Tuesday, June 20, 2006

Reuters Misreports "Clean Water" Decision


US court fails to decide wetlands regulation issue

A splintered U.S. Supreme Court failed on Monday to decide whether the federal government can regulate wetlands away from navigable waters in a case that provided the first indication of anti-environmentalist views by President George W. Bush's two appointees.


Clean Water Act Reach Limited: U.S. Supreme Court Overview

The U.S. Supreme Court limited the reach of the Clean Water Act, saying it applies only to wetlands with a close connection to a river, lake or some other major waterway.

Notice the difference yet?


By a 5-4 vote, the justices set aside a U.S. appeals court ruling that upheld the government's authority to regulate the specific wetlands at issue and sent both cases back for more hearings.

While the court did not decide the issue at the heart of the case, it was the first indication of anti-environmentalist views by Bush appointees Chief Justice John Roberts and Associate Justice Samuel Alito on a significant environmental issue.


The justices, voting 5-4, ordered a new round of hearings for two sets of Michigan landowners whose efforts to build on their property have been stymied by the U.S. Army Corps of Engineers. The majority was divided in its reasoning, with Justice Anthony Kennedy refusing to join four other justices in putting even more restraints on the federal regulators.

Kennedy's separate opinion now becomes the controlling law. He established a new test, saying the Corps can regulate only wetlands that have a "significant nexus'' to a major waterway. He also said that in both cases before the justices, the Corps had at least some evidence of that type of connection.

In what is currently a case of statutory interpretation (apparently turning on the meaning of the word "adjacent"), the Reuters report does a disservice to readers. Only Justice Kennedy supports the Kennedy test, but as a practical matter it is the law for now.

The two cases generated five separate opinions from the nine members of the high court.
Chief Justice John G. Roberts Jr. and Justices Samuel Alito and Clarence Thomas joined Scalia's opinion. The case marked the first environmental test for the court's newest justices, Roberts and Alito.
Reuters does not explain that Scalia's opinion represented four justices (as did Stevens' dissent), implying a much more fragmented Court.

Bloomberg also reports on a much more important question:

"The court is clearly troubled by the federal government's view that it can regulate every pond, puddle and ditch in our country,'' said Reed Hopper, a Sacramento, California, lawyer who represented landowner John Rapanos in one of the cases. "We are encouraged by this decision and believe it represents a good first step toward common sense regulation.''

In focusing on the meaning of the Clean Water Act, the court didn't decide a more far-reaching question presented by the case -- whether Congress has power to regulate those wetlands under the Constitution's Commerce Clause.

Under the Commerce Clause, any waterway that cannot be used for interstate commerce should fall outside of Congressional authority. That's a question of following the Constitution, not environmentalism.

In a better article, the Washington Post includes a good summary of the near-majority opinion:

In his opinion, Scalia wrote scathingly of federal regulators, saying they have gone too far in expanding the definition of "waters of the United States" over which they have jurisdiction.

The Corps of Engineers "exercises the discretion of an enlightened despot" in deciding whether to grant or deny permits to build on wetlands, and the average applicant for an individual permit has to spend more than two years and $270,000 to complete the process, Scalia said. The result is that more than $1.7 billion is spent each year by the private and public sectors to obtain wetlands permits, he said.

The case against Rapanos illustrates "the immense expansion of federal regulation of land use" under the Clean Water Act without any actual change in the law, Scalia wrote. In the past 30 years, he said, the Corps and the Environmental Protection Agency have interpreted their jurisdiction over "the waters of the United States" to cover up to 300 million acres of "swampy lands," including half of Alaska and an area the size of California in the lower 48 states.

He said the Corps "has also asserted jurisdiction over virtually any parcel of land containing a channel or conduit" through which rainwater or drainage may flow, even occasionally or intermittently. The definition of "waters of the United States" thus has come to include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years," Scalia wrote.

In applying the definition so broadly, he said, "the Corps has stretched the term 'waters of the United States' beyond parody."

And it is opposing that extraorginabuse of power that Reuters labels "anti-environmentalist."

Monday, June 19, 2006

Iran Gets Something Right

For once, I find myself agreeing with the Iranian government on the propriety of renaming goegraphic locations:

(AP) Iran has banned The Economist magazine for describing the Persian Gulf as merely "the Gulf" in a map published in the latest edition, state television reported late Wednesday.

It is the second time in two years that Iran has prohibited a publication of international repute for failing to use the term "Persian Gulf" in its maps. In November 2004, it banned the National Geographic atlas when a new edition appeared with the term "Arabian Gulf" in parenthesis beside the more commonly used Persian Gulf.

