As followers of this blog recognize, Obamacare has more constitutional defects than just the individual mandate or even the coercive use of Medicaid funds.  One issue that is getting increasing attention (see the Weekly Standard, National Review, and George Will) is this weird new entity called the Independent Payment Advisory Board.

IPAB, which Sarah Palin famously labeled a “death panel,” will exercise virtually unchecked power to set Medicare reimbursement rates—without political or legal oversight by any branch of government.  It’s reminiscent of the Public Company Accounting Oversight Board, the part of the Sarbanes-Oxley financial regulation law that the Supreme Court found partially unconstitutional last year.  Except it has the power of life and death and is insulated even from repeal!

That is, IPAB creates “recommendations” for cutting Medicare spending, which then acquire the force of law.  Congress is specifically barred from reversing or modifying these “recommendations”; the only thing it can do is add further cuts.  It can also abolish IPAB, but only by passing a curious “resolution” that must be introduced between Jan. 3 and Feb. 1. 2017, and must be passed by 3/5 of all members of both houses by Aug. 15 of that same year.  Otherwise, Congress loses even its power to add further Medicare cuts and IPAB becomes a permanent fixture of of our health care world.

Suffice it to say, Congress cannot delegate its legislative authority to any such independent, everlasting institution.  One Congress can’t even bind its successors!

Pacific Legal Foundation principal attorney and Cato adjunct scholar Timothy Sandefur unearthed this great nugget by someone defending Obamacare:

Amazingly, Timothy Jost, one of Obamacare’s most vocal advocates, has proudly proclaimed that IPAB will act like:

A board of “Platonic Guardians” to govern the health care system or some aspects of it. The cost of health care is spinning dangerously out of control…. [O]ur traditional political institutions—Congress and the executive administrative agencies—are too driven by special interest politics and too limited in their expertise and vision to control costs. Enter the Platonic guardians…an impartial, independent board of experts who could make evidence-based policy determinations based purely on the basis of effectiveness and perhaps efficiency.

Think about that for a second. Plato’s “Guardians” (also known as philosopher kings) were a group of “godlike” officials (that’s Plato’s word) who would wield undemocratic power to form the perfect utopian state without oversight. According to The Republic, the Guardians would, among their other things, enforce:

by law…such an art of medicine…[which] will care for the bodies and souls of such of your citizens as are truly wellborn, but those who are not, such as are defective in body, they will suffer to die, and those who are evil-natured and incurable in soul they will themselves put to death. This certainly…has been shown to be the best thing for the sufferers themselves and for the state.

America’s constitutional democracy was created in direct contradiction to such authoritarian ideas.

Luckily, our friends at the Goldwater Institute have a lawsuit pending against IPAB, Coons v. Geithner (here’s the case page).  You’ll be hearing a lot more about this case regardless of the final result of the individual mandate lawsuits.  Here’s PLF’s amicus brief on the important “non-delegation doctrine” issue at its heart.

Obamacare’s Platonic Guardians is a post from Cato @ Liberty - Cato Institute Blog

Yesterday the U.S. Supreme Court heard oral arguments in American Electric Power v. Connecticut, the massive greenhouse-gas suit. Like the other “big” global warming/climate change suits, this one suffers from a basic and incurable defect: it seeks to undermine the separation of powers established under the U.S. Constitution by inviting the courts to address “political questions” of a sort properly resolved by other branches of government. As Cato’s amicus brief by Ilya Shapiro and Evan Turgeon explained in the case of Comer v. Murphy Oil:

“[W]hile it executes firmly all the judicial powers intrusted to it, the court will carefully abstain from exercising any power that is not strictly judicial in its character, and which is not clearly confided to it by the Constitution.” Muskrat v. United States, 219 U.S. 346, 355 (1911). A dispute is not “judicial in its character” when, among other reasons, the plaintiff does not have “standing” or the claim raises a “political question.” … And the political question doctrine, for which “the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations,” Coleman v. Miller, 307 U.S. 433, 454-55 (1939), isolates the judiciary from policy disputes the Constitution assigns to the democratic process.

By its nature, global warming is exactly the sort of policy question traditionally entrusted to the political branches: it is wholly unsuited to individualized justice based on links between particularized emissions and particularized effects, its proposed remedies are much disputed and likely to be the result of inevitably arbitrary compromise, sovereign negotiations with foreign actors play a crucial role, and so forth. As the courts have long recognized, one does not generate a case for judicial action simply by piling atop each other the propositions “something needs to be done” and “the political branches have not done it.” Indeed, the Obama administration itself has more or less invited the Supreme Court to dismiss the action on political-question grounds.

The Cato Institute filed an amicus brief urging the Supreme Court to review the American Electric Power case and then filed another amicus brief on the merits. Anyone interested in how the complexities of the Court’s “political question” doctrine apply in this case should read — in addition to Ilya Shapiro’s blog posts here and here — this new article in the Federalist Society’s publication Engage by Megan L. Brown of Wiley Rein LLP, who has served as Counsel of Record to the Cato Institute in its amicus briefs in this area. Brown provides a thorough explanation of why all three of the major warming suits fail the justiciability test, why Justices Kennedy and Breyer may be worth watching as “swing” votes in AEP, and how the new case affords the court a chance to revisit its problematic pro-regulatory holding in Massachusetts v. EPA (2007). (More from Brown in this Christian Science Monitor op-ed.)

Also worth reading on this subject: Harvard professor Laurence Tribe, by no means known as a general skeptic of environmental regulation, who has assisted the defense side in this litigation and explains some of the reasons in a new Boston Globe op-ed.

AEP v. Connecticut: Global Warming as Political Question is a post from Cato @ Liberty - Cato Institute Blog

• DON’T FORGET: Our fiscal policy conference, “The Economic Impact of Government Spending,” featuring Senators Bob Corker (R-Tenn.) and Mike Lee (R-Utah), former Senator Phil Gramm (R-Tex.), Representative Kevin Brady (R-Tex.), and other distinguished guests, begins at 2:00 p.m. Eastern today. Please join us on the web–you can watch the conference LIVE here.
• Atlas Shrugged Motors presents the Chevy Volt.
• The parable of the Good Samaritan teaches us about the moral value of voluntary charity toward the needy–it says nothing about using coercive government programs of the modern welfare state.
• It is not the role of the Court to rewrite laws for Congress.
• The failed “war on drugs” has reshaped our budgets, politics, laws, and society–and for what?

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

Slate columnist Dahlia Lithwick seems to think so (h/t David Bernstein).  So I’m not accused of taking Lithwick’s words out of context, here’s the relevant passage, discussing Senate nominee Christine O’Donnell (R-DE):

O’Donnell explained that “when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.” How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution? In 2003, O’Donnell said of the Supreme Court that “it’s kind of like we have the nine people sitting there in Washington who have a constitutional monarchy and that is an abuse of the system.” So I do wonder a little whether she’s claiming that her view of what’s constitutional trumps theirs. Not a lot of space for checks and balances in that reading.

Apparently Lithwick doesn’t know that senators and congressmen (and a whole host of other officials — including federal law clerks of the kind both she and I were at some point) swear an oath to uphold the Constitution.  It seems that it would be hard to fulfill that oath if you don’t in good faith and to the best of your ability consider the constitutional dimension of whatever you’re voting on.  Yes of course not all congressmen are lawyers — though it’s unclear whether being one and even chairing the judiciary committee helps one think through constitutional issues — but you shouldn’t have to be a constitutional scholar to see that, for example, Congress cannot force everyone to eat three servings of fruits and vegetables daily.  (Though now-Justice Elena Kagan refused to say that.)

Indeed, the Constitution is silent as to which branch of government is to review the constitutionality of legislation.  Moreover, as we know from the foundational case of Marbury v. Madison, the judiciary’s role in doing so is merely (but rightly) implied, not explicit, in constitutional text.  There is no “weirdness” in courts exercising their constitutional powers by ruling on constitutional issues brought before them in lawsuits even as the other branches make constitutionality determinations in carrying out their own duties.  After all, isn’t a president who does something he consciously knows is beyond his lawfully vested Article II authority violating his own oath of office and potentially subjecting himself to impeachment for that very reason?

