Political Ramblings of a Madman: 201307

2013-07-12

Cato: “The Supreme Court’s Libertarian Moment?”

Although my colleague Ilya Shapiro is off on his honeymoon, he published a piece in the Huffington Post just before the holiday speculating that the Supreme Court is having what you might call a libertarian moment. Some evidence of that: “the Cato Institute is the only organization to have filed briefs supporting the winning side in each of the three big cases” that ended the term: Fisher on affirmative action, Shelby County on voting rights, and Windsor on the Defense of Marriage Act. Ilya argues that the common thread of the three decisions is a principled commitment to equality under the law, which leads to skepticism toward identity-based classifications by government. What’s more, Cato “went 15-3 on the year,” truly an extraordinary success rate for any amicus program.

Read more at http://www.cato.org/blog/supreme-courts-libertarian-moment

2013-07-11

Cato: Immigration Bill: Better, Not Best

This afternoon the Senate voted 68-32 to pass its sweeping immigration reform bill. The bill is a solid improvement over the current immigration system. It legalizes most of the unlawful immigrants here and provides larger pathways for legal immigration in the future.

The bill does have flaws – many of which I’ve written about in detail. It doesn’t increase lawful immigration enough. The guest worker visa programs for lower skilled workers are too small, restricted to certain sectors of the economy, and governed by confusing bureaucracy. Under today’s immigration rules, very few of our ancestors would have been able to immigrate here legally. The Senate’s immigration bill takes us a small step closer to our traditionally more open immigration policy.

It shovels gargantuan amounts of security resources toward the southern border in an attempt to halt future unlawful immigration that could otherwise cheaply be halted with an expanded guest worker visa program. The border “surge,” as many are calling it, is truly embarrassing, especially for a country with such proud immigrant traditions. There are certainly legitimate security concerns, but the extra enforcement will just drive up the price of smuggling and marginally decrease unlawful immigration of peaceful workers at enormous cost.

2013-07-10

Cato: Big Candy’s Greed

That’s the title of a quarter-page advertisement in the Washington Post on Wednesday.

When it comes to inside-the-Beltway economics, black is white, up is down, and lobbyists for some of the most government-coddled farmers in America are calling other people greedy.

For people familiar with the government’s Byzantine sugar program, the text from the American Sugar Alliance (ASA) ad is frankly hilarious:

Jeopardizing 142,000 U.S. jobs and America’s food security isn’t a game. It’s a travesty.

So why are Big Candy executives lobbying Congress to outsource America’s sugar production?

To boost their already bloated profit margins at the expense of American farmers, workers and consumers.

Winners: A few corporate executives.

Losers: America.

I described the basic features of federal sugar subsidies in this study. Essentially, the government confers monopoly power on U.S. sugar growers, which comes at the expense of food manufacturing companies and consumers.

2013-07-09

Cato: Why High-Speed Rail Is a Ridiculous Fantasy

High-speed rail supporter Alfred Twu has gotten a lot of attention for having boldly drawn a map of where he thinks high-speed trains should go. Never mind that Twu’s map is even more absurd than Obama’s plan. What’s sad is that the romance of trains still manages to hold peoples’ attention long after passenger trains have become technologically and economically obsolete.

Slate calls this the “liberals’ dream [of] what America’s high-speed rail network looks like.”

Anybody can draw a map, and that map is likely to reflect their own particular preferences. My ideal high-speed rail line would connect my home in Camp Sherman, Oregon (population 380) with Cato’s offices in Washington, DC. Of course, I tend to move about every eight or nine years, so by the time the rail line was finished the only potential regular customer would be gone. But just think of the jobs that would be created!

Twu lives in California, and his map has six lines radiating from Los Angeles and two from San Francisco. Twu is probably thinking either of where he would like to go by high-speed train or that everyone else would like to come to California by high-speed train. (He would also like us to “imagine no cars” in which case everyone would happily live in high-density, mixed-use developments. Like many planning types, he doesn’t understand the economics behind the horror of dumbbell tenements.)

2013-07-08

Cato: Delaying the Employer Mandate Requires Delaying All of Obamacare

The IRS has announced it will postpone the start date of Obamacare’s “employer mandate” from 2014 to 2015. Most of the reaction has focused on how this move is an implicit acknowledgement that Obamacare is harmful, cannot work, and will prove a liability for Democrats going into the November 2014 elections. The Washington Post called the decision a “fresh setback” and a “significant interruption” to the law’s implementation. John McDonough, a prominent supporter of the law, observes, “You’ve given the employer community a sense of confidence that maybe they can kill this. If I were an employer, I would smell blood in the water.” When a die-hard Obamacare supporter like Ezra Klein says the employer mandate should be repealed, clearly things are not going well.

While all of this is true, it misses the two most significant implications of this momentous development:

First, the IRS’s unilateral decision to delay the employer mandate is the latest indication that we do not live under a Rule of Law, but under a Rule of Rulers who write and rewrite laws at whim, without legitimate authority, and otherwise compel behavior to suit their ends. Congress gave neither the IRS nor the president any authority to delay the imposition of the Patient Protection and Affordable Care Act’s employer mandate. In the section of the law creating that mandate, Congress included several provisions indicating the mandate will take effect in 2014. In case those provisions were not clear enough, Section 4980H further clarifies:

(d) EFFECTIVE DATE.—The amendments made by this section shall apply to months beginning after December 31, 2013.

It is hard to see how the will of the people’s elected representatives – including President Obama, who signed that effective date into law – could have been expressed more clearly, or how it could be clearer that the IRS has no legitimate power to delay the mandate. Again,Ezra Klein: “This is a regulatory end-run of the legislative process. The law says the mandate goes into effect in 2014, but the administration has decided to give it until 2015 by simply refusing to enforce the penalties.”

This matters because the Obama administration has abused nearly every power it possesses–and asserted powers it clearly does not possess–to protect Obamacare. A partial list of abuses:

Obamacare, which Congress passed and President Obama signed, literally and immediately forbade the administration to provide health insurance to members of Congress and their staffs through the Federal Employees Health Benefits Program. That is, federal law required the Obama administration to throw nearly all members of Congress and congressional staff out of their health plans. But because that might lead Congress to reopen the statute, the Obama administration decided to keep providing that coverage to members and staff in violation of federal law, and has been doing so for three years.
Shortly after its enactment, Obamacare began increasing health insurance premiums. To prevent a(n even greater) backlash, Obama’s HHS Secretary Kathleen Sebelius started waiving select mandates for select companies and unions. Congress gave her no authority to issue such waivers.
When health insurers began to inform customers how much Obamacare was increasing their premiums, Sebelius threatened to use her powers under the law to bankrupt any insurer that conveyed an unapproved message about the law. All insurers quickly complied.
As it became clear that dozens of states would refuse to implement Obamacare’s health insurance “exchanges,” the IRS announced it would implement the law’s tax credits, subsidies, and taxes in states with federal fallback exchanges – even though Obamacare clearly, repeatedly, consistently, and intentionally prohibits the IRS from doing so. The IRS has literally asserted the authority to tax, borrow, and spend more than $1 trillion contrary to the express will of Congress.
Despite the Supreme Court’s ruling that the federal government cannot coerce states into implementing Obamacare’s Medicaid expansion, the Obama administration continues to coerce states into implementing most of the expansion’s provisions. The Court’s opinion flatly contradicts the administration’s claim that the ruling applied only to one part of the expansion.
When it became clear that Congress would not fund Obamacare’s implementation, Sebelius decided she would again substitute her judgment for Congress’s by using money Congress had dedicated to other purposes. She has since approached companies she regulates to shake them down, tacitly, for funds to implement the law.
And now, the IRS will delay the implementation of a central component of the law. Again, the administration is unilaterally rewriting federal law with the transparent purpose of avoiding an even greater political backlash against Obamacare.

The Obama administration’s zeal to protect this never-popular law is so great, whatwon’t they do to protect it?

Second, the employer mandate is so intimately tied to the rest of the law that the IRS cannot delay it without delaying the rest of Obamacare.

Cato: Egypt’s Transition: The Generals Take Over

Following its 48-hour ultimatum, it is expected that the Egyptian military will proceed any moment with its plan to suspend the constitution, dissolve the parliament, and put in place an interim caretaker government. The reported travel ban imposed on President Mohamed Morsi and other Muslim Brotherhood officials seems only a first step.

President Morsi has been a bad leader and it will be heartening to see him go. Still, even if the transfer of power is peaceful, the military solution is a bad one. One hopes that the events lead U.S. policymakers to reconsider their commitment to Egypt’s military–after all, American military aid, currently amounting to about $1.3 billion annually, has propped-up the growth of Egypt’s bloated military complex, which might currently control up to 40 percent of the country’s economy.