Tehran believes in aggressively defending the use of the historical term Persian Gulf. It regards the name Arabian Gulf, used by some, as a name dreamed up by Arab nationalists.

While Iran dominates the eastern side of the waterway, the western shores are held by Saudi Arabia, the United Arab Emirates and other countries.

I am still surprised that they allowed The Economist in Iran in the first place, but Iran definitely has a right to be upset. Changing names should normally raise eyebrows, but this particular change is beyond questionable. Besides the fact that "Persian Gulf" is the nearly universally accepted name, "the Gulf" doesn't make any sense. Is it the only gulf in the world? The map itself looks weird because of it. It is a relatively small body of water, not the moon.

Attempts to use "Arabian Gulf" is not only a suspicious change, it is a more ambiugous one. The Arabian peninsula, surrounded by seas and gulfs, already gives its name to the Arabian Sea - a larger body of water to which the Persian Gulf is eventually connected. Places on the Arabian peninsula already give their names to the Gulf of Oman, the Gulf of Aden, and the Gulf of Bahrain.

Iran (Persia until 1935) is only tied by name to the one body of water - the Persian Gulf - and borders its entire northern edge.

Applying the name-changing logic closer to home, perhaps the Gulf of Mexico should be renamed the Gulf of Texas, the Caribbean Gulf, or simply The Gulf. Why not have more than one?

Sunday, June 11, 2006

Some Hawaiians Seek Race-Based Government

From a recent mistitled AP article, "Native Hawaiians Seek Right to Self-Govern":

Hawaii politicians are scrambling to gather enough votes in Congress to pass a bill that would grant Native Hawaiians a degree of self-government and possibly a share of the land ruled by their ancestors.

After seven years of debate, the proposal to recognize Native Hawaiians as indigenous inhabitants of the 50th state - a legal status similar to that of American Indians - has finally been promised a vote in the Senate...

Democratic Sen. Daniel Akaka says he has solid support from his party, but will need help from Republicans to pass the proposal.

The bill provides a process to set up a Native Hawaiian government and then start negotiations to transfer power and property from state and federal authorities to Hawaiians. The form of government and the amount of public land to be granted wouldn't be decided until then.

Besides the basic problems with creating an exclusive race-based government, "native" Hawaiians never had a relationship with the U.S. comparable to recognized Indian tribes. Hawaiians are already represented and self-governing through the appropriately named State of Hawaii.

A wide range of opponents stands in the way, from Native Hawaiians who won't support anything short of secession to lawyers who claim the bill is a racial entitlement program.

A report from the Washington-based U.S. Commission on Civil Rights recommended that Congress reject the bill because it would discriminate on the basis of race. Some Republican senators argue that recognizing a Native Hawaiian group is creating a subgroup with different rights from other Americans.

Another opponent, Honolulu attorney H. William Burgess, said he fears a breakup of the state of Hawaii, the relinquishment of hundreds of thousands of acres of land and a new set of race-based privileges.

"Hands are constantly being held out for more and more and more. Gimme, gimme, gimme," Burgess said. "I don't think it's fair to anticipate this government is going to be one which doesn't discriminate on the basis of race."

The plan cleary is a racial entitlement program. Its sole purpose is to be given property to redistribute based on a racial litmus test.

In 2000, the U.S. Supreme Court struck down racist voter qualifications for a similar governmental body, the Office of Hawaiian Affairs:

The court said the state's argument for the voting restriction "rests on the demeaning premise that citizens of a particular race are somehow more qualified than others to vote on certain matters.

"There is no room under the (15th) Amendment for the concept that the right to vote in a particular election can be allocated based on race."

Despite the fact that Hawaii was (usually) independent until 1898, only voters descended from the pre-1778 racial group were allowed to vote. Hawaii was not even united until 1810 (with Western arms). Hawaii never had the racist government that this bill would impose.

Independence advocates also question the tactic:

Members of the Koani Foundation, a Hawaiian sovereignty advocacy group, fear federal recognition would forever put indigenous people under the authority of the Interior Department, said director Kaiopua Fyfe.

"More Hawaiians are coming to understand just how bad this federal recognition would be. It would be the final nail in the coffin for Hawaiian issues," Fyfe said.


Public opinion is difficult to judge, with polls tending to support the views of the organizations sponsoring them.

As long as U.S. military bases can remain permanently, I see little reason to oppose independence for our most remote state. However, popular support for such a move in Hawaii appears to be very limited.

Last week, the current bill failed to survive a procedural vote, prompting a more emotionally mistitled article from the Washington Post: "Native Hawaiians' Hope Dashed by Senate."

