James Huffman

James Huffman

Jim Huffman is a member of the Hoover Institution De Nault Property Rights, Freedom and Prosperity Task Force. He is Dean Emeritus of Lewis & Clark Law School and has written extensively on constitutional law, property rights, natural resources and environmental topics. He is a cofounder of Northwest Free Press (nwfreepress.com) and has published articles in the Wall Street Journal, the Los Angeles Times, the Washington Times and is a regular contributor to The Oregonian. Jim was the Republican nominee for United States Senator from Oregon in 2010.

How Green Is My Folly

European parliamentarians want the upcoming United Nations Conference on Sustainable Development to demand that all nations hew to a sweeping legal claim: that international law forbids nations to amend or repeal laws designed to protect the environment.

Most of the European Parliament’s nonbinding resolution is a catalog of the usual appeals for green this and sustainable that, backed by mind-bending assertions such as the scarcity of resources is a “new and emerging problem” and “that a green economy must be focused on decoupling economic activity from resource use.” Hasn’t resource scarcity been the central theme of economic history? And exactly how would the green economy get by without resources?

The resolution also reiterates the well-trod “precautionary principle.” That’s the idea that the burden is on developers to prove their projects are without risk to the environment, rather than on environmentalists to prove environmental costs of development will exceed the benefits. If adhered to, the precautionary principle is like a trump card that can be played to stop almost any project. It’s the card that author Bill McKibben and his merry band of Keystone pipeline protesters have maneuvered Barack Obama into playing, notwithstanding the U.S. State Department’s carefully considered conclusion that the environmental risks of the pipeline are extremely low in relation to significant economic benefits.

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The Contraception Hawks

For decades American politics has been poisoned by the great abortion debate. Never mind that the economy is in the dumps, the national debt is spiraling out of control, the nation’s infrastructure is crumbling, health-care costs are rising (even faster with the onset of Obamacare), and each year our kids learn a little less than they did the year before. So candidates for public office better know where they stand on abortion, because they will be asked again and again. And they better not flip-flop on the issue.

Now, lo and behold, contraception has yet again surfaced as the social policy issue of the day. So, candidates for President of the United States better know where they stand. Making contraception center-most in the campaign for president in 2012 is like making a black-and-white, silent movie in the twenty-first century: Who would guess that it would win the Oscar for best picture? And who would guess that forty-seven years after Griswold v. Connecticut, contraception would make a return to the silver screen of national politics.

Before candidate Rick Santorum resurrected the long moribund topic of the acceptability of contraception, the question du jour was whether the Obama administration’s newly promulgated rule on the provision of contraception services violates religious freedom or supports the freedom of women to control their reproductive lives. Now the question is whether the government has a role in regulating contraception. The response to that question should be: “You’ve got to be kidding! Of course there is no role for government.” But given that the question is now on the front page of every paper in the land, perhaps we can make some lemonade from this lemon.

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Will Newt Neuter the Courts?

Last month, presidential candidate Newt Gingrich released an agenda of executive and legislative actions to halt the abuse of judicial authority and to restore the constitutional separation of powers. According to the Gingrich plan, the most fundamental values of American constitutionalism are at stake:

A judicial branch that is largely unaccountable and not subject to meaningful checks and balances can—and does—routinely issue constitutional rulings that threaten individual liberties, compromise national security, undermine American culture, and ignore the consent of the governed.

Whether or not he manages to stay in the presidential race, Gingrich has set the stage for a serious discussion of the role of the federal courts. The presidential candidates and the American public should take up the Gingrich challenge.

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The ‘Commerce Clause Mandate’

In “Obamacare vs. The Commerce Clause,” Richard Epstein provides a devastating critique of Supreme Court commerce clause case law since the New Deal. Because it is “an indefensible line of cases,” Epstein argues “[t]he United States Supreme Court should confess error and acknowledge that its past decisions are bad both as a matter of constitutional history and constitutional theory.”

Professor Epstein is right. Despite recurrent claims by the Supreme Court that there are, in fact, limits on Congress’ commerce clause authority, the case law described by Epstein demonstrates the opposite. If the federal system conceived by the framers of the United States Constitution is to survive in anything more than name, the Supreme Court must push the restart button.

But Epstein does not think the Court will admit to three-quarters of a century of intellectual confusion, so he urges a far more modest result in the Supreme Court’s review of the constitutionality of the Patient Protection and Affordable Care Act. The Court should accept, says Epstein, “the sensible claim that commerce does not apply to transactions that people never entered into.” The Court would thus draw a line in the commerce clause sands by acknowledging the “indefensible pedigree” of Wickard v. Filburn, but would not undertake to correct for past errors.

