The "Business Case of the Century"

On Monday, the Supreme Court will hear the case of Wyeth v. Levine, which the U.S. Chamber of Commerce has called the “business case of the century.” A Vermont woman who had to have an arm amputated after a nausea drug was improperly administered sued the drug’s manufacturer, Wyeth (she also sued the clinic, physician, and physician’s assistant, but these parties settled). She won in state court, and Wyeth sought review in the U.S. Supreme Court under the theory of “preemption” — that states cannot regulate (by statute or common law) in fields, like pharmaceuticals, where the federal government already does. Here the FDA had approved Wyeth’s label, but Wyeth did not change that label to conform to Vermont’s particular (and stronger) laws.

I don’t know whether this is the “business” case of the century, but it may well be that for the pharmaceutical industry. The outcome turns on a close reading of the statute — as Dan Troy and Becky Wood detailed in the most recent Cato Supreme Court Review, the Court is much more likely to endorse “explicit” rather than “implicit” preemption — but everyone (especially patients) will be better off if the Court upholds FDA preemption here. The courts should not be micro-managing what goes on labels or we will end up with the “overwarning” problems that defeat the labels’ purpose. Moreover, litigation is a blunt regulatory instrument that tends to skew the FDA’s already warped incentives to give too much weight to rare side-effects at the cost of prohibiting or suppressing useful drugs. These incentives, and the related litigation costs, ultimately affect the development of new drugs.

[Cross-posted at Cato's blog.]

A Plea for Divided Government

Former Catoite Radley Balko argues that the Republican Party deserves to lose because it "has exiled its Goldwater-Reagan wing and given up all pretense of any allegiance to limited government." He goes on to detail all the sordid ways in which the GOP has indeed betrayed its allegedly pro-free market, limited government beliefs and thus "forfeited its right to govern."

I don't disagree with any of Balko's analysis but I do take issue with his conclusion for one very simple (some would say banal) reason: The best way to limit the federal Leviathan is to have Congress and the presidency controlled by different parties. See, for example, the relevant parts of former Catoite Stephen Slivinski's book, Buck Wild: How the Republicans Broke the Bank and Became the Party of Big Government. Slivinski calculates that when one party controls the political branches, the growth of real per capita government spending is 3.4%. Under divided government, the rate is 1.5%. And it doesn't much matter whether Democrats or Republicans control are in sole charge: 3.3% government growth under Democrats vs. 3.6% under Republicans. The most libertarian combination seems to be a Democratic president with a Republican Congress, where the average rate of government growth is 0.4%. (This is also the rarest alignment in modern times, so it may be less significant statistically.)

In short, yes the Bush administration, enabled by a corrupt (ideologically and otherwise) Republican Congress, has been the second coming of LBJ. But rather than reward a party whose leaders in Congress have even lower approval ratings than President Bush with unified control of government -- giving the Democrats a mandate to turn American into some sort of socialist workers' paradise -- I suggest letting it gain in Congress (preferably without a filibuster-proof Senate because judges and international treaties are my pet issues) while losing the White House. Which isn't to say that this would necessarily be better than a President Obama with a Republican Congress, just that the chance of the GOP taking over even one house of Congress is only slightly greater than the chance that Bob Barr will be elected president.

In sum, if we want divided government -- and I for one certainly do -- we had best let at least one Republican win.

[Cross-posted from Cato's blog.]

Sarah in Charge?

Some in the media (or at least Keith Olbermann at MSNBC) are ridiculing Sarah Palin’s recent answer to a third-grader’s question of “What does the Vice President do?” The part of her response that seems to have people in a tizzy is the following: “[A] Vice President has a really great job, because not only are they there to support the President agenda, they’re like a team member, the teammate to that President. But also, they’re in charge of the United States Senate, so if they want to they can really get in there with the Senators and make a lot of good policy changes… ” (emphasis added). Haha, Ms. Caribou Barbie Palin, the wags chortle, don’t you know that the Vice President is only mentioned four times in the Constitution (two of which mentions are in later amendments) and has no power but to break ties in the Senate?

Well, that’s right, except it’s not. While true that the only formal power the Constitution (specifically Article I, Section 3) gives the VP is to cast the deciding vote when the Senate is deadlocked, the Constitution is understandably silent as to what else the VP can do with his or her time. Yet nobody would deny that Dick Cheney has been an extremely powerful figure, and not because of any explicit powers but because he has aggressively pushed the Bush Administration’s agenda and lobbied senators (particularly Republicans). So sure, the VP can have a big effect on policy.

Moreover, the VP is the “President of the Senate,” which is sort of like being in charge — if indeed anyone is in charge of that motley group of wannabe presidents. This isn’t “in charge” the way a president or CEO is “in charge” — the VP can’t fire senators or force them to vote a given way or veto their bills — but I don’t think anyone can reasonably construe Palin’s comments to imply that. The most reasonable construction is that she was trying to explain in her own words what being “President of the Senate” means, and could’ve done a lot worse than characterizing it as being “in charge.”