...Sen. John Cornyn, R-Texas, said it violated both the letter and spirit of the Constitution. "I can not and will not support a bill whose very purpose is to divide Americans based upon race," he said.

Assistant Attorney General William Moschella, in a letter Wednesday to Majority Leader Bill Frist, R-Tenn., said the administration "strongly opposes" the bill because it would reverse the country's melting-pot tradition and "divide people by their race."


The U.S. Commission on Civil Rights, in a report that came out in May, recommended against passage, saying it "would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups."

If the bill resurfaces, hopefully that strong opposition will translate into a veto. 21st Century America should be moving away from race-based splinter governments, not towards them.

For more information, I highly recommend the Heritage Foundation event "An Unconstitutional Act Is Back: The Return of the Native Hawaiian Sovereignty Act" (or the National Center's summary and policy paper).

Friday, June 09, 2006

Latin America's Historic Election

The Investor's Business Daily reports on Colombia's historic presidential election:

Colombia's re-election of Alvaro Uribe not only stands conventional wisdom on its head about Latin voters' rejection of free markets. It also proves that democracy lives south of our border.

Most pundits don't have a lot to say about Uribe's sweeping victory... other than it's an anomaly in a region supposedly swinging left. That misses the point.

Colombia's voters had choices. But they went for Uribe's bold resolve against terror, and for tax cuts, free trade pacts and a no-apologies friendship with the U.S.

Throw in proven leadership, plus a growing and diversified economy, and it was no wonder Uribe had huge appeal. Sixty-two percent of Colombia's voters backed him; just 22% went for his nearest rival. The landslide not only exceeded predictions. It also was bigger than his 54% victory in 2000. And it was the first time in 98 years that anyone has been re-elected president in Colombia.

The article proceeds to improve on "conventional wisdom" by analyzing political trends in Latin America:

[Uribe's re-election is] embarrassing to pundits who insist that free markets and democracy are not what Latin Americans want. This victory took place in a region supposedly veering dangerously left — and where pork-barrel populism is said to be all the rage.


Changing times and increased globalization have brought out many new political parties in Latin America. But there are three distinct political trends.

There are Reaganesque free marketers such as Uribe, Antonio Saca of El Salvador and, more dimly, Vicente Fox of Mexico.

They seek to end poverty not by ladling soup into every bowl, but by fostering private-sector growth. They are balancing budgets, simplifying rules, forcing transparency, breaking up monopolies and encouraging new businesses.

Sadly, these leaders are often dismissed as "far right" and thus out of touch with "the people." But they keep winning elections. Along with understanding free markets, this group often makes security a priority, based on the legacy of wars as well as citizen revulsion at violent crime. And it is America-friendly.

The second trend is described as the "soft socialism" of the current leaders of Brazil, Uruguay, and Chile, who are often wrongly combined with the likes of Cuba's Castro and Venezuela's Castro-with-oil.

The third political force is the anti-democratic populist left led by quasi-dictators like Hugo Chavez of Venezuela and Evo Morales of Bolivia.

This movement hides behind the veneer of socialism, but has virtually nothing in common with it. It equates growth with pork-barrel spending, declares the private sector the enemy, can't distinguish party from government, divides a nation into loyalists and traitors, abuses foreign investors and in the end seeks to collectivize the population into total dependency.

The model here is Fidel Castro's Cuba, and it seemed to have the momentum. Uribe's impressive election, however, is giving the pundits pause.

I'm not sure that it ever had "momentum" outside of the media, and then only by greatly oversimplifying and relying on erroneous "conventional wisdom."

We'll know a lot more after voters in Peru and Mexico go to the polls... More conservative candidates (like Uribe) stand a good chance of winning.

If they do, the Castros and Chavezes won't seem nearly so ascendant.

The moderate, anti-Chavez candidate won Peru's presidency earlier this week.

(AP) Alan Garcia staged a remarkable comeback in Peru's runoff election, beating a fiery nationalist backed by Venezuela's Hugo Chavez to regain control of the country 16 years after his first presidential term ended in economic ruin and rebel violence.

"I want our party this time to demonstrate to the Peruvian people, who have called it to the highest responsibilities, that it will not convert the state into booty," Garcia said, referring to widespread corruption that marked his first term from 1985-90, when tens of thousands of party members landed state jobs.

Garcia said voters in Sunday's runoff had sent an overwhelming message to Chavez, the anti-American leader of Venezuela. They rejected the "strategy of expansion of a militaristic, retrograde model that he has tried to impose in South America," Garcia said.

