Since 2005, the city of Winona, MN will not grant rental licenses to property owners if more than 30 percent of the lots on their block already have rental licenses (the 30% “rule”). The rule contains a “grandfather clause,” however, that allows property owners who had licenses prior to the rule to continue renting even if their block has already reached the 30 percent threshold. Therefore, many blocks in the city violate the rule, which the Minnesota Supreme Court is now reviewing.
Cato has filed an amicus brief, joined by the Minnesota Free Market Institute at the Center of the American Experiment, supporting the property owners challenging the rule. We argue that the rule is an arbitrary, inefficient, and unconstitutional restraint on an essential and fundamental property right because it strips property owners of their right to manage and enjoy their property at the result of actions of their neighbors. The rule also damages communities by reducing property values and creating inefficiencies in the local economy and housing market without a substantial government interest.
Read more at http://www.cato.org/blog/right-own-includes-right-rent-out
2014-12-31
Cato: Medical Licensing in the States: Some Room for Agreement—and Reform
Even before Obamacare, many states faced the prospect of a doctor shortage due to an aging population and a limited supply of physicians. Obamacare will exacerbate this shortage by expanding insurance coverage to some degree, which will further increase the demand for care. One study projects that this increased demand will require between 4,300 and 7,000 more physicians by 2019.
Earlier this week, the New York Times reported that state medical boards across the country “have drafted a model law that would make it much easier for doctors licensed in one state to treat patients in other states, whether in person, by videoconference or online,” in what they are saying has the potential to be “the biggest change in medical licensing in decades.” This is a positive development, especially given that it seems to have a measure of bipartisan support, with 10 Republicans and 6 Democrats endorsing the plan in a recent letter. If ultimately enacted, it could go a long way to increasing access to care, especially in underserved areas, but there are still many obstacles to seeing this plan become a reality, and it is far from the only option at the disposal of policymakers.
Read more at http://www.cato.org/blog/medical-licensing-states-some-room-agreement-reform
Earlier this week, the New York Times reported that state medical boards across the country “have drafted a model law that would make it much easier for doctors licensed in one state to treat patients in other states, whether in person, by videoconference or online,” in what they are saying has the potential to be “the biggest change in medical licensing in decades.” This is a positive development, especially given that it seems to have a measure of bipartisan support, with 10 Republicans and 6 Democrats endorsing the plan in a recent letter. If ultimately enacted, it could go a long way to increasing access to care, especially in underserved areas, but there are still many obstacles to seeing this plan become a reality, and it is far from the only option at the disposal of policymakers.
Read more at http://www.cato.org/blog/medical-licensing-states-some-room-agreement-reform
Cato: Hobby Lobby, Harris, and Stealing Each Others’ Clothes
Legal issues have a way of changing form over the years in such a way that the liberal and conservative teams, such as they are, each periodically migrate over to occupy the positions the other formerly held. Examples from today’s two big cases:
* In 1990, when the Court decided Employment Division v. Smith, the Indian peyote case, it seemed clear that the liberal stand was to sympathize with religious believers seeking exemption from otherwise applicable general laws, while the conservative position – expressed by Justice Scalia in a majority opinion over a dissent by Blackmun, Brennan, and Marshall – was that sorry, but asserting religious scruples doesn’t place you above the law. Congress then proceeded to adopt by way of RFRA, the Religious Freedom Restoration Act, a mechanism using statutory means to achieve much the same ends as the liberals had sought to locate in constitutional law. Two decades later, where are we? The analogy with Hobby Lobby is by no means exact – one might decline to constitutionalize religious conscience rights yet still favor their vigorous statutory application, and the Smith case involved individuals rather than family corporations. But still: by prevailing back then, Scalia and the conservatives shaped a more favorable terrain for what to become the liberal position in Hobby Lobby, while the position embraced by Brennan and Marshall back then, had it prevailed, would have given the religious objectors in Hobby Lobby stronger ground to stand on.
Read more at http://www.cato.org/blog/hobby-lobby-harris-stealing-each-others-clothes
* In 1990, when the Court decided Employment Division v. Smith, the Indian peyote case, it seemed clear that the liberal stand was to sympathize with religious believers seeking exemption from otherwise applicable general laws, while the conservative position – expressed by Justice Scalia in a majority opinion over a dissent by Blackmun, Brennan, and Marshall – was that sorry, but asserting religious scruples doesn’t place you above the law. Congress then proceeded to adopt by way of RFRA, the Religious Freedom Restoration Act, a mechanism using statutory means to achieve much the same ends as the liberals had sought to locate in constitutional law. Two decades later, where are we? The analogy with Hobby Lobby is by no means exact – one might decline to constitutionalize religious conscience rights yet still favor their vigorous statutory application, and the Smith case involved individuals rather than family corporations. But still: by prevailing back then, Scalia and the conservatives shaped a more favorable terrain for what to become the liberal position in Hobby Lobby, while the position embraced by Brennan and Marshall back then, had it prevailed, would have given the religious objectors in Hobby Lobby stronger ground to stand on.
Read more at http://www.cato.org/blog/hobby-lobby-harris-stealing-each-others-clothes
Cato: The Practical Impact of Harris v. Quinn: A Major Blow to Organized Labor
As noted in this previous post, the Supreme Court’s decision today in Harris v. Quinn does not remake private-sector labor law but does put an end to one of the labor movement’s greatest hopes for expansion: commandeering dues payments by recipients of state subsidies. While the decision may be narrow—the Court, after all, did not rule that no public workers may be forced to support a labor union—its impact will be anything but that.
The Illinois law at issue here in Harris was at the leading edge of a nationwide movement over the past decade to organize home-based care workers, including medical assistants and even family child-care providers, and thereby to “reinvigorate organized labor.”
Read more at http://www.cato.org/blog/practical-impact-harris-v-quinn-major-blow-organized-labor
The Illinois law at issue here in Harris was at the leading edge of a nationwide movement over the past decade to organize home-based care workers, including medical assistants and even family child-care providers, and thereby to “reinvigorate organized labor.”
Read more at http://www.cato.org/blog/practical-impact-harris-v-quinn-major-blow-organized-labor
Cato: Uh Oh: The North Koreans are Mad and Won’t Take it Any More!
It’s hard being dictator of North Korea. You’re a god, or the nearest human thing to it, but you aren’t allowed any time to yourself. The rest of the world privately admires you and publicly envies you.
Some of them even mock you.
In 2002 Pierce Brosnan played a hero in fighting against the Korean people in the James Bond movie “Die Another Day.” Worse, two years later the great and wonderful “Dear Leader” Kim Jong-il was mercilessly insulted by the movie “Team America: World Police.” Unable to stop him from impoverishing his desperate people to build nuclear weapons, the U.S. government turned loose the most fearsome of weapons against the movie-loving Kim: Hollywood.
Read more at http://www.cato.org/blog/uh-oh-north-koreans-are-mad-wont-take-it-any-more
Some of them even mock you.
In 2002 Pierce Brosnan played a hero in fighting against the Korean people in the James Bond movie “Die Another Day.” Worse, two years later the great and wonderful “Dear Leader” Kim Jong-il was mercilessly insulted by the movie “Team America: World Police.” Unable to stop him from impoverishing his desperate people to build nuclear weapons, the U.S. government turned loose the most fearsome of weapons against the movie-loving Kim: Hollywood.
Read more at http://www.cato.org/blog/uh-oh-north-koreans-are-mad-wont-take-it-any-more
Cato: The IRS Scandal: Who’s Really Being Gullible?
Some figures on the left have aggressively sought to dismiss the renewed Internal Revenue Service scandal as unserious. Rep. Lloyd Doggett (D-Tex.) captured this mood at one recent Capitol Hill hearing when he suggested that after questioning whether the loss of emails was truly accidental, his GOP colleagues might go on next to quiz the IRS’s leadership about the president’s birth certificate and space aliens in Roswell, N.M. It’s not a “serious inquiry,” Rep. Doggett said. “I believe it’s an endless conspiracy theory here.”
And yet many Americans who do not care about space aliens do doubt the IRS’s account of what has happened. While we covered the story a year ago as well as more recently, this might be a good time to recapitulate why.
The IRS grants 501(c)(4) nonprofit status (less favorable than (c)(3) tax status, which affords donors charitable deductibility) to a wide array of “social welfare” organizations–many, like the ACLU, with a definite ideological valence. In recent years the status has been sought and obtained by groups whose missions are closely related to campaign and electoral politics, most notably Organizing for America, whose role on the national scene is to support President Obama’s messaging. Not surprisingly this has excited controversy about whether the eligibility rules for (c)(4) status are being drawn in the right place. Most advocates profess to believe, though, that whatever the right set of rules, they should apply alike to all sides in our political life.
Read more at http://www.cato.org/blog/irs-scandal-whos-really-being-gullible
And yet many Americans who do not care about space aliens do doubt the IRS’s account of what has happened. While we covered the story a year ago as well as more recently, this might be a good time to recapitulate why.
The IRS grants 501(c)(4) nonprofit status (less favorable than (c)(3) tax status, which affords donors charitable deductibility) to a wide array of “social welfare” organizations–many, like the ACLU, with a definite ideological valence. In recent years the status has been sought and obtained by groups whose missions are closely related to campaign and electoral politics, most notably Organizing for America, whose role on the national scene is to support President Obama’s messaging. Not surprisingly this has excited controversy about whether the eligibility rules for (c)(4) status are being drawn in the right place. Most advocates profess to believe, though, that whatever the right set of rules, they should apply alike to all sides in our political life.
Read more at http://www.cato.org/blog/irs-scandal-whos-really-being-gullible
Cato: Magna Carta and Constitutional Criminal Procedure
In United States v. Booker (2005), the Supreme Court held that the Sixth Amendment prohibits a judge from sentencing a convicted defendant to a prison term exceeding the law’s maximum penalty for the crime committed, unless additional aggravating facts are found by the jury (or admitted by the defendant). The Court also held that all sentences must be reasonable.
In a subsequent case, Justice Scalia issued a concurrence in which he expressed concern about situations in which judges issue sentences below the statutory maximum, but which would only be reasonable in light of additional facts found solely by the judge. He proposed an “as-applied” doctrine, in which the reviewing court asks whether the sentence would be reasonable as applied to only those facts that were found by the jury.
Read more at http://www.cato.org/blog/magna-carta-constitutional-criminal-interpretation
In a subsequent case, Justice Scalia issued a concurrence in which he expressed concern about situations in which judges issue sentences below the statutory maximum, but which would only be reasonable in light of additional facts found solely by the judge. He proposed an “as-applied” doctrine, in which the reviewing court asks whether the sentence would be reasonable as applied to only those facts that were found by the jury.
Read more at http://www.cato.org/blog/magna-carta-constitutional-criminal-interpretation
Cato: Unanimous Supreme Court Slaps Down President Obama on Recess Appointments, Should’ve Gone Further
For the 12th time since January 2012, the Obama Justice Department has lost unanimously at the Supreme Court. This time it was over recess appointments, with all justices agreeing with that the Senate gets to determine when it’s not in session – which triggers the president’s power to appoint federal officials without Senate confirmation. (Indeed, that’s what we argued in the brief we filed). And that’s no surprise: based on oral argument, everyone was expecting the government to lose NLRB v. Noel Canning and lose big. For example, my colleague Nicholas Quinn Rosenkranz predicted a unanimous ruling at a Cato debate in January.
Read more at http://www.cato.org/blog/unanimous-supreme-court-slaps-down-president-obama-recess-appointments-shouldve-gone-further
Read more at http://www.cato.org/blog/unanimous-supreme-court-slaps-down-president-obama-recess-appointments-shouldve-gone-further
Cato: 23andMe Closer to FDA Approval
23andMe, the Google-backed personal genomics company ordered by the Food and Drug Administration to stop marketing its health-related services in November last year, is closer to a reconciliation with the government agency. The FDA did not object to the ancestry information 23andMe provides, but rather the information on inherited risks it released to customers.
Before halting the release of health information 23andMe had provided its customers with information on their ancestry and health. 23andMe gathered genetic information from customers by having them send saliva in a $99 kit.
Read more at http://www.cato.org/blog/23andme-closer-fda-approval
Before halting the release of health information 23andMe had provided its customers with information on their ancestry and health. 23andMe gathered genetic information from customers by having them send saliva in a $99 kit.
Read more at http://www.cato.org/blog/23andme-closer-fda-approval
Cato: Can Private Disaster Relief Work?
In a new paper, Emily Skarbek (King’s College London) presents some evidence:
Read more at http://www.cato.org/blog/can-private-disaster-relief-workUsing a novel set of comprehensive donation and expenditure data collected from archival records, this paper examines a bottom-up relief effort following one of the most devastating natural disasters of the nineteenth century: the Chicago Fire of 1871. Findings show that while there was no central government relief agency present, individuals, businesses, corporate entities and municipal governments were able to finance the relief effort though donations. The Chicago Relief and Aid Society, a voluntary association of agents with a stake in relief outcomes, leveraged organizational assets and constitutional rules to administer aid.
Cato: Debunking the Induced-Demand Myth
“Building bigger roads actually makes traffic worse,” asserts Wired magazine. “The reason you’re stuck in traffic isn’t all these jerks around you who don’t know how to drive,” says writer Adam Mann; “it’s just the road that you’re all driving on.” If only we had fewer roads, he implies, we would have less congestion. This “roads-induce-demand” claim is as wrong as Wired’s previous claim that Tennessee fiscal conservatives were increasing Nashville congestion by banning bus-rapid transit, when actually they were preventing congestion by banning the conversion of general lanes to dedicated bus lanes.
In support of the induced-demand claim, Mann cites research by economists Matthew Turner of the University of Toronto and Gilles Duranton of the University of Pennsylvania. “We found that there’s this perfect one-to-one relationship,” Mann quotes Turner as saying. Mann describes this relationship as, “If a city had increased its road capacity by 10 percent between 1980 and 1990, then the amount of driving in that city went up by 10 percent. If the amount of roads in the same city then went up by 11 percent between 1990 and 2000, the total number of miles driven also went up by 11 percent. It’s like the two figures were moving in perfect lockstep, changing at the same exact rate.” If this were true, then building more roads doesn’t make traffic worse, as the Wired headline claims; it just won’t make it any better.
