Political Ramblings of a Madman

2013-05-30

Cato: NATO: An Alliance Past Its Prime

On May 20, the 2012 NATO Chicago summit will bring together the heads of state from the alliance. The agenda reads like a rundown of major world events in the past two years: the Arab Spring, the Libyan civil war, the global financial crisis, and the war in Afghanistan. It seems no problem is too big for NATO.

Of these topics, the most pressing and headline-grabbing will be the plan NATO and the United States establish to gradually turn responsibility for security in Afghanistan over to the Afghan national forces. But also of note are the topics—“lessons learned from Libya,” and the “Smart Defense Initiative,”—that display the reliance of Europe on the United States for advanced military capabilities. Libya in particular showcased Europe’s inability to act without the U.S.

The lessons from Libya are two-fold, and it is important to keep them in mind as policymakers and pundits in Washington call for the next U.S. intervention, possibly in Syria or Iran. First, the results so far have been disappointing for America’s latest stab at coercive democratization.

Cato: For Obama Crowd, Judicial Activism Suddenly Isn’t Cool Anymore

President Obama and his supporters have had a turbulent relationship with Supreme Court. It reached a low point when he said that striking down his massive health care overhaul — which he said “was passed by a strong majority of a democratically elected Congress” — would be an act of illicit “judicial activism.” Though the president later backtracked, his allies continue to lament the prospect that the Supreme Court will do its job — most recently in a Chicago Tribune op-ed penned by House Minority Nancy Pelosi this week.

The episode harkens back to a nasty chapter in legal history: the clash between the Court and President Franklin Roosevelt during the 1930s. Fortunately, today’s Americans are unlikely to welcome a repeat of that confrontation, and President Obama would be wise not to try impugning the High Court, as Roosevelt did.

FDR’s fight with the Court began after the justices struck down some of the New Deal’s largest components. It is well to remember how absurd these programs were: in Schechter Poultry v. United States, for example, the justices invalidated a law that barred grocery shoppers from choosing which chicken they wanted — buyers were forced to reach into a cage and pick a random chicken, the idea being to protect farmers from having to charge less for scrawnier birds. That law — like other programs forcing farmers to destroy food to raise prices — was meant to boost farmers’ income, but it meant less food for everyone, an awful idea in the depths of a Depression, and one that overstepped constitutional boundaries. The Constitution only allows Congress to regulate interstate commerce — not to control prices at neighborhood farmer’s markets.

Cato: China’s Dilemma: Power vs Freedom

In a recent survey of nearly 6,000 high-income, college-educated individuals in 25 countries, the Edelman Trust Barometer found that 43% trusted government institutions. In the United States that figure was 45%, while in China it was 75%. The fact that more of the “informed public” in China trust government than in the United States may seem puzzling.

America has a constitution that limits the power of government and protects individual rights; China has no genuine rule of law, a one-party state, and weak or nonexistent protection of human rights. How can successful people in China have greater trust in government than those in America?

The answer is simple: in China the surest path to riches is through power; in America it is through freedom. The all-encompassing hold on political power by the Chinese Communist Party (CCP) and its control of the commanding heights of the economy mean that those who hold power are privileged in the race to the top of the economic ladder. Even with more than three decades of economic reform, political reform has seriously lagged.

There is no independent judiciary to safeguard rights to life, liberty, and property. State-owned banks lend to state-owned enterprises, all of which are run by the party elite. Asking the “princelings” if they trust government is like asking children if they like candy. If the Edelman Trust Barometer had asked ordinary Chinese whether they trusted government institutions, their answer, if they were free to express themselves, would be an emphatic “no!”

Cato: If Only Politicians Were More Like Good Parents

Sometimes I wish politicians were more like good parents. I know that doesn’t sound very libertarian – the last thing we want is for politicians to become humanity’s moms and dads – but there’s at least one thing good parents do that most politicians constantly avoid: saying “no.”

When kids want their food pyramids to have a base of candy, center of ice cream, and peak of ice cream with candy sprinkles, good parents say “no.”

When young ‘uns want to show off their mumblety-peg skills with the Bowie knife they found in dad’s old camping gear, good parents say “no.”

And when the children want to borrow the family sedan for a little off-road speed competition, good parents say “no.”

Of course, saying no all the time doesn’t make life with the kiddos easy or fun. The kids get angry. Mom and dad fume. “I hate you” may even be uttered. But refusing to help the children seriously endanger their arteries, digits, or worse – even if it makes the parents’ life tougher – is what good parenting is all about.

Cato: A Gold-based Currency Board, Please

Until early in the 20th century, gold played a central role in the world of money. Gold had an incredible run — almost three thousand years. And why not? After all, Professor Roy Jastram convincingly documents in The Golden Constant just how gold maintains its purchasing power over long periods of time.

But, since President Richard Nixon closed the gold window in August 1971, gold has not played a formal role in the international monetary regime. Today, the “regime” is characterized by many as a chaotic non-system. In the past decade, gold prices have surged and there have been noises in some quarters that gold’s formal role should be re-established in the sphere of international money. Nobelist Robert Mundell has gone so far as to predict that “Gold will be part of the structure of the international monetary system in the twenty-first century.”

Automatic Currency Boards versus Central Banks
Gold-based currency boards could transform Professor Mundell’s prediction into a reality. Currency boards have existed in more than 70 countries and a number are still in operation today. Countries with such monetary institutions have experienced more fiscal discipline, superior price stability, and higher growth rates than comparable countries with central banks. An orthodox currency board is a monetary institution that issues notes and coins (some currency boards have, however, also accepted deposits).

Its monetary liabilities are freely convertible into a reserve currency (also called the anchor currency) at a fixed rate on demand. The reserve currency is a convertible foreign currency or a commodity chosen for its expected stability. For reserves, such a currency board holds low-risk, interest-earning securities and other assets payable in the reserve currency. Its reserves equal 100 percent or slightly more of its notes and coins in circulation, as set by law.

Cato: Economic Judgment on Arizona’s Immigration Law

On April 25, the U.S. Supreme Court will hear oral arguments over the constitutionality of Arizona’s controversial immigration law. But jurisprudence aside, the economic verdict is already in: The law has damaged Arizona’s economy.

Arizona’s immigration law burdens businesses with regulation and penalizes workers. It has driven tens of thousands of laborers, consumers and entrepreneurs from the state, turning its bad economy even worse.

At its heart, Arizona’s immigration policy is an unfunded mandate that raises the cost of hiring workers and expanding production. Neither is good policy in even the best of economies, which we are far from experiencing currently.

The worst example: E-Verify. It’s an electronic verification system that employers