Political Ramblings of a Madman: 201306

2013-06-29

Is Edward Snowden a traitor?

The reason for writing this post is that there is this straw-man argument going around about accusing Snowden as a traitor.

Is Snowden a traitor?

Being a traitor means that he leaked information to the enemy of the United States, but he leaked information to the American Public, so everyone that thinks Snowden is a traitor thinks that the American Public is an enemy of the United States.

That is possibly the worst argument against Snowden being a traitor. It is embarrassingly easy to pick the argument apart.

Snowden is a traitor is he leaked information to the enemy of the United States. He leaked information to the general public, including Al-Qaeda, North Korea, Iran, Cuba, China, Russia, [insert US enemy of choice here], etc. Therefore he is a traitor.

Snowden leaked the information to everyone, including the American Public as well as enemies of the State. The thing is, the information is only a surprise to the American Public - not the enemies of the State. Think about it. If you are a terrorist/spy/whatever, the safest thing to do is to assume that the US government is watching your every move and that your communication is compromised. If the government thinks you are dangerous, they will bend and possibly break the law in order to keep an eye on you. And because of the vague powers given to the NSA by Congress and public knowledge of secret courts with secret interpretations of secret laws - you're going to assume the worst. And what Snowden leaked wasn't the worst case scenario. If the terrorists/spies/etc had half a brain, they would have already assumed that the government was doing doing this, if not worse. The leaked information would certainly be enlightening to enemies of the State, but it won't really help them.

The leaked information was a huge surprise to a large amount of the American Public. Ardent civil rights supporters had been pointing out when Congress passed laws that would allow these types of intrusions, but the American Public didn't care that much. And even now, when information on these programs have come to light, the American Public still doesn't care too much and the people that had predicted this finally have solid proof that they were right. Congress agreed to let the NSA decide whether or not the public's rights mattered more than their inept attempts at 'improving National Security'. Because walking discontents through setting up a terrorist plot and providing them with all the tools they need so they can be arrested for setting up a terrorist plot is actually making people safer. But that's the FBI and not the NSA.

I have now rambled completely off the tracks. Back to Snowden.

No, Snowden is not a traitor. His information did not help enemies of the State. His information simply reminded the public what their elected officials decided would be best for the public.

2013-06-07

Cato: A Good Day for Property Rights

Property owners enjoyed a qualified win in the Supreme Court this morning when a unanimous Court (Justice Kagan recused) decided that “government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.” The case, Arkansas Game & Fish Commission v. United States, was brought by AGFC, which owns and operates 23,000 acres of land as a wildlife refuge and recreational preserve. Clearwater Dam, a federal flood control project, lies 115 miles upstream. Water is released from the dam in quantities governed by a pre-approved “management plan” that considers agricultural, recreational, and other effects downstream.

Between 1993 and 2000, the federal government released more water than authorized under the plan. AGFC repeatedly objected that these excess releases flooded the preserve during its growing season, which significantly damaged and eventually decimated tree populations. In 2001, the government acknowledged the havoc its flooding had wreaked on AGFC’s land and ceased plan deviations. By then, however, the preserve and its trees were severely damaged, requiring costly reclamation measures, so AGFC sued the government, claiming damages under the Fifth Amendment’s Takings Clause. Today, the Supreme Court agreed, reversing the U.S. Court of Appeals for the Federal Circuit.

Earlier, Cato had joined the Pacific Legal Foundation on an amicus brief urging the Supreme Court to take the case, which it did. We then joined the Pacific Legal Foundation and the Atlantic Legal Foundation with a second amicus brief urging the Court to uphold the Fifth Amendment rights of property owners whose land is destroyed by the federal government.

Cato: Tarullo: No Return to Glass-Steagall

Finally, a senior banking regulator has acknowledged the so-called repeal of Glass-Steagall had nothing to do with the 2008 financial crisis. In a recent speech, Fed governor Daniel Tarullo noted that most firms at the center of the financial crisis in 2008 were either stand-alone commercial banks or investment banks, and therefore would not have been affected by the repeal. Tarullo also expressed concern that a reinstatement of Glass-Steagall would be costly for banks and their clients and would result in less product diversification.

