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Ilya Shapiro

President Obama has finally managed to strike the proper political tone on something. His nomination of federal prosecutor Loretta Lynch is unlikely to ruffle the feathers of the lame duck Congress and should let the Justice Department operate with less political opposition. Like George W. Bush’s appointment of Michael Mukasey to replace the embattled Alberto Gonzalez, Lynch is likely to be a low-profile steady hand to replace the radioactive Eric Holder.

At the same time, picking the first black woman AG allows the president to further his diversity agenda without spending tremendous political capital (which he doesn’t now have) – in a way that wouldn’t have been possible with Tom Perez, the controversial labor secretary who was also thought to be a contender for the job. All in all, while I’m sure I’ll disagree with some of Lynch’s enforcement decisions, this nomination means that legal analysts’ focus will largely remain on those policy issues rather than the controversial personalities and politics behind them.

Michael F. Cannon

I applaud the Supreme Court’s decision to grant certiorari in King v. Burwell.

Since January, the Obama administration has been spending billions of unauthorized federal dollars, and subjecting nearly 60 million Americans to unauthorized taxes, all to hide the full cost of the Patient Protection and Affordable Care Act, or ObamaCare. The administration’s actions have not only violated the law and caused massive economic disruption, they have also subverted the democratic process. The plaintiffs in Pruitt v. BurwellHalbig v. Burwell, King v. Burwell, and Indiana v. IRS seek to put an end to those unlawful taxes and spending.

The Supreme Court’s decision is a rebuke to the Obama administration and its defenders, who dismissed as frivolous the plaintiffs’ efforts to defend their right not to be taxed without congressional authorization.

It is essential that these cases receive expedited resolution, if only to eliminate the uncertainty currently facing states, employers, insurers, and taxpayers.

Most important, these cases deserve expedited consideration because only they can bring an end to the greatest domestic-policy scandal of this administration.

Click here for reference materials on these cases, including all court filings and judicial opinions. Click here for news and opinion coverage of these cases.

David Boaz

At NBCNews.com, I make the case for term limits in a video sidebar to Meet the Press.

For those who prefer print, I summarize my argument here (not all of which survived NBC’s editing):

Only 15 percent of Americans approve of Congress’s performance. Yet we’re about to have another election where more than 90 percent of incumbents are reelected. In fact, the most common reelection rate for House members over the past 30 years is 98 percent.

98 percent reelection—that’s what you expect to see in Russia, not in a democracy.

Americans don’t want a permanent ruling class of career politicians. But that’s what the power of incumbency and all the perks that incumbents give themselves are giving us.

We want a citizen legislature and a citizen Congress—a government of, by, and for the people.

To get that, we need term limits. We should limit members to three terms in the House and two terms in the Senate. Let more people serve. Let more people make the laws.

And let’s get some people who don’t want to make Congress a lifelong career.

Some say that term limits would deprive us of the skills of experienced lawmakers. Really? It’s the experienced legislators who gave us a $17 trillion national debt, and the endless war in Iraq, and a Veterans Affairs system that got no oversight, and massive government spying with no congressional oversight, and the Wall Street bailout.

Politicians go to Washington and they forget what it’s like to live under the laws they pass. As we’ve seen in some recent elections, they may not even keep a home in the district they represent.

The American Founders believed in rotation in office. They wanted lawmakers to live under the laws they passed—and wanted to draw the Congress from people who have been living under them.

For more on term limits, see the Cato Handbook for Congress, Ed Crane’s 1995 congressional testimony, or this very thoughtful article by Mark Petracca, “The Poison of Professional Politics.”

Randal O'Toole

Having taken both houses of Congress, Republicans are eager to make changes. Here are some guidelines they should follow:

1. Learn from history.

At least since the Clinton administration, this country has suffered from a consistent pattern: First, one party takes the White House and Congress. Thrilled with the taste of power, they overreach, provoking a backlash. This allows the other party to soon take control of at least one house of Congress, leading to gridlock for the next several years.

Republicans can avoid this scenario. Instead of immediately trying to pass legislation that will please certain of their constituents, Republicans should propose changes that will build strategic alliances with a wide range of groups. That may mean an incremental approach to change, but each increment should be designed to make the next increment more—not less—politically feasible.

2. Focus on fiscal issues.

Part of the historic pattern is that Democrats win on social issues while Republicans win on fiscal issues. Whichever party is in power usually shoots itself in the foot by giving the other party ammunition on its winning issues. For example, Democrats’ obsession with government-run health insurance turned a social issue—poor people’s access to health care—into a fiscal issue. Republicans’ obsessions with abortion and gay rights give Democrats tools to bring them down.

Since tax and fiscal issues are what Republicans win on, they should stick to those issues. That means no introducing bills to limit third-trimester abortions, no proposals for constitutional amendments to declare that marriage is between a man and a woman, and no efforts to open the Arctic National Wildlife Refuge (ANWR) to oil drilling. Any of those efforts would give fiscal liberals the openings they need to retake at least one house of Congress in 2018 (if not 2016), thus restoring gridlock.

3. Fix incentives, not outcomes.

Nearly all of the problems with the federal government are due to poor incentives. It is incentives that determine what agencies do and whether they will be efficient doing it. In the long run, if the incentives are right, everything else will take care of itself (including a reduction in the size of government).

Unfortunately, members of Congress almost never think about incentives when they pass legislation—or when they do, they think about them the wrong way, as in “How can I create an incentive to produce the outcome I want?” Instead of worrying about outcomes, Congress should create a level playing field, with a minimal amount of regulation and subsidies.