Read more at http://www.cato.org/blog/debunking-induced-demand-myth
In support of the induced-demand claim, Mann cites research by economists Matthew Turner of the University of Toronto and Gilles Duranton of the University of Pennsylvania. “We found that there’s this perfect one-to-one relationship,” Mann quotes Turner as saying. Mann describes this relationship as, “If a city had increased its road capacity by 10 percent between 1980 and 1990, then the amount of driving in that city went up by 10 percent. If the amount of roads in the same city then went up by 11 percent between 1990 and 2000, the total number of miles driven also went up by 11 percent. It’s like the two figures were moving in perfect lockstep, changing at the same exact rate.” If this were true, then building more roads doesn’t make traffic worse, as the Wired headline claims; it just won’t make it any better.
Read more at http://www.cato.org/blog/debunking-induced-demand-myth
Cato: Police Ignorance of the Law Is No Excuse
To execute any search or seizure, a police officer must reasonably suspect that a crime has been or is being committed based on the facts available to him at the time he executes the search or seizure. Under this standard, searches can be lawful even if the officer is mistaken in his understanding of the facts before him, as long as his understanding led him to reasonably suspect criminal activity. But what if the officer is mistaken about whether a particular activity is actually criminal?
Nicholas Heien was driving with a broken taillight in North Carolina when he was pulled over by police who mistakenly believed that state law required two working taillights. Upon receiving consent to search the car—note: you don’t have to agree to such requests!—police found cocaine and charged Heien with drug trafficking. At his trial, Heien sought to suppress the evidence arising out of the search by arguing that the officer never had the reasonable suspicion necessary to pull his vehicle over because having one broken taillight is not illegal. The trial court ruled against him, but the appellate court found a Fourth Amendment violation and reversed. The North Carolina Supreme Court reversed in turn, by a 4-3 vote, holding that an officer’s understanding of the state’s taillight requirements could form the basis for reasonable suspicion because that understanding, while incorrect, was reasonable.
Read more at http://www.cato.org/blog/police-ignorance-law-no-excuse
Nicholas Heien was driving with a broken taillight in North Carolina when he was pulled over by police who mistakenly believed that state law required two working taillights. Upon receiving consent to search the car—note: you don’t have to agree to such requests!—police found cocaine and charged Heien with drug trafficking. At his trial, Heien sought to suppress the evidence arising out of the search by arguing that the officer never had the reasonable suspicion necessary to pull his vehicle over because having one broken taillight is not illegal. The trial court ruled against him, but the appellate court found a Fourth Amendment violation and reversed. The North Carolina Supreme Court reversed in turn, by a 4-3 vote, holding that an officer’s understanding of the state’s taillight requirements could form the basis for reasonable suspicion because that understanding, while incorrect, was reasonable.
Read more at http://www.cato.org/blog/police-ignorance-law-no-excuse
Cato: Chief Justice Roberts Again Rewrites Law, Avoids Duty to Hold Government’s Feet to the Constitutional Fire
In today’s ruling in Bond v. United States, the Supreme Court was obviously right to reverse as federal overreaching the conviction of a woman who used certain chemicals to attack her husband’s paramour. This was a “purely local crime,” and the decision to prosecute Carol Anne Bond for it under a law that implements the international Chemical Weapons Convention was an abuse of federal power.
But in deciding the case so narrowly, creatively reinterpreting an expansive federal statute instead of reaching the constitutional issue at the heart of this bizarre case, the Court’s majority abdicated its duty to check the other branches of government. Bond was a case about the scope of the treaty power—can Congress do something pursuant to a treaty that it can’t otherwise do?—and yet the majority opinion avoided that discussion altogether in the name of a faux judicial minimalism. That’s not surprising given that its author is Chief Justice Roberts, who goes out of his way to avoid hard calls whenever possible. (Sometimes the practical result is still the right one, as here, sometimes it’s disastrously not, as in NFIB v. Sebelius, the Obamacare case, and sometimes even Roberts finds it impossible to avoid the Court’s constitutional duty, as in Citizens United and Shelby County.)
Read more at http://www.cato.org/blog/chief-justice-roberts-again-rewrites-law-avoids-duty-hold-governments-feet-constitutional-fire
But in deciding the case so narrowly, creatively reinterpreting an expansive federal statute instead of reaching the constitutional issue at the heart of this bizarre case, the Court’s majority abdicated its duty to check the other branches of government. Bond was a case about the scope of the treaty power—can Congress do something pursuant to a treaty that it can’t otherwise do?—and yet the majority opinion avoided that discussion altogether in the name of a faux judicial minimalism. That’s not surprising given that its author is Chief Justice Roberts, who goes out of his way to avoid hard calls whenever possible. (Sometimes the practical result is still the right one, as here, sometimes it’s disastrously not, as in NFIB v. Sebelius, the Obamacare case, and sometimes even Roberts finds it impossible to avoid the Court’s constitutional duty, as in Citizens United and Shelby County.)
Read more at http://www.cato.org/blog/chief-justice-roberts-again-rewrites-law-avoids-duty-hold-governments-feet-constitutional-fire
Cato: FCC’s Net Neutrality Rules
On May 15 the FCC announced a proposed rule that would govern the relationship between content providers and internet service providers. Consumer groups argued the proposed rule was not strong enough because it did not ban differential arrangements between them.
The underlying economic issues are several. Should the government concern itself with the relationship between the “creators” of things and the “transporters” of them? In particular should economic profits go just to the creators of things? Is it “wrong” for the transporters to extract some as well? What if a creator of content and a transporter want to vertically integrate or enter into a long-term contract to end the costly dispute between them over the division of any economic profits? Should such arrangements be forbidden because of the possibility such an entity would refuse to transport the content of a different creator?
Read more at http://www.cato.org/blog/fccs-net-neutrality-rules
The underlying economic issues are several. Should the government concern itself with the relationship between the “creators” of things and the “transporters” of them? In particular should economic profits go just to the creators of things? Is it “wrong” for the transporters to extract some as well? What if a creator of content and a transporter want to vertically integrate or enter into a long-term contract to end the costly dispute between them over the division of any economic profits? Should such arrangements be forbidden because of the possibility such an entity would refuse to transport the content of a different creator?
Read more at http://www.cato.org/blog/fccs-net-neutrality-rules
Cato: Veterans Benefits vs. Veterans Hospitals
Of all the Obama administration’s scandals—Benghazi, IRS/tea party, AP/Fox News, the near daily rewrite of Obamacare, and more—perhaps none is as telling as the unfolding VA Hospital debacle, now reaching seven states, with officials in the Albuquerque, New Mexico, hospital busy destroying records to cover their tracks, we learn today from the Daily Beast. And it isn’t simply because the outrage over the VA scandal, unlike with the others, is bipartisan that the scandal is so telling. No, it’s telling because it says so much about what’s wrong with the president’s political vision.
This is an administration, after all, that’s dedicated, root and branch, to government. (Recall the much parodied “Life of Julia” White House cartoon from the 2012 campaign—the story of a woman whose entire life was lived through government.) No problem for Mr. Obama is too trivial or too personal not simply for state but for federal attention, no less.
Read more at http://www.cato.org/blog/veterans-benefits-vs-veterans-hospitals
This is an administration, after all, that’s dedicated, root and branch, to government. (Recall the much parodied “Life of Julia” White House cartoon from the 2012 campaign—the story of a woman whose entire life was lived through government.) No problem for Mr. Obama is too trivial or too personal not simply for state but for federal attention, no less.
Read more at http://www.cato.org/blog/veterans-benefits-vs-veterans-hospitals
Cato: Will Congress Allow Hawaii to Expand Racial Discrimination?
I’ve written before about the curious and recurring desire of some Hawaiians to treat other Hawaiians differently based on the quantum of “native Hawaiian” blood they have coursing through their veins. In 2005, the U.S. Commission on Civil Rights issued a scathing report saying that Hawaii was “in a league by itself” regarding racial discrimination by government entities. Yet again and again, advocates for race-based government and tax treatment seek to push their divisive policies into the most racially integrated state of the union.
The latest such development comes to us in the form of a seemingly technocratic Senate bill, S.1352, the “Native American Housing Assistance and Self-Determination Reauthorization Act,” which was introduced last July and has slowly been making its way through the relevant committees. One particular provision of this dry legislation, when cross-referenced to the underlying law that it reauthorizes, is relevant to the racial shenanigans in the Aloha State
Read more at http://www.cato.org/blog/will-congress-allow-hawaii-expand-racial-discrimination
The latest such development comes to us in the form of a seemingly technocratic Senate bill, S.1352, the “Native American Housing Assistance and Self-Determination Reauthorization Act,” which was introduced last July and has slowly been making its way through the relevant committees. One particular provision of this dry legislation, when cross-referenced to the underlying law that it reauthorizes, is relevant to the racial shenanigans in the Aloha State
Read more at http://www.cato.org/blog/will-congress-allow-hawaii-expand-racial-discrimination
Cato: The Limitations of State-Level Marijuana Legalizations
Vox has a nice piece on the difficulties faced by Colorado marijuana businesses due to the continued Federal prohibition of marijuana:
Read more at http://www.cato.org/blog/limitations-state-marijuana-legalizationsEven after legalization, it’s still very difficult — and potentially dangerous — to operate a marijuana business in Colorado.The big problem: pot shops and producers still can’t work with banks, which see marijuana as too risky of a business due to federal prohibition. This is true in Colorado, where state law says marijuana is legal but federal law says it’s not.This means marijuana businesses can’t take conventional loans, and they have to operate with only cash. And although several levels of government have tried to address the issue, they’ve had no success so far.
Cato: Michael Sam and the Cost of Discrimination
Classical liberals and libertarians have always sought a world in which people are judged as individuals, not as members of groups. Over the centuries most societies have been arranged as hierarchies, with people assigned to classes by birth. The great liberal historian Henry Sumner Maine wrote that the history of civilization was a movement from a society of status to a society of contract — that is, from a society in which each person was born into his place and was defined by his status to one in which the relationships among individuals are determined by free consent and agreement. Liberals argued for “la carrière ouverte aux talents” (“opportunity to the talented”).
Individuals may also be classified by race, religion, sexual orientation, or other characteristics. One of the great achievements of American society has been the progressive extension of the promises of the Declaration of Independence – life, liberty, and the pursuit of happiness – to people who had been excluded from them. That process has included the abolition of slavery, the civil rights revolution, the women’s liberation movement, more recently the gay rights movement.
Read more at http://www.cato.org/blog/michael-sam-cost-discrimination
Individuals may also be classified by race, religion, sexual orientation, or other characteristics. One of the great achievements of American society has been the progressive extension of the promises of the Declaration of Independence – life, liberty, and the pursuit of happiness – to people who had been excluded from them. That process has included the abolition of slavery, the civil rights revolution, the women’s liberation movement, more recently the gay rights movement.
Read more at http://www.cato.org/blog/michael-sam-cost-discrimination
Cato: Voter ID Laws and Rights of Convicted Felons
Nothing in the Constitution requires voter ID laws. Nor does any provision bar voter ID laws, except: (1) the 14th Amendment forecloses state denial of equal protection of the laws to any person, and (2) the 15th Amendment forecloses discrimination by race in determining who can vote.
Accordingly, a voter ID law would be unconstitutional if it discriminated by race without a compelling state justification. Put differently, to justify a discriminatory voter ID law, a state would have to show: (a) there’s significant voter fraud, (b) the law would fix the problem; and (c) there’s no other way to accomplish the same ends without discriminating.
The convicted felon problem is more complicated. Rand Paul argues that 180,000 convicted felons in Kentucky should be allowed to vote. Does the constitution support that view? Of course, prisoners can be denied the right to vote while in prison. By committing a felony, they forfeit certain rights, which can even include the most fundamental right – the right to liberty. But after a felon completes his sentence, his voting rights should (in my view) be restored.
Read more at http://www.cato.org/blog/voter-id-laws-rights-convicted-felons
Accordingly, a voter ID law would be unconstitutional if it discriminated by race without a compelling state justification. Put differently, to justify a discriminatory voter ID law, a state would have to show: (a) there’s significant voter fraud, (b) the law would fix the problem; and (c) there’s no other way to accomplish the same ends without discriminating.
The convicted felon problem is more complicated. Rand Paul argues that 180,000 convicted felons in Kentucky should be allowed to vote. Does the constitution support that view? Of course, prisoners can be denied the right to vote while in prison. By committing a felony, they forfeit certain rights, which can even include the most fundamental right – the right to liberty. But after a felon completes his sentence, his voting rights should (in my view) be restored.
Read more at http://www.cato.org/blog/voter-id-laws-rights-convicted-felons
Cato: Panama Dodges a Bullet
Panamanians voted on Sunday against the efforts of their president, Ricardo Martinelli, to stay in power even though he was constitutionally barred from seeking reelection. It’s not an overstatement to say that in doing so, Panama overcame the greatest challenge in it’s 25 year-old democracy.
For several years Martinelli looked for a way to get rid of the constitutional ban on reelection. He couldn’t do it through a constitutional amendment since the vote of two separate legislatures is required to change the Constitution. And given that polls consistently showed that public opinion was firmly against the idea of introducing consecutive presidential reelection, a referendum was also out of the question. Thus, Martinelli tried to pack the Supreme Court with three new justices. The idea was that a friendly Supreme Court would rule that the ban on reelection was unconstitutional (as occurred in the case of Daniel Ortega in Nicaragua). However, Panamanians took to the streets and Martinelli backtracked. Then he opted for a less overt strategy: supporting a successor and appointing his wife as his vice-presidential candidate. As Mary O’Grady of the Wall Street Journal pointed out, Martinelli moved his queen to stay in power.
Read more at http://www.cato.org/blog/panama-dodges-bullet
For several years Martinelli looked for a way to get rid of the constitutional ban on reelection. He couldn’t do it through a constitutional amendment since the vote of two separate legislatures is required to change the Constitution. And given that polls consistently showed that public opinion was firmly against the idea of introducing consecutive presidential reelection, a referendum was also out of the question. Thus, Martinelli tried to pack the Supreme Court with three new justices. The idea was that a friendly Supreme Court would rule that the ban on reelection was unconstitutional (as occurred in the case of Daniel Ortega in Nicaragua). However, Panamanians took to the streets and Martinelli backtracked. Then he opted for a less overt strategy: supporting a successor and appointing his wife as his vice-presidential candidate. As Mary O’Grady of the Wall Street Journal pointed out, Martinelli moved his queen to stay in power.
Read more at http://www.cato.org/blog/panama-dodges-bullet
Cato: Supreme Court Wasn’t Serious about the Second Amendment
While the media attention will focus on the Supreme Court’s ruling in Town of Greece v. Galloway – the legislative-prayer case – the more interesting (and consequential) decision issued today was the Court’s denial of review in Drake v. Jerejian, the Second Amendment case I previously discussed here. In Drake, the lower federal courts upheld an outrageous New Jersey law that denies the right to bear arms outside the home for self-defense – just like the D.C. law at issue in District of Columbia v. Heller denied the right to keep arms inside the home – and today the Supreme Court let them get away with it.
