January 28, 2006

Why Ending Kelo Is a National Issue Requiring a National Resolution

Filed under: Economy,Taxes & Government — Tom @ 4:35 pm

From the middle of Robert Novak’s January 27 column:


The nation’s Republican mayors, in a closed-door White House meeting last week, nearly unanimously supported the U.S. Supreme Court’s Kelo decision permitting local governments to force property owners to sell or give way to private developers.

The GOP mayors, in Washington for the U.S. Conference of Mayors winter meeting, heard a report on the Kelo decision by Dearborn, Mich., Mayor Michael A. Guido. Chairman of the conference’s advisory board, Guido opposed undermining the Supreme Court’s ruling.

Anaheim, Calif., Mayor Curt Pringle, a former speaker of the California Assembly, objected with arguments that reflected widespread Republican abhorrence of Kelo. Guido insisted the mayors support local government’s authority, and not a single additional mayor rose in support of Pringle.

While it is really tempting to go after the various Hizzoners, other than Mr. Pringle, who support the Kelo decision (excuse me, “don’t want to undermine” it — cute), this willingness on the part of even alleged conservatives to work with it was as inevitable as night following day.

The simple fact is this: Mayors, commissioners, and governors all compete with each other economically. They have long had various weapons at their disposal, some reasonable and some, though legal and frequently used, that are not reasonable (and in my opinion should not be legal). Reasonable: overall tax policy, education systems, infrastructure, and consumer law. Not reasonable: tax abatements for new business construction (forces everyone else to pay more and subjects the government to continued blackmail by those who threaten to leave) and tax credits for jobs created or retained (same problem as first unreasonable item).

The Kelo ruling is another unreasonable, but now legal, weapon in the economic development arsenal. States and cities that choose to use it will over time, and all other things being equal, probably be better off than those who stay away from it on principle. Politicians who want to be re-elected, even those who don’t like Kelo-type takings, will be forced to gravitate towards them in the interest of political survival.

That’s why the Kelo weapon should not be available anywhere, as our constitution intended. Because of that, nothing short of one of the three following items will suffice to correct the Court’s error:

  • A federal court reversal of Kelo that is upheld by The Supreme Court. This would appear to require the installation of one more original-intent justice to take the place of one of the five in the Kelo opinion majority.
  • An appropriate law passed by Congress that restores the pre-Kelo situation and passes constitutional muster (a dubious proposition).
  • A Constitutional amendment that restores the true meaning The Founding Fathers intended for the proper use of eminent domain.

Remembering the Challenger, from a NASA Insider

Filed under: News from Other Sites — Tom @ 12:17 pm

Dr. Sanity posts today on her remembrances from the Challenger disaster and her perspectives on the current and future state of space exploration.

Last weekend, on the 25th anniversary of President Ronald Reagan’s first inauguration, she also posted on meeting him (or more correctly, him coming to meet her) at the memorial service for the Challenger astronauts.

Don’t miss either post.

Wisconsin Tort-ure

Filed under: Economy,Taxes & Government — Tom @ 11:22 am

The Wall Street Journal (link requires subscription) editorializes on Wisconsin’s governor, who apparently, with the help of the state’s courts, wants a legal system where trial lawyers can party like it’s 1999:

Last summer the Wisconsin Supreme Court declared the state open for business to trial lawyers looking to extort money from businesses based on dubious or frivolous personal-injury claims. In one case, the Court threw out a state cap on noneconomic damages in medical malpractice suits, calling the cap arbitrary; it seems the Court prefers the arbitrariness of potentially enormous judgments.

In a separate case, it promulgated a theory of “contributory risk” in a lead-poisoning case, saying in effect that if you ever made lead paint, you put someone, somewhere at risk and so could be held liable if someone sued claiming lead poisoning from paint. It was not necessary, the Court ruled, to show that the company being sued actually poisoned you — it was enough to show that you made lead paint, and so might have contributed to the poisoning.

The state legislature responded to the Court’s expansion of the tort bar’s power by passing reforms to address both issues late last year. One bill would have limited liability to cases where it could — perish the thought! — actually be shown that a defendant bore responsibility for the injury. Another reinstated a slightly higher cap on noneconomic damages in medical malpractice suits.

Governor Doyle vetoed both, along with a bill to limit the ability to sue gun makers over gun violence and another that sought to make clear that manufacturers could not be held liable for injuries suffered when people misused or abused products.

In doing so, he claimed to be protecting consumers, but the chief beneficiaries of frivolous tort claims are the trial lawyers who bring the cases.

….. Governor Doyle’s vetoes are all the more remarkable coming at a time when other states are trying to clean up their acts, having realized that being a beacon for specious claims isn’t good for the economy. If there’s a silver lining here, it’s that voters will soon be offered a clear choice between a candidate who supports the litigation explosion and a candidate who sees danger in inviting the trial lawyers to hunt for prey.