4. Tread lightly on the environment.

We can have a cleaner, healthier environment without strict government mandates and regulation. One way is to protect the environment through better incentives. Without exception, environmental issues consist of resources that are not properly marketed (such as water or endangered wildlife) threatened by resources that are (such as minerals or oil & gas drilling). Too many people think the market resource is the evil, but the real evil is that some resources are not in the market. Creating markets for those resources will go far toward protecting them.

Treading lightly means not trying to force oil drilling in ANWR, not opening up public lands to more subsidized cattle grazing, and not declassifying wilderness areas to allow more fracking. Instead, let energy companies and other land users demonstrate that they can do a responsible job on lands that are less controversial first, then allow them to bid on doing the same (without subsidies) on public lands, while letting environmental groups submit bids to keep areas that they regard as critical closed to development.

5. End the war on drugs.

The war on drugs has been fought for more than a century with little success and much harm, as the United States has just about the highest incarceration rate in the world. Ending the war doesn’t mean letting school children take heroin any more than ending Prohibition let school children drink hard liquor. Nor does it mean imposing such high taxes on drugs like marijuana that people would continue to buy them on the black market. Since Prohibition ended more than 80 years ago, we have the experience of 51 sets of state and D.C. laws regarding alcohol, and we can pick the best of those and encourage states to apply them to drugs as well.

6. Give up on the war on illegal immigration.

After losing on abortion and gay marriage, immigration is the next social issue for Republicans to lose and Democrats to make hay. Considering that Latinos are one of the nation’s fastest-growing demographics, and that they regard a war on illegal immigration to be a war on their families, Republicans should reverse course. The economic truth is that immigrants have always added more to our economy than they take away, and by achieving the American dream for themselves, they create demand for more work for people who already live here.

Worries that immigrants will abuse our welfare system are just symptoms that the welfare system should be reformed, for if it gives immigrants bad incentives, it must also give American citizens bad incentives. Reversing course on immigration is not just the economically correct thing to do, it is also politically strategic because it will allow Republicans to regain the support of Latinos, many of whom hold conservative beliefs and should feel right at home in a Republican Party that doesn’t treat them as enemies of the state.

Conclusions

These suggestions presume that the people who will take charge of Congress next January are sincerely interested in the economic health and future vitality of this country, and not just in their own short-term political and economic prospects. That’s a strong assumption based on past behavior, but it’s one I’m willing to make, especially with respect to many of the newcomers over the past four years who came in with fiscally conservative goals . If they follow these guidelines, the United States should return to strong economic growth, which in turn should support a healthier environment.

Roger Pilon

When Republicans take control of the Senate in January, should they revive the judicial filibuster that Democrats instituted in 2003 when George W. Bush was president, but ended last November when Republicans were filibustering Obama nominees? That heads-I-win-tails-you-lose question probably answers itself, but the background is a bit more complicated.

In fact, in a post I rushed into print yesterday morning I mangled some elementary filibuster facts, which I partially corrected late in the day after a reader kindly alerted me to the error. I’m tempted to say that an impostor was writing under my name, but the better explanation perhaps is too little sleep from following overnight election returns. In any event, it turns out that Harry Reid, having gone “nuclear” by ending the judicial filibuster a year ago is in no worse shape going into the next two years, as I’d initially implied, than he would have been had he kept it in place. It’s after that, if there’s a Republican president, that he’ll no longer have the filibuster at hand.

So what’s going on here? Let’s start at the beginning. Article I, section 5 of the Constitution says that “Each House may determine the Rules of its Proceedings.” As students of the subject know, those rules can be arcane. And they change, about which there are also rules. The filibuster is a case in point. It’s nowhere in the Constitution, and it’s changed over the years. On the merits, a good case can be made on either side of the practice. In general, it can keep bad (or good) laws from being enacted—or bad (or good) laws from being removed. In the abstract, therefore, it’s a wash. Empirically, it depends on the history of its use—and where you sit.

It’s on legislation, however, that we usually think of the filibuster, not on executive branch nominations, and for good reason. As Ed Whelan wrote at NRO yesterday:

Filibusters over legislation date back to the 1830s. By contrast, nominations (as this law-review article co-authored by parliamentary expert Martin B. Gold puts it) were “swept into” a reform of the filibuster only in 1949 and “only by happenstance.” And … even after this nominal inclusion of nominations in the filibuster rule in 1949, Senate practice continued to regard the partisan filibuster of judicial nominees as illegitimate.

In fact, apart from the anomalous 1968 filibuster of Abe Fortas, there were no judicial filibusters until 2003, when Democrats, having just lost the Senate, began the practice to block Bush’s nominees. (During the previous two years they simply sat on his nominations, as I discussed in detail here.) And Democrats continued the practice until the 2005 “Gang of 14” compromise was imposed, after which things settle down a bit. But as Republicans discovered, selectively, the judicial filibuster remained an option once Obama was elected.

That changed when Harry Reid went nuclear last November—ending the practice without regard to the two-thirds rule for changing Senate rules (not to be confused with the three-fifths filibuster rule). And that’s where the hypocrisy comes in: Senate Democrats began judicial filibusters in 2003, when they were in the minority and a Republican was in the White House; they ended the practice when Republicans were in the minority and a Democrat was in the White House. If there’s going to be a rule, it’s got to apply equally—few “meta-rules” are more basic than that.

And that’s just the problem with proposals that are in the air to restore the judicial filibuster now that Republicans have retaken the Senate. I discussed similar proposals when they arose a year ago, after Reid went nuclear. The newest ones are discussed more fully by Ed Whelan in the piece linked above, and in a piece in today’s Wall Street Journal by Senator Orrin Hatch and Ambassador C. Boyden Gray. In a nutshell, with Democrats having twice now demonstrated their unwillingness to “play by the rules”—whatever they may be—it’s no time for Republicans to unilaterally disarm, as Hatch and Gray put it. You don’t have to be a partisan to understand that.