Drake is but the latest in a series of cases that challenge the most restrictive state laws regarding the right to armed self-defense. Although the Supreme Court in Heller declared that the Second Amendment protects an individual constitutional right, lower federal courts with jurisdiction over states like Maryland and New York have been “willfully confused” about the scope of that right, declining to protect it outside Heller’s particular facts (a complete ban on functional firearms in the home). It’s as if the Supreme Court announced that the First Amendment protects an individual right to blog about politics from your home computer, but then some lower courts allowed states to ban political blogging from your local Starbucks.
Read more at http://www.cato.org/blog/supreme-court-wasnt-serious-about-second-amendment
Drake is but the latest in a series of cases that challenge the most restrictive state laws regarding the right to armed self-defense. Although the Supreme Court in Heller declared that the Second Amendment protects an individual constitutional right, lower federal courts with jurisdiction over states like Maryland and New York have been “willfully confused” about the scope of that right, declining to protect it outside Heller’s particular facts (a complete ban on functional firearms in the home). It’s as if the Supreme Court announced that the First Amendment protects an individual right to blog about politics from your home computer, but then some lower courts allowed states to ban political blogging from your local Starbucks.
Read more at http://www.cato.org/blog/supreme-court-wasnt-serious-about-second-amendment
Cato: He Is the Very Model of a Modern Retired Justice
Justice John Paul Stevens, who left the high court in 2010, is on fire. He just released a book, Six Amendments: How and Why We Should Change the Constitution, and is now on a media tour that has thus far featured his views on campaign finance, guns, and the death penalty—the subjects of three of his proposed constitutional amendments—and, just today, marijuana. All this, and last weekend he celebrated his 94th birthday!
It might not be appropriate for Stevens to propose constitutional amendments or otherwise opine on political matters because he’s technically still an Article III federal judge (though he hasn’t been hearing cases in the lower courts as Justices Sandra Day O’Connor and David Souter have), but nevertheless the ideas he floats are worth examining. To that end, I recently wrote two op-eds related to the Stevens book tour.
Read more at http://www.cato.org/blog/he-very-model-modern-retired-justice
It might not be appropriate for Stevens to propose constitutional amendments or otherwise opine on political matters because he’s technically still an Article III federal judge (though he hasn’t been hearing cases in the lower courts as Justices Sandra Day O’Connor and David Souter have), but nevertheless the ideas he floats are worth examining. To that end, I recently wrote two op-eds related to the Stevens book tour.
Read more at http://www.cato.org/blog/he-very-model-modern-retired-justice
Cato: Federal Government Often Selfish, Not Selfless
A new Rasmussen poll finds that just 19 percent of voters think that the federal government “does the right thing nearly all the time.” The poll also finds that two-thirds of voters think that the government “looks out primarily for its own interests.”
These public perceptions about the federal government are correct, as frequent stories in the Washington Post confirm. Today, the newspaper has front-page stories about how the Navy’s Blue Angels may have been a “hotbed of hazing, sexual harassment and other forms of discrimination,” and how the Department of Homeland Security (DHS) has been apparently acting corruptly at the highest levels.
Read more at http://www.cato.org/blog/federal-government-often-selfish-not-selfless
These public perceptions about the federal government are correct, as frequent stories in the Washington Post confirm. Today, the newspaper has front-page stories about how the Navy’s Blue Angels may have been a “hotbed of hazing, sexual harassment and other forms of discrimination,” and how the Department of Homeland Security (DHS) has been apparently acting corruptly at the highest levels.
Read more at http://www.cato.org/blog/federal-government-often-selfish-not-selfless
Cato: School Choice Lawsuit Explained
Last week, the New Hampshire Supreme Court heard oral arguments in Duncan v. New Hampshire, concerning the constitutionality of the “Live Free or Die” state’s trailblazing scholarship tax credit program. The Cato Institute filed an amicus brief in support of the program. Over at the Friedman Foundation’s blog, I summarize the law’s history and the primary legal arguments on each side, including legal standing, public versus private money, and the use of public funds at religious schools. I conclude by outlining four possible outcomes:
Read more at http://www.cato.org/blog/school-choice-lawsuit-explained
Read more at http://www.cato.org/blog/school-choice-lawsuit-explained
Cato: It’s Constitutional for Voters to Stop Their Government from Discriminating Based on Race
Today the Supreme Court finally ruled on Schuette v. Coalition to Defend Affirmative Action, in which Cato filed a brief last summer. This is the case involving a challenge to a voter-approved Michigan state constitutional amendment that bans racial discrimination (including racial preferences) in higher education. The U.S. Court of Appeals for the Sixth Circuit had somehow manage to conclude that such a law violates the Fourteenth Amendment’s Equal Protection Clause, which … requires that state governments treat everyone equally, regardless of race. The ruling was fractured – six justices voted to reverse the lower court, but for three separate reasons, plus a separate concurrence from Chief Justice John Roberts to respond to the two-justice dissent – but ultimately achieved the correct result: Michigan’s Proposal 2 stands.
Read more at http://www.cato.org/blog/its-constitutional-voters-stop-their-government-discriminating-based-race
Read more at http://www.cato.org/blog/its-constitutional-voters-stop-their-government-discriminating-based-race
Cato: TV Broadcasters Should Have Same Rights As Everyone Else
Remember broadcast television? Amid the avalanche of new streaming services, DVRs, and Rokus, not to mention cable TV, some people may have forgotten—or, if they’re under 25, never known—that there are TV shows in the air that can be captured with an antenna. The Supreme Court certainly hasn’t forgotten, given that it maintains an outdated rule that broadcast TV gets less First Amendment protection than cable, video-on-demand, or almost anything else–a rule dating to the 1969 case of Red Lion Broadcasting Co. v. FCC.
That lower standard of protection comes from the belief that the broadcast-frequency spectrum is scarce, and thus that the Federal Communications Commission is properly charged with licensing the spectrum for the public “interest, convenience, and necessity.” But if newspapers or magazines were similarly licensed, the First Amendment violation would be obvious to all but the most hardened censor.
Read more at http://www.cato.org/blog/tv-broadcasters-should-have-same-rights-everyone-else
That lower standard of protection comes from the belief that the broadcast-frequency spectrum is scarce, and thus that the Federal Communications Commission is properly charged with licensing the spectrum for the public “interest, convenience, and necessity.” But if newspapers or magazines were similarly licensed, the First Amendment violation would be obvious to all but the most hardened censor.
Read more at http://www.cato.org/blog/tv-broadcasters-should-have-same-rights-everyone-else
Cato: Washington’s Inconsistent Stance on Territorial Integrity
U.S. officials scarcely miss any opportunity to denounce Russia for severing Crimea from Ukraine and then annexing the peninsula. Yet Washington’s own track record regarding respect for the sovereignty and territorial integrity of countries is inconsistent, to say the least. Critics have noted that the position the United States and its NATO allies adopted toward the issue of Kosovo is at sharp variance with the current denunciation of Moscow’s conduct in Crimea. Not only did NATO launch an air war against Serbia to detach one of its provinces in 1999, but it proceeded to encourage and defend Kosovo’s subsequent unilateral declaration of independence in 2008 from what had become a fully democratic Serbia.
Read more at http://www.cato.org/blog/washingtons-inconsistent-stance-territorial-integrity
Read more at http://www.cato.org/blog/washingtons-inconsistent-stance-territorial-integrity
Cato: Don’t Push China and Russia Together
One of the more notable results of Russia’s invasion and annexation of Crimea is how unenthusiastic the Chinese government has been about that development. In a piece at China-U.S. Focus, I describe Beijing’s reaction as one of “nervous ambivalence.”
Moscow’s policy regarding Crimea sets extremely dangerous precedents from China’s standpoint. Amputating the province of a neighboring state through military occupation and a subsequent referendum to give the “secession” a façade of legitimacy, triggered multiple alarm bells in Beijing. Russia’s Crimea annexation violated China’s repeatedly stated position emphasizing respect for the territorial integrity of all states as a key principle of international behavior. Beijing’s emphasis on that principle is hardly surprising, given its own territorial issues involving Tibet, Xinjiang, and Taiwan. The last thing Chinese leaders want to encourage is a precedent whereby one or more of those entities might seek secession with the assistance of a hostile foreign power or combination of powers.
Read more at http://www.cato.org/blog/dont-push-china-russia-together
Moscow’s policy regarding Crimea sets extremely dangerous precedents from China’s standpoint. Amputating the province of a neighboring state through military occupation and a subsequent referendum to give the “secession” a façade of legitimacy, triggered multiple alarm bells in Beijing. Russia’s Crimea annexation violated China’s repeatedly stated position emphasizing respect for the territorial integrity of all states as a key principle of international behavior. Beijing’s emphasis on that principle is hardly surprising, given its own territorial issues involving Tibet, Xinjiang, and Taiwan. The last thing Chinese leaders want to encourage is a precedent whereby one or more of those entities might seek secession with the assistance of a hostile foreign power or combination of powers.
Read more at http://www.cato.org/blog/dont-push-china-russia-together
Cato: FBI Seizes Antiquities First, Asks Questions Later
An extraordinary and disturbing story just out from the Indianapolis Star/USA Today:
WALDRON, Ind. — FBI agents Wednesday seized “thousands” of cultural artifacts, including American Indian items, from the private collection of a 91-year-old man who had acquired them over the past eight decades.An FBI command vehicle and several tents were spotted at the property in rural Waldron, about 35 miles southeast of Indianapolis.The Rush County man, Don Miller, has not been arrested or charged.
So if the owner hasn’t been arrested or charged, what’s the basis of the raid?
Read more at http://www.cato.org/blog/fbi-seizes-antiquities-first-asks-questions-later
Cato: Theory: The Supreme Court Could Apply the Terms of the Fourth Amendment in Fourth Amendment Cases
The Supreme Court could apply the terms of the Fourth Amendment in Fourth Amendment cases.
I know. Weird idea, right?
But it’s an idea I’ve pushed in briefs to the Court over the last few years: in U.S. v. Jones (2011), Jardines v. Florida (2012), In re Electronic Privacy Information Center (2013), and most recently in Riley v. California (2014). We’ll file in U.S. v. Wurie next week.
The idea is interesting enough that Mason Clutter of the National Association of Criminal Defense Lawyers has paid me the compliment of discussing it in her new law review article, “Dogs, Drones, and Defendants: The Fourth Amendment in the Digital Age.”
Read more at http://www.cato.org/blog/idea-interpreting-text-constitution-theory-good-name-it
I know. Weird idea, right?
But it’s an idea I’ve pushed in briefs to the Court over the last few years: in U.S. v. Jones (2011), Jardines v. Florida (2012), In re Electronic Privacy Information Center (2013), and most recently in Riley v. California (2014). We’ll file in U.S. v. Wurie next week.
The idea is interesting enough that Mason Clutter of the National Association of Criminal Defense Lawyers has paid me the compliment of discussing it in her new law review article, “Dogs, Drones, and Defendants: The Fourth Amendment in the Digital Age.”
Read more at http://www.cato.org/blog/idea-interpreting-text-constitution-theory-good-name-it
Cato: Theory: The Fourth Amendment: Cars, Phones, and Keys?
Here’s a law-school hypothetical for you: Suppose a gang-banger is pulled over for having expired tags on his car. He has no driver’s license, and records show that he has repeatedly driven without a license. The protocol in such situations is to impound the car to prevent him from driving unlicensed again, and the impoundment search reveals that he has guns hidden in the car. He is arrested, patted down, and his possessions seized to secure officer safety during his transportation and booking.
Now suppose that police officers take the gang-banger’s car out of the impound yard and drive it around looking for his confederates and for more evidence against him. Can they use the car for this purpose?
If you’re like most people, you probably think the answer is: “No.” But can you say why?
Read more at http://www.cato.org/blog/fourth-amendment-cars-phones-keys
Now suppose that police officers take the gang-banger’s car out of the impound yard and drive it around looking for his confederates and for more evidence against him. Can they use the car for this purpose?
If you’re like most people, you probably think the answer is: “No.” But can you say why?
Read more at http://www.cato.org/blog/fourth-amendment-cars-phones-keys
Cato: Chairman Ryan’s Budget: A Mixed Bag of Reforms
House Budget Committee Chairman Paul Ryan released his budget proposal yesterday, his last as committee chairman. This budget differs greatly from the budget request submitted by President Obama last month. Ryan would “cut” federal spending by $5.1 trillion over the next 10 years and calls upon Congress to pass pro-growth tax reform. However, Ryan’s budget is still a mixed bag from a small-government perspective.
Positive Reforms in Ryan’s budget:
* Medicaid Block Grants: Ryan suggests block granting Medicaid to institute some fiscal sanity to this ever-growing program. This reform would reduce state government incentives to overspend and would allow them greater flexibility to innovate and cut costs. Federal spending would be reduced by $732 billion compared to baseline by this simple reform.
* SNAP Block Grants: The Supplemental Nutrition Assistance Program (“food stamps”) would also be block granted, saving $125 billion over 10 years compared to baseline. SNAP and Medicaid block grant reforms would copy the successful approach of welfare reforms in the 1990s.
Downsides to Ryan’s budget:
* Social Security Reform: Ryan’s budget does not tackle Social Security reform, leaving almost one quarter of the federal budget unchanged. He calls on the president and Congress to submit recommendations to reform the program, but does not submit any suggestions of his own.
* Higher Revenue Baseline: Chairman Ryan calls for pro-growth tax reform within his budget; however, he adopts the Congressional Budget Office’s current revenue baseline. This would keep the extra revenues generated from the numerous tax hikes enacted over the last several years.
Read more at http://www.cato.org/blog/chairmans-ryan-budget-mixed-bag-reforms
Positive Reforms in Ryan’s budget:
* Medicaid Block Grants: Ryan suggests block granting Medicaid to institute some fiscal sanity to this ever-growing program. This reform would reduce state government incentives to overspend and would allow them greater flexibility to innovate and cut costs. Federal spending would be reduced by $732 billion compared to baseline by this simple reform.
* SNAP Block Grants: The Supplemental Nutrition Assistance Program (“food stamps”) would also be block granted, saving $125 billion over 10 years compared to baseline. SNAP and Medicaid block grant reforms would copy the successful approach of welfare reforms in the 1990s.
Downsides to Ryan’s budget:
* Social Security Reform: Ryan’s budget does not tackle Social Security reform, leaving almost one quarter of the federal budget unchanged. He calls on the president and Congress to submit recommendations to reform the program, but does not submit any suggestions of his own.