Of all the myths underpinning the response to the 2008 financial crisis, one of the most persistent is that the repeal of Glass-Steagall was a major contributing factor. So Tarullo’s comments are heartening. But still, he misses out one key piece of the puzzle, namely, that multifunctional, diversified financial firms are not just more efficient and cost-effective than their more specialized counterparts; they are frequently more stable.

The banks that got into trouble in 2008 did so because they concentrated their risk in one kind of asset. The firms that did comparatively well throughout the crisis avoided this particular mistake and were able to come to the rescue, admittedly with some government assistance, of their ailing counterparts—think Wells Fargo or JPMorgan. Firms fail when they make bad investment decisions, regardless of their structure.

Read the original post at http://www.cato.org/blog/tarullo-no-return-glass-steagall

Cato: Climate Sensitivity Going Down

“Climate sensitivity” is the amount that the average global surface temperature will rise, given a doubling of the concentration of atmospheric carbon dioxide (CO2) in the atmosphere from its pre-industrial value. This metric is the key to understanding how much global warming will occur as we continue to burn fossil fuels for energy and emit the resultant CO2 into the atmosphere.

The problem is that we don’t know what the value of the climate sensitivity really is.

In its Fourth Assessment Report, released in 2007, the United Nations’ Intergovernmental Panel on Climate Change (IPCC) had this to say about the climate sensitivity:

It is likely to be in the range 2°C to 4.5°C with a best estimate of about 3.0°C, and is very unlikely to be less than 1.5°C. Values substantially higher than 4.5°C cannot be excluded…

In IPCC parlance, the term “likely” means a probability of greater than 66% and “very likely” means a greater than 90% change of occurrence. The IPCC’s 90% range for the climate sensitivity includes values at the low end which, if proven true, would engender very little concern over our use of fossil fuels as a primary energy source, and values at the high end would generate calls for frantic efforts (which would likely fail) to lower carbon dioxide emissions.

While there has been a lot of effort expended to better constrain estimates of sensitivity over the past several decades, little progress has been made in narrowing the range. The IPCC’sFirst Assessment Report, released back in 1990, gave a range of 1.5°C to 4.5°C. It’s not that climate science hasn’t progressed since then, but just that the advanced understanding has not led to substantially better constraints.

Cato: Senate Rejects U.N. Disabled-Rights Treaty. Good!

How bad is the Convention on the Rights of Persons with Disabilities, which the U.S. Senate today declined to ratify by a vote of 61 in favor and 38 opposed, short of the needed two-thirds? I provide some highlights in a new piece at the Daily Caller:

Libertarians, along with all those concerned with the autonomy of the institutions of private civil life, please note: under Article 4, section 1, part (e), states must “take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise.” (Yes, “any.”) The employment provisions of the current federal ADA apply to employers with more than 15 employees, but Article 27 (1)(a) would seem to prescribe doing away with any such threshold; it requires states to “Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment.”

New government spending programs going beyond anything presently in federal law? Yes, galore. For example, one provision requires ratifying states to “ensure” access to “affordable” personal mobility technologies. Another new right not embodied in present federal law: that “[p]ersons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community.” How much might all this cost? Another provision explains that with “regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources [emphasis added] and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights.” …

The convention’s mandates, often quite burdensome to private actors, roll on and on: a new right of the disabled “to have equal access to bank loans,” live “guides, readers and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public,” equal access (at whose expense?) to all “information and communications technologies and systems,” a new right to “disability-specific sporting and recreational activities,” and, in Section 25 (e), a new right of disabled persons not to be discriminated against in the provision of life insurance. Under the existing federal ADA, terminal illnesses ordinarily count as disabilities. What does it even mean for a terminally ill person not to be discriminated against in the provision of life insurance?

Cato: Ah, the Sweet Smell of Lukewarm Success

Three years ago the climate world was set ablaze by the release of thousands of “Climategate” emails from the server at the University of East Anglia. The ruling climate establishment, which I now call “hotheads”, showed itself threatening editors of journals who dared publish my papers, and engaged in a wide variety of other shady and nefarious practices.

I didn’t realize until the Climategate circus that my view on climate change had generated a moniker. I was branded—accurately—a “lukewarmer”, meaning that my synthesis of climate behavior is that global warming is real, and caused in part by people. It is also exaggerated, both in magnitude and effect. My new Center studies why this occurs, and finds similar dynamics operating across many fields of federally-sponsored science.

Cato: Exposing Washington’s Dishonest Budget Math

I’ve repeatedly tried to expose pervasive fiscal dishonesty in Washington.

In these John Stossel and Judge Napolitano interviews, for instance, I explain that the crooks in DC have created a system that allows them to claim they’re cutting the budget when theburden of government spending actually is rising.

This sleazy system is designed in part to deceive the American people, and the current squabbling over the fiscal cliff is a good example. The President claims he has a “balanced approach” that involves budget cuts, but look at the second chart at this link and you will see that he’s really proposing bigger government.

This dishonest approach also was used by the President’s Fiscal Commission and last year’scrummy debt limit deal was based on this form of fiscal prevarication.

Here are some key excerpts from a Wall Street Journal editorial exposing this scam.

…President Obama and John Boehner are playing by the dysfunctional Beltway rules. The rules work if you like bigger government, but Republicans need a new strategy, which starts by exposing the rigged game of “baseline budgeting.” …numbers have no real meaning because they are conjured in the wilderness of mirrors that is the federal budget process. Since 1974, Capitol Hill’s “baseline” has automatically increased spending every year according to Congressional Budget Office projections, which means before anyone has submitted a budget or cast a single vote. Tax and spending changes are then measured off that inflated baseline, not in absolute terms. …Democrats designed this system to make it easier to defend annual spending increases and to portray any reduction in the baseline as a spending “cut.” Chris Wallace called Timothy Geithner on this “gimmick” on “Fox News Sunday” this week, only to have the Treasury Secretary insist it’s real. …in the current debate the GOP is putting itself at a major disadvantage by negotiating off the phony baseline. …If Republicans really want to slow the growth in spending, they need to stop playing by Beltway rules and start explaining to America why Mr. Obama keeps saying he’s cutting spending even as spending and deficits keep going up and up and up.

Cato: The U.S. Postal Service vs. Greece

Postmaster General Michael Donahoe has occasionally remarked that the U.S. Postal Service will end up in a Greek-like crisis if Congress doesn’t allow it to reduce costs and operate with more flexibility. Michael Schuyler, now with the Tax Foundation, examines the analogy between Greece and the USPS in a paper that was released on Monday.

The “good” news for the USPS is that its fiscal situation isn’t as bad as what the Greeks are dealing with—at least not yet. Whereas previous Greek governments intentionally understated deficits and debt until it caught up to the country in 2009, the USPS hasn’t tried to hide the fact that its prospects are bleak. In addition, the USPS has been able to shed excess workers (through attrition) over the past several years, while recent attempts by the Greek government to cut its bloated workforce have been met with rioting.

The problem is that powerful interests maintain convenient opinions on some of biggest issues facing the USPS. Mike singles out for particular scrutiny the postal employee unions for continuing to pretend that the USPS would be alright if it didn’t have to make annual payments to “prefund” retiree health care benefits. Both of us have been critical of this claim, but I think Mike’s latest reality check is worth sharing in its entirety:

If Congress did not require the Service to put aside money to pay the costly health benefits it promises its workers after they retire, the deficits it reported in the last several years would have been substantially reduced and so would its reported deficits in the near future. Some stakeholders claim from this that the Service’s problems are artificial, the fault of a funding requirement Congress imposed in 2006 as part of the Postal Accountability and Enhancement Act (PAEA, P.L. 109-435). They assert that the Service is, in reality, in fairly good shape. For example, Fredric Rolando, president of the National Association of Letter Carriers, declared, “The Postal Service has performed well in operational terms, nearly breaking even despite the worst recession in 80 years.” It should be noted, however, that even if the RHBF is entirely ignored, the Service would have lost $4.8 billion in 2012, $5.1 billion in 2011, $3.0 billion in 2010, and $2.4 billion in 2009. Losses of $4.8 billion, $5.1 billion, $3.0 billion, and $2.4 billion caused by problems other than the RHBF do not equal performing well. No wonder Postmaster General Donahoe characterized as “irresponsible” the argument that the Service would be fine except for retiree health benefit contributions and said, “The idea that if we just eliminate the prefunding…we’ll be OK—wrong!”