Most importantly, the military acting as a deus ex machina whenever things take a bad turn sets a terrible precedent for the future of the Egyptian democracy. To whom will the future democratically elected leaders of the country be accountable–voters or the generals?

2013-07-05

Cato: Banning Fancy French Cheese

I’m no cheese connoisseur. I’m usually happy with American or provolone, and I’ll even go for that Philly favorite, Cheese Whiz. But I understand that some people have more refined tastes, and they feel very strongly about the issue. And they get very upset when their favorite cheese is taken away. The Washington Post reports on a recent instance of this:

For centuries, microscopic mites have been part of the process for making Mimolette, a mild-tasting cheese shaped like a cannonball and electric orange in color. For decades, the cheese has been imported from France and distributed to shops and grocery stores across the United States.

That is, until this spring, when the Food and Drug Administration began blocking shipments of the Gouda-like product at U.S. ports, leaving thousands of pounds of it stranded in warehouses from New Jersey to California.

The FDA says inspectors found too many cheese mites per square inch crawling on the cantaloupe-like rinds of Mimolette, raising health concerns. But it hasn’t explained exactly why it began holding up the cheese shipments after decades of relatively few problems. “The only thing we can do is cite our regulations, which show very clearly that our job is to protect the food supply,” FDA spokeswoman Patricia El-Hinnawy said.

Cato: The Fifth and Sixth Amendments Protect the Right to Counsel of Choice During Criminal Trials

Federal criminal defendants must fight a battle against the largest and most powerful organization in history, the U.S. government. At the very least, hopefully, they have a trusted attorney to fight with them.

That right of criminal defendants to choose their own lawyers is guaranteed by the Sixth Amendment and ensures the integrity of the adversarial justice process. Yet prosecutors are increasingly using a procedure called “asset forfeiture”—which freezes assets suspected of being tied to crime—to deny defendants the funds they need to retain the lawyer of their choice.

In January 2005, Kerri Kaley, then a sales representative with a New York-based medical device company, was informed that she was the target of a grand jury investigation in Miami. She was suspected of stealing prescription medical devices from hospitals and selling them on the black market. Kerri and her husband Brian (also under investigation) hired counsel to represent them in what turned out to be a two-year investigation. During that period, their lawyers interviewed witnesses, reviewed countless documents, researched legal issues, and conferred with the prosecutors.

Cato: Will Susan Rice Wreck the Obama Presidency?

Barack Obama may be president because he criticized the invasion of Iraq. Leftish Democrats assumed he was one of them, opposed to military intervention. Instead, he followed George W. Bush’s lead in Iraq, Afghanistan, and the national security state.

Still, President Obama appears to be a cautious hawk. So was National Security Adviser Tom Donilon, newly replaced by Susan Rice.

In contrast, Rice is an enthusiastic advocate humanitarian intervention: basically, Washington should intervene when it is not in America’s interest to do so.

There are lots of problems with the doctrine, including what criteria govern? Why no military crusade against North Korea? Or against the brutal victors in Kosovo and Rwanda?

Cato: The Constitution Protects Even Old-Timey Property Rights

In the 19th Century, when railroads were being built across the West, the federal government granted significant land and benefits to the railroad companies. The Great Railroad Right-of-Way Act of 1875 allowed the government to give railroad companies easements to build tracks — that is, a right to use sections of another’s property without legally owning it. The Brandt family eventually acquired land in Wyoming that came with pre-existing railroad easements.

In 2001, the owner of the easement formally abandoned all claims to it, presumably returning the property to the Brandts. But the government wanted that land. In 2006, it sued for title to the former easement land on the theory that the government retained a residual claim to it after the railroad abandoned it. The Brandts argue that the government has no such right and that taking their land requires just compensation under the Fifth Amendment’s Takings Clause.

Although this may seem like a small, unique problem, the scope of the Old West’s railway system was huge and those old easements criss-cross the land of thousands of property owners. In 1983, Congress amended the National Trails System Act to allow the government to take abandoned railroad easements and turn them into land for public recreation and “railroad banking.” Landowners have been fighting the taking of their property under the Trails Act ever since, claiming, as here, that the government’s original grant to the railroads contained no residual right of possession for the government.

Cato: Further Thoughts on Sensible Gun Legislation

In an op-ed on the New York Times web site yesterday, I voice my belief that the gun control bill authored by Sens. Joe Manchin and Pat Toomey, if properly modified, can and should pass with the support of gun rights advocates.

In the interest of being as specific as possible, I’d like to expand upon the sentiments expressed in that piece.

When the Senate rejected the Manchin-Toomey compromise on gun background checks, opponents of the bill were condemned for ignoring polls signaling up to 90 percent public support. The stonewalling by gun rights supporters was indeed a mistake—not just on the politics, but on the substance as well. In exchange for the modest, reasonable, and constitutional augmentation of background checks, there was plenty in the legislation for gun rights proponents to embrace.

Cato: House, Senate Pass Different Bills: To Become Law Anyway?

Something fishy happened on Friday, and without further action in Congress it should scuttle the legislation to exempt the Federal Aviation Administration from sequestration-based spending limits. But maybe the old saying, “close only counts in horseshoes and handgrenades,” also applies to Senate unanimous consent agreements. If President Obama gives the bill five days of public review under his Sunlight Before Signing promise, perhaps it can be hashed out before anyone does anything foolish.

You’re probably aware of the background: Across-the-board spending cuts were threatening air travel delays because of FAA furloughs. Late last week, the House and Senate both passed bills to allow the Department of Transportation to move money around, clearing up that problem. (No new spending; just movement of funds from lower priorities to air traffic control.)

Cato: Stop Rewarding North Korea

To a degree almost impossible to imagine just a month ago, North Korea has won international attention, dominated events in Northeast Asia, and embarrassed the United States. Unfortunately, the Obama administration has played into Pyongyang’s hands by responding to the North’s provocations. Now Secretary of State John Kerry is visiting East Asia, beginning Friday, where the so-called Democratic People’s Republic of Korea will dominate the agenda.

Rushing off to the region on a high-profile trip is another mistake. Whatever Secretary Kerry does or says is likely to be seen as enhancing the DPRK’s stature. Better for him to have stayed home, phoning his counterparts as appropriate.

No doubt the Obama administration hopes to craft a diplomatic answer to what is widely seen as a crisis. However, Washington dare not reward the North for its caterwauling, even if Kim Jong-un suddenly adopts the mien of a serious leader of a serious nation. Rather, Secretary Kerry should hold out the possibility of engagement, even diplomatic relations—but only if Pyongyang chooses to behave like other nations. No more providing benefits in response to threats.

Cato: Duplicative Government Programs Are a Symptom of the Problem

The Government Accountability Office has released its third annual report on fragmented, overlapping, or duplicative federal programs and activities. Proponents of making the government more efficient view the findings as an opportunity to achieve cost savings. While there’s obviously nothing wrong with the government spending less money than it has to, the goal should be to permanently shut the trains down – not just try to get them to run on time.

Some examples:

The GAO says “Enhanced collaboration between the Small Business Administration and two other agencies could help to limit overlapping export-related services for small businesses.” The federal government shouldn’t be subsidizing export promotion for commercial interests, period. (See here and here.)

The GAO says “Federal agencies providing assistance for higher education should better coordinate to improve program administration and help reduce fragmentation.” The federal government should not be subsidizing higher education, period. (See here.)

Cato: Supreme Court Wisely Rules that U.S. Law Doesn’t Apply Outside the U.S.

As Walter Olson notes below, today the Supreme Court correctly ruled in Kiobel v. Royal Dutch Petroleum that the Alien Tort Statute, like any federal law not explicitly stating otherwise, does not cover actions occurring outside the United States. That is, you can’t bring a suit in U.S. court just because it involves a “violation of the law of nations” (the conduct that the ATS addresses).

As Chief Justice Roberts said in announcing the decision, even a claim that a foreigner committed such an international-law violation against another foreigner isn’t enough to counter the presumption that laws don’t have extra-territorial application. Indeed, in such a case – and Kiobel’s allegations of human rights abuses by Nigerians against Nigerians in Nigeria is such a case – there is even less of a reason to invoke the jurisdiction of American courts than if some American dimension existed (e.g., the citizenship of one of the parties or the location of the conduct).