 

Walter Olson

If money rules American politics, as we constantly hear from some quarters, you sure couldn’t tell from the stunning upset in the Maryland governor’s race (which I saw coming, having had a good chance to watch as a local resident and citizen volunteer.) Here’s blogger/Republican consultant Mark Newgent:

Anthony Brown lost despite outspending Larry Hogan by $15 million and with the aid of two Super PACs. Hogan took public financing. The Maryland gubernatorial race shows that no amount of money can change a bad message — or overcome a lack of message. The Maryland Democratic Party screamed like banshees over the Citizens United decision yet bit their collective tongue when their candidate availed himself of the very “dark money” they pretend to abhor. That Brown supporters Ben Cardin, Barbara Mikulski, and Donna Edwards all supported amending the First Amendment to allow Congress to regulate speech reveals that [some] Maryland Democrats don’t dislike money in politics — they dislike the opposition’s money in politics.

Mayor Michael Bloomberg’s gun control group alone said it would pour $500,000 in outside money into attacking Hogan. That had no visible effect, and it was worth putting up with the ads for the sake of getting a governor who certifiably owes nothing whatever to Michael Bloomberg. 

We now return you to the regularly scheduled rants about how American democracy cannot possibly survive the free-speech guarantees of Citizens United.

Ilya Shapiro and Gabriel Latner

Under Ohio law, it isn’t illegal to buy gold, it isn’t illegal to sell gold, and it isn’t illegal to talk about buying and selling gold. But—and it’s a significant “but”—if you talk about buying gold, you’re not allowed to actually buy any. At least not without a license.

That’s right: in Ohio, it’s illegal for anyone who advertises a willingness to buy gold to do so without a license. Obtaining and maintaining that license isn’t easy, or cheap. Licenses must be renewed every year, and license holders have to make daily reports to the police detailing their purchases. This law creates a two-tiered system: dealers who have complied with the onerous licensing regime may freely advertise their businesses, while others can’t so much as put up a sign reading “We Buy Gold” without facing criminal prosecution and fines of up to $10,000 per transaction.

The U.S. Supreme Court has said that these sorts of regulations are tantamount requiring a “license to speak”—which are universally reviled as violations of the First Amendment (although some do exist). That should have been the end of this case: laws restricting commercial advertising are only constitutional if they are narrowly tailored to serve a significant state interest. The Ohio law, however, because it targets speech instead of the behavior connected to the speech couldn’t possibly survive that test. And that’s exactly what the federal district court held in this case brought by a coin and precious-metal business.

Unfortunately, the U.S. Court of Appeals for the Sixth Circuit was less willing to follow the First Amendment, and reversed the district court. While that is bad enough in itself, the Sixth Circuit’s reasoning law is especially frightening. The court didn’t hold that Ohio’s law survived strict scrutiny under the First Amendment, but instead that the First Amendment didn’t apply. The Sixth Circuit found that an advertisement—a simple statement offering to buy gold—was “unprotected speech” beyond the scope of the First Amendment.

Cato has filed an amicus brief urging the Court to take this case and reverse the Sixth Circuit’s erroneous conclusion about the nature of free speech. While there certainly are types of speech that are not protected by the First Amendment, such as incitement to violence and child pornography, the existing rule is that truthful commercial advertising is protected unless it advertises criminal conduct. 

It’s not a crime to buy gold in Ohio, so it shouldn’t be illegal to talk about buying gold, with or without a license. Upholding the Sixth Circuit’s rule—which allows states to freely prohibit speech about conduct which is only illegal if discussed in public—would deprive nearly all advertising of constitutional protection, undoing 70 years of jurisprudence in the process. 

The Supreme Court will decide whether to take the case of Liberty Coins v. Goodman later this year or early in 2015.

Dalibor Rohac

In an interesting post about the World Bank, Nancy Birdsall of the Center for Global Development expresses two concerns about the future of the organization. First, she fears the effects of the seemingly endless process of internal restructuring – covered here, for example. Second, she fears that the World Bank may lose its ability to be an effective supplier of ‘global public goods’ in the 21st century.

One does not have to agree with her framing of the issue to see that one of the least controversial, most cost-efficient, and public goods-like functions of the World Bank is to produce internationally comparable data that can serve both as input into research and into policy discussions. The Doing Business project is a case in point, as my colleague Marian L. Tupy and I wrote last year:

In publication since 2003, Doing Business was inspired by academic research into the importance of sound legal environments for economic growth. The survey currently synthesizes expert assessments by roughly ten thousand contributors from 185 countries into a picture of the ease of doing business around the world. It serves as a guide to important requisites such as the costs of starting a business, obtaining permits, hiring and firing, and so on. The project thus brings together a large amount of data that either didn’t really exist before or weren’t comparable across different countries and presents them in a way that is easy to understand and use.

Following a controversial review last year, the report is undergoing methodological changes phased over several years. That makes comparisons over time more difficult.

The methodological changes consist, in part, of introducing new measures of “regulatory quality.” For example, in the area of insolvency legislation, those changes will reflect the World Bank’s Principles for Effective Insolvency and Creditor/Debtor Regimes and the UN’s Legislative Guide on Insolvency Law.

I argued earlier this week on Financial TimesBeyond Brics that this is a fundamental shift for a project that was traditionally grounded in simple and transparent measures of different characteristics of legal regimes and their enforcement – such as, how costly or time-consuming certain legal procedures were.