Yes, Governor Doyle is a Democrat. Given the four horrid vetoes noted above, his party would be wise to look for a strong primary challenger. In an environment where states compete for business, and lose it when they do dumb things (see: Wal-Mart in Maryland and Chicago), Wisconsin can’t afford to have a 20th-century legal system when many of its neighbors have come at least partially to their senses on tort reform.

This Weekend’s Unanswered Questions (012806)

This is another installment in a nearly-regular series of mysteries and pseudo-mysteries (usually 3-4) this inquiring mind would like to have answers for (some links included may require free registration).

Today’s questions relate to the renewed interest in getting a grip on federal spending.

QUESTION 1: Whatever happened to the line-item veto?

A pet project of conservatives in the early and mid-1990s, the idea was to give the president the ability to veto individual items in a spending bill instead of facing the all-on-none choice he must deal with today. This would give the president the ability to excise pork, and would make congressmen less likely to insert pork into legislation in the first place.

The quick answer to the question is that the Supreme Court declared it unconstitutional in 1998. The law that was voided let the president sign a bill and gave him five days go back and reject specific spending items or tax breaks in it; Congress could then reinstate the item by passing a separate bill.

But the longer answer to Question 1 is that it shouldn’t have dropped off the radar. I believe that a slightly modified line-item veto, if passed this year, would be upheld by The Supremes:

  • The 1998 vote was 6-3, with Scalia, O’Connor, and Breyer dissenting.
  • Congressmen and Senators at the time of the court’s ruling promised to make another try at a line-item veto (technically “enhanced recission”), but nothing ever happened. President Clinton was in favor of the law the Supreme Court nullified. There should be no shortage of enthusiasm for passing another bill.
  • Rehnquist, who voted with the majority, has been replaced by Roberts, and O’Connor, who dissented, is being replaced by Alito. Since both new would appear to be receptive to the line-item veto, that should be a pickup of one vote.
  • Clarence Thomas’s vote with the majority was seen as a surprise at the time (as was Rehnquest’s), and I suspect that there is a bill with language that he would approve. There’s your 5-4 majority updholding the line-item veto.

I say give it a shot. Since it’s not truly a line-item veto in the pure sense, give it another name, so maybe the court won’t get “faked out,” as some believe occurred in 1998.

QUESTION 2: Why aren’t we hearing about repealing the 1974 Budget Act?

Let’s go to OpinionJournal.com:

This disastrous law, enacted by arguably the most liberal Congress in history, was designed to make it easier to spend, and one of the ways it did so was by stripping the President of the power to impound funds. The impoundment power was used by every President from Jefferson to Nixon to refuse to spend money if the funds were unnecessary. FDR used it to cancel billions of dollars that had been appropriated for domestic agencies so that every available dollar could be devoted to the war.

The Constitution gives Congress the “power of the purse” through its authority to “appropriate funds.” But it also gives the executive branch the broad authority to “take care that the laws be faithfully executed,” and historically that has meant the power not to spend money when the funds are not necessary.

The 1974 Act is probably the most damaging legacy of the year of Watergate (the bill was passed because Congress knew that a weakened President Nixon wouldn’t dare veto it). The Act essentially represented an annual demand by Congress that all money appropriated be spent, and took away the President’s historical ability to cancel needless spending. Somehow the Republic had survived for almost 200 years up to that point with the President having that power.

I agree. Repeal it.

QUESTION 3: Why is John Shadegg getting a pass for his involvement in questionable legislation and with lobbyists?

He’s saying all the right things but he hasn’t done all the right things. Links:

  • Porkopolis — Look for the pull-down bar on the right that reads “Western Cotton Research Lab.” Keep in mind as you go through the gory details of this federal land giveaway that Mr. Shadegg was involved in it as a co-sponsor of the original bill allowing it.
  • The Phoenix-area’s East Valley Tribune also did a story, with significant Porkopolis input, on the free land transfer.
  • Porkopolis also did a post on Shadegg’s lobbying connections in response to the Fox News segment on Shadegg that ignored readily available information.

Maybe Shadegg is the best of the three people competing for Majority Leader right now. If so, maybe that also means that none of the three are acceptable.

UPDATE, Jan. 29: Captain Ed also weighed in on this yesterday — “If the Journal and the blogosphere wants to get serious about corruption and spending, then we need to attack it at its source: the expansion of federal power over the last seventy years. Only by making government smaller and reducing its reach, both legal and financial, into the lives of citizens will spending and corruption decrease. In the meantime, attacking earmarks will provide us the necessary momentum and training to go after the serious spending later on.”

Positivity: Traffic Stop Saves a Life

Filed under: Positivity — Tom @ 7:11 am

A policeman would not have noticed a person needing help if he hadn’t pulled Erica Barnes over for speeding: