RegState.net
Regulatory Reform
June 2011: The Obama Administration launched an unprecedented government-wide review of regulations already on the books. The purpose of the platform is at the very least to create the impression that the review will ensure save money.
President Obama issued Executive Order 13576 that emphasizes CBA principles and reliance on science.
President Obama issued Executive Order 13576 that emphasizes CBA principles and reliance on science.
Preemption and Merchants of Morbidity
September 22, 2009: NYC Board of Heath issued a resolution to amend Article 181 of the City Health Code. The resolution determined that "[s]moking is the leading cause of preventable death in the United States and in New York City. Up to one half of life-long smokers, depending on age, are expected to die of tobacco related diseases. Smokers who die of tobacco-related diseases lose an average of 14 years of life. Smokers who die of tobacco-related diseases lose an average of 14 years of life."
The resolution therefore amended Article 181 to require points-of-sale of tobacco to "prominently display tobacco health warning and smoking cessation signage produced by the Department."
December 2009: The City Health Commissioner sent letters to Tobacco Retailers, explaining the implications of the new regulation.
The regulatory plan was to post visually deterring posters that will change to maintain the shocking effect.
Tobacco retailers, New York Association of Convenience Stores, Lorillard, Philip Morris USA, and RJ Reynolds challenged the validity of the municipal regulation.
December 29, 2010: Judge Jed Rakoff of the Southern District of New York struck down the amendment to Article 181, holding that "[e]ven merchants of morbidity are entitled to the full protection of the law, for our sake as well as theirs." Judge Rakoff granted plaintiffs, the "merchants of morbidity," motion for summary judgment, striking down Article 181.19 of the City Health Code after concluding that the federal Cigarette Labeling and Advertising Act preempted local regulatory schemes.
A poster issued by New York City under Article 181.19:
The resolution therefore amended Article 181 to require points-of-sale of tobacco to "prominently display tobacco health warning and smoking cessation signage produced by the Department."
December 2009: The City Health Commissioner sent letters to Tobacco Retailers, explaining the implications of the new regulation.
The regulatory plan was to post visually deterring posters that will change to maintain the shocking effect.
Tobacco retailers, New York Association of Convenience Stores, Lorillard, Philip Morris USA, and RJ Reynolds challenged the validity of the municipal regulation.
December 29, 2010: Judge Jed Rakoff of the Southern District of New York struck down the amendment to Article 181, holding that "[e]ven merchants of morbidity are entitled to the full protection of the law, for our sake as well as theirs." Judge Rakoff granted plaintiffs, the "merchants of morbidity," motion for summary judgment, striking down Article 181.19 of the City Health Code after concluding that the federal Cigarette Labeling and Advertising Act preempted local regulatory schemes.
A poster issued by New York City under Article 181.19:
Ending Don't Ask, Don't Tell
The so-called "Don't Ask, Don't Tell" Act (10 U.S.C. § 654) required members of the armed forces who wanted to keep their jobs to conceal non-heterosexual preferences of any kind. This law and its implementing regulations effectively banned expression of sexual preferences and conduct on certain moral grounds. They regulated the entry into the armed forces by forcing suppression of information and conduct.
January 27, 2010: In his first State of the Union Address, the President Obama announced: “This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are. It’s the right thing to do.”
October 12, 2010: In Log Cabin Republicans v. United States, Judge Virginia Phillips of the Central District Court of California held that the statute was unconstitutional, issuing permanent injunction enjoining the enforcement or application of an Act of Congress known as the “Don’t Ask, Don’t Tell Act."
November 1, 2010: The government argued that the injunction would seriously disrupt ongoing and determined efforts by the Administration to devise an orderly change of policy. The Ninth Circuit granted a request to stay the injunction issued by Judge Phillips.
November 12, 2010: The Supreme Court denied an application to vacate the stay.
November 30, 2010: The Department of Defense issues a comprehensive study of the impacts of repeal, should it occur, of Section 654 of Title 10 of the United States Code, commonly known as the “Don’t Ask, Don’t Tell” law. The study concludes that: "the risks of repeal within warfighting units, while higher than the force generally, remain within acceptable levels when coupled with our recommendations for implementation." Furthermore, the authors of study note that "[t]he general lesson we take from these transformational experiences in history is that in matters of personnel change within the military, predictions and surveys tend to overestimate negative consequences, and underestimate the U.S. military’s ability to adapt and incorporate within its ranks the diversity that is reflective of American society at large."