* Higher Revenue Baseline: Chairman Ryan calls for pro-growth tax reform within his budget; however, he adopts the Congressional Budget Office’s current revenue baseline. This would keep the extra revenues generated from the numerous tax hikes enacted over the last several years.
Read more at http://www.cato.org/blog/chairmans-ryan-budget-mixed-bag-reforms
Cato: U.S. Policy Blunder Made Ukraine Vulnerable to Russian Coercion
There is a lot of hand wringing in Washington and other Western capitals about Russia’s sudden invasion and annexation of Crimea. But as I point out in a recent article in The National Interest Online, a policy that the United States adopted more than two decades ago made such an outcome nearly inevitable. The administrations of George H. W. Bush and Bill Clinton bribed and pressured Kiev to give up the nuclear weapons it had inherited upon the demise of the Soviet Union, thus making Russia the only nuclear-armed successor state.
As University of Chicago professor John Mearsheimer pointed out at the time in Foreign Affairs, that policy was extremely myopic. He argued that a Ukrainian nuclear deterrent was “imperative to maintain peace between Russia and Ukraine. That means ensuring that the Russians, who have a history of bad relations with Ukraine, do not move to reconquer it.” In a prophetic passage, he added: “Ukraine cannot defend itself against a nuclear-armed Russia with conventional weapons, and no state, including the United States, is going to extend to it a meaningful security guarantee. Ukrainian nuclear weapons are the only reliable deterrent to Russian aggression.”
Read more at http://www.cato.org/blog/us-policy-blunder-made-ukraine-vulnerable-russian-coercion
As University of Chicago professor John Mearsheimer pointed out at the time in Foreign Affairs, that policy was extremely myopic. He argued that a Ukrainian nuclear deterrent was “imperative to maintain peace between Russia and Ukraine. That means ensuring that the Russians, who have a history of bad relations with Ukraine, do not move to reconquer it.” In a prophetic passage, he added: “Ukraine cannot defend itself against a nuclear-armed Russia with conventional weapons, and no state, including the United States, is going to extend to it a meaningful security guarantee. Ukrainian nuclear weapons are the only reliable deterrent to Russian aggression.”
Read more at http://www.cato.org/blog/us-policy-blunder-made-ukraine-vulnerable-russian-coercion
Cato: Russians And Ukrainians Battle Over Crimea: The Tragic Perils of Nationalism
No good end to the Crimean crisis is likely. Moscow seized territory historically part of Russia and won’t retreat. Ukraine won’t accept Moscow’s land grab.
The West can’t ignore flagrant aggression and is headed toward a “cool war” with Russia. Crimeans unwilling to shift allegiance will have to leave their homes. Such are the perils of nationalism, which remains sadly popular today.
Russia has officially absorbed Crimea. The veneer of legality doesn’t disguise Moscow’s act of war. A majority of the territory’s people may have wanted to leave, but a referendum framed by Russian advocates and conducted under Russian military occupation was certain to yield the result desired by Vladimir Putin, not Crimea’s citizens.
Kiev is no more interested in the desires of Crimea’s people. The West proclaimed itself shocked at Moscow’s move, even though the former routinely intervenes militarily for its own ends.
Read more at http://www.cato.org/blog/russians-ukrainians-battle-over-crimea-tragic-perils-nationalism
The West can’t ignore flagrant aggression and is headed toward a “cool war” with Russia. Crimeans unwilling to shift allegiance will have to leave their homes. Such are the perils of nationalism, which remains sadly popular today.
Russia has officially absorbed Crimea. The veneer of legality doesn’t disguise Moscow’s act of war. A majority of the territory’s people may have wanted to leave, but a referendum framed by Russian advocates and conducted under Russian military occupation was certain to yield the result desired by Vladimir Putin, not Crimea’s citizens.
Kiev is no more interested in the desires of Crimea’s people. The West proclaimed itself shocked at Moscow’s move, even though the former routinely intervenes militarily for its own ends.
Read more at http://www.cato.org/blog/russians-ukrainians-battle-over-crimea-tragic-perils-nationalism
Cato: Privatizing the Royal Mail
Britain privatized its Royal Mail in 2013, proceeding with an initial public offering of shares that raised about $2.7 billion. The government pursued the reform because the company faced falling mail volume, and it needed to reduce costs and increase innovation. Similar issues face the U.S. Postal Service.
The Financial Times has named the reformer leading the privatized Royal Mail its “Person of the Year.” Below is an excerpt about Moya Greene from FT’s story. I have two questions: i) Why don’t we get reforms or reformers like this in Washington? ii) Why are American leaders so comparatively timid in embracing market-based reforms?
Read more at http://www.cato.org/blog/privatizing-royal-mail
The Financial Times has named the reformer leading the privatized Royal Mail its “Person of the Year.” Below is an excerpt about Moya Greene from FT’s story. I have two questions: i) Why don’t we get reforms or reformers like this in Washington? ii) Why are American leaders so comparatively timid in embracing market-based reforms?
Read more at http://www.cato.org/blog/privatizing-royal-mail
Cato: Death Of An Honest Taxman
The New York Times notes the death at age 100 in Atlanta of Randolph Thrower, “a Republican lawyer who headed the IRS under President Richard M. Nixon from 1969 to 1971 before losing his job for resisting White House efforts to punish its enemies through tax audits.” When White House staffers began pressuring Mr. Thrower to apply hostile tax scrutiny to the Administration’s critics, including journalists and Senators, he assumed President Nixon had no knowledge of what was happening and requested a meeting with the chief executive so as to warn him. Instead he was summarily fired, with the White House putting out the story that Thrower had departed “for personal reasons.”
Read more at http://www.cato.org/blog/death-honest-taxman
Read more at http://www.cato.org/blog/death-honest-taxman
2014-12-30
Cato: Is Religious Liberty an “Exception” to Government Rule?
In a free society, employers would be at liberty to offer their employees group health insurance, if they wished, and to offer whatever coverage they wished to offer. In the Supreme Court today, however, so basic a premise barely surfaced during oral argument in Sebelius v. Hobby Lobby, the Obamacare “contraceptive mandate” case. Rather, Justices Sotomayor, Kagan, and Ginsburg, clearly supporting the mandate, pressed Hobby Lobby’s attorney Paul Clement as to whether an “exception” should be provided for religious employers who are otherwise required by regulation to offer contraceptive coverage, and whether such an exception could be limited or instead would have no principled bounds. By contrast, Chief Justice Roberts, Justice Kennedy, and even Justice Breyer were at pains to show how such a religious “accommodation” could in fact be limited.
Thus have we come to a point at which religious liberty is recognized, if it is, as an exception to the general rule that government may require us to act as it dictates—and we have to be careful not to extend that accommodation too far lest it gobble up the rule.
Read more at http://www.cato.org/blog/religious-liberty-exception-government-rule
Thus have we come to a point at which religious liberty is recognized, if it is, as an exception to the general rule that government may require us to act as it dictates—and we have to be careful not to extend that accommodation too far lest it gobble up the rule.
Read more at http://www.cato.org/blog/religious-liberty-exception-government-rule
Cato: Putin’s Animal Farm
In today’s Washington Post, Pamela Constable describes the scene in Crimea, and it reminds me of George Orwell’s Animal Farm.
Vladimir Putin is playing the starring role of Napoleon the pig. To consolidate his power, Putin is employing menacing dogs, just as Napoleon did. Constable writes:
As the referendum approached, the capital was calm, but the streets were filled with a swelling number of stocky security men on corners and outside government facilities … For the most part, they stood around looking tough, but their mere presence was intimidating …
Read more at http://www.cato.org/blog/putins-animal-farm
Cato: End the Drug War: The American People are Not the Enemy
Drug use is bad. Arresting people for using drugs is worse. With the states of Colorado and Washington leading the way, the federal government should drop criminal penalties against those who produce, sell, and consume drugs.
The so-called Drug War has been a violent, often deadly, assault on the American people. There’s no obvious moral reason to demonize the use of mind-altering substances which are widely used around the globe. Obviously, drugs can be abused, but so can almost anything else.
Some people still may abhor drug use as a matter of personal moral principle, but the criminal law should focus on inter-personal morality, that is, behavior which directly affects others. Basing criminal strictures on intra-personal morality essentially puts government into the business of soul-molding, a task for which it has demonstrated little aptitude.
Read more at http://www.cato.org/blog/end-drug-war-american-people-are-not-enemy
The so-called Drug War has been a violent, often deadly, assault on the American people. There’s no obvious moral reason to demonize the use of mind-altering substances which are widely used around the globe. Obviously, drugs can be abused, but so can almost anything else.
Some people still may abhor drug use as a matter of personal moral principle, but the criminal law should focus on inter-personal morality, that is, behavior which directly affects others. Basing criminal strictures on intra-personal morality essentially puts government into the business of soul-molding, a task for which it has demonstrated little aptitude.
Read more at http://www.cato.org/blog/end-drug-war-american-people-are-not-enemy
Cato: Supporting Marriage Equality in Utah and Oklahoma
Utah Constitutional Amendment 3, passed by referendum in 2004, states that no union other than one between a man and a woman may be recognized as a marriage. Derek Kitchen and five co-plaintiffs took issue with this definition and filed a lawsuit in federal district court last year to challenge the gay marriage ban. In a surprising and widely publicized December 2013 ruling, the court invalidated the amendment, finding that such a restriction was an affront to equal protection and the fundamental right to marry.
Meanwhile, Mary Bishop and Sharon Baldwin also filed a federal suit to challenge a similar provision that was added to Oklahoma’s constitution by referendum in 2004. Like Utah’s district court, the Oklahoma district court found the amendment unconstitutional. Following on the heels of last term’s Supreme Court ruling in United States v. Windsor—which struck down part of the Defense of Marriage Act—these ground-breaking red-state cases are now both before the U.S. Court of Appeals for the Tenth Circuit, which will consider the constitutionality of a state’s decision to exclude same-sex unions from the definition of marriage.
Read more at http://www.cato.org/blog/supporting-marriage-equality-utah-oklahoma
Meanwhile, Mary Bishop and Sharon Baldwin also filed a federal suit to challenge a similar provision that was added to Oklahoma’s constitution by referendum in 2004. Like Utah’s district court, the Oklahoma district court found the amendment unconstitutional. Following on the heels of last term’s Supreme Court ruling in United States v. Windsor—which struck down part of the Defense of Marriage Act—these ground-breaking red-state cases are now both before the U.S. Court of Appeals for the Tenth Circuit, which will consider the constitutionality of a state’s decision to exclude same-sex unions from the definition of marriage.
Read more at http://www.cato.org/blog/supporting-marriage-equality-utah-oklahoma
Cato: Finding a Way Back From the Brink in Ukraine
Ukrainians won an important political battle by ousting the corrupt Viktor Yanukovich as president. But replacing Yanukovich with another dubious politico will change little.
Washington also triumphed. Without doing much—no troops, no money, few words—Americans watched protestors frustrate Russia’s Vladimir Putin.
But now Russia is attempting to win as well, intervening in Crimea. Moscow has created a tinderbox ready to burst into flames. The only certainty is that the U.S. should avoid being drawn into a war with Russia.
In 2010 Yanukovich triumphed in a poll considered to be fair if not entirely clean. His corrupt proclivities surprised no one. However, while tarred as pro-Russian, in accepting Putin’s largesse last November Yanukovich actually refused to sign the Moscow-led Customs Union.
Read more at http://www.cato.org/blog/finding-way-back-brink-ukraine
Washington also triumphed. Without doing much—no troops, no money, few words—Americans watched protestors frustrate Russia’s Vladimir Putin.
But now Russia is attempting to win as well, intervening in Crimea. Moscow has created a tinderbox ready to burst into flames. The only certainty is that the U.S. should avoid being drawn into a war with Russia.
In 2010 Yanukovich triumphed in a poll considered to be fair if not entirely clean. His corrupt proclivities surprised no one. However, while tarred as pro-Russian, in accepting Putin’s largesse last November Yanukovich actually refused to sign the Moscow-led Customs Union.
Read more at http://www.cato.org/blog/finding-way-back-brink-ukraine
Cato: A Closer Look at Congress’s Views on Trade
Cato’s congressional trade votes database now includes votes from last year on major trade bills and amendments in both houses of Congress. The purpose of the database is to educate the public about the trade policy preferences of individual members. We do that by recording their votes on major trade bills and amendments and using the data to map a broader ideological profile.
Read more at http://www.cato.org/blog/closer-look-congresss-views-trade
Read more at http://www.cato.org/blog/closer-look-congresss-views-trade
Cato: Does Occupational Licensing Make Sense?
The standard argument for occupational licensing - government-imposed limits on who can supply medical, legal, plumbing, and other services - is that such laws protect the public from low-quality provision of these services.
This argument is not convincing on its own: licensing limits the quantity of services provided, raising price, and thus harming consumers. A necessary condition for licensing to make sense, therefore, is that any improvements in service quality outweight the losses from higher prices.
Read more at http://www.cato.org/blog/does-professional-licensure-work
This argument is not convincing on its own: licensing limits the quantity of services provided, raising price, and thus harming consumers. A necessary condition for licensing to make sense, therefore, is that any improvements in service quality outweight the losses from higher prices.
Read more at http://www.cato.org/blog/does-professional-licensure-work
Cato: Folly of Federal Flood Insurance
Subsidized flood insurance is one of the many federal programs that is counter to both sound economic policy and sound environmental policy. Congress created the National Flood Insurance Program (NFIP) in 1968 to help homeowners in flood-prone areas purchase insurance. The FEMA-run program covers floods from river surges and storms on the seacoasts.
In recent years, the NFIP has gone hugely into debt and it may be bailed-out by taxpayers at some point. The program has encouraged people to build homes in areas that are too hazardous to safely occupy. It has encouraged towns to expand development in flood-prone areas. And the program undermines constitutional federalism by prompting the federal government to reach its regulatory tentacles into local zoning issues.
Read more at http://www.cato.org/blog/folly-federal-flood-insurance
In recent years, the NFIP has gone hugely into debt and it may be bailed-out by taxpayers at some point. The program has encouraged people to build homes in areas that are too hazardous to safely occupy. It has encouraged towns to expand development in flood-prone areas. And the program undermines constitutional federalism by prompting the federal government to reach its regulatory tentacles into local zoning issues.
Read more at http://www.cato.org/blog/folly-federal-flood-insurance
Cato: For Marriage Equality, Religious Liberty, and the Freedom of Association
Even though I’m for marriage equality – next week I’ll be filing a brief supporting the challenge to the marriage laws of Oklahoma and Utah in the U.S. Court of Appeals for the Tenth Circuit – I have no problem with Arizona’s SB 1062.