Mr. Rolando and others also argue that because the RHBF “already has $45 billion [of assets], enough to pay for decades of future retiree health care,” Congress should not require the Service to make further contributions. The flaw in that argument is that although its projected assets in the fund were $45.7 billion at the end of 2012, its projected liabilities were $93.6 billion, leaving an unfunded liability of $47.8 billion. If Congress let it cease contributing to the retiree health fund without also enacting reforms to dramatically reduce projected liabilities, it would virtually guarantee a huge taxpayer bailout of the Service down the road. The call for a prolonged contribution holiday is reminiscent of the approach that has landed the Greeks in so much trouble.

Cato: International Solidarity? Not So Much.

Trade unions and other workers’ rights groups often oppose trade liberalization, especially agreements with developing countries where labor is relatively cheap. To have any chance of securing organized labor’s support, preferential trade deals must, they insist, include references to International Labor Organization norms (which include things like the right to organize and the right to bargain collectively ).

The labor groups commonly give two plausible-sounding justifications for these demands: First, the requirements are supposed to protect American workers in import-competing industries from facing competition from “sub-standard” employers abroad. Second, they say that access to the U.S. market is a compelling incentive to encourage countries that would not normally sign up to ILO standards to do so. In other words, there is an element of international union solidarity in their insistence on enforceable labor standards.

Cato: Postal Reform in the Lame Duck?

According to the Hill, policymakers are “scrambling” to do something about the U.S. Postal Service in the current lame-duck session of Congress. The USPS’s recently announced $15.9 billion loss for 2012 apparently inspired policymakers to act.

It’s hardly a surprise that Congress has waited as long as it can to do something about the USPS. Interest in postal issues for most members probably doesn’t go beyond naming post offices and franking. And regardless of whether Congress passes “reform” legislation in the lame-duck or next year, it will end up just kicking the can down the road. (Policy analysts who are frustrated with the inability of Congress to tackle entitlement reform would be wise to stay away from postal policy issue for mental health purposes.)

To get an idea of how absurd the current negotiations are, take this line from the article:

[S]ome liberal lawmakers and postal unions have pushed back against any attempts to limit six-day delivery, saying it would make bad business sense for the Postal Service to give up any competitive advantage as it moves forward.

Competitive advantage? By law, private carriers can’t compete with the USPS on the delivery of first class mail. To the degree that first class mail “competes” with the private sector, it’s with the internet. Going from six-day to five-day delivery won’t change the fact that the demand for the USPS’s flagship monopoly product is in permanent decline as more and more people decide to click “send” instead. What makes “bad business sense” for the USPS is to leave politicians in charge of it.

Read the original post at http://www.cato.org/blog/postal-reform-lame-duck

Cato: What Filibuster ‘Reform’ Is Really About

As the current Congress wraps up, and in the after-glo of the election, Senate Majority Leader Harry Reid (D-NV) is proposing to limit the ability of senators to filibuster in the next Congress. Of course, we’ve heard the arguments about Republican “obstructionism” and not allowing measures to come to a vote. Having spent seven years as Senate staff, this is all spin. Reid’s attempt to ”reform” the filibuster is about one thing: limiting the ability of Republicans of offer amendments that Reid doesn’t want Democrats to have to vote on.

First, let’s remember that the objective of every majority leader is to stay majority leader. To do so means members of his party must win re-election. One of the important ways a majority leader can facilitate such is to protect his members from tough votes. For instance, witness Reid’s current attempts to stop a vote on Rand Paul’s (R-KY) amendment to limit indefinite detention. You’d think that since many liberal voters and groups oppose indefinite detention, Reid would welcome such a vote. But such a vote would put Democrats and President Obama at odds. So Reid’s favored course of action is to avoid such a vote.

How does this relate to the filibuster? Well after cloture is invoked (see Senate Rule XXII), the only amendments that can be voted on are those that are both pending and germane. And an amendment only gets pending if there’s no objection. All Reid needs to do is oppose amendments for 30 hours, then the curtain comes down and he can force a vote, and this assumes he hasn’t already filled the amendment tree (I’ve witnessed such a process too many times to count). So when Majority Whip Dick Durbin (D-IL) claims, “[w]e’ve had over 300 filibusters in the last six years,” he fails to mention that few of these were actual filibusters. The vast majority were attempts by the Majority to limit amendments by pre-emptively filing cloture.

Cato: I Have Been False*

*According to PolitiFact.

In an unconscious parody of everything that’s wrong with the “fact-checker” movement in journalism, PolitiFact Georgia (a project of the Atlanta Journal-Constitution) has rated falsemy claim that operating an ObamaCare Exchange would violate Georgia law. (For some of the “fact-checker” genre’s ~~greatest~~ worst hits, see Ben Domenech’s top 10 list.)

PolitiFact’s analysis is one-sided. It confuses opinions with facts. It was written with “no particular policy domain knowledge.” It therefore not only reaches the wrong result – it analyzes a claim I did not make and never would make.

PolitiFact began by saying that it was fact-checking the following claim, which I made in a November 9 opinion piece at National Review Online:

[O]perating an Obamacare exchange would be illegal in 14 states. Alabama, Arizona, Georgia, Idaho, Indiana, Kansas, Louisiana, Missouri, Montana, Ohio, Oklahoma, Tennessee, Utah, and Virginia have enacted either statutes or constitutional amendments (or both) forbidding state employees to participate in an essential exchange function: implementing Obamacare’s individual and employer mandates.

Lest anyone think I meant it would be illegal for the federal government to operate Exchanges in those states, the context and the text (“forbidding state employees”) of that opinion piece make it clear I was discussing whether states should establish Exchanges. Unfortunately, the context was lost on PolitiFact readers, because PolitiFact provided neither a citation nor a link to the opinion piece it was fact-checking.

Cato: A Fourth Amendment for the 21st Century

The resignation of CIA Director David Petraeus has thrown a spotlight on the FBI’s sweeping power to sift through the most intimate details of our digital lives — often with little or no judicial supervision. On Thursday, the Senate Judiciary Committee will consider legislation that would modestly improve the outdated law governing police access to our emails and other electronic records — yet even this first step toward meaningful online privacy reform is encountering strong resistance.

Most Americans know that the Fourth Amendment protects us against “unreasonable searches and seizures” — requiring a judge to issue a specific warrant based on “probable cause” before government agents can search our homes, open our mail or wiretap our phones. Most probably assume that the same protection applies to their email conversations and other sensitive information stored in “the cloud,” such as documents, photos, chat logs and records of their Web browsing habits. Unfortunately, under the misnamed Electronic Communications Privacy Act of 1986, that’s not true.

Back when ECPA was written, “going online” meant dialing up services that charged astronomical per-minute access fees, and the digital storage capacity found on an ordinary smartphone would have cost roughly a million dollars. Naturally, it was assumed that email would almost always be downloaded to the user’s computer, where it would enjoy the traditional protections of the Fourth Amendment against physical search. So the law required a traditional warrant to access unopened email in “temporary” storage. But on the government’s interpretation, opened emails, other remotely stored files and unopened emails older than six months, are accessible with a court order based on a claim of mere “relevance” to an investigation, and sometimes even a mere subpoena. A few courts have required warrants for email contents, but sensitive logs that can reveal online reading habits, and even real-world movements, remain unprotected.

Unlike phone wiretaps, most forms of digital surveillance don’t have to be publicly reported, which means we have no clear idea how often these tools are used — but what we do know suggests they’re increasingly popular. In just the past six months, Google alone fielded 7,969 requests for user data from the U.S. government, covering 16,281 accounts — and that doesn’t include requests under secret intelligence authorities. Owing in part to the increasing popularity of location tracking using cell phones, mobile providers dealt with a staggering 1.3 million requests in the past year. In many instances, the targets never have to be informed they’ve been spied upon.