“Regulatory quality,” in contrast, can mean different things to different people. A set of guidelines created by the World Bank or the UN or may not reflect dominant expert opinion, which can itself evolve. That ambiguity creates space for further revisions in the future, thus eroding the comparability of data over time and weakening the usefulness of the project, either for scholarly purposes or for benchmarking of policy.

Although it is far-fetched to argue that the World Bank has either the necessary knowledge or the right incentives to be a producer of ‘global public goods,’ the Doing Business project comes closer to that standard than most other activities of the bank. And if we were to take Ms. Birsdall’s narrative at its face value, the current marginalization of the project, done through the successive methodological changes watering down its main virtues, could be seen as a perfect illustration of what she describes as a “growing gap between what the world needs from the bank and what the bank has the remit to do.”

Ilya Shapiro and Trevor Burrus

Vermont Right to Life Committee, Inc. (VRLC) is a non-profit advocacy group organized as a “social welfare organization” under Section 501(c)(4) of the tax code. It seeks to achieve “universal recognition of the sanctity of human life from conception through natural death.” To accomplish this, VRLC publishes pamphlets, newsletters, brochures, mass e-mails, newspaper articles, and radio ads. The group does not advocate for the election of any candidate or coordinate its actions with any candidate. It simply take donations from supporters and tries to educate people about the sanctity of human life.

Nevertheless, Vermont has required VRLC to register as a political committee because it takes in more than $1000 in donations and seeks to “influence elections.” This means that VRLC has to (1) register with the state, which includes appointing a treasurer and creating a special bank account; (2) keep extensive records about its activities; and (3) regularly give the government extensive reports. All of these requirements add up to a significant burden on VRLC’s educational activities and advocacy while not furthering any real government interest. After all, if VRLC is talking about issues not candidates, then, according to the Supreme Court, there is little or no chance that it will corrupt candidates.

Or, to put it another way, if VRLC has to register and report to the government—and just think for a moment how ridiculous and Orwellian (and Putinesque) that statement is—then who doesn’t have to register with the government to speak about political issues?

The registration and reporting burdens on VRLC are so great, in fact, that the group has said it’s “simply not worth it” to engage in constitutionally protected speech if it has to comply with Vermont’s regulations. VRLC thus brought a First Amendment challenge to many of the state’s convoluted campaign finance laws. The trial court and the U.S. Court of Appeals for the Second Circuit agreed with the state government, however, and held that the burdens on VRLC’s speech were constitutionally acceptable.

VRLC has now petitioned the Supreme Court. Cato, joining the Center for Competitive Politics, has filed a supporting brief.

We argue that the Court should take the case in order to clarify the test for when an organization’s “major purpose” is the “nomination or election of candidates.” The “major purpose test,” which derives from the foundational campaign finance case of Buckley v. Valeo (1976), exists to save issue-advocacy groups from burdensome requirements like Vermont’s. Unfortunately, courts throughout the country misapply this test and place heightened burdens on organizations that simply want to talk about issues of public concern.

We also argue that regulations like Vermont’s place unique and often insurmountable burdens on small organizations. These laws are expensive to comply with, so larger organizations with more resources for accountants and lawyers—overhead that can be better absorbed—have a comparative advantage over smaller players. If the Supreme Court doesn’t take this case, states will continue to find it easy to shut down the political speech—particularly of feisty small idea entrepreneurs—while labeling such censorship as ordinary campaign finance regulations.

The Supreme Court will decide later this year or early next year whether to review Vermont Right to Life Committee v. Sorrell.

Patrick J. Michaels and Craig D. Idso

…the extinction horrors of climate change may be a “fish story”

Perhaps the myth-iest chestnut in the scary global warming meme is that our dear earth’s panoply of species is adapted only to the current climatic regime, and changing that regime means certain death, i.e. extinction.

That’s an easy, simplistic sell, but it denies some of the subtleties of organismal biology. Four decades ago, scientists realized that evolution has preserved a variety of responses to environmental change. It turns out that our enzymes, the basic material that catalyze life as we know it, actually change their shape as climate changes. Whether this is because we have so much information stored in our DNA that has survived countless generations and a variety of climates, or whether the response is simply built into the enzymes is unknown, but it is ubiquitous. It even has a catchy name: “Phenotypic Plasticity.”

Before your eyes glaze over, a little explanation is in order.

Each one of us has a genotype, which is our DNA, and each of us has an expression of that, our “phenotype.” Obviously not all genes express themselves—if they did, our physiological destiny would be eminently predictable, but it is not. Instead, we all carry strands of DNA that could theoretically cause major disease that generally do not express (or “penetrate” in the lingo of biology), and we also have DNA that could probably defeat many of the aging processes, that similarly do not express.

Instead, organisms display “plastic” responses when their environment changes. And so, species-related concerns over potential CO2-induced global warming may be dramatically overblown. And, though they don’t get much publicity, scientists are continually documenting our amazing adaptability.

Consider one of our most important marine sources of food: the salmon family. What happens when the oceans warm? In the words of Anttila et al. (2014), “a population has the options of either [1] migrating to more suitable environments (if any are available and accessible), [2] acclimating to the new temperature by exploiting its phenotypic plasticity, or [3] adapting through natural selection.” Recognizing these options, Anttila et al. set out to investigate which of these paths Atlantic salmon (Salmo salar) might pursue in response to future increases in temperature.

To achieve their objective, the team of seven researchers gathered specimens of two wild Atlantic salmon populations from the northern (coolest) and southern (warmest) extremes of their European distribution, which range spans a distance of over 3,000 km. Eggs from both groups were hatched in a salmon nursery and thereafter the juveniles were acclimated for three months at temperatures of either 12°C or 20°C. The salmon were then evaluated and tested for cardiac performance, as “cardiac function has been observed to limit the tolerance to high temperatures.” This was accomplished by subjecting the salmon to temperatures well above their acclimated state, whereupon their cardiac performance was evaluated.