Chavez had endorsed Ollanta Humala, a political upstart many Peruvians saw as dangerous to democracy. He extended his regional influence last year with the election of a loyal ally, Evo Morales, as Bolivia's president. Like Morales, Humala had pledged to punish a corrupt political establishment and redistribute wealth to his country's poor Indian and mestizo majority.


Chavez was sharply criticized in Peru for meddling in the presidential campaign, prompting a diplomatic spat in which both countries have withdrawn their ambassadors.

Garcia adroitly turned the race into a referendum on Chavez, depicting Humala as an aspiring despot who would fall into lockstep with the Venezuelan's populist economics and Cuba-friendly anti-Americanism. Chavez in turn called Garcia "a genuine thief, a demagogue, a liar."

Mexico votes July 2nd.

The conservative tied for first place in Mexico's presidential race said on Thursday he would counter the influence of U.S. foe Venezuelan President Hugo Chavez in Latin America if elected.

Felipe Calderon told Reuters he wanted Mexico, which has close trade ties with the United States, to play a more active role in the region.

"It is going to be a factor of deliberation, balance and good sense compared to the leadership and active policies, to give them their polite name, of Hugo Chavez," Calderon said.


Mexico and Venezuela withdrew their ambassadors from each other's countries last year in a dispute after Chavez called Mexican President Vicente Fox a "lap dog" of Washington.

With the frequent accusations of U.S. "imperialism," I think Mr. Garcia put it best:
"Our homeland's independent destiny was at stake here, threatened by total domination and imperialism," Garcia told supporters Sunday night. "Imperialism does not come only from great powers but also from nearby domination, by those who seek to subordinate and steer us because they have wealth."
For more on foreign policy in Latin America, I recommend a review of last November's OAS summit, "Bush 29, Chavez 5" (Investor's Business Daily, Nov. 7, 2005).

Update, July 7: Calderon appears to win in Mexico, 65% vote against Obrador, the leftist candidate.

Thursday, June 08, 2006

North Carolina Claims America's Only Recorded Coup d'Etat

The AP covers an interesting development from American history:

A state-appointed commission is urging North Carolina to provide reparations for the 1898 racial violence that sparked an exodus of more than 2,000 black residents from Wilmington.

The 500-page report that was produced after six years of study also said the violence, which killed as many as 60 people, was not a spontaneous riot but rather the nation's only recorded coup d'etat.


The 1898 violence began when white vigilantes, resentful after years of black and Republican political rule during Reconstruction, burned the printing press of a black newspaper publisher, Alexander Manly.

Violence spread, resulting in an exodus of 2,100 blacks, the commission concluded. Then the largest city in the state, Wilmington flipped from a black majority to a white majority in the months that followed.

Before the violence, which led to a Democratic takeover from Republicans and Populists, black men in North Carolina had been able to vote for about three decades. But Democrats quickly passed voter literacy tests and a grandfather clause, which disenfranchised black voters until the civil rights movement of the 1960s.


Some previous historical accounts had portrayed the incident as spontaneous, although more recently, historians have described it as a coup d'etat.

"This sets the record straight," Wright said. "Now there is an official document confirming this part of North Carolina's - and America's - history. Nowhere in the United States has a legitimate government ever been overthrown."

The basic problem with reparations is that the amount of time passed is beyond any imaginable statute of limitations. The people who were hurt are long dead, as are any who might have been at fault.

The story is interesting because of its historical label, not because the violence or results stand out in history. There doesn't seem to be any indication that the Democrats' coup was endorsed by the state itself. While broadly demanding state and federal funding for special projects, there is little indication of who could still be considered liable.

Several of the so-called "reparations" measures would be based on racial discrimination rather than identification of the descendents of actual victims. By that logic, Republicans must equally deserve reparations - regardless of actual connection to the event in question.

In other views, a UNC law professor sees this as a perfect excuse for reparations, but doesn't address why those not effected should benefit or why those not at fault should be punished. On the other side, at Rhymes With Right, a history teacher analyzes in detail the appropriateness of reparations, concluding:
So I encourage the building of monuments to prick the conscience, the establishment of educational programs to dispel the ignorance that is racism, and the recommitment of our society to eradicating government imposed barriers to equality for all Americans. But financial reparations at this late date would be simply one more injustice added to the tab of those who overthrew the elected government of Wilmington, murdered its citizens, and destroyed a community.
Wilmington, North Carolina now claims America's only recorded coup d'etat. That's interesting, but not a reason to confiscate and redistribute money from unconnected citizens or enshrine racial discrimination as a belated and convoluted attempt at a remedy.