Cato: Republicans Helped Same-Sex Marriage Win at the Polls

After years of defeats, same-sex-marriage advocates scored a remarkable 4-0 sweep of state ballot contests on Nov. 6. One major reason: This year, significant numbers of Republicans voted their way. That should give pause to a GOP establishment that has alienated many younger voters and independents with its stance on the issue and now faces the prospect of dissent among its core constituents as well.

The evidence comes straight from a close study of the election returns in Maryland, Maine and Minnesota. (Washington state, with its unique system of mail voting, has been slower to report its results in detail. I’ve based my analysis on the other three states that had same-sex-marriage contests.)

Let’s break it down.

The Maryland ballot referendum, Question 6, essentially asked voters to confirm or reject a new law allowing same-sex marriage. In 11 of the 18 counties that Mitt Romney carried, Question 6 fared better than President Obama, a sign that GOP voters had crossed over in support. While the phenomenon could be seen everywhere from farm towns to blue-collar inner suburbs, the biggest swings tended to come in affluent bedroom communities. At one precinct in Hunt Valley, north of Baltimore, with 2,116 votes cast, there was a 28 percentage-point swing, leading to a landslide for Romney and the ballot question: Obama drew a paltry 37 percent, but Question 6 carried the precinct with a whopping 65 percent.

The margins weren’t as large in other precincts, but swings of 10, 15 and 20 points were common. (I should mention that I volunteered on my own time for the Question 6 effort, working especially among libertarians and conservatives on its behalf.)

In Minnesota, where voters were asked to ban same-sex marriage through a state constitutional amendment, precinct returns show that suburban Republicans broke from their party in droves to defeat the ban. According to the Pioneer Press of St. Paul, 47 towns around the Twin Cities area voted for Romney while opposing the measure, known as Amendment One. Exurban Scott County, the state’s fastest growing, narrowly turned down Amendment One, even as it gave Romney a comfortable 56.5 percent of its vote.

Cato: Public Schools Cost More Than Americans Think

Imagine your business trying to decide whether to increase or decrease spending on marketing without knowing how much your company currently spends on marketing. Worse, imagine making that decision under the false impression that your company spends nearly half as much as it actually does. Sadly, that’s the state of the education funding debate nationwide, and the media often exacerbate the problem.

For example, in a news segment on Colorado’s NBC affiliate earlier this month, the reporter acts as though the amount of money spent per child in the public schools is a matter of political opinion to be legitimately debated rather than an empirical fact:

Like any good political debate, there are two sides to every single answer. When it comes to school funding, people have been wondering how much schools get to spend per student. That answer depends on who you ask.

The first person the reporter asked was Kathleen Gebhardt, the lead attorney in Colorado’s education adequacy lawsuit, who claimed that the public schools “receive an average of $6,474 per pupil in tax dollars.” How does that compare with other states? According to Gebhardt, “We’re in the top 10 for wealth and in the bottom 10 for funding our students.”

The reporter then gets a second opinion from Ben DeGrow, senior education policy analyst at the Independence Institute, who claimed that education funding is actually “closer to $10,000 per student.”

Cato: Lies My History Teacher Told Me About the War on Terror

The Atlantic’s Conor Friedersdorf gives us a disturbing glimpse of what American schoolchildren are being taught about the War on Terror, in the form of excerpts from a widely-used high school history textbook. The whole piece is a disturbing catalog of hilarious propaganda presented as fact to kids who are increasingly too young to remember much about the immediate aftermath the 9/11 attacks, but I figured I’d focus on the paragraph dealing with the Patriot Act, which manages to get a truly impressive number of things wrong in a short space.

The President also asked Congress to pass legislation to help law enforcement agencies track down terrorist suspects. Drafting the legislation took time. Congress had to balance Americans’ Fourth Amendment protections against unreasonable search and seizure with the need to increase security.