December 9, 2010: Senate voted 57-40 for S3454 that would repeal the Don't Ask Don't Tell policy, three votes shy of the number needed. Senator John McCain was one of the most vocal opponents to the repeal of the DADT policy.
Shortly after failed S3454 in a procedural vote, Senator Joseph Lieberman introduced S4022 that uses the same language of S3454.
December 15, 2010: HR2965, The Don't Ask Don't Tell Repeal Act of 2010, is introduced and passed by the House 250-175.
December 18, 2010: Senate repeals the DADT
January 27, 2010: In his first State of the Union Address, the President Obama announced: “This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are. It’s the right thing to do.”
October 12, 2010: In Log Cabin Republicans v. United States, Judge Virginia Phillips of the Central District Court of California held that the statute was unconstitutional, issuing permanent injunction enjoining the enforcement or application of an Act of Congress known as the “Don’t Ask, Don’t Tell Act."
November 1, 2010: The government argued that the injunction would seriously disrupt ongoing and determined efforts by the Administration to devise an orderly change of policy. The Ninth Circuit granted a request to stay the injunction issued by Judge Phillips.
November 12, 2010: The Supreme Court denied an application to vacate the stay.
November 30, 2010: The Department of Defense issues a comprehensive study of the impacts of repeal, should it occur, of Section 654 of Title 10 of the United States Code, commonly known as the “Don’t Ask, Don’t Tell” law. The study concludes that: "the risks of repeal within warfighting units, while higher than the force generally, remain within acceptable levels when coupled with our recommendations for implementation." Furthermore, the authors of study note that "[t]he general lesson we take from these transformational experiences in history is that in matters of personnel change within the military, predictions and surveys tend to overestimate negative consequences, and underestimate the U.S. military’s ability to adapt and incorporate within its ranks the diversity that is reflective of American society at large."
December 9, 2010: Senate voted 57-40 for S3454 that would repeal the Don't Ask Don't Tell policy, three votes shy of the number needed. Senator John McCain was one of the most vocal opponents to the repeal of the DADT policy.
Shortly after failed S3454 in a procedural vote, Senator Joseph Lieberman introduced S4022 that uses the same language of S3454.
December 15, 2010: HR2965, The Don't Ask Don't Tell Repeal Act of 2010, is introduced and passed by the House 250-175.
December 18, 2010: Senate repeals the DADT
Justice Breyer on Regulation in Courts
December 12, 2010: Justice Stephen Breyer on Fox News
Unlicensed Drivers, Immigration Laws, and Risk
Only three states — New Mexico, Utah and Washington — currently issue licenses without proof of legal residence in the United States. Many states have adopted tough new laws to prevent illegal immigrants from driving, while expanding immigration enforcement by the state and local police.
The New York Times' study finds that immigrants who choose to drive in the United States assume substantial legal risks and because they cannot have driver's licenses their risks in accidents are much greater than those of citizens and residents.
Julia Preston and Robert Gebeloff, Unlicensed Drivers Who Risk More Than a Fine, New York Times, December 10, 2010, Page A1.
The New York Times' study finds that immigrants who choose to drive in the United States assume substantial legal risks and because they cannot have driver's licenses their risks in accidents are much greater than those of citizens and residents.
Julia Preston and Robert Gebeloff, Unlicensed Drivers Who Risk More Than a Fine, New York Times, December 10, 2010, Page A1.
Trying to Shape Plastic Bag Preferences
October 8, 2010: Baltimore Mayor signed into law the Plastic Bag Reduction Program. The City debated for two years various measures intended to reduce the use of plastic bags. One of the proposed measures that failed was plastic bag tax. Unlike many other localities that impose a 5-cent fee per bag, the Baltimore proposed measure was 25 cents (See RegState.net). This proposition was not adopted.