In describing their findings, the seven scientists report the salmon populations “differed very little in their acute cardiac response to temperature, but instead showed considerable cardiac plasticity in response to thermal acclimation that surprisingly was largely independent of the latitudinal and climatic origin of the populations.” In other words, regardless of the acclimation temperature, 12°C or 20°C, both salmon populations exhibited a similar stress response as temperatures increased. They also found that acclimation to 20°C consistently raised the temperature at which various measures of acute cardiac stress were observed. For example, they write “although cardiac collapse starts at 21°C-23°C with a maximum heart rate of ~150 beats per minute (bpm) for 12°C-acclimated fish, acclimation to 20°C considerably raises this temperature (27.5°C) and maximum heart rate (~200 bpm).”

The results of the Anttila et al.’s analysis indicate that the response of Atlantic salmon to temperature stress–-as evaluated by cardiac performance-–is “largely dependent on individual thermal history and largely independent of local adaptation,” as offspring of both populations displayed phenotypic plasticity in adapting to the two acclimation temperatures. Such findings are encouraging, as the researchers state they “emphasize that acclimation remains a feasible possibility for survival in a warmer future, with physiological plasticity replacing the immediate need for local adaptation,” adding that “this plasticity might aid northern Atlantic salmon populations to compensate for a warmer future.”

Although this response represents only one of the three options by which to face the challenge of potential future global warming, it appears to be more than sufficient to overcome the worst possible scenarios. In addition, Anttila et al. optimistically add “natural selection has the potential to improve thermal tolerance in Atlantic salmon beyond the demonstrated benefits of high thermal plasticity,” particularly through transgenerational changes in temperature tolerance in which the heritability of thermal tolerance is passed down from parents to offspring.

All in all, therefore, the future looks bright for Atlantic salmon!

Reference: Anttila, K., Couturier, C.S., Overli, O., Johnsen, A., Marthinsen, G., Nilsson, G.E. and Farrell, A.P. 2014. Atlantic salmon show capability for cardiac acclimation to warm temperatures. Nature Communications 5: 10.1038/ncomms5252.

Michael F. Cannon

From my latest at Darwin’s Fool:

Republicans won an impressive number of victories last night, including a larger and more conservative House majority and enough wins to give the GOP at least a 52-seat majority in the Senate. As Jeffrey Anderson and Robert Laszewski have noted, Republicans made ObamaCare a major issue in the election  (the New York Times’ denials notwithstanding). Senate Republicans will fall several seats short of the 60-vote super-majority needed to overcome a Democratic filibuster of an ObamaCare-repeal bill, though. ObamaCare opponents are therefore debating whether and how Republicans could repeal some or all of the law via the Senate’s “budget reconciliation” process, which allows certain legislation to pass the Senate with only 51 votes. Some opponents have proposed getting around these difficulties by getting rid of the filibuster entirely. I think there’s a more prudent, targeted way Republicans could put ObamaCare repeal on the president’s desk, give Democrats a taste of their own majoritarian medicine, and convince Senate Democrats of the virtues of restoring the filibuster on legislation and judicial nominations.

It goes like this…

Read the whole thing.

Ilya Shapiro

#1: Justice Ruth Bader Ginsburg may be reconsidering her decision not to retire. President Obama or a future President Hillary Clinton will have much less leeway with replacing her in a Republican-controlled Senate.

#2: There will be very few lower court judicial confirmations. Those that get through will be completely uncontroversial. Forget the nuclear option that removed judicial filibusters. At this point, with no political capital, President Obama will only get a small number of milquetoast nominees through the Senate.

#3: Expect even more litigation regarding executive actions. With no chance of getting his expansive regulatory project through Congress, President Obama will increasingly use the executive branch–particularly the EPA, the IRS, and HHS–to advance his policy agenda. That is good news only for litigators.

Mark A. Calabria

With Republicans taking the majority (but far short of control at 60) in the Senate and increasing their majority in the House, the regulation of our financial markets may see renewed attention, with particular focus on reforming Dodd-Frank. My former employer Senator Richard Shelby takes the Chair on the Senate Banking Committee, while Congressman Jeb Hensarling retains his leadership role on House Financial Services.

In my nearly twenty years following financial services, we have not had two chairmen more skeptical of government oversight of our financial markets. While neither could be called “libertarian,” both are suspicious of big government as well as big finance.  Both agree that “Too Big To Fail” is a real issue and one created by the actions of government, not the market.

Sen. Shelby, for instance, has repeatedly said “no one is too big to fail” - what he means here is that no company should be getting a bailout.  It was for that reason he led the charge in the Senate against the TARP, and also for that reason he voted against the Chrysler Bailout in 1979.  Shelby also led the efforts to reform Fannie Mae and Freddie Mac, warning years before their failure of the various flaws inherent in a mortgage model of privatized gains and socialized losses.  Shelby also tried to bring more competition to the credit rating agencies, passing legislation in 2006 to reduce barriers to entry in that market.

The above, however, should not be read to overstate the case.  Both Rep. Hensarling (who apparently had a subscription to the Cato Journal in college) and Sen. Shelby would like to see the federal safety net behind our financial markets reduced, allowing a greater role for market discipline.  Perhaps even more rare in D.C., they both believe their chairmanships come not just with privilege but great responsibility.  If it were simply up to these two to agree, I have confidence that our system of financial regulation would be greatly improved, reducing bailouts and increasing stability.  

But it isn’t up to these two. There are numerous protectors of the status quo in both major political parties.  Both would also have to reach agreement with the Obama Administration, which seems quite comfortable with bailouts and regulatory discretion.  Ultimately, the many obstacles our Founding Fathers wisely put in place for legislation will prove too high for Shelby and Hensarling to implement all but modest reform.  

But at least financial regulation is unlikely to get any worse.

Jeffrey Miron

In yesterday’s election, Alaska (52-48%), Oregon (54-46%), and the District of Columbia (69-31%) all passed ballot initiatives that legalize marijuana under state (district) law.  This comes on top of the 2012 legalizations in Colorado and Washington.

Florida’s medical marijuana law failed, but only because it was a constitutional amendment and therefore needed 60 percent support to pass; 58 percent of voters endorsed the measure.

Two big tests remain for marijuana legalization. In 2016, another 5-10 states will consider legalization (plausibly Arizona, California, Delaware, Hawaii, Maine, Maryland, Massachusetts, Montana, Nevada, New York, Rhode Island, and Vermont).  If legalization is successful in most of these states, the pressure for federal legalization will ramp up.

In January 2017, the country will have a new president. That person could order the Attorney General to enforce federal prohibition regardless of state law. That seems unlikely if more states legalize and public support expands.

But until federal law explicitly legalizes marijuana, the risk of interference continues.

Doug Bandow

Washington again is at war in the Middle East. Unfortunately, pressure for military intervention will grow with Republican control of the Senate.

The likely result of any new conflicts will be similar to America’s past interventions. The United States will be intervening again in a few years to try to clean up the mess it is creating today.

The United States is not bombing the Islamic State out of necessity. Rather, Washington is acting in response to past mistakes. ISIL exists only because the Bush administration invaded Iraq.

The Obama administration’s decision to attack the Islamic State makes no policy sense. So far, ISIL has focused on creating a quasi-government in the Middle East and has not targeted America.

Of course, the Islamic State killed two U.S. citizens who fell into its hands in truly monstrous behavior. But these murders are no different than similar barbarities committed by others around the globe. Such personal tragedies are no reason to go to war.

If successful in creating a viable “caliphate,” ISIL’s leaders might turn towards terrorism, but doing so would risk their quasi-state by bringing America’s wrath down upon it. Moreover, Iraq demonstrated the foolishness of launching preventive wars based on fantasies disguised as forecasts. The United States is more likely to turn the Islamic State to terrorism now by making war on it, encouraging it to retaliate.

Perhaps the worst aspect of Washington’s policy is absolving nearby states of their responsibility to destroy ISIL. These countries will not act if the United States bails them out.

More fundamental is the fact that American policymakers have so often gotten the Middle East wrong, intervening arrogantly and maladroitly, creating more problems than they solved. Already the attack on the Islamic State has caused al-Qaeda affiliates such as the al-Nusra Front to support ISIL.

The United States is in the middle of a sectarian war in Iraq, with atrocities committed against Sunni civilians by Shia militias backing the Baghdad government. Washington’s limited bombing has made little progress in defeating the Islamic State. Aiding the “moderate” insurgents in Syria risks further undermining the Assad government, the single force best positioned to block further ISIL gains.

But blowback is to be expected. In 1953, Washington helped oust Iran’s democratically elected prime minister. Eventually the authoritarian Shah was overthrown, with radical Islamists targeting America.

The Reagan administration inserted the U.S. military into the middle of Lebanon’s bloody civil war. Attacks on the U.S. embassy and Marine Corps barracks followed.

Fear of Iranian domination of the Persian Gulf caused Washington to back Saddam Hussein in his aggressive war against Tehran. That helped persuade Hussein that the United States would not block his conquest of Kuwait.

The first Bush administration expelled Hussein’s forces without overthrowing his regime. But the Bush and Clinton administrations launched regular air strikes, while U.S-led sanctions harmed Iraqi civilians. American forces garrisoned Saudi Arabia, providing one of Osama bin-Laden’s grievances against America.

The immediate result of the second Bush administration’s invasion of Iraq was sectarian war, mass civilian casualties, destabilization of surrounding nations, and strengthened Iranian influence, along with high American human and financial costs. The Islamic State turned out to be a longer-term consequence.

The Obama administration joined with Europe to intervene in Libya’s civil war, leaving violent chaos. The United States blundered into the Syrian imbroglio, originally declaring President Bashar al-Assad to be a reformer, then insisting that Assad resign, discouraging any negotiated settlement. The administration now simultaneously criticizes the government, backs supposedly moderate insurgents, and bombs radical regime opponents.

Washington has reentered the Iraqi conflict. As I warn on Forbes online:  “Experience suggests that U.S. authorities lack the knowledge, judgment, and competence to carry out almost any policy there without making the situation worse.”

It is impossible to predict the exact outcome of Washington’s newest military intervention in the Middle East. But experience suggests that new problems created will generate pressure for new interventions in coming years.

Now more than ever Washington should implement the “humble” foreign policy originally advocated by presidential candidate George W. Bush.

Roger Pilon

How sweet it is. Less than a year ago—on November 21st, to be exact—Harry Reid went nuclear. As he’d threatened, in order to get a few of President Obama’s D.C. Circuit Court nominees past a Republican filibuster—staged because that court for years had had more judges than its workload required—Reid unleashed what had come to be called “the nuclear option.” He ended the availability of the filibuster for most executive branch nominations, not by the two-thirds vote that Senate rules had long required but by a simple majority. With yesterday’s mid-term election results now in, it looks like Reid will have enjoyed his win for less than a year. As I wrote at the time, here, here, and here, stating the obvious, what goes around comes around.

