Constitutional and Legal Issues | Publications | Competitive Enterprise Instittue

Obamacare’s Constitutional Defects, First Amendment Division

Hans Bader — Tue, 22 May 2012 20:42:33 +0000

From Ilya Shapiro's post on Cato@Liberty:

As the Competitive Enterprise Institute’s Hans Bader put it:

Obama’s HHS secretary sought to gag insurers that disclosed how Obamacare’s mandates are increasing the cost of health insurance, even though such speech is clearly protected by the First Amendment, telling them if they did so, they could be excluded from health insurance exchanges. Prior to that, the Obama administration attempted to gag insurers from disclosing how Obamacare harms Medicare Advantage participants, drawing criticism from First Amendment experts like UCLA law professor Eugene Volokh, the author of two First Amendment textbooks.

Beyond the unseemliness of it all, however, there’s also a constitutional problem: The government can’t require people to make politicized statements, whether that’s “Live Free or Die” on license plate or the labeling of consumer products where the labels aren’t justified on fraud-prevention or public health grounds. See some other examples and legal analysis in Bader’s post at CEI’s blog.

Hans Bader

Tue, 2012-05-22

Citation Source:

Cato@Liberty

http://www.cato-at-liberty.org/obamacares-constitutional-defects-first-amendment-division/

Medical Roundup

Hans Bader — Tue, 22 May 2012 21:05:52 +0000

From Overlawyered:

Forcing companies to make politicized disclosures to customers implicates First Amendment [Hans Bader on HHS "must credit ObamaCare" reg]

Hans Bader

Mon, 2012-05-21

Citation Source:

Overlawyered

http://overlawyered.com/2012/05/medical-roundup-4/

Give a Man a Fish

Iain Murray — Fri, 18 May 2012 11:25:41 +0000

Full Document Available in PDF

Some policy makers and environmental advocacy groups are beginning to realize that the solution lies not in further government regulation, but in investing fishermen with property rights. However, government bureaucrats are also attempting to utilize this insight to gain even more power over fisheries, threatening to derail the momentum toward a more rational allocation of ocean resources. That would be bad news for both fish populations and the people who depend on them for their livelihood.

The oceans are an important source of food and income for people around the world. In 2007, proteins from fish accounted for 15.7 percent of the total global animal protein supply. In 2008, an estimated 44.9 million people were directly engaged in the fishing industry (both marine capture and aquaculture). However, the world’s fish stocks are not limitless, and are being depleted rapidly.

Two principal factors are at work. First, the billions of dollars in subsidies bestowed on the fishing industry by many governments makes overfishing profitable, even as per capita fishing yields decline. Second, the absence of property rights over fish in most countries means that there is no incentive for any party to husband this resource. In fact, the absence of property rights, combined with subsidies, creates a perverse incentive to deplete this scarce resource.

Attempts to prevent overfishing by promulgating regulations (which are often at odds with subsidies) have proved both ineffective and impossible to enforce. As long as the incentives are skewed by bad government policy, many fishermen will continue to work around regulations or simply neglect to report some of their catches—a practice known as “black” fishing that is all too prevalent. Ending subsidies and extending genuine property rights to fisheries will help solve these problems.

Iain Murray

Roger Abbott

Fri, 2012-05-18

Sub Title:

The Case For a Property Rights Approach to Fisheries Management

'People's Rights Amendment' Would Knock Out People's Rights

Hans Bader — Fri, 18 May 2012 20:39:14 +0000

From Overlawyered:

Incredibly, versions of this radical rights-stripping measure has been endorsed through resolutions by the state legislatures of Vermont, Hawaii, and New Mexico, with backing from groups like Public Citizen. [Ilya Shapiro and Kathleen Hunker, Cato; Hans Bader, CEI; earlier] More: Professor Bainbridge (“utterly moronic”)]

Hans Bader

Thu, 2012-05-17

Citation Source:

Overlawyered

http://overlawyered.com/2012/05/peoples-rights-amendment-would-knock-out-peoples-rights/

Let's Lose LOST

Iain Murray — Wed, 16 May 2012 16:36:12 +0000

The Law of the Sea Treaty would drastically undermine American sovereignty, giving massive powers to the U.N. (aka the Dictators’ Club of New York), but the Senate is actually considering passing it — get this — as a tribute to Dick Lugar, whose voters unceremoniously dumped him last week. Seriously, couldn’t they just give him a medal? This is enough to make me think the House of Lords is a good idea.

In any event, Let Freedom Ring has an action site up on this — Let’s Lose LOST.

For further background, here are two studies from CEI on the subject of LOST that we issued when the George W. Bush administration was thinking about getting it ratified to curry international favor.

Iain Murray

Wed, 2012-05-16

Citation Source:

National Review

http://www.nationalreview.com/corner/300120/lets-lose-lost-iain-murray

From Watergate to Wedgiegate

Hans Bader — Tue, 15 May 2012 19:53:16 +0000

From Gene Healy's column in The Washington Examiner:

In a 2011 letter to the nation's school boards, Department of Education Assistant Secretary for Civil Rights Russlynn Ali outlined the administration's federal anti-bullying policy. As Competitive Enterprise Institute legal scholar Hans Bader noted at the time, the document "defined 'harassment' so broadly as to reach both speech protected by the First Amendment, and conduct the Supreme Court says does not legally qualify as harassment."

Hans Bader

Tue, 2012-05-15

Citation Source:

The Washington Examiner

http://washingtonexaminer.com/opinion/columnists/2012/05/watergate-wedgiegate/610966

Why You Should Stop Attending Diversity Training

Hans Bader — Wed, 02 May 2012 19:46:38 +0000

From Suzanne Lucas' article on CBS News:

So why do we continue to do this? Well, for one reason, government or professional organizations sometimes require it for accreditation or licensing. (Hans Bader, an attorney with the Competitive Enterprise Institute, reports that in order to practice law in California he was required to take a class on "elimination of bias in the legal profession.")

Hans Bader

Wed, 2012-05-02

Citation Source:

CBS News

http://www.cbsnews.com/8301-500395_162-57425771/why-you-should-stop-attending-diversity-training/

Law Schools Begin to Shrink

Hans Bader — Thu, 03 May 2012 19:20:46 +0000

From Overlawyered:

George Leef wonders whether economic necessity will drive them to radical, even Olsonian, lengths. [NRO "Phi Beta Cons"]

P.S. Ann Althouse wonders why, quizzed about the Elizabeth Warren brouhaha, law school administrators don’t have the courage of their oft-expressed convictions on minority recruitment. And see thoughts from John Rosenberg and Hans Bader at Minding the Campus.

Hans Bader

Tue, 2012-05-01

Citation Source:

Overlawyered

http://overlawyered.com/2012/05/law-schools-begin-to-shrink/

Ambulance Chasers Feast on Americans with Disabilities Act Claims

Hans Bader — Fri, 27 Apr 2012 17:45:12 +0000

From Point of Law:

Hans Bader, senior attorney and counsel for special projects with the Competitive Enterprise Institute, comments on a recent New York Times story that sheds light on a phenomenon Walter Olson of the Cato Institute tags as the creation of "ADA filing mills."

Bader writes:

Thanks to generous attorney-fee provisions contained in federal civil-rights law, trial lawyers are feasting on Americans with Disabilities Act claims at the expense of small businesses, consumers, and indirectly the public. As I noted earlier, a trial lawyer can collect thousands of dollars in attorney fees for "winning" a discrimination or ADA lawsuit, even if his client collects only $1.

...When it comes to ADA compliance, small businesses are subjected to legal harassment no matter what they do. Many small businesses don't have the freedom to unilaterally modify their entrances or facilities to make them handicapped-accessible, due to municipal code compliance regulations. Instead, they have to submit costly, detailed applications to code enforcers first, and sometimes have to wait months or years for approval, during which time they are sitting ducks for greedy trial lawyers bringing ADA claims. If they make their facilities ADA compliant without receiving the required municipal permits, they get fined by municipal officials.

As the owner of the Cha Cha Chicken restaurant on Pico Boulevard in Santa Monica noted, "We wanted to renovate our bathroom areas to make it more handicap-accessible and it took us almost three years to get all the permits. . .We kept giving all the paperwork they need, but it took forever. We needed the Pico Improvement Organization to plead our case."

Hans Bader

Mon, 2012-04-23

Citation Source:

Point of Law

http://www.pointoflaw.com/archives/2012/04/hans-bader-ambulance-chasers-feast-on-americans-with-disabilities-act-claims.php

Ambulance Chasers Feast on Americans with Disabilities Act Claims

Hans Bader — Mon, 23 Apr 2012 17:18:51 +0000

From Point of Law:

Hans Bader

Mon, 2012-04-23

Citation Source:

Point of Law

http://www.pointoflaw.com/archives/2012/04/hans-bader-ambulance-chasers-feast-on-americans-with-disabilities-act-claims.php