The Baltimore Plastic Bag Reduction Program Ordinance establishes a regulatory framework that mostly attempts to shape consumer preferences.
The ordinance declares its purpose "to reduce the quantity of plastic bags distributed by dealers in Baltimore City and, thereby, reduce the environmental and economic costs of handling plastic in City landfills, stormwater drains, outfalls, and the Inner Harbor."
It specifically provides that "[a]ll dealers, whether of food or other goods, who offer to provide checkout or carryout bags must prominently post at their registers a policy of providing plastic bags only if requested
by the customer."
The regulatory framework that the Ordinance creates intends to encourage consumers to use reusable bags.
The Ordinance is in effect as of December 1, 2010.
Advance Care Planning and Fears
Section 1233 of the House Healthcare Bill was sacrificed in the political process in order to reach an agreement over the healthcare reform. Section 1233 intended to offer voluntary "advance care planning consultation" services to assist individuals who confront with difficult decisions regarding end-of-life care. AARP, and quite a few other organizations supported Section 1233 that, among other things, could have saved healthcare costs by helping patients and families choosing the options they preferred.
Section 1233 was sacrificed because opponents of the healthcare reforms presented it as a legislative attempt to "put to death [seniors] by their government."
For example, Representative Virginia Foxx (N.C.):
Section 1233 was sacrificed because opponents of the healthcare reforms presented it as a legislative attempt to "put to death [seniors] by their government."
For example, Representative Virginia Foxx (N.C.):
Private Lawmakers, Federal Regulation, and Guns
A paper I wrote with two of my students, Kathleen Callahan and Lisa Lindemenn, studies how private lawmakers play use states to influence federal policies.
The paper uses the Firearms Freedom Act Movement as a case study. As the paper shows, between January 2009 and March 2010, almost identical Firearms Freedom Act bills were introduced in 27 states. Nine State Legislatures endorsed the bills and they became laws in eight states. In Oklahoma, the bill was vetoed.
Source: Orbach, Callahan & Lindemenn, Arming States' Rights, Arizona Law Review (2010)
This paper provides an initial account of a strategic apparatus crafted by private lawmakers to influence federal policy. The “battering ram strategy” employs the legal powers of states and localities to challenge and weaken federal laws. Recently, a specific weapon, the “Commerce Battering Ram,” has developed to challenge current Commerce Clause jurisprudence, using the heft of the Tenth Amendment and numerous state legislatures to propel its argument forward. The weapon’s strength is augmented by the ability of private lawmakers, facilitated by Citizens United, to stack state legislatures with senators and representatives who are sympathetic to their goals. The Essay documents the core of a particular Commerce Battering Ram, the Firearms Freedom Act movement, which has proliferated and armed other Tenth Amendment platforms with a similar formula for challenging federal laws. This formula was drafted and promoted by a private citizen with a specific gun rights agenda. State legislators have enacted and cloned the formula, and its model has been adopted to challenge federal law in other regulatory domains, most notably healthcare reform. The compounding effect of these Commerce Battering Rams has not been studied. However, if their proponents—largely members of the Tea Party movement—are successful in their attempt to break through the walls of federal law, the result may have an enormous unintended impact on the American people.
Barak Orbach, Kathleen Callahan & Lisa Lindemenn, Arming States’ Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy, Arizona Law Review (2010).
The paper uses the Firearms Freedom Act Movement as a case study. As the paper shows, between January 2009 and March 2010, almost identical Firearms Freedom Act bills were introduced in 27 states. Nine State Legislatures endorsed the bills and they became laws in eight states. In Oklahoma, the bill was vetoed.