Cato: American Sugar Alliance Looks Brazilian Gift Horse in the Mouth

The American Sugar Alliance, the main lobby group for American sugar growers, released a report last week alleging that the subsidies given to Brazilian sugar growers are depressing the world price of sugar perhaps by 25 to 30 percent. But instead of thanking the Brazilian taxpayers for their gift of cheap sugar, apparently the ASA are suggesting that U.S. trade negotiators “add it to their agenda”, implying that they should challenge the subsidies using the World Trade Organization’s dispute settlement mechanism. From Inside U.S. Trade [$]:

The American Sugar Alliance (ASA) this week released a report estimating that Brazil subsidizes its sugar industry so grossly that it may be depressing the world price for the commodity by as much as 25 to 30 percent. ASA is hoping the report will give further ammunition to its claim that eliminating the U.S. sugar program would be devastating to U.S. producers, even as sweetener users continue a fight to unravel the program through a variety of avenues. The report, authored by sugar and ethanol industry analyst Patrick Chatenay, estimates that Brazilian sugar producers benefit from as much as $2.5 billion in direct and indirect subsidies annually. Factored into that number are benefits accruing to the industry from the “economies-of-scale” for sugar production, which are driven by the heavily subsidized ethanol sector, the report argues. Jack Roney, ASA’s director of economics and policy analysis, said in a conference call with reporters that the $2.5 billion annual estimate may even be conservative. “This report underscores the importance of maintaining the current U.S. sugar policy, which was designed to fleece consumers and deny them access to cheap sugar shield consumers from foreign market manipulation and ensure an continuous flow of rents to sugar producers affordable, homegrown supply of a food staple,” he said. [Emphasis and snarky commentary added.]

Cato: Jardines: The Supreme Court Retreats to the Home

The Supreme Court ruled today in Florida v. Jardines that “use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.”

It’s the right result. The Court was divided 5-4, though, and the case shows some of the same fissures around Fourth Amendment doctrine that U.S. v. Jones did last year.

The majority opinion, written by Justice Scalia, won’t clear up the doctrinal debates, which are sure to continue. Instead, it retreats to the home. The specific protection for “houses” in the Fourth Amendment, he wrote:

renders this case a straightforward one. The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.

Property law gives strangers an implied license to approach a house for the variety of purposes they may have. “But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that.”

Cato: “Lockdown High”: Brought to You by the NRA

Yesterday, the “National School Shield Task Force,” a 12-member study group commissioned by the National Rifle Association, released its recommendations [.pdf] for heightened school security in the aftermath of the Sandy Hook Elementary School shootings. The Washington Post’s coverage quotes the head of Children’s Defense Fund, who accuses the NRA of “prey[ing] on America’s fears” and trying to turn the nation’s schools “into armed fortresses.”

Not long ago, I’d have been shocked to find myself agreeing with Marian Wright Edelman over Wayne LaPierre, but in this case, the lady has a point. Since last December, the NRA leader has outdone left-leaning “children’s advocates” in fomenting legislative hysteria “for the children.” As I noted in Tuesday’s Washington Examiner:

The NRA head opposes new gun laws, but he’s otherwise been [President Obama’s] partner in panic, breathlessly demanding an “armed good guy” in every school—a federally funded expansion of “America’s police force.”

The Post notes that the National School Shield Task Force is “ostensibly independent” of NRA direction, and for what it’s worth, the report’s tone is less hysterical, the recommendations somewhat less sweeping, than LaPierre’s. But, like LaPierre’s public statements, it lacks any intelligent assessment of relative risks, instead making the very possibility of harm to children a rallying cry for opening the checkbook and summoning the security consultants. The entire project seems designed to enhance the paramilitarization of public institutions, allowing the Homeland Security mentality of institutionalized overreaction free rein in American schools.

Cato: Kopel on Obama’s ‘Common Sense’ Gun Controls

Dave Kopel has a new piece over at NRO. Here’s an eye-catching excerpt:

Public-opinion polls about “universal background checks” for gun sales show widespread support. While President Obama and Mayor Bloomberg talk about “gun sales,” the actual legislation moving through Congress aims to regulate far more than sales. It would turn almost every gun owner into a felon. The trick is that the language under consideration applies not only to sales but also to “transfers,” which are defined to include innocent activities such as letting your spouse borrow your gun for a few hours.

Read the original post at http://www.cato.org/blog/kopel-obamas-common-sense-gun-controls

Cato: Why Do Environmentalists Oppose Free Trade in Solar Panels?

Groups concerned about the environment have long been skeptical of trade liberalization. From what I understand, they view pollution and the depletion of natural resources as the inevitable consequences of unregulated economic growth. But what if that growth is driven by trade in environmentally friendly products? Is trade still bad then? Apparently so.

The United States has attracted negative attention from a number of environmentalists by bringing a formal challenge at the World Trade Organization against Indian trade barriers on solar panels. India provides subsidies to developers of solar power plants only if they purchase solar cells from Indian manufacturers. This is called a “local-content requirement” and such schemes are generally illegal under WTO rules.

Political Ramblings of a Madman