Jonathan H. Adler

Is the Common Law the Free Market Solution to Pollution

Abstract Whereas conventional analyses characterize environmental problems as examples of market failure, proponents of free-market environmentalism (FME) consider the problem to be a lack of markets and, in particular, a lack of enforceable and exchangeable property rights. Enforcing property rights alleviates disputes about, as well as the overuse of, most natural resources. FME diagnoses of pollution are much weaker, however. Most FME proponents suggest that common-law tort suits can adequately protect private property and ecological resources from pollution. Yet such claims have not been substantiated. Further research is needed before the common law, or regulatory reforms grounded in common-law principles, can be seen as a viable alternative to traditional environmental regulation.

King v. Burwell: Desperately Seeking Ambiguity in Clear Statutory Text

Does the Patient Protection and Affordable Care Act (ACA) of 2010 authorize tax credits within the thirty-six states that failed to establish health insurance exchanges? That is the question presented in Pruitt v. Burwell, Halbig v. Burwell, King v. Burwell, and Indiana v. IRS. The plaintiffs argue that the statute is clear and forecloses any possibility of tax credits in federal exchanges. The government argues that the statute plainly authorizes tax credits in federal exchanges, or is at least ambiguous on the question. Mere disagreement is not evidence of ambiguity. Reaching the truth requires wading deep into each sides arguments. Whether the relevant text is viewed in isolation or in its full statutory context, the ACA authorizes tax credits only in exchanges established by the states.

The Science Charade in Species Conservation

Debates over implementation and enforcement of the Endangered Species Act (ESA) often focus on the use of science. The debate over the use of science under the ESA is part of the “science charade” that clouds substantive policy debate about species conservation. What typically divides competing interest groups is not a devotion to science, but sharply divergent policy preferences dressed up in scientific garb. The political debate over the use of science under the ESA tends to obscure the dividing line between science and policy and undermines the development of more effective and equitable conservation strategies. Further, efforts to reform the ESA by mandating additional scientific procedures or increasing judicial scrutiny of the use of science by federal agencies will do little to address the ESA’s underlying problems or make species conservation efforts more effective.

Is the Clean Air Act Unconstitutional? Coercion, Cooperative Federalism and Conditional Spending after NFIB v. Seblius

The Clean Air Act (CAA) is a persistent source of federal-state conflict. Like many federal environmental laws, the CAA relies upon the cooperation of state environmental agencies for its execution and enforcement. To induce such cooperation, the CAA authorizes, even requires, the imposition of sanctions on noncooperating states, including the loss of federal highway funds. NFIB v. Sebelius, however, casts doubt on the constitutionality of the CAA’s sanction regime. Specifically, NFIB enforced limits on the use of conditional spending to induce state cooperation with a federal program and held that Congress may not use conditional spending to “coerce” state cooperation. Combined with South Dakota v. Dole, NFIB provides objecting states with a powerful set of arguments that the CAA highway fund sanctions are unconstitutional, and suggests potential challenges to other CAA sanction provisions as well.

The First Decisions

When a lawsuit challenges the constitutionality of a statute, the first step for the government is usually to file a “motion to dismiss,” which is an argument that a case should be thrown out because the plaintiffs’ arguments are simply not good enough to hold the court’s attention. A successful motion to dismiss can kill a case before it even gets off the ground. Many legal academics predicted that the challenge to Obamacare would not even survive a motion to dismiss, which is an almost sneering way of indicating how bad they thought the arguments against the law were.

The Law is Passed

Two days before President Barack Obama signed the Patient Protection and Affordable Care Act, Randy Barnett wrote this op-ed (abridged here) for the Washington Post. Barnett would eventually find himself on the legal team that challenged the law in the Supreme Court. At this time, however, there were just less-refined arguments and the hope that some court would take those arguments seriously.

Decision Time and Aftermath

The last week of June, which is the last week of a Supreme Court term, is always a busy time for Court watchers. The Court often waits until then to issue the biggest and most controversial decisions, which are also usually the longest ones.

The Big Show

On November 14, 2011, the Supreme Court agreed to hear the cases of National Federation of Independent Business v. Sebelius and Florida et al. v. Department of Health and Human Services.

Moving Up the Ladder

On June 29, 2011, the United States Court of Appeals for the Sixth Circuit upheld the individual mandate against a challenge brought by the Thomas More Law Center. Writing in concurrence with the panel was Judge Jeffrey Sutton, a noted conservative jurist and one-time clerk of Justice Antonin Scalia.

Postscript and Concluding Thoughts

In the aftermath of the Supreme Court’s decision in NFIB v. Sebelius, I authored op-eds for SCOTUSblog, the Washington Examiner, the Daily Beast / Newsweek, and the Washington Post, the last of which is reproduced in previous chapters. All sounded a similar theme: although I was bitterly disappointed by the failure of our legal challenge to bring down the woefully misnamed “Patient Protection and Affordable Care Act,” we were victorious in defeating the expansionist readings of the Constitution that had been offered by the government, and by many law professors, on behalf of the constitutionality of the individual insurance mandate.