Source: Orbach, Callahan & Lindemenn, Arming States' Rights, Arizona Law Review (2010)
This paper provides an initial account of a strategic apparatus crafted by private lawmakers to influence federal policy. The “battering ram strategy” employs the legal powers of states and localities to challenge and weaken federal laws. Recently, a specific weapon, the “Commerce Battering Ram,” has developed to challenge current Commerce Clause jurisprudence, using the heft of the Tenth Amendment and numerous state legislatures to propel its argument forward. The weapon’s strength is augmented by the ability of private lawmakers, facilitated by Citizens United, to stack state legislatures with senators and representatives who are sympathetic to their goals. The Essay documents the core of a particular Commerce Battering Ram, the Firearms Freedom Act movement, which has proliferated and armed other Tenth Amendment platforms with a similar formula for challenging federal laws. This formula was drafted and promoted by a private citizen with a specific gun rights agenda. State legislators have enacted and cloned the formula, and its model has been adopted to challenge federal law in other regulatory domains, most notably healthcare reform. The compounding effect of these Commerce Battering Rams has not been studied. However, if their proponents—largely members of the Tea Party movement—are successful in their attempt to break through the walls of federal law, the result may have an enormous unintended impact on the American people.
Barak Orbach, Kathleen Callahan & Lisa Lindemenn, Arming States’ Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy, Arizona Law Review (2010).
Graphic Tobacco Warnings
November 10, 2010: The FDA announces new, evidence-based tobacco control initiatives to make health warnings on packages and in advertising larger and more prominent. The proposed rule introduces a set of graphic tobacco warnings that intend to deter smoking.
Some of the Proposed Warnings
The Tobacco Control Announcement
Kathleen Sebelius, Secretary of Health and Human Services (HHS), Howard K. Koh, M.D., MPH, Assistant Secretary of HHS and Margaret A. Hamburg, M.D., FDA Commissioner announcing new, evidence-based tobacco control initiatives to make health warnings on packages and in advertising larger and more prominent.
Some of the Proposed Warnings
The Tobacco Control Announcement
Kathleen Sebelius, Secretary of Health and Human Services (HHS), Howard K. Koh, M.D., MPH, Assistant Secretary of HHS and Margaret A. Hamburg, M.D., FDA Commissioner announcing new, evidence-based tobacco control initiatives to make health warnings on packages and in advertising larger and more prominent.
Dysregulating Offensive Emails
Nebraska convicted Darren Drahota of a breach of the peace based on two e-mails he sent to William Avery, his former political science professor and a candidate for the State Legislature.
Drahota's emails concluded an exchange of 18 e-mails that presented differing opinions on a variety of topics, such as the Bush presidency and its policies, the Clinton impeachment, the Iraq conflict, Muslims, terrorism, the "war on terror," the use of force in the Middle East, al Qaeda, and military service to the United States. Drahota’s e-mails are much longer and often laced with profanity and invective. Avery’s responses, while suggesting disagreement, were quite brief. Some portions of the e-mails from Drahota had friendly, respectful, and admiring comments about Avery and his teaching, but in the same e-mail, Drahota would include disrespectful, hostile, angry, profane, and offensive comments about blacks, Muslims, and people on the liberal, or left, side of the political spectrum, as well as comments that certainly could be read as disrespectful and insulting to Avery.
In June 2007, the trial court found Drahota guilty of oral pronouncement. He appealed. In June 2009, the Court of Appeals held that Drahota's conduct constituted a criminal act of a breach of the peace. In September 2010, the Nebraska Supreme Court held that Drahota’s rants, although provocative and insulting, were not fighting words, and were protected by the First Amendment.
Drahota's emails concluded an exchange of 18 e-mails that presented differing opinions on a variety of topics, such as the Bush presidency and its policies, the Clinton impeachment, the Iraq conflict, Muslims, terrorism, the "war on terror," the use of force in the Middle East, al Qaeda, and military service to the United States. Drahota’s e-mails are much longer and often laced with profanity and invective. Avery’s responses, while suggesting disagreement, were quite brief. Some portions of the e-mails from Drahota had friendly, respectful, and admiring comments about Avery and his teaching, but in the same e-mail, Drahota would include disrespectful, hostile, angry, profane, and offensive comments about blacks, Muslims, and people on the liberal, or left, side of the political spectrum, as well as comments that certainly could be read as disrespectful and insulting to Avery.
In June 2007, the trial court found Drahota guilty of oral pronouncement. He appealed. In June 2009, the Court of Appeals held that Drahota's conduct constituted a criminal act of a breach of the peace. In September 2010, the Nebraska Supreme Court held that Drahota’s rants, although provocative and insulting, were not fighting words, and were protected by the First Amendment.