Yes, long gone, unfortunately, are the days when congressional debates focused on the constitutionality of proposed bills rather than their desirability, but shouldn’t Congress at least pay lip service to the idea that it needs a constitutional warrant for everything it does?

In any event, I’ll be on a panel with Dahlia this Thursday at the Missouri Bar Association’s annual meeting and will raise this issue to her.  (May also take on her bizarre accusation that Iowa Senator Chuck Grassley was appealing sub rosa to “Christian Reconstructionists” in asking at Kagan’s confirmation hearings whether the right to keep and bear arms pre-existed the Constitution — see David Bernstein’s simple rebuttal at the Volokh Conspiracy.)

Is It ‘Weird’ for Congress to Consider the Constitutionality of Legislation Before Voting on It? is a post from Cato @ Liberty - Cato Institute Blog

Former secretary of state Madeleine K. Albright writes in Parade magazine that 20 years after the Berlin Wall, “We Must Keep Freedom Alive.” A commendable sentiment, but the article is a bit confused, notably in that it seems to use “freedom” and “democracy” interchangeably. But as Fareed Zakaria and Tom Palmer, among others, have demonstrated, they’re not the same thing. Freedom is the right and ability of individuals to make the important decisions about their lives. Democracy — especially constitutional democracy, with separation of powers, the rule of law, and constraints on government — can be the most effective way to protect liberty. But democracy isn’t liberty, and we shouldn’t confuse the relationship.

Albright writes:

democracy is a prerequisite to economic growth.

That seems clearly, spectacularly wrong. Consider some historical cases of great economic growth: Hong Kong, Singapore, and Taiwan grew rapidly in recent decades without being democracies. (And I would say that that growth led to Taiwan’s becoming a democracy.) Beyond that, look at the United States and Great Britain during the unprecedented growth of the 19th century; neither was a democracy by modern standards. And of course China has been experiencing rapid growth in the past 30 years without democracy.

But look at Albright’s complete sentence:

In fact, democracy is a prerequisite to economic growth, which only flourishes when minds are encouraged to produce, invent, and explore.

That is a much stronger hypothesis. Indeed economic growth flourishes “when minds are encouraged to produce, invent, and explore.” And the condition in which that happens is actually called freedom, not democracy. So perhaps the problem is just that Albright is using the terms “freedom” and “democracy” loosely. And if by democracy she means the modern Western conception of a system of individual rights, private property, and market exchange protected by a limited constitutional government featuring divided powers, an independent judiciary, and free and independent media, then it would be true that that kind of “democracy” is a solid foundation for economic growth — though not a prerequisite, as the examples above demonstrate.

The relationships between the rule of law, popular participation in government, constraints on government, protection of property, the market economy, and economic growth deserve serious study, and that study should start with conceptual clarity.

Madeleine Albright’s Confusion is a post from Cato @ Liberty - Cato Institute Blog

When lawyers and other commentators say that a court did not properly explain its decision, it’s typically for hyperbolic effect. But, in a bizarre move, a court in the failed great state of Michigan has dismissed an economic liberty case brought by our friends at the Mackinac Center Legal Foundation for reasons the court quite literally did not explain.  The court simply denied the plaintiffs’ complaint and that was that.

Home-based day care owners Sherry Loar, Michelle Berry, and Paulette Silverson have all been taxed by the Michigan Department of Human Services because, according to the state, they are somehow employees of the state and (further!) must pay union dues.  because this baseless assertion comes directly from the state DHS, an executive department, among the significant constitutional objections to the case presents separation of power problems.  (Ok, I haven’t studied the Michigan Constitution, but I assume they separate their powers there.)  Enough ridiculous laws are passed by state legislatures — more than 40,000 last year alone – we don’t need state executive agencies getting into the act.

Yet, the Michigan Court of Appeals has nothing at all to say about the case.

Inexplicable — and unpardonable.

Michigan Court Inexplicably Tosses Suit, Endorses Forcible Enlistment of Day-Care Workers into the State Government is a post from Cato @ Liberty - Cato Institute Blog

This morning at the Supreme Court, the federal government argued for the continued existence of the Public Company Accounting Oversight Board (PCAOB, pronounced peek-a-boo) — and by extension the nefarious financial regulatory scheme known as Sarbanes-Oxley.  Cato filed a brief supporting a free market advocacy group and an accounting firm, who sued PCAOB for violating both the Appointments Clause and general constitutional separation-of-powers principles.