Not that he didn’t get some substantive results over that short period, mind you: After a D.C. Circuit panel struck a major blow against Obamacare in July, for example, followed only hours later by a Fourth Circuit decision going the other way, thus setting up a circuit split suited for Supreme Court resolution, the full DC Circuit, on which Obama’s new appointees were now sitting, vacated the panel’s decision just six weeks later, thus removing the circuit split. The Supreme Court is likely to take up the issue in time in any event, as other circuits weigh in on it. But timing is important on a matter like this. We’ll see.

The larger issue, however, is that there will be other nominations over the next two years, and not only for life-time appointments on our federal courts. There is, for example, a looming vacancy at the Department of Justice: Attorney General Eric Holder has said he will stay on until his successor is confirmed. Among those under serious consideration for that post is one Thomas Perez, whose stints as the current secretary of labor and, before that, as assistant attorney general for civil rights have raised enough concerns to keep the new Republican Senate Judiciary Committee’s staff occupied for some time.

And where will those remaining Democratic senators who voted for Harry Reid’s nuclear option be sitting? Why on the minority side, watching Republicans enjoy their newly acquired power to block controversial Democratic nominees by the vote of a mere majority—all because of Harry’s hubris. But it wasn’t Harry’s alone. As the Wall Street Journal editorializes this morning, after his victory speech following his 2012 re-election, President Obama walked off the stage and made separate calls to Nancy Pelosi and House Democratic campaign chairman Steve Israel, telling them “he would spend the next two years helping Democrats retake the House in 2014.” In politics as in life, hubris has its price. We will now have a proper vetting of the president’s nominees, and that is good.

Ilya Shapiro and Trevor Burrus

While California endures its worst drought in a century, a small, finger-sized fish with no known redeemable qualities, the delta smelt, has become the centerpiece of extensive litigation. The U.S. Fish and Wildlife Service (FWS) classifies the delta smelt as “threatened,” and since 2008 it has said that large amounts of water should not be pumped out of the delta smelt’s habitat—the wetlands north of San Francisco—and into the state’s drought-stricken central and southern regions.

That “imported” water from northern California has become vital to the state’s important agricultural business, and the FWS’s decision has substantially harmed California’s farms, farm-laborers, and millions of others dependent on the water supply. In short, in order to protect the 3-inch fish, the state has pumped billions of gallons of water straight into the ocean rather than using it to help California’s struggling farmers.

The farmers, represented by the Pacific Legal Foundation, filed a lawsuit in response to these draconian measures to save the irrelevant fish. The farmers argued that the FWS should not have ignored the harsh financial and human costs of the FWS’s “reasonable and prudent alternatives” to pumping water out of the northern wetlands. The U.S. Court of Appeals for the Ninth Circuit disagreed, holding that the FWS’s decisions deserve deference and that the “FWS is not responsible for balancing the life of the delta smelt against the impact of restrictions” on water pumping. Congress, wrote the court, has already decided that the FWS should protect endangered species “whatever the cost.”

In an attempt to get the Supreme Court to review their case, the farmers argue that the circuit court misread the history of the Endangered Species Act (ESA) and should not have ignored the economic impact of so-called “reasonable and prudent alternatives.” Cato, joining the National Federation of Independent Business, filed a brief in support of their petition. We argue that the ESA has changed since the Supreme Court ruled, in 1978, that species must be protected “whatever the cost.”

The ESA has been amended many times and now commands the FWS to take “into consideration the economic impact” of its proposals. Moreover, the 1978 case that required species to be protected “whatever the cost” has been limited by subsequent decisions.

Finally, we argue that the Ninth Circuit’s decision is in conflict with the Fourth Circuit, which in 2013, vacated an FWS determination because it failed to take into account the economic impact of the reasonable and prudent alternative. This conflict between circuits should be rectified by the Supreme Court, and the ESA should be rightly interpreted as requiring the FWS to take into account the economic impacts of its decisions.

No offense to the delta smelt, but we prefer human beings.

The Supreme Court will decide whether to take the case of Stewart & Jasper Orchards v. Jewell later this year or early in 2015.

Patrick J. Michaels and Paul C. "Chip" Knappenberger

Global Science Report is a feature from the Center for the Study of Science, where we highlight one or two important new items in the scientific literature or the popular media. For broader and more technical perspectives, consult our monthly “Current Wisdom.”

The just-released “synthesis” report from the U.N.’s Intergovernmental Panel on Climate Change (IPCC) could be the last gasp of this clumsy dinosaur. 

Containing no new science, the new IPCC offering is just a rehash of its series of Fifth Assessment Reports that have been released over the past year or so.

When the IPCC’s “science” portion of the Assessment was released last fall, it was immediately faulted for being based upon climate models which have greatly overpredicted the amount of climate change that has been occurring largely because they completely missed the slowdown of the rate of global warming that has taken place over the past two decades. The IPCC tried a few band-aid-type solutions to keep its cold blood, but they were too little, too late. With its dismal track record exposed, no one should possibly take the IPCC future projections seriously, including the folks down at 1600 Pennsylvania Avenue.

More and more, people are calling for the United Nations to render the IPCC dinosaur to the strata of history, reaching a crescendo with this “new” report.