I suppose in some strict sense all events “take time,” but this is a very strange way to describe a 342-page piece of legislation amending more than 15 complex federal statutes, the first version of which was introduced on October 2, and which had been signed into law by October 26. The reason it could be done done so quickly, of course, was that most of the reforms in the bill had long been on the intelligence community’s wish list, and were waiting in a desk drawer for an opportune moment. Last minute substitutions of the draft language meant that few if any legislators had actually read the law they ultimately passed, which makes it hard to argue with a straight face that they were seriously engaged in “balancing” anything.

President Bush signed the new antiterrorist bill - known as the USA Patriot Act - into law in October 2001. The new law allowed secret searches to avoid tipping off suspects in terrorism cases.

Cato: Court Finds That Outlawing Racial Preferences Violates Constitutional Provision That Outlaws Racial Preferences

The Sixth Circuit’s sharply split decision reads like something out of Orwell (or The Onion): Michiganders’ decision to amend their state constitution to outlaw racial preferences in college admissions somehow violates the Fourteenth Amendment’s Equal Protection Clause. As Dave Barry would say, I’m not making this up: The court voted 8-7 that making people more equal under the law violates the constitutional provision that requires people to be treated equally under the law!

The Sixth Circuit’s “logic” would similarly prevent Congress from outlawing racial preferences under federal law.

Fortunately, this crazy ruling will not long survive. The California-based Ninth Circuit has (remarkably) ruled the other way; conflict between the lower courts virtually ensures that the Supreme Court will take the case.

And don’t forget that the Court this term is already considering the propriety of racial preferences in UT-Austin’s admissions program. If the Court finds racial preferences themselves to be unconstitutional—that’s my view—then the Sixth Circuit’s ruling has no practical effect anyway.

Read the original post at http://www.cato.org/blog/court-finds-outlawing-racial-preferences-violates-constitutional-provision-outlaws-racial

Cato: States Shouldn’t Discriminate Against Out-of-State Retailers

The National Association of Optometrists & Opticians represents eyewear manufacturers and distributors in California, where state officials have been myopic with respect to business regulation.

Under California’s Business and Professions Code, state-licensed optometrists and ophthalmologists are allowed to conduct eye exams and sell glasses at their place of business, while commercial retailers—such as the national eyewear chains represented by the NAOO—are barred from furnishing onsite optometry services. Since consumers have a strong preference for “one stop shopping”—buying their glasses at the same place where they have their eye exams—California’s law gives instate retailers a crucial competitive advantage. Businesses that cannot co-locate their services have quickly vanished from the market.

The NAOO thus sued California officials for discriminating against out-of-state retailers in violation of the “dormant” Commerce Clause, which prohibits states from imposing unjustifiable burdens on interstate commerce. The district court ruled in the group’s favor, concluding that the relevant statutes have a widespread and unjustified discriminatory effect that can’t be reconciled with Supreme Court precedent. The U.S. Court of Appeals for the Ninth Circuit reversed, however, holding that state-licensed optometrists and out-of-state retailers aren’t similarly situated competitors—even though they compete for the same customers in the same market.

On the case’s second round in the Ninth Circuit, the court scrutinized the California law under a more lenient balancing test and again upheld the ban on co-location by out-of-staters. Cato now joins the Opticians Association of America and five individual optometrists on an amicus brief urging the Supreme Court to take the case (supporting a petition for review filed by former solicitor general Paul Clement).

Cato: Statutes of Limitations Apply Especially to Government Agencies

Statutes of limitations exist for good reason: Over time, evidence can be corrupted or disappear, memories fade, and companies dispose of records. Moreover, people want to get on with their lives and not have legal battles from their past come up unexpectedly. Plaintiffs thus have a responsibility to bring charges within a reasonable time of injury so that the justice system can operate efficiently and effectively – and that’s doubly so when the would-be plaintiff is the government, with all its tools for investigation and enforcement.

There’s a general federal statute of limitations, therefore, 28 U.S.C. § 2462, which protects liberty by prohibiting government actions “for the enforcement of any civil fine, penalty, or forfeiture … unless commenced within five years from the date when the claim first accrued.” In April 2008, however, the Securities & Exchange Commission sued the managers of Gabelli Funds LLC, a mutual fund, for civil penalties relating to conduct that ceased in August 2002, more than five years earlier. The SEC alleged that Gabelli Funds defrauded investors by failing to disclose that the fund was allowing a favored investor to engage in “market timing” – buying and selling mutual fund shares in a manner designed to exploit short-term price swings.