Passed with scant deliberation in the wake of the Enron and WorldCom scandals, the Sarbanes-Oxley Act of 2002 established PCAOB to oversee the accounting practices of the nation’s public companies.  As my piece with Cato legal associate Travis Cushman details today, PCAOB enjoys the rare authority to make its own laws, collect taxes, inspect records, prosecute infractions, make judgments, and impose sanctions.

Traditionally, independent agencies that serve such executive functions must be accountable to the president.  PCAOB members, however, may only be removed “for cause” by members of the Securities and Exchange Commission, who in turn may only be removed “for cause” by the president.  I previously blogged about the case, Free Enterprise Fund v. PCAOB, here, here, and here.

As far as how the argument went, I think the forces of limited constitutional government have eked out a 5-4 victory.  Justices Ginsburg, Breyer, and Sotomayor were extremely hostile to the challengers’ argument, while the Chief Justice and Justices Scalia and Alito were supportive.  (Scalia at one point joked that he had no less power than the president — meaning not very much — to influence PCAOB.)  Justice Stevens only spoke up once but seemed to show a leaning towards the government position.  Justice Thomas, while remaining silent, can be expected to support the view of D.C. Circuit Judge Brett Kavanaugh — whose blistering yet scholarly dissent likely prompted the Court to take up the case.

And so the ruling rests, as often happens with the most interesting cases, on the shoulders of Justice Kennedy.  I remain cautiously optimistic that Kennedy will decide to uphold constitutional checks and balances and strike down what has become an unholy new branch of government.

Two curious notes from the argument: 1. Petitioners’ counsel Michael Carvin referenced Cato’s brief in discussing PCAOB’s overreach internationally — seeking to regulate even foreign accounting standards – without oversight from the State Department or the SEC, let alone the president; 2. PCAOB brought its own lawyer to argue alongside the solicitor general, begging the question: if PCAOB is subservient to the SEC and/or the president, why does it need its own counsel to represent its own views?

Big Out-of-Control Government Has Had Better Days at the Supreme Court is a post from Cato @ Liberty - Cato Institute Blog

In response to yesterday’s post making the case against the Google Book Search Deal, I had spirited conversation with Google policy analyst Derek Slater, who helped me understand Google’s perspective on the case and some of the issues I discussed.

He raised a reasonable objection to my claim that “the settlement would give Google carte blanche to use these orphan works without making a serious effort to contact their owners.” He points out that the settlement stipulates that the Book Rights Registry will make an effort to locate orphan works holders and hold funds in escrow for five years to be paid to any orphan work holders who surface. Describing this as “carte blanche” was probably too strong. I think my basic point—that Google won’t be required to conduct the kind of “diligent search” for rightsholders before using a work—is still valid, but I could have made this point more carefully.

He also quibbled with my contention that the settlement would confer permanent competitive advantages on Google. I think I’m on firmer ground here; although the settlement does extend to Google’s competitors some of the advantages Google itself enjoys, the fact remains that Google would receive broad immunity from copyright lawsuits that would not be extended to Google’s competitors.

Much of our conversation focused on how various parties would be helped or harmed by the settlement. Derek explained that approving the settlement would have some worthwhile consequences: the orphan works problem would be mitigated, libraries and universities would get access to a vast database of books online, and consumers would continue to enjoy access the great product that is Google Book Search. He pointed to various provisions that give third parties access to some of the same licensing opportunities available to Google itself. And he may be right, for example, that most orphan works holders would be made better off by the settlement, since the deal would generate extra income that would be escrowed for them should they subsequently surface.

The problem is that I don’t really know how the various class members might be affected by the settlement. And more importantly, I don’t think the judge does either. The settlement is extremely complex, and it will have too many effects on too many parties for anyone to fully evaluate all of them. In the last month, we’ve seen literally dozens of parties file comments with the courts in support or opposition to the settlement. Indeed, the volume of the comment is so large that I suspect the judge is beginning to feel overwhelmed. And there are doubtless many other parties that would object to the settlement but lack the knowledge or legal savvy to submit comments.