SB 1062 does nothing more than align state law with the federal Religious Freedom Restoration Act (which passed the House unanimously, the Senate 97-3, and was signed by President Clinton in 1993). That is, no government action can “substantially burden” religious exercise unless the government uses “the least restrictive means” to further a “compelling interest.” This doesn’t mean that people can “do whatever they want” – laws against murder would still trump religious human sacrifice – but it would prevent the government from forcing people to violate their religion if that can at all be avoided. Moreover, there’s no mention of sexual orientation (or any other class or category).
Read more at http://www.cato.org/blog/marriage-equality-religious-liberty-freedom-association
SB 1062 does nothing more than align state law with the federal Religious Freedom Restoration Act (which passed the House unanimously, the Senate 97-3, and was signed by President Clinton in 1993). That is, no government action can “substantially burden” religious exercise unless the government uses “the least restrictive means” to further a “compelling interest.” This doesn’t mean that people can “do whatever they want” – laws against murder would still trump religious human sacrifice – but it would prevent the government from forcing people to violate their religion if that can at all be avoided. Moreover, there’s no mention of sexual orientation (or any other class or category).
Read more at http://www.cato.org/blog/marriage-equality-religious-liberty-freedom-association
Cato: Pounding the Table, Not the Facts, on School Choice
There’s an old legal proverb about how to win a court case: “If the law is on your side, pound the law. If the facts are on your side, pound the facts. If neither is on your side, pound the table.” In this factually-challenged attack on school choice, two lawyers at the UNC Center for Civil Rights do a great deal of table pounding.
Despite mountains of evidence to the contrary, the lawyers charge that school choice programs don’t work and that they increase racial segregation.
Read more at http://www.cato.org/blog/pounding-table-not-facts-school-choice
Despite mountains of evidence to the contrary, the lawyers charge that school choice programs don’t work and that they increase racial segregation.
Read more at http://www.cato.org/blog/pounding-table-not-facts-school-choice
Cato: Understanding the Protests in Ukraine and Venezuela
“All happy families are alike; each unhappy family is unhappy in its own way.” If one believes Tolstoy’s famous dictum, then the protest movements in Ukraine and Venezuela should not have much in common. However, there are several striking parallels between the events unfolding in the two countries—as well as some important differences:
1. It’s the economy, stupid!
Although the popular unrest in Ukraine was triggered by the government’s decision to cancel the agreed free trade agreement with the European Union, the popular discontent has deeper roots. After years of kleptocratic governance, which derailed the country’s transition toward a market economy, ordinary Ukrainians are desperate for change. In 1990, Ukraine’s GDP per capita was $8,200, which was roughly identical to Poland’s. Today, Poland’s GDP is $18,300 and Ukraine’s has gone down to $6,400. Unlike its post-communist neighbors to the West, Ukraine did not pursue deep institutional reforms and its economy was seized by a narrow group of oligarchs, with close connections to political power and to the Kremlin. The son of the President Viktor Yanukovych, Oleksandr, has become one of the richest men in the country during his father’s time in the office, while incomes of most Ukrainians stagnated.
In Venezuela the economic situation has deteriorated sharply since the death of Hugo Chávez last year. The country has the highest inflation rate in the world (officially 56 percent in 2013, although according to Steve Hanke’s Trouble Currency Project, the implied annual inflation rate is actually 305 percent). After years of nationalizations, expropriations, and currency and price controls—all under the name of “21st Century Socialism”—the private sector has been decimated. Hour-long lines in supermarkets are a daily occurrence and shortages of basic food staples and medicines are widespread. And just like in Ukraine, corruption is rampant as the ruling elite rake in the profits from oil revenues. This has resulted in the rise of a new privileged class called the “Boligarchs.” so-named because they’ve prospered tremendously under the so-called Bolivarian revolution. Moreover, Venezuela is now one of the most dangerous nations in the world, with almost 25,000 murders committed last year. A large segment of the population, mostly middle class, is simply fed up as the country quickly becomes unlivable.
2. Governments have responded with repression.
In Ukraine, the “Euromaidan” movement began with peaceful protests in late November, which occurred as a response to the government canceling the free trade agreement with the EU. In Kiev, the protesters gathered and set up an improvised camp on the Independence Square, called “maidan” in Ukrainian. After the protests were dispersed violently by the Berkut riot police on November 30, violence has slowly escalated, culminating in the events earlier this week, in which at least 77 people, and possibly more, died. The government has even paid thugs to infiltrate the opposition camps and incite clashes. Over past days, Ukrainian security forces used snipers and automatic weapons against protesters, resulting in large numbers of casualties.
In Venezuela, the protests began on February 12 after the government refused to release several students who had been arbitrarily detained days before. And just like the Viktor Yanukovych regime, Nicolás Maduro has cracked down on the demonstrations with unprecedented force, using the National Guard and armed paramilitary gangs. On February 19, government forces escalated their attacks against civilians, raiding apartment buildings and shooting people on the streets. The border state of Táchira is currently under military curfew. So far, at least eight people have been killed, dozens have been detained, and many are missing.
Read more at http://www.cato.org/blog/understanding-protests-ukraine-venezuela
1. It’s the economy, stupid!
Although the popular unrest in Ukraine was triggered by the government’s decision to cancel the agreed free trade agreement with the European Union, the popular discontent has deeper roots. After years of kleptocratic governance, which derailed the country’s transition toward a market economy, ordinary Ukrainians are desperate for change. In 1990, Ukraine’s GDP per capita was $8,200, which was roughly identical to Poland’s. Today, Poland’s GDP is $18,300 and Ukraine’s has gone down to $6,400. Unlike its post-communist neighbors to the West, Ukraine did not pursue deep institutional reforms and its economy was seized by a narrow group of oligarchs, with close connections to political power and to the Kremlin. The son of the President Viktor Yanukovych, Oleksandr, has become one of the richest men in the country during his father’s time in the office, while incomes of most Ukrainians stagnated.
In Venezuela the economic situation has deteriorated sharply since the death of Hugo Chávez last year. The country has the highest inflation rate in the world (officially 56 percent in 2013, although according to Steve Hanke’s Trouble Currency Project, the implied annual inflation rate is actually 305 percent). After years of nationalizations, expropriations, and currency and price controls—all under the name of “21st Century Socialism”—the private sector has been decimated. Hour-long lines in supermarkets are a daily occurrence and shortages of basic food staples and medicines are widespread. And just like in Ukraine, corruption is rampant as the ruling elite rake in the profits from oil revenues. This has resulted in the rise of a new privileged class called the “Boligarchs.” so-named because they’ve prospered tremendously under the so-called Bolivarian revolution. Moreover, Venezuela is now one of the most dangerous nations in the world, with almost 25,000 murders committed last year. A large segment of the population, mostly middle class, is simply fed up as the country quickly becomes unlivable.
2. Governments have responded with repression.
In Ukraine, the “Euromaidan” movement began with peaceful protests in late November, which occurred as a response to the government canceling the free trade agreement with the EU. In Kiev, the protesters gathered and set up an improvised camp on the Independence Square, called “maidan” in Ukrainian. After the protests were dispersed violently by the Berkut riot police on November 30, violence has slowly escalated, culminating in the events earlier this week, in which at least 77 people, and possibly more, died. The government has even paid thugs to infiltrate the opposition camps and incite clashes. Over past days, Ukrainian security forces used snipers and automatic weapons against protesters, resulting in large numbers of casualties.
In Venezuela, the protests began on February 12 after the government refused to release several students who had been arbitrarily detained days before. And just like the Viktor Yanukovych regime, Nicolás Maduro has cracked down on the demonstrations with unprecedented force, using the National Guard and armed paramilitary gangs. On February 19, government forces escalated their attacks against civilians, raiding apartment buildings and shooting people on the streets. The border state of Táchira is currently under military curfew. So far, at least eight people have been killed, dozens have been detained, and many are missing.
Read more at http://www.cato.org/blog/understanding-protests-ukraine-venezuela
Cato: Gap Pay Raise Follows Rand Not Obama
Clothing retailer Gap Inc. has won praise from the White House in announcing its decision to raise entry-level wages to $9 an hour this year, and $10 next year. President Obama applauded Gap and argued that Congress should follow suit by passing a bill to increase the federal minimum wage from $7.25 an hour to $10.10 by 2016.
But there’s a big difference between a voluntary increase in a market-determined wage rate and a government-mandated minimum wage.
Gap must report to shareholders and make a profit to stay in business; politicians report to voters and must win elections to stay in office. Polls show that the American public strongly support a higher federal minimum wage — but only if it appears to be costless.
President Obama, in promoting a higher minimum wage, argues that it would “lift wages for more than 16 million workers—all without requiring a single dollar in new taxes or spending.” This is the free lunch that politicians love to promise—and it is an illusion.
When the government arbitrarily pushes up wage rates above the competitive level, two things happen: some jobs are lost; and more workers look for jobs but can’t find them, so unemployment of lower-skilled workers increases. These effects are greater in the long run as employers switch to labor-saving technology.
Read more at http://www.cato.org/blog/gap-pay-raise-follows-rand-not-obama
But there’s a big difference between a voluntary increase in a market-determined wage rate and a government-mandated minimum wage.
Gap must report to shareholders and make a profit to stay in business; politicians report to voters and must win elections to stay in office. Polls show that the American public strongly support a higher federal minimum wage — but only if it appears to be costless.
President Obama, in promoting a higher minimum wage, argues that it would “lift wages for more than 16 million workers—all without requiring a single dollar in new taxes or spending.” This is the free lunch that politicians love to promise—and it is an illusion.
When the government arbitrarily pushes up wage rates above the competitive level, two things happen: some jobs are lost; and more workers look for jobs but can’t find them, so unemployment of lower-skilled workers increases. These effects are greater in the long run as employers switch to labor-saving technology.
Read more at http://www.cato.org/blog/gap-pay-raise-follows-rand-not-obama
Cato: Friedman and Hanke on Bitcoin
In 2008, Bitcoin was mysteriously introduced to the world in an obscure, technical paper written under the pseudonym Satoshi Nakamoto. By late 2013, the financial press was filled with reportage on Bitcoin and its dramatic price increase.
Well ahead of Satoshi Nakamoto, Nobelist Milton Friedman, champion of free market economics and noted expert on money and banking, anticipated the coming of digital currencies, and foresaw the potential impacts that they would have on finance and economics.
Read more at http://www.cato.org/blog/friedman-hanke-bitcoin
Well ahead of Satoshi Nakamoto, Nobelist Milton Friedman, champion of free market economics and noted expert on money and banking, anticipated the coming of digital currencies, and foresaw the potential impacts that they would have on finance and economics.
Read more at http://www.cato.org/blog/friedman-hanke-bitcoin
Cato: Republicans in Congress Really Like the Cuba Embargo
President Obama made a number of spot-on arguments yesterday for why the United States should end the ineffective trade embargo that has helped impoverish the people of Cuba for over fifty years. However, the core components of the embargo are statutory law that will require an act of Congress to overturn. While it’s very encouraging to see the president take a leadership role in pursuit of a good policy, getting Republicans on board is going to be difficult to say the least.
Over the last 20 years, there have been 11 votes in the two houses of Congress seeking to eliminate or amend the Cuba embargo. In all of those votes, loosening the embargo got majority opposition from Republicans. According to Cato’s trade votes database, it wasn’t even close. Republican support for the embargo has ranged from 61% (in support of travel ban) to 91% (in support of import ban) with the average level of support at 77.5%. Indeed, in 2005 more Republicans voted to withdraw the United States from the World Trade Organization than voted to end the Cuba embargo.
Read more at http://www.cato.org/blog/republicans-congress-really-cuba-embargo
Cato: Worst Congress Ever? You Must Be Kidding
The Establishment media really love laws and government. NPR, the Washington Post, Huffington Post, Pew Research, NBC, Politico – they’re all lamenting the “least productive Congress” ever. Or more precisely noting that the just-concluded 113th Congress was the second least productive Congress ever, second only to the 2011-12 112th Congress. But what’s the definition of a “productive Congress”? One that passes laws, of course, lots of laws. Congress passed only 286 laws in the past two years, exceeded in slackerdom only by the 283 passed in the previous two years of divided government.
Now journalists may well believe that passing laws is a good thing, and passing more laws is a better thing. But they would do well to mark that as an opinion. Many of us think that passing more laws – that is more mandates, bans, regulations, taxes, subsidies, boondoggles, transfer programs, and proclamations – is a bad thing. In fact, given that the American people pondered the “least productive Congress ever” twice, and twice kept the government divided between the two parties, it just might be that most Americans are fine with a Congress that passes fewer laws.
Read more at http://www.cato.org/blog/worst-congress-ever-you-must-be-kidding
Now journalists may well believe that passing laws is a good thing, and passing more laws is a better thing. But they would do well to mark that as an opinion. Many of us think that passing more laws – that is more mandates, bans, regulations, taxes, subsidies, boondoggles, transfer programs, and proclamations – is a bad thing. In fact, given that the American people pondered the “least productive Congress ever” twice, and twice kept the government divided between the two parties, it just might be that most Americans are fine with a Congress that passes fewer laws.
Read more at http://www.cato.org/blog/worst-congress-ever-you-must-be-kidding
Cato: Is North Korea Preparing for Change or Planning More of the Same?
North Koreans have formally ended their three-year mourning period for Kim Jong-il. By custom his son, Kim Jong-un, and the country now are free to move forward without hindrance from the past.
A small, poor nation, the Democratic People’s Republic of Korea should be an international nullity, irrelevant to global affairs. Yet it again dominated headlines in the U.S. with the hacking of Sony.
Although the FBI is pointing its finger at Pyongyang, a number of online experts strongly doubt the charge. Whatever the case, this otherwise two-bit international player is at the top of the news.
Read more at http://www.cato.org/blog/north-korea-preparing-change-or-planning-more-same
A small, poor nation, the Democratic People’s Republic of Korea should be an international nullity, irrelevant to global affairs. Yet it again dominated headlines in the U.S. with the hacking of Sony.
Although the FBI is pointing its finger at Pyongyang, a number of online experts strongly doubt the charge. Whatever the case, this otherwise two-bit international player is at the top of the news.
Read more at http://www.cato.org/blog/north-korea-preparing-change-or-planning-more-same
Cato: Ninth Circuit Recognizes Right to Bear, Not Just Keep, Arms
California law forbids the carrying of firearms in public places without a license and provides that the issuance of such a license requires “good cause.” San Diego County, as part of its implementation of that law, has set a number of restrictive policies on what it will consider good cause, which must be exceptional circumstances (“distinguish[ed]… from the mainstream”), and it specifies that concern for “one’s personal safety alone is not considered good cause.”