You can read more on this issue in this CBS News posting, which further quotes my thoughts on the matter.

[Cross-posted at Cato's blog.]

Cato Law on the Road

Now that we’ve released the Cato Supreme Court Review and the Court has started its new term, I’m on the road quite a bit giving speeches and participating in debates. Here’s the schedule for my next trip, which starts tomorrow in Atlanta. All events are open to the public (though the lawyers’ events charge admission):

10/14 at 12pm - Atlanta Federalist Society Lawyers - Kilpatrick Stockton, 1100 Peachtree St.

10/14 at 4pm - Emory Law School - 1301 Clifton Rd., Atlanta

10/15 at 12pm - University of Florida Law School - 2nd Ave. & 25th St., Gainesville

10/15 at 4pm - Florida State University - 425 W. Jefferson St., Tallahassee

10/16 at 11:30am - Florida Coastal School of Law - 8787 Baypine Rd., Jacksonville

10/16 at 5:30 pm - Orlando Federalist Society Lawyers - The Citrus Club, 255 S. Orange Ave., 18th Floor

10/20 at 12pm - University of Miami Law School - 1311 Miller Dr., Coral Gables

If you come to one of these events because you learned of it from this blog post, please do come up and introduce yourself.

[Cross-posted from Cato's blog.]

Litigating the Fourth Amendment in the Supreme Court

In this first week of the new term, the Supreme Court heard two Fourth Amendment cases. The first, Herring v. United States, asked whether evidence obtained based on an erroneous arrest warrant (called in by a police clerk from a neighboring county) should be suppressed. The second, Arizona v. Gant, looked into whether the long-standing “Belton“ rule that a police officer may search the passenger compartment of an arrested person’s car should be set aside when the search — typically justified on “officer safety” grounds — occurs after the arrested person is handcuffed and locked in the back of a squad car. The easy legal answers would seem to be yes and yes (though I have qualms about the exclusionary rule — which is fairly unique to America – as a matter of policy), but then it’s hard to craft a readily administrable legal rule that would get you there without creating an equally unjust result in other circumstances. Hard cases, as they say, make bad law.

But my point is not to argue the finer points of Fourth Amendment doctrine. Instead, it is to highlight the difficulty of arguing those points in the rarefied air of the Supreme Court. As the SCOTUSblog analysis of the arguments in the above cases concluded:

The arguments in these cases illustrate the complexity of arguing Fourth Amendment cases before this Court. It is not simply a question of appealing
to Justices’ support for, or skepticism of, the exclusionary rule or broad
discretion for law enforcement officers. Many of the Justices are also concerned
about need for clear, administrable rules, while others simultaneously resist
the inflexibility and illogical results a bright-line rule inevitably gives rise to. And while some Justices are more than ready to abandon old decisions and doctrines they believe were wrongly adopted or no longer make sense (be it the exclusionary rule or Belton) others feel strongly about the Court’s obligation to adhere to its prior precedent absent strong justification for departure. And to make matters worse, these various considerations often point in different directions and cut across the traditional liberal-conservative lines on the Court: Justices Breyer and Alito worry about stare decisis, while Justice Thomas is much less concerned; Justice Kennedy wants a rule that makes pragmatic sense, while Justice Scalia doesn’t care if the rule is nonsensical if it has a historical pedigree; Scalia worries about a vague standard for applying the exclusionary rule, but the Chief Justice not so much. In the end, the
cross-currents can sometimes give advocates more to work with in crafting arguments that can attract five votes. But at the same time, it sometimes makes the task of holding together a coalition quite complicated.

In short, separating out death penalty cases, it is in criminal law where the justices can be the least predictable.

[Cross-posted at Cato's blog.]

First Monday: A New Year at the Supreme Court

Today the Supreme Court begins a new term, and so far there is little for either constitutional scholars or the general public to get excited about. While two years ago the Court split 5-4 in a full third of its cases (with Justice Kennedy in the majority on each one), and last year produced fewer such decisions (and also fewer unanimous and 8-1 verdicts) but maintained sharp divides on high-profile cases involving Guantanamo Bay, the Second Amendment, and the death penalty, the current term seems to lack any striking features. Instead we have a raft of cases involving technical issues of statutory interpretation and minor doctrinal adjustment, especially in the areas of environmental and employment law, and criminal procedure. Even the typically riveting First Amendment cases fall flat, with the FCC’s obscenity regulation turning on administrative procedure and the lone religion matter concerning a quixotic use of private speech in a public forum. We can expect to see most of these cases decided by broad majorities on narrow grounds, perhaps reflecting the “minimalist” approach Chief Justice Roberts allegedly prefers. Still, given the small number of cases — the Court filed a leisurely 67 opinions on the merits after argument last year (the lowest number since 1953) and is on pace for not many more this term – it’s hard to read any trends into the Court’s work. And the last time Court watchers protested this much about the “boring” nature of the docket, October Term 2000, we ended up with the little-known case of Bush v. Gore. We will see very soon whether next month’s election — or indeed the bailout — will make history repeat itself.