The judicial process works well precisely because it typically makes decisions on a case-by-case basis, fitting the circumstances of each case to an evolving body of precedent. This incremental approach tends to produce a body of law that adapts well to changing circumstances while giving all affected parties the opportunity to have their interests represented. Because different cases are heard by different judges, the mistakes of any one judge won’t unduly influence the direction of the law’s evolution. The class mechanism tends to undermine these beneficial properties of our legal system. Rather than many cases being decided by many judges over a period of years, a class action lawsuit asks a single judge to render justice for thousands of plaintiffs whose individual interests can’t possibly all be represented by the attorneys presenting arguments to the judge. Especially when the proposed class is as large and heterogeneous as the plaintiffs in the Google Book Search case, the class action mechanism demands that the judge to balance the competing interests of thousands of different parties, many of whom have divergent interests. No single person could possibly weigh all the competing arguments in a systematic fashion.

Fortunately, we have an institution with the infrastructure and accountability to deal with precisely this kind of situation: the legislative branch. I think many people find the Google Book Search settlement appealing precisely because it provides an opportunity to bypass the stalemate on Capitol Hill and achieve some de facto changes in the copyright regime that lots of people (including me) regard as desirable. But this perspective misunderstands why the legislative process is so slow and cumbersome. The problem isn’t that Congress is taking a simple problem and making it more complicated than it needs to be. The problem is that orphan works reform is a genuinely difficult problem that will affect the rights of many different people. Achieving consensus is genuinely difficult, we want a slow, sprawling, messy process to make sure everyone gets a fair hearing. The Google Book Search deal wouldn’t really resolve the complex trade-offs Congress is wrestling with, it would simply put the judiciary’s thumb on the scales in favor of those who happen to have the judges ear thanks to the peculiar structure of this lawsuit. This is undoubtedly a faster way to deal with the orphan works problem, but I don’t think it’s a better one.

Google Book Search, Class Actions and the Separation of Powers is a post from Cato @ Liberty - Cato Institute Blog

Roberto Michelleti, the interim president of Honduras, has an op-ed in today’s Wall Street Journal that should be read by members of the international community that continue to push for the immediate restoration of Manuel Zelaya to the presidency.

Michelletti states that

“The Honduran people must have confidence that their Congress is a co-equal branch of government. They must be assured that the rule of law in Honduras applies to everyone, even their president, and that their Supreme Court’s orders will not be dismissed and swept aside by other nations as inconvenient obstacles.”

The message is clear: there’s separation of powers in Honduras, and the country’s authorities cannot simply ignore the rulings of both Congress and the Supreme Court in order to reach an agreement. The international community, which is supposedly acting on behalf of democracy, should know that.

Message to the International Community: There’s Separation of Powers in Honduras is a post from Cato @ Liberty - Cato Institute Blog

Vice-president Joe Biden says we should rally behind the Supreme Court nomination of Sotomayor because she will “have the back” of the police.  Biden is a lawyer, a senator, and former chairman of the Senate’s Judiciary Committee, so he should know better than to pull a political stunt like that to curry favor with law enforcement groups.  The Constitution places limits on the power of the police to search, detain, wiretap, imprison, and interrogate.   The separation of powers principle means that judges must maintain their impartiality and “check” the police whenever they overstep their authority.  To abdicate that responsibility and to “go along with the police” is to do away with our system of checks and balances.

As it happens, The New York Times has a story today about one Jeffrey Deskovic.  He got caught up in a police investigation because he was “too distraught” over the rape and murder of his classmate.  When there was no DNA match, prosecutors told the jury it didn’t really matter.  Does Biden really want Supreme Court justices to come to the support of the state when habeas corpus petitions arrive on their desks and the police work is sloppy, weak, or worse?

On a related note, Cato adjunct scholar Harvey Silverglate fights another miscarriage of justice in Massachusetts.

Should Judges ‘Have the Back’ of Police Officers? is a post from Cato @ Liberty - Cato Institute Blog