That’s a policy in considerable tension with the language of the Second Amendment, which protects individuals’ right not only to “keep” arms, but also to “bear” them. What does the verb “bear” mean in this context? That has given rise to considerable dispute, and some federal courts, such as the Third Circuit U.S. Court of Appeals, appear to believe that it provides very little protection for individuals’ right to possess guns outside the home. In a case last year by the name of Drake v. Filko – now the subject of a certiorari petition to the Supreme Court, as Ilya explained yesterday – the Third Circuit upheld a regulatory regime under which “virtually nobody in New Jersey can use a handgun to defend themselves outside their home.”
Read more at http://www.cato.org/blog/ninth-circuit-recognizes-right-bear-not-just-keep-arms
That’s a policy in considerable tension with the language of the Second Amendment, which protects individuals’ right not only to “keep” arms, but also to “bear” them. What does the verb “bear” mean in this context? That has given rise to considerable dispute, and some federal courts, such as the Third Circuit U.S. Court of Appeals, appear to believe that it provides very little protection for individuals’ right to possess guns outside the home. In a case last year by the name of Drake v. Filko – now the subject of a certiorari petition to the Supreme Court, as Ilya explained yesterday – the Third Circuit upheld a regulatory regime under which “virtually nobody in New Jersey can use a handgun to defend themselves outside their home.”
Read more at http://www.cato.org/blog/ninth-circuit-recognizes-right-bear-not-just-keep-arms
Cato: Leaving Child Alone In Car For A Few Minutes = Abuse?
When I was small, my (conscientious, non-abusive) mother would leave me alone in the back seat of our car for brief spells while she ran into stores to do errands, an experience that’s entirely typical for most people I know from my generation. Nowadays a parent who behaves that way might risk a police record or a serious encounter with child welfare authorities. “In [a New Jersey] appeals court decision last week, three judges ruled that a mother who left her toddler sleeping in his car seat while she went into a store for five to 10 minutes was indeed guilty of abuse or neglect for taking insufficient care to protect him from harm.” The child was unharmed and an investigation of the household found it not otherwise problematic, which apparently still did not suffice to stop the abuse charge from going forward.
Read more at http://www.cato.org/blog/leaving-child-alone-car-few-minutes-abuse
Read more at http://www.cato.org/blog/leaving-child-alone-car-few-minutes-abuse
Cato: Know Your Libertarian History: The Great Tax Revolt of the 1970s
One of the great libertarian victories of the past few decades was the tax revolt of the late 1970s and early 1980s. The inflation of the 1970s caused higher property taxes and income tax bracket creep, which led to California’s Proposition 13, the Kemp-Roth tax cut bill, the election of Ronald Reagan in 1980, the 1981 tax cut, the deceleration of government spending, the further lowering of marginal rates in 1986—and a long period during which economic growth exceeded government growth.
Read more at http://www.cato.org/blog/know-libertarian-history-great-tax-revolt-1970s
Read more at http://www.cato.org/blog/know-libertarian-history-great-tax-revolt-1970s
Cato: The Drug War vs. the Constitution: 1928 Edition
Prof. Gerard Magliocca of Indiana University has been doing historical work on the Supreme Court’s “Four Horsemen”—the Justices who dug in to resist FDR’s constitutional revolution in the 1930s—and is coming up with many noteworthy tidbits. Among them is a dissenting opinion by arch-conservative James McReynolds in a 1928 case called Casey v. U.S. At issue was a man’s conviction under a federal statute providing that if an individual was found to possess morphine derivatives without official stamps, it would be prima facie evidence of having obtained them from unlawful sources. Five Justices, led by Holmes, upheld Casey’s conviction, while four (McReynolds, Brandeis, Butler, and Sanford) dissented on various grounds.
Read more at http://www.cato.org/blog/drug-war-vs-constitution-1928-edition
Read more at http://www.cato.org/blog/drug-war-vs-constitution-1928-edition
Cato: Constitutional Legerdemain – Recess Appointments Branch
Constitutional restoration this far down the road will almost certainly come in small steps, one decision at a time, as in a case the Supreme Court heard last week, National Labor Relations Board v. Noel Canning. By most accounts, the justices were skeptical of the government’s claim that the president could make recess appointments when the Senate was arguably not in recess. That’s got friends of the modern executive state worried. Witness an op-ed in yesterday’s New York Times by AEI’s Norman Ornstein, than whom modern expansive government has few greater friends. Ordinarily a strong congressionalist, Ornstein here, in “Disarming the White House,” is alarmed that the case “represents the biggest threat to presidential power in decades.”
Given that President Obama, nearly every day, is making good on Nancy Pelosi’s counsel that we needed to pass Obamacare to find out what’s in it, we’ll be forgiven for thinking that the power of the president to make law as he goes along could use some threatening. But here it’s not some imagined presidential lawmaking power that’s at issue. It’s a real power, grounded in the Constitution, “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
Read more at http://www.cato.org/blog/constitutional-legerdemain-recess-appointments-branch
Given that President Obama, nearly every day, is making good on Nancy Pelosi’s counsel that we needed to pass Obamacare to find out what’s in it, we’ll be forgiven for thinking that the power of the president to make law as he goes along could use some threatening. But here it’s not some imagined presidential lawmaking power that’s at issue. It’s a real power, grounded in the Constitution, “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
Read more at http://www.cato.org/blog/constitutional-legerdemain-recess-appointments-branch
Cato: Should Free Traders Support Free Trade Agreements?
With the Trans-Pacific Partnership negotiations allegedly near completion, the transatlantic talks kicking into higher gear, and debate in Congress over U.S. trade policy objectives about to intensify, 2014 is shaping up to be the most consequential year for the trade agenda in a long time. Whether real free traders should rejoice over these developments depends on the emerging details, as well as the ability to avoid making the perfect the enemy of the good.
Real free traders abhor domestic trade barriers and want them removed regardless of whether other governments remove their own barriers. The benefits of trade are the imports we obtain, not the exports we give up. The immediate benefits are measured by the value of imports that can be purchased for a given unit of exports – the more, the better – and domestic barriers reduce those terms of trade. Of course, there are also the secondary benefits of imports, which include greater variety, lower prices, more competition, better quality, and the innovation spawned by those and other factors.
The process of U.S. trade policy formulation has never been particularly accommodating of free traders’ perspectives. Free trade views have been marginalized by their being subsumed within a broader category of views labelled “pro-trade,” which is dominated by business lobbies and other “pro-export” mercantilists. As the definition of free trade has been expanded to mean pro-trade, the definition of protectionism has been narrowed to exclude views, such as: “I’m not a protectionist; I just want a level playing field,” or; “I’m for free trade, as long as it’s fair trade.” Those are the clichés of protectionists, who are now popularly grouped under the pro-trade umbrella.
Read more at http://www.cato.org/blog/should-free-traders-support-free-trade-agreements
Real free traders abhor domestic trade barriers and want them removed regardless of whether other governments remove their own barriers. The benefits of trade are the imports we obtain, not the exports we give up. The immediate benefits are measured by the value of imports that can be purchased for a given unit of exports – the more, the better – and domestic barriers reduce those terms of trade. Of course, there are also the secondary benefits of imports, which include greater variety, lower prices, more competition, better quality, and the innovation spawned by those and other factors.
The process of U.S. trade policy formulation has never been particularly accommodating of free traders’ perspectives. Free trade views have been marginalized by their being subsumed within a broader category of views labelled “pro-trade,” which is dominated by business lobbies and other “pro-export” mercantilists. As the definition of free trade has been expanded to mean pro-trade, the definition of protectionism has been narrowed to exclude views, such as: “I’m not a protectionist; I just want a level playing field,” or; “I’m for free trade, as long as it’s fair trade.” Those are the clichés of protectionists, who are now popularly grouped under the pro-trade umbrella.
Read more at http://www.cato.org/blog/should-free-traders-support-free-trade-agreements
Cato: Scalia the Unlikely Swing Vote in Big Workers Rights Case
Today the Supreme Court heard oral argument in Harris v. Quinn, the case regarding the forced unionization of home healthcare workers in Illinois (and by extension the 10 other states with similar laws). To me this is a pretty easy case: just because the state is paying these workers through its Medicaid program doesn’t mean it employs them – just like my doctor isn’t employed by my health-insurance company – which means that it can’t force them to pay dues to a union that negotiates Medicaid reimbursement rates.
Like most of the labor cases in recent years, however, this one is likely to go 5-4. The so-called “liberal” justices were all openly hostile to the workers’ position, so the challengers will have to sweep the rest of the bench of to win. Fortunately, such an outcome is more than possible – though much will depend on the thinking of Justice Scalia, who was hostile to everyone.
Read more at http://www.cato.org/blog/scalia-unlikely-swing-vote-what-should-be-simple-labor-case
Like most of the labor cases in recent years, however, this one is likely to go 5-4. The so-called “liberal” justices were all openly hostile to the workers’ position, so the challengers will have to sweep the rest of the bench of to win. Fortunately, such an outcome is more than possible – though much will depend on the thinking of Justice Scalia, who was hostile to everyone.
Read more at http://www.cato.org/blog/scalia-unlikely-swing-vote-what-should-be-simple-labor-case
Cato: Obama Administration Sacrifices Security and Human Rights in Egypt
A new pharaoh is rising in Egypt. Gen. Abdel Fata al-Sisi is preparing to grasp supreme power, most likely as the country’s next president. He is posing as democracy’s savior while his troops detain or kill those opposing him. The arrests and shootings continued during last week’s constitutional referendum.
During the Cold War the U.S. stole Cairo away from the Soviet Union. When revolution loomed in 2011 the administration endorsed dictator Hosni Mubarak, before trying to work with newly elected President Mohammed Morsi. But the latter failed to expand his popular appeal and discredited the Muslim Brotherhood, making his defeat almost certain in the next poll.
Read more at http://www.cato.org/blog/obama-administration-sacrifices-security-human-rights-egypt
During the Cold War the U.S. stole Cairo away from the Soviet Union. When revolution loomed in 2011 the administration endorsed dictator Hosni Mubarak, before trying to work with newly elected President Mohammed Morsi. But the latter failed to expand his popular appeal and discredited the Muslim Brotherhood, making his defeat almost certain in the next poll.
Read more at http://www.cato.org/blog/obama-administration-sacrifices-security-human-rights-egypt
Cato: The Minimum Wage: Immoral and Inefficient
Democratic politicians are desperate to make up for ObamaCare’s disastrous roll-out. Thirteen states are increasing their minimums this year, and some Democrats believe raising the national minimum wage is a winning campaign issue for November.
There’s no doubt that raising the minimum wage would reduce employment and slow economic growth. Worse, government wage-setting is immoral. It is unfair and wrong for politicians to posture as philanthropists while forcing other people to pay higher salaries.
Read more at http://www.cato.org/blog/minimum-wage-immoral-inefficient
There’s no doubt that raising the minimum wage would reduce employment and slow economic growth. Worse, government wage-setting is immoral. It is unfair and wrong for politicians to posture as philanthropists while forcing other people to pay higher salaries.
Read more at http://www.cato.org/blog/minimum-wage-immoral-inefficient
Cato: Unanimous SCOTUS Decides Two Civil Procedure Cases
This morning the U.S. Supreme Court handed down two unanimous cases correcting appeals courts on issues of civil procedure. In Mississippi ex rel. Hood v. AU Optronics, it reversed a Fifth Circuit ruling that a consumer lawsuit by the state of Mississippi was enough like a class action that it should be heard in federal rather than state court under the procedures specified by the Class Action Fairness Act. In Daimler AG v. Bauman et al, it reversed a Ninth Circuit ruling that because worldwide auto giant Daimler has operations in California, it can properly be sued in that state over alleged misconduct in Argentina that has nothing in particular to do with its California operations.
Neither result is even remotely surprising (and Cato did not file amicus briefs in either case). In the AU Optronics case, CAFA’s plain language supported the state of Mississippi’s position, and arguments that removal was more consistent with the law’s spirit added up to a plea for the business community (which identifies with the defendant side here) to get a better deal than it managed to get during the negotiations that led to the law’s passage. In the Daimler case, the Court again confirmed, as in the Kiobel v. Royal Dutch Petroleum case discussed at length by Kenneth Anderson in the latest Cato Supreme Court Review, that it is deeply out of sympathy with “universal jurisdiction” notions beloved in some parts of legal academia and the world of activist NGOs (non-governmental organizations), under which labeling something a “human rights” matter should open the way for suit to be brought over it in more or less any court anyplace.
Read more at http://www.cato.org/blog/unanimous-scotus-decides-two-civil-procedure-cases
Neither result is even remotely surprising (and Cato did not file amicus briefs in either case). In the AU Optronics case, CAFA’s plain language supported the state of Mississippi’s position, and arguments that removal was more consistent with the law’s spirit added up to a plea for the business community (which identifies with the defendant side here) to get a better deal than it managed to get during the negotiations that led to the law’s passage. In the Daimler case, the Court again confirmed, as in the Kiobel v. Royal Dutch Petroleum case discussed at length by Kenneth Anderson in the latest Cato Supreme Court Review, that it is deeply out of sympathy with “universal jurisdiction” notions beloved in some parts of legal academia and the world of activist NGOs (non-governmental organizations), under which labeling something a “human rights” matter should open the way for suit to be brought over it in more or less any court anyplace.
Read more at http://www.cato.org/blog/unanimous-scotus-decides-two-civil-procedure-cases
Cato: FCC to Make Internet Service a Public Utility
Do you want your Internet service provider to operate like the water company or the electric company? Internet access services will be more like these leaden public utilities if the Federal Communications Commission tries one of the more likely workarounds to a D.C. Circuit Court decision today that restricts its authority to regulate.
The story is long and involved—read it in the court’s opinion if you like—but the FCC has sought for years now to regulate broadband Internet service providers something like it used to regulate AT&T, with government mandated terms of service if not tarriffs and price controls. This doesn’t fit the technical environment of the Internet, which allows for diverse business models. Companies that experiment with network management, pricing, internal subsidy, and so on can find the configurations that serve widely varying consumers and their differing Internet needs the best. If government believes in fast lanes and slow lanes, surely Internet service providers could optimize service for movie delivery, video calling, and such, while email arrives a little less speedily.