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A few weeks ago, my seventh-grade daughter’s school put regular classes on hold for a “sustainability day.” One of the things they did during this reprieve from the rigors of math, history and English was watch a video titled “The Story of Stuff,” starring Annie Leonard and lots of animated illustrations. The video has been around since 2007. It has had about 2 million YouTube and goodness knows how many voluntary and involuntary classroom viewers. Leonard even bagged an interview on “The Colbert Report,” though she was so humorless that Colbert appears to have cut the interview short.

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Among the thousands gathered in Durban, South Africa, for the just-concluded climate confab were dozens of law students and law professors from the United States. At the risk of offending fellow environmentalist law professors, Professor Karl Coplan questioned, on Pace University’s GreenLaw, the logic of working to reduce carbon emissions by incurring the very large carbon footprint associated with dozens of round-trip flights by students and professors from the United States to Durban.

How large? According to Coplan, round-trip travel for one individual from New York to Durban results in eight tons of CO2 equivalent emissions. That’s about the same, again according to Coplan, as the emissions from a year of travel (15,000 miles) in a Lincoln Navigator, “probably the ultimate American rugged-individualist anti-environmentalist status symbol.” And it’s about twice the average annual global per-capita carbon footprint, even including drivers of Lincoln Navigators.

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With winter setting in, and occupiers across the country being evicted as cities grow impatient with campers in their public parks, the Occupy Wall Street movement may find that it made a critical mistake. It envisioned a movement, but called itself a tactic. When occupying is what you do, what happens when there are no places to occupy, or when you are forced to occupy places nobody cares about? And how do you sustain a claim to principled civil disobedience when everyone agrees that the laws you have disobeyed are perfectly legitimate?

The participants in the Wall Street occupation and its many spin-offs around the country imagined themselves variously as part of an American version of the Arab Spring and as the successors to Vietnam and civil rights protesters, drawing inspiration from Martin Luther King, Gandhi and even Henry David Thoreau. Their core message was that crony capitalism, and a lot of other things, have created an unjust society of 1% rich and 99% everyone else. Apparently resigned to an inability to achieve their ends politically, even with Barack Obama in the White House, they decided to occupy Wall Street.

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The EU’s ‘Non-Regression’ Gambit

On Sept. 29, European parliamentarians adopted a resolution calling for next June’s United Nations Conference on Sustainable Development in Rio de Janeiro to demand that all nations adhere to the "principle of non-regression." In a nutshell, the claim is that international law forbids nations to amend or repeal laws designed to protect the environment.

Most of the European Parliament’s nonbinding resolution is a catalog of the usual appeals for green this and sustainable that, backed by such mind-bending assertions as the scarcity of resources is a "new and emerging problem," and "that a green economy must be focused on decoupling economic activity from resource use." But wait, hasn’t resource scarcity been the central theme of economic history? And exactly how will the green economy get by without resources?

The resolution also reiterates the well-trod "precautionary principle." That’s the idea that the burden is on developers to prove their projects are without risk to the environment, rather than on environmentalists to prove environmental costs of development will exceed the benefits. If adhered to, the precautionary principle is like a trump card that can be played to stop almost any project. It’s the card that author Bill McKibben and his merry band of Keystone pipeline protesters want Barack Obama to play, notwithstanding the U.S. State Department’s carefully considered conclusion that the environmental risks of the pipeline are extremely low in relation to significant economic benefits.

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Wanted: More Judicial Activism!

The Institute for Justice (IJ) has released a new study titled, “Government Unchecked: The False Problem of ‘Judicial Activism’ and the Need for Judicial Engagement.” One of the authors, Clark Neily, published a commentary in The Wall Street Journal summarizing its findings. According to IJ’s accounting, between 1954 and 2003, Congress passed 16,015 laws, only 104 of which were struck down by the Supreme Court. During the same period, state legislatures passed 1,209,075 laws of which 455 were found unconstitutional by the Supreme Court. Rather than paint a picture of judicial activism, the authors conclude that the empirical evidence shows a disengaged judiciary failing to meet its responsibility to protect the liberties of American citizens.

In reaction to the IJ report, Ed Whalen, of National Review Online, lamented “that the good folks at the Institute for Justice . . . continue their misguided campaign against the very real problem of ‘judicial activism.’” Mr. Whalen’s objection is not surprising. It seems that everyone—on both sides of the aisle—loves to hate judicial activism. But the folks at IJ have a point that lovers of liberty, whether on the left or the right, should heed.

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