first needs to answer the question: under which of the federal government’s constitutionally prescribed powers is it acting? Even if it can identify such authority, it should also ask: is it a wise idea—consistent with what one might call a prudential federalism—to gather yet more power in Washington at the expense of the states?

Unfortunately, the backers of the current federal med-mal bill have chosen to rely on the Supreme Court’s very expansive “substantial effects” doctrine, which as Barnett explains:

allows Congress to regulate any economic activity in the country that can be said, in the aggregate, to have a “substantial effect” on interstate commerce. This doctrine was unknown before the 1940s, and goes far beyond the original power to regulate trade between states. This is how most of Congress’ regulatory power has been justified since then.

Although it is followed even by conservative justices, Justice Clarence Thomas has long criticized the Substantial Effects Doctrine on the ground that it exceeds the original meaning of the Constitution.

Let’s step back for a moment to review what’s not at issue here. First, this is not an argument over whether liability reform of some sort is a good idea: in fact Prof. Barnett “strongly support[s] reforming our malpractice laws to protect honest doctors from false claims and out-of-control state juries.” (So do I.)

Nor is this an argument over whether the federal government should simply leave the state courts alone as a general proposition, as some late-blooming friends of federalism on the left side of the aisle seem to suggest. Our constitutional scheme of government is entirely consistent with federal-level supervision of state courts when those courts behave in certain ways, as by violating litigants’ due process, impairing the obligation of contract, or abridging the privileges and immunities of citizens of other states, to name but a few. Article IV, Section 1 confers on Congress a broad charter to prescribe to states “by general Laws” how they are to accord full faith and credit to other states’ enactments. That’s not even counting Congress’s genuine interstate commerce power (as opposed to the on-steroids New Deal version) or various other powers.

But observe the pattern. Again and again, the Constitution contemplates federal supervision of state courts when they reach out to assert power over transactions and litigants outside their own boundaries. It has far less to say about intruding upon the authority of those courts over disputes that arose between their own residents and are unmistakably under their own law. That general game plan—oversee the interstate but mostly not the intrastate doings of state courts—comports well with the insight of public choice scholars who point out that states face an ongoing temptation to stack liability proceedings so as to enrich their own citizens at the expense of out-of-state litigants obliged to appear in their courts.

Where does this leave federal-level liability reform? It suggests a very real difference between areas like product liability and nationwide class actions—in which suits ordinarily cross state lines, and the majority of runaway verdicts are against out-of-state defendants—and more conventional kinds of tort litigation arising from car crashes, slip-and-falls, and medical misadventure, where cases are mostly filed against locally present defendants. As a rough rule of thumb, it’s worth presuming that most of the local suits do not externalize heavy costs across state lines and should accordingly be left alone by Congress unless it is itself vindicating some constitutional right or coordinating the functioning of some constitutionally authorized federal government activity.

That doesn’t mean federal policymakers are to be left with no role at all. For example, if Washington is paying for a large share of hospital stays, it may make sense as a cost containment measure for it to steer beneficiaries into lower-cost ways of resolving disputes over care quality, or even to ask beneficiaries as a condition of treatment to agree not to file certain suits at all. But that would require stepping back toward a more careful—and more Constitutionally appropriate—view of the federal role.

Federalism and Med-Mal Reform is a post from Cato @ Liberty - Cato Institute Blog

• Please join us this Wednesday, May 25 at 2:00 p.m. Eastern for a Policy Forum with former Minnesota governor Tim Pawlenty, “Limiting Government: What Washington Can Learn from Minnesota,” with opening remarks from Cato founder and president Edward H. Crane. Governor Pawlenty received an “A” grade on Cato’s biennial “Fiscal Policy Report Card on America’s Governors: 2010,” by Cato director of tax policy studies Chris Edwards. Complimentary registration is required of all attendees by noon Eastern tomorrow, Tuesday, May 24–seating is limited and not guaranteed. If you cannot join us in person, please join us on the web for a live video stream of the event.
• Washington’s use of tax dollars to strong-arm states into adopting national standards and tests doesn’t leave much room for state choice in education.
• Did you know Cato has a series of 60 and 90-second radio ads about the Constitution that you can download for free?
• “Unfortunately, suspicions about private property as a fundamental human right survive to this day, to the detriment of the coherence of human rights as a guiding political concept, and of fundamental freedoms and prosperity.” Read the rest of the new Cato Policy Report here.
• What will happen if we do nothing, and let Medicaid, Medicare, and Social Security continue to grow?

Monday Links is a post from Cato @ Liberty - Cato Institute Blog

• How to identify as a leftist totalitarian.
• How to reinforce the status quo in the Middle East peace process.
• How to learn and understand the Founders’ intent for the United States.
• How to save billions of dollars annually and reduce the deficit:

Friday Links is a post from Cato @ Liberty - Cato Institute Blog