Read more at http://www.cato.org/blog/fcc-make-internet-service-public-utiity
The story is long and involved—read it in the court’s opinion if you like—but the FCC has sought for years now to regulate broadband Internet service providers something like it used to regulate AT&T, with government mandated terms of service if not tarriffs and price controls. This doesn’t fit the technical environment of the Internet, which allows for diverse business models. Companies that experiment with network management, pricing, internal subsidy, and so on can find the configurations that serve widely varying consumers and their differing Internet needs the best. If government believes in fast lanes and slow lanes, surely Internet service providers could optimize service for movie delivery, video calling, and such, while email arrives a little less speedily.
Read more at http://www.cato.org/blog/fcc-make-internet-service-public-utiity
Cato: Dennis Rodman May Be Crazy, But He Is Not Entirely Wrong
That Dennis Rodman is unconventional, even unbalanced, was evident when he played professional basketball. His athletic skills won him a lucrative contract, but his behavior suggested no interest in diplomatic protocol.
He has been much criticized for visiting the Democratic People’s Republic of Korea, a brutal totalitarian dictatorship. There are no political freedoms or civil liberties.
Open Doors just released its latest World Watch List and the DPRK again is rated the globe’s worst religious persecutor. The government tolerates a little more private economic activity, but that free space remains painfully small.
Read more at http://www.cato.org/blog/dennis-rodman-may-be-crazy-he-not-entirely-wrong
He has been much criticized for visiting the Democratic People’s Republic of Korea, a brutal totalitarian dictatorship. There are no political freedoms or civil liberties.
Open Doors just released its latest World Watch List and the DPRK again is rated the globe’s worst religious persecutor. The government tolerates a little more private economic activity, but that free space remains painfully small.
Read more at http://www.cato.org/blog/dennis-rodman-may-be-crazy-he-not-entirely-wrong
Cato: If North Korea Implodes, Its Neighbors Should Pick up the Geopolitical Pieces
The Democratic People’s Republic of Korea remains sui generis, a communist monarchy wrapped in mystery, prone to sporadic brinkmanship and violent spasms. The young leader’s surprise execution of his uncle suggests regime instability, which might spark new international provocations for domestic political purposes.
The latest events have rekindled predictions of a possible North Korean collapse. In a recent study the Rand Corporation’s Bruce Bennett argued that “There is a reasonable probability that North Korean totalitarianism will end in the foreseeable future.”
Of course, DPRK has outlived the Soviet Union by more than two decades. Pyongyang may continue to surprise the West with its resilience.
Nevertheless, the system is under increasing stress. Columnist Steven Metz observed: “The execution could be a sign that the cohesion of the North Korean elite is crumbling.” Jang’s elimination suggests weakness, not strength.
Read more at http://www.cato.org/blog/north-korea-implodes-its-neighbors-should-pick-geopolitical-pieces
The latest events have rekindled predictions of a possible North Korean collapse. In a recent study the Rand Corporation’s Bruce Bennett argued that “There is a reasonable probability that North Korean totalitarianism will end in the foreseeable future.”
Of course, DPRK has outlived the Soviet Union by more than two decades. Pyongyang may continue to surprise the West with its resilience.
Nevertheless, the system is under increasing stress. Columnist Steven Metz observed: “The execution could be a sign that the cohesion of the North Korean elite is crumbling.” Jang’s elimination suggests weakness, not strength.
Read more at http://www.cato.org/blog/north-korea-implodes-its-neighbors-should-pick-geopolitical-pieces
2014-12-29
Cato: Ratifying NSA Spying, a Court Calls FISA ‘Courts’ Into Question
Two weeks ago, when D.C. District judge Richard Leon ruled that mass government surveillance of Americans’ telephone calling was likely unconstitutional, there was some well-poisoning about his opinion being “passionate.” The implication, of course, was that he was not being suitably judicial. The same could be said of this week’s ruling by Judge Pauley of the U.S. District Court in New York. When the first sentence intones: “The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is,” and when the first citation is a “See generally” to the 9/11 Commission report, these are not signs that you’re about to get dispassionate application of law to facts.
Judge Pauley’s use of the 9/11 Commission report to argue that NSA data collection could have foiled the 9/11 plot is belied by the report’s clear statement with respect to Khalid Al-Mihdhar: “No one was looking for him.” (page 269) In our paper, “Effective Counterterrorism and the Limited Role of Predictive Data Mining,” Jeff Jonas and I detailed ways many of the 9/11 terrorists could have been found had anyone been looking. The argument that NSA spying would have prevented 9/11 is not a strong one.
Read more at http://www.cato.org/blog/ratifying-nsa-spying
Judge Pauley’s use of the 9/11 Commission report to argue that NSA data collection could have foiled the 9/11 plot is belied by the report’s clear statement with respect to Khalid Al-Mihdhar: “No one was looking for him.” (page 269) In our paper, “Effective Counterterrorism and the Limited Role of Predictive Data Mining,” Jeff Jonas and I detailed ways many of the 9/11 terrorists could have been found had anyone been looking. The argument that NSA spying would have prevented 9/11 is not a strong one.
Read more at http://www.cato.org/blog/ratifying-nsa-spying
Cato: Denmark Without the Danish? A Crisis of EU Regulation
Two of my lifelong interests — government over-regulation and scrumptious Scandinavian baked goods — have finally intersected:
…scientists have now discovered that too much of the most commonly used type of cinnamon, cassia, can cause liver damage thanks to high levels of coumarin, a natural ingredient found in the spice.
The EU has accordingly decreed that coumarin levels must be kept below 50 mg per kg in “traditional” or “seasonal” foodstuffs eaten only occasionally, and 15 mg per kg in everyday “fine baked goods.” This is triggering a crisis in Denmark:
Read more at http://www.cato.org/blog/denmark-without-danish-crisis-eu-regulation
Cato: President Obama Can’t Dictate Senate Rules
While much attention has focused on the Senate’s recent vote to eliminate the ability to filibuster judicial and executive nominations, another aspect of constitutonal separation of powers will come to the fore in January when the Supreme Court hears argument in NLRB v. Noel Canning.
The Recess Appointments Clause, which gives the president the power to “fill up Vacancies” in federal offices and judgeships that “may happen during the Recess of the Senate,” allows the president to fill vacancies without going through the normal requirements of obtaining the Senate’s “advice and consent.” The Framers understood that, particularly during the nation’s early days, the president and the rest of the executive branch would be the only members of the government in Washington for the entire year, so important offices may become vacant while the Senate was out of session. The Recess Appointments Clause would thus be an important but rarely used exception to the normal confirmation process.
Read more at http://www.cato.org/blog/president-obama-cant-dictate-senate-rules
The Recess Appointments Clause, which gives the president the power to “fill up Vacancies” in federal offices and judgeships that “may happen during the Recess of the Senate,” allows the president to fill vacancies without going through the normal requirements of obtaining the Senate’s “advice and consent.” The Framers understood that, particularly during the nation’s early days, the president and the rest of the executive branch would be the only members of the government in Washington for the entire year, so important offices may become vacant while the Senate was out of session. The Recess Appointments Clause would thus be an important but rarely used exception to the normal confirmation process.
Read more at http://www.cato.org/blog/president-obama-cant-dictate-senate-rules
Cato: The Supreme Court Takes up 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 railroad companies. The Great Railroad Right-of-Way Act of 1875 empowered the government to grant railroad companies right-of-way easements to build tracks across others’ land to facilitate the expansion of the nation’s railways – that is, railroads were granted a right to use sections of another’s property for railroad purposes without owning title to the land underneath. In 1976, the government sold the Brandt family a parcel of land in Wyoming which was crossed by one of these railroad easements.
In 2001, the railroad that owned the easement formally abandoned all claims to it. Typically, when this happens, the easement is simply extinguished and the owner of the land may then use the former easement however he or she wishes. But the federal government had different plans for the thin strip running through the Brandts’ land. In 2006, the government sued for title to the land lying under the former easement on the theory that it had retained a “reversionary interest” in the land when granting the railroad the right of way easement, even though it never actually set aside any interests when granting the easement. The government thus claimed that after the railroad abandoned the easement (after only ever owning an easement and never full title to the land), full title to the land “reverted” back to the federal government. The Brandts argue that under the basic principles of the common law of property, the government had no such right, and that even if any legislative act allowed the government to somehow acquire their land, such an act would require payment of just compensation under the Fifth Amendment’s Takings Clause.
Read more at http://www.cato.org/blog/supreme-court-takes-old-timey-property-rights
In 2001, the railroad that owned the easement formally abandoned all claims to it. Typically, when this happens, the easement is simply extinguished and the owner of the land may then use the former easement however he or she wishes. But the federal government had different plans for the thin strip running through the Brandts’ land. In 2006, the government sued for title to the land lying under the former easement on the theory that it had retained a “reversionary interest” in the land when granting the railroad the right of way easement, even though it never actually set aside any interests when granting the easement. The government thus claimed that after the railroad abandoned the easement (after only ever owning an easement and never full title to the land), full title to the land “reverted” back to the federal government. The Brandts argue that under the basic principles of the common law of property, the government had no such right, and that even if any legislative act allowed the government to somehow acquire their land, such an act would require payment of just compensation under the Fifth Amendment’s Takings Clause.
Read more at http://www.cato.org/blog/supreme-court-takes-old-timey-property-rights
Cato: Ending Nuclear Overkill
Benjamin Friedman and I have an op-ed in today’s International New York Times (and the New York Times iPad app, I just checked) which calls for shrinking the U.S. nuclear arsenal, and moving from a triad of delivery systems—bombers, land-based intercontinental ballistic missiles (ICBMs), and submarine-launched ballistic missiles (SLBMs)—to a submarine-only monad.
The main focus of the piece is on the strategy that led to the enormous growth of the arsenal in the 1950s and 60s, and the attendant history of the triad. We go into the history to show that the strategy driving our nuclear force posture is outdated and based on inaccurate assumptions. The rationale for the triad is equally dubious given the vast technological gains since ICBMs and SLBMs were first developed and deployed.
Read more at http://www.cato.org/blog/ending-nuclear-overkill
The main focus of the piece is on the strategy that led to the enormous growth of the arsenal in the 1950s and 60s, and the attendant history of the triad. We go into the history to show that the strategy driving our nuclear force posture is outdated and based on inaccurate assumptions. The rationale for the triad is equally dubious given the vast technological gains since ICBMs and SLBMs were first developed and deployed.
Read more at http://www.cato.org/blog/ending-nuclear-overkill
Cato: Jury Nullification in DC
Interesting story in today’s Washington Post about a jury nullification billboard in the subway station below the local courthouse. As usual, prosecutors and judges are scrambling to find out what jurors might know about jury nullification–the prerogative of jurors to vote their conscience.
John Adams, our second president, once said, “It is not only [the juror’s] right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” Prosecutors and judges are hostile to such views today.
Read more at http://www.cato.org/blog/jury-nullification-dc
John Adams, our second president, once said, “It is not only [the juror’s] right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” Prosecutors and judges are hostile to such views today.
Read more at http://www.cato.org/blog/jury-nullification-dc
Cato: Obama’s Immigration Speech Déjà vu
Right after Republican Rep. Darrel Issa (CA) announces that he’s introducing a bill to offer legalization for some unauthorized immigrants, President Obama gave a speech about how immigration reform is now his top priority. The President said: “This is not just an idea whose time has come, this is an idea that’s been around for years now.”
The President then blamed all recent political problems and failures to pass reform on Republicans – ignoring the gargantuan efforts of Republicans in the Senate like Marco Rubio (R-FL), Jeff Flake (R-AZ), and others.
Republican support for immigration reform, especially in the House of Representatives, is vital to it becoming law. By stealing the spot light and making immigration a partisan issue, he is distracting from reform.
Read more at http://www.cato.org/blog/obamas-immigration-speech-deja-vu
The President then blamed all recent political problems and failures to pass reform on Republicans – ignoring the gargantuan efforts of Republicans in the Senate like Marco Rubio (R-FL), Jeff Flake (R-AZ), and others.
Republican support for immigration reform, especially in the House of Representatives, is vital to it becoming law. By stealing the spot light and making immigration a partisan issue, he is distracting from reform.
Read more at http://www.cato.org/blog/obamas-immigration-speech-deja-vu
Cato: The Latest Obamacare Case on Appeal
Last year’s Supreme Court decision holding that Obamacare imposes a “tax” on people who don’t buy health insurance came as a surprise to most Americans. The law doesn’t call it a “tax,” but a “penalty,” and the law’s authors and supporters never called it a “tax” when it was enacted. But Chief Justice Roberts and the four liberal justices held that unlike the penalty in the 1922 case of Bailey v. Drexel Furniture – which was disguised as a tax – what the Patient Protection and Affordable Care Act imposed looked like a penalty but was really a tax.
One of the problems with that – left unaddressed in the NFIB v. Sebelius ruling – is that the Constitution requires “all bills for raising revenue” to “originate” in the House of Representatives. If the PPACA imposes a tax, then it fails this requirement because it originated in the Senate.
Read more at http://www.cato.org/blog/latest-obamacare-case-appeal-ninth-circuit
One of the problems with that – left unaddressed in the NFIB v. Sebelius ruling – is that the Constitution requires “all bills for raising revenue” to “originate” in the House of Representatives. If the PPACA imposes a tax, then it fails this requirement because it originated in the Senate.
Read more at http://www.cato.org/blog/latest-obamacare-case-appeal-ninth-circuit
Cato: Court: Anxiety About Getting Fired Can Be ADA Disability
In 2008 Congress passed something called the ADA Amendments Act, which reversed various Supreme Court decisions and expanded other rules and definitions so as to enable many more persons to claim status as disabled for purposes of filing discrimination lawsuits under the Americans with Disabilities Act.
I predicted the ADAAA would lead to bad consequences, but even I didn’t foresee what happened in this South Dakota federal case, as told by employment blogger Eric B. Meyer. The plaintiff is a teacher who had been given a poor evaluation and been put on a “performance improvement” plan.
Read more at http://www.cato.org/blog/court-anxiety-about-getting-fired-can-be-ada-disability
I predicted the ADAAA would lead to bad consequences, but even I didn’t foresee what happened in this South Dakota federal case, as told by employment blogger Eric B. Meyer. The plaintiff is a teacher who had been given a poor evaluation and been put on a “performance improvement” plan.
Read more at http://www.cato.org/blog/court-anxiety-about-getting-fired-can-be-ada-disability
Cato: The Government Shutdown on the Web
If you’ve tried to reach a government site today, you may have noticed that the “shutdown” applies to the virtual homes and social media accounts of federal agencies no less than their brick-and-mortar offices… at least some them. It’s a bit hard to make sense of why some sites remain up (some with a “no new updates” banner) while others are redirected to a shutdown notice page—and in many cases it’s puzzling why a shutdown would be necessary at all. With the offices closed, you might not have personnel on hand to add new content or other updates, but is pulling the existing content down strictly necessary?