The U.S. Court of Appeals for the Second Circuit ruled that the SEC’s claim was nevertheless valid because courts should read into § 2462 an implicit “discovery rule” – a common exception to statutes of limitations that prevents fraud-based claims from accruing (“stops the clock” on the limitations period) until the plaintiff discovers, or with reasonable diligence should have discovered, the basis for the claim. Because of the allegedly fraudulent nature of the defendants’ actions, the court found that the government’s claim accrued not when their conduct ceased but a year later, when the violation was actually discovered.

Cato: Why ‘Obamacare’s Critics Refuse to Give Up’

Jonathan Adler and I have a paper titled, “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA.” Our central claims are:

The Patient Protection and Affordable Care Act explicitly restricts its “premium-assistance tax credits” (and thus the “cost-sharing subsidies” and employer- and individual-mandate penalties those tax credits trigger) to health insurance “exchanges” established by states;
The IRS has no authority to offer those entitlements or impose those taxes in states that opt not to create Exchanges; and
The IRS’s ongoing attempt to impose those taxes and issue those entitlements through Exchanges established by the federal government is contrary to congressional intent and the clear language of the Act.

Over at The New Republic’s blog The Plank, my friend Jonathan Cohn says this is “preposterous”:

No sentient being following the health care debate could argue, in good faith, that Obamacare’s architects intended for the federal government to set up exchanges without subsidies. It would completely subvert the law’s intent.

It appears my friend does not know the statute, the legislative history, or what Congress’ intent was.

Cohn writes that the statute is “a little fuzzy” on this issue. Quite the contrary: the statute is crystal clear. It explicitly and laboriously restricts tax credits to those who buy health insurance in Exchanges “established by the State under section 1311.” There is no parallel language – none whatsoever – granting eligibility through Exchanges established by the federal government (section 1321). The tax-credit eligibility rules are so tightly worded, they seem designed to prevent precisely what the IRS is trying to do.

Cato: A No-Brainer: Bad for Privacy and Liberty

CNET journalist Declan McCullagh has lit up the Internets today with his reporting on a revamped Senate online privacy bill that would give an alphabet soup of federal agencies unprecedented access to email and other online communications.

Leahy’s rewritten bill would allow more than 22 agencies – including the Securities and Exchange Commission and the Federal Communications Commission – to access Americans’ e-mail, Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant. It also would give the FBI and Homeland Security more authority, in some circumstances, to gain full access to Internet accounts without notifying either the owner or a judge.

This would be an astounding expansion of government authority to snoop. And it comes at a time when the public is getting wind through the Petraeus scandal of just how easy it already is to access our private communications.

Cato: Is America a ‘Center-Libertarian Nation’?

Los Angeles Times columnist James Rainey writes:

Many debates have broken out about the meaning of last week’s election, including over whether conservatives should still push their claim that America is a “center-right nation.”…

After 32 straight losses for same-sex wedding laws, four states approved marriage-equality proposals last week. Two other states legalized marijuana for recreational purposes….

But Americans appear to remain more receptive to conservative viewpoints on spending, debt and the size of government. A bare majority, 51%, of voters last Tuesday told exit pollsters that government should do less, with 43% saying it should do more….

A more precise verdict would be that the majority of the country remains slightly right of center when it comes to supporting lower spending, decreased debt and smaller government. But America appears to have shifted left of center in allowing more liberal policies on drugs and the institution of marriage. So, left on social issues and right on economics. If you eliminated the desire to tax the rich, it would sound like we had a center-libertarian nation.

Good points! And of course reminiscent of arguments we’ve made here at Cato, including Brink Lindsey’s “libertarian center” and of course the work David Kirby and I have done on “the libertarian vote,” now available in a convenient ebook.

Read the original post at http://www.cato.org/blog/america-center-libertarian-nation

Political Ramblings of a Madman