The Synthesis Report was shaped by the climate alarmists who were enraged that the IPCC even feebly admitted that its future projections were likely on the high side of things. Instead, they demanded a strong statement from the IPCC that could be used to force fossil fuel restrictions on the unwilling (which partially explains the ham-handed  release two days before pivotal U.S. elections). So despite no new science and another year—making now 16 out of the past 16 years—in which the global average temperature has fallen beneath IPCC projections, the IPCC released what has been called its “starkest” and “most important” report yet

From The (predictable) Guardian:

“Science has spoken. There is no ambiguity in the message,” said the UN secretary general, Ban Ki-moon, attending what he described as the “historic” report launch. “Leaders must act. Time is not on our side.” He said that quick, decisive action would build a better and sustainable future, while inaction would be costly.

Ban added a message to investors, such as pension fund managers: “Please reduce your investments in the coal- and fossil fuel-based economy and [move] to renewable energy.”

Hopefully, such talk from the U.N. will spark the rest of us to get what we deserve, that is, an end to this government-funded U.N. charade claiming to represent the “consensus of scientists.”  With luck, the extinction this dinosaur will herald the extinction of all the government-funded climate change “assessments,” ushering in the rise of Homo sapiens.

Ilya Shapiro and Trevor Burrus

David and Susan Kentner own residential lots along San Carlos Bay in Sanibel, Florida. Because their property is along the high-tide line, the Kentners enjoy an age-old common-law right to build docks over the water abutting their property, subject to reasonable regulation. But Sanibel passed an ordinance forbidding the Kentners and others from taking advantage of this common-law right. The city claimed that the ordinance was necessary to protect seagrass, which it called an “invaluable natural resource.”

Whether or not seagrass is invaluable, the city passed the ordinance without considering whether seagrass was actually present in the areas subject to the ordinance and whether modern technology could effectively be used to avoid harming the seagrass. Moreover, there is evidence that the city passed the ordinance in order to satisfy the aesthetic preferences of certain interest groups and to enhance the property values of other dock-holders. On top of that, in 2006 the city issued itself an exemption to build a dock in San Carlos Bay, explaining that it should be allowed to build a dock because no seagrass was found on the site.

The Kentners, represented by the Pacific Legal Foundation, challenged the ordinance on the ground that it did not substantially advance any legitimate government interest. In other words, the Kentners claimed that the ordinance violated the due-process rights to their property, which is lawyer-speak for laws that don’t have a good-enough justification. Both the trial and appellate judges held that property rights aren’t “fundamental rights” protected by due process, thus ruling that the government didn’t need a good reason to pass these restrictions. In other words, property rights simply don’t enjoy protection against irrational government regulations.

On appeal to the Supreme Court, the Kentners argue that the lower courts were mistaken in treating property rights as no-class—not even second-class—rights. In support of the Kentners’ petition to have the Supreme Court hear the case, Cato joined the National Federation of Independent Business, Owners Council of America, and Rutherford Institute on a brief arguing that the lower courts were gravely mistaken in classifying property rights as not deserving of due-process protections. The Fourteenth Amendment, after all, explicitly says that no state shall deny “life, liberty, or property” without due process of law.

Further, the Court should review the case to clarify and solidify longstanding precedents that treat property rights as on par with other rights. After all, if the government is allowed to violate property rights with no justification whatsoever, then any ordinance that confiscates, destroys, or restricts property will be simply unassailable, regardless of how unreasonable or shocking it may be. The high court should take this case to reaffirm that property rights are indeed constitutionally protected and cannot be abridged with impunity by opportunistic, corrupt governments.

The Supreme Court will decide later this year or early in 2015 whether to take Kentner v. City of Sanibel.

Nicole Kaeding

Open enrollment for Obamacare’s second year begins next week. In the chaotic launch of HealthCare.gov, the Department of Health and Human Services (HHS) delayed the launch of the sister portal for small businesses. Now, the health insurance exchange for small businesses is expected to open, but it is still plagued with problems.

The Small Business Health Options Program (SHOP) provides an online portal for small businesses with fewer than 50 employees to purchase insurance. The website allows employers to provide a contribution towards an employee’s health insurance purchase.

A new report from the New York Times summarizes the issues discovered during recent testing:

For example, they said, some health insurance plans approved for sale on the exchange did not show up on the website. The site worked well with some web browsers, like Chrome, but not with others, like Internet Explorer and Firefox. Premiums and other charges for some plans were erroneously displayed as percentages rather than dollar amounts — 350 percent rather than $350, for example. For some households, the principal subscriber was listed as a dependent, or vice versa.

HHS is claiming that the website will be functional when open enrollment starts on November 15.

The future success of SHOP is doubtful even if HHS gets the website working. States had the option of creating their own SHOP or relying on the federal exchange. Several states decided to launch their exchanges last year. The results were lackluster:

California signed up 1.4 million people through its individual exchange, but its small-business exchange enrolled only 1,700 companies, with 11,500 employees and dependents. In Minnesota, the small-business exchange signed up 190 employers covering 1,500 people.

The low participation is not surprising since businesses can still purchase insurance outside of an exchange. The primary reason to use a SHOP exchange would be to receive a tax credit. Firms with fewer than 25 workers who purchase via the exchange are eligible for a tax credit to help offset the cost of the employer contribution. Credits can be as large as 50 percent of the employer contribution.

However, the tax credit is unlikely to induce many small businesses to use the exchange. Only a small number of eligible businesses claimed the previous version of the tax credit, which did not require the extra step of a SHOP purchase. According to the Government Accountability Office (GAO), many employers did not claim it due to the complexity in its calculations. Adding another requirement suggests even fewer employers will take advantage of the credit.  Additionally, GAO estimates that very few small firms offer health insurance as benefit to employees because the tax credit is small. Firms are not encouraged to provide the benefit.

HHS had an additional year to get its SHOP website development right. Reports suggest that HHS is still not ready, despite the large cost. But even if the website becomes functional, success of the overall SHOP program looks unlikely.

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