For agencies that directly run their own Web sites on in-house servers, shutting down might make sense if the agency’s “essential” and “inessential” systems are suitably segregated. Running the site in those cases eats up electricity and bandwidth that the agency is paying for, not to mention the IT and security personnel who need to monitor the site for attacks and other problems. Fair enough in those cases. But those functions are, at least in the private sector, often outsourced and paid for up front: if you’ve contracted with an outside firm to host your site, shutting it down for a few days or weeks may not save any money at all. And that might indeed explain why some goverment sites remain operational, even though they don’t exactly seem “essential,” while others have been pulled down.
Read more at http://www.cato.org/blog/online-washington-monument-syndrome
For agencies that directly run their own Web sites on in-house servers, shutting down might make sense if the agency’s “essential” and “inessential” systems are suitably segregated. Running the site in those cases eats up electricity and bandwidth that the agency is paying for, not to mention the IT and security personnel who need to monitor the site for attacks and other problems. Fair enough in those cases. But those functions are, at least in the private sector, often outsourced and paid for up front: if you’ve contracted with an outside firm to host your site, shutting it down for a few days or weeks may not save any money at all. And that might indeed explain why some goverment sites remain operational, even though they don’t exactly seem “essential,” while others have been pulled down.
Read more at http://www.cato.org/blog/online-washington-monument-syndrome
Cato: The Downside of Alliances: Being Dragged into Other People’s Conflicts
British territorial disputes with Argentina and Spain are heating up, leading to demands that Washington support its foremost ally. However, George Washington was correct when he warned the U.S. against permanent foreign entanglements.
In 1982, the Argentine military junta failed in its attempt to seize the Falkland Islands from Great Britain. Three years ago, the prospect of energy development triggered renewed claims from Buenos Aires and a campaign of commercial harassment.
Tensions between Britain and Spain over Gibraltar, a peninsula, also have flared. Last year, Spanish Prime Minister Mariano Rajoy urged talks over the island’s sovereignty. In July, the Gibraltar authorities blocked access by Spanish fishermen to surrounding waters, leading Spain to initiate lengthy border inspections and threaten other retaliatory measures.
Read more at http://www.cato.org/blog/downside-alliances-being-dragged-other-peoples-conflicts
In 1982, the Argentine military junta failed in its attempt to seize the Falkland Islands from Great Britain. Three years ago, the prospect of energy development triggered renewed claims from Buenos Aires and a campaign of commercial harassment.
Tensions between Britain and Spain over Gibraltar, a peninsula, also have flared. Last year, Spanish Prime Minister Mariano Rajoy urged talks over the island’s sovereignty. In July, the Gibraltar authorities blocked access by Spanish fishermen to surrounding waters, leading Spain to initiate lengthy border inspections and threaten other retaliatory measures.
Read more at http://www.cato.org/blog/downside-alliances-being-dragged-other-peoples-conflicts
Cato: Protecting the Rights of Workers Against Forced Association
The Labor Management Relations Act (a.k.a. the Taft-Hartley Act) was passed in 1947 in order to curb the tide of unfair labor practices that had arisen since the National Labor Relations Act (NLRA) was passed in 1935. The NLRA established a legal regime that was friendly to unions and unfriendly to the rights of workers who dissented from attempts to unionize workplaces. Unions have many tools at their disposal to ease the path to unionization, but the government should not prefer the rights of those who wish to be unionized at the expense of those who do not.
One part of Taft-Hartley, Section 302, addresses the problem of corruption between unions and employers by prohibiting employers from giving “any money or thing of value” to a union seeking to represent its employees. Martin Mulhall is a 40-year employee for the Mardi Gras greyhound racetrack and casino in Hollywood, Florida, and he opposes the efforts of Local 355 to unionize Mardi Gras’s employees. Mr. Mulhall’s desire not to be unionized is no less valid or constitutionally protected than those who push for unionization, and thus he is a perfect example of an employee for whom the Taft-Hartley Act passed to protect.
Read more at http://www.cato.org/blog/protecting-rights-workers-against-forced-association
One part of Taft-Hartley, Section 302, addresses the problem of corruption between unions and employers by prohibiting employers from giving “any money or thing of value” to a union seeking to represent its employees. Martin Mulhall is a 40-year employee for the Mardi Gras greyhound racetrack and casino in Hollywood, Florida, and he opposes the efforts of Local 355 to unionize Mardi Gras’s employees. Mr. Mulhall’s desire not to be unionized is no less valid or constitutionally protected than those who push for unionization, and thus he is a perfect example of an employee for whom the Taft-Hartley Act passed to protect.
Read more at http://www.cato.org/blog/protecting-rights-workers-against-forced-association
Cato: Should Ill-Fated Activists Expect Rescue from Washington?
Kenneth Bae is a 44-year-old Christian missionary who was arrested last November while leading a tour of North Korea’s Rason special economic zone. He wanted to spread the Gospel, but the Democratic People’s Republic of Korea views religion as a particularly serious threat.
Bae was sentenced to 15 years of hard labor. His letters home, said his sister, Terri Chung, “contained the same message—Kenneth’s health is failing, and he asked us to seek help from our government to bring him home.” He urged Washington to send an envoy for him.
Bae’s mother was even more insistent: “I don’t see any action. I want to ask them, send an envoy or do something. As a mother, I am really getting angry, really getting angry. What do they do?”
Read more at http://www.cato.org/blog/should-ill-fated-activists-expect-rescue-washington
Bae was sentenced to 15 years of hard labor. His letters home, said his sister, Terri Chung, “contained the same message—Kenneth’s health is failing, and he asked us to seek help from our government to bring him home.” He urged Washington to send an envoy for him.
Bae’s mother was even more insistent: “I don’t see any action. I want to ask them, send an envoy or do something. As a mother, I am really getting angry, really getting angry. What do they do?”
Read more at http://www.cato.org/blog/should-ill-fated-activists-expect-rescue-washington
Cato: Obama Administration Ignores Supreme Court, Encourages Racial Preferences
Two months ago I wrote about the University of Texas’s attempts to delay the final reckoning from the Supreme Court’s near-unanimous ruling in the Fisher case that public institutions must overcome a high constitutional bar when they use race in admissions decisions. Courts must make “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”
“The university must prove,” Justice Kennedy wrote for the 7-justice majority, “that the means chosen by the university to attain diversity are narrowly tailored.” Far from attempting to prove that, however, UT-Austin is playing lawyer games and trying to re-litigate previously decided procedural issues.
But at least UT-Austin recognizes that its back is against the wall. The Obama administration, for its part, is pretending that nothing has changed, that colleges can continue discriminating based on skin color to achieve their elusive “diversity.”
Read more at http://www.cato.org/blog/obama-administration-ignores-supreme-court-encourages-racial-preferences
“The university must prove,” Justice Kennedy wrote for the 7-justice majority, “that the means chosen by the university to attain diversity are narrowly tailored.” Far from attempting to prove that, however, UT-Austin is playing lawyer games and trying to re-litigate previously decided procedural issues.
But at least UT-Austin recognizes that its back is against the wall. The Obama administration, for its part, is pretending that nothing has changed, that colleges can continue discriminating based on skin color to achieve their elusive “diversity.”
Read more at http://www.cato.org/blog/obama-administration-ignores-supreme-court-encourages-racial-preferences
Cato: DOJ Lawsuit Would Keep Blacks in Failing Schools
In the name of civil rights, the Department of Justice is trying to prevent black families from exercising school choice.
On the heels of the Southern Poverty Law Center’s ridiculous lawsuit against Alabama’s new school choice law, which contends that if a law doesn’t help everyone it can’t help anyone, the U.S. Department of Justice is suing to block the state of Louisiana’s school voucher program for low-income students and students assigned to failing public schools:
"The Justice Department’s primary argument is that letting students leave for vouchered private schools can disrupt the racial balance in public school systems that desegregation orders are meant to protect. Those orders almost always set rules for student transfers with the school system."
"Federal analysis found that last year’s Louisiana vouchers increased racial imbalance in 34 historically segregated public schools in 13 systems. The Justice Department goes so far as to charge that in some of those schools, “the loss of students through the voucher program reversed much of the progress made toward integration.”"
Segregation! That’s a serious charge. What evidence does the Department of Justice cite?
"In Tangipahoa Parish, for instance, Independence Elementary School lost five white students to voucher schools, the petition states. The consequent change in the percent of enrolled white students “reinforc(ed) the racial identity of the school as a black school.”"
Five students! According to the National Center for Education Statistics (NCES), there were 143 white students out of 482 students at Independence Elementary School in 2010-11 (the most recent year for which data is available). Assuming that recent enrollment and racial composition is the same and that no black students received vouchers as well, that’s a 0.7 percentage point shift from 29.6 percent white to 28.9 percent white. Though the students at Independence almost certainly would not have noticed a difference, the racial bean counters at the DOJ see worsening segregation.
Read more at http://www.cato.org/blog/doj-lawsuit-would-keep-blacks-failing-schools
On the heels of the Southern Poverty Law Center’s ridiculous lawsuit against Alabama’s new school choice law, which contends that if a law doesn’t help everyone it can’t help anyone, the U.S. Department of Justice is suing to block the state of Louisiana’s school voucher program for low-income students and students assigned to failing public schools:
"The Justice Department’s primary argument is that letting students leave for vouchered private schools can disrupt the racial balance in public school systems that desegregation orders are meant to protect. Those orders almost always set rules for student transfers with the school system."
"Federal analysis found that last year’s Louisiana vouchers increased racial imbalance in 34 historically segregated public schools in 13 systems. The Justice Department goes so far as to charge that in some of those schools, “the loss of students through the voucher program reversed much of the progress made toward integration.”"
Segregation! That’s a serious charge. What evidence does the Department of Justice cite?
"In Tangipahoa Parish, for instance, Independence Elementary School lost five white students to voucher schools, the petition states. The consequent change in the percent of enrolled white students “reinforc(ed) the racial identity of the school as a black school.”"
Five students! According to the National Center for Education Statistics (NCES), there were 143 white students out of 482 students at Independence Elementary School in 2010-11 (the most recent year for which data is available). Assuming that recent enrollment and racial composition is the same and that no black students received vouchers as well, that’s a 0.7 percentage point shift from 29.6 percent white to 28.9 percent white. Though the students at Independence almost certainly would not have noticed a difference, the racial bean counters at the DOJ see worsening segregation.
Read more at http://www.cato.org/blog/doj-lawsuit-would-keep-blacks-failing-schools
Cato: Thoughts on the Government Shutdown
All eyes are on the government shutdown battle over Obamacare. Here are a few thoughts:
* House Republicans had six months to strategize since the last budget battle, so why did they leave it until the last minute to figure out what to do? They seem to have been unified in recent votes to defund and delay Obamacare. So why didn’t they announce their strategy months ago, draw a hard line, and then spend the summer building public support for their plan? The Democrats have a stronger hand because they have been giving a consistent message.
* The lack of leadership from the House created a void that Senator Cruz filled. Some House members didn’t like Cruz getting the spotlight and telling them what to do, but they should have had their act together.
* Obamacare opposition has been rising steadily this year. Even if Republicans don’t succeed with defunding Obamacare at this point, the polls may convince them to try again later. This battle could have been just a warm-up for a future battle if the polls get even worse for Obamacare.
Read more at http://www.cato.org/blog/thoughts-government-shutdown
* House Republicans had six months to strategize since the last budget battle, so why did they leave it until the last minute to figure out what to do? They seem to have been unified in recent votes to defund and delay Obamacare. So why didn’t they announce their strategy months ago, draw a hard line, and then spend the summer building public support for their plan? The Democrats have a stronger hand because they have been giving a consistent message.
* The lack of leadership from the House created a void that Senator Cruz filled. Some House members didn’t like Cruz getting the spotlight and telling them what to do, but they should have had their act together.
* Obamacare opposition has been rising steadily this year. Even if Republicans don’t succeed with defunding Obamacare at this point, the polls may convince them to try again later. This battle could have been just a warm-up for a future battle if the polls get even worse for Obamacare.
Read more at http://www.cato.org/blog/thoughts-government-shutdown
Cato: New Mexico Court Is Wrong: Government Must Treat People Equally, but Individuals Should Have Liberty to Speak, Associate, and Believe
On Thursday, the New Mexico Supreme Court ruled in Elane Photography v. Willcock that the First Amendment doesn’t protect a photographer’s right to decline to take pictures of a same-sex wedding against the requirements of the state’s Human Rights Act, which forbids discriminating against people on the basis of sexual orientation. This is a terrible result, for the freedom of speech and association, and for religious liberty. As I’ve argued before, even supporters of marriage equality (and equality generally) should not be blind to other violations of fundamental rights.
The New Mexico law is one of multiple state and federal “public accommodations” laws that prohibit private discrimination by companies that offer services to the public. These laws are antithetical to liberty and forbidden by the Constitution. The Supreme Court held in 1883’s Civil Rights Cases that the 14th Amendment – the provision that speaks to equal protection – doesn’t authorize Congress to legislate against discrimination by private citizens.
Read more at http://www.cato.org/blog/new-mexico-court-wrong-government-must-treat-people-equally-individuals-should-have-liberty
The New Mexico law is one of multiple state and federal “public accommodations” laws that prohibit private discrimination by companies that offer services to the public. These laws are antithetical to liberty and forbidden by the Constitution. The Supreme Court held in 1883’s Civil Rights Cases that the 14th Amendment – the provision that speaks to equal protection – doesn’t authorize Congress to legislate against discrimination by private citizens.
Read more at http://www.cato.org/blog/new-mexico-court-wrong-government-must-treat-people-equally-individuals-should-have-liberty
Cato: Defending the Right to Public Presence
The essential distinction between “private” and “public” property is the egalitarian nature of the latter. There’s no true equality in private property: its owners are free to set whatever restrictions on its use they wish.
On the other hand, public property, especially public fora such as sidewalks, parks, and roads—which have traditionally been available for public speeches, protests, and rallies—is entirely different. Just as we’re all equal in a court of law, or at the ballot box, we’re all supposed to be equal in our freedom to use and enjoy public spaces.
Read more at http://www.cato.org/blog/defending-right-public-presence
On the other hand, public property, especially public fora such as sidewalks, parks, and roads—which have traditionally been available for public speeches, protests, and rallies—is entirely different. Just as we’re all equal in a court of law, or at the ballot box, we’re all supposed to be equal in our freedom to use and enjoy public spaces.
Read more at http://www.cato.org/blog/defending-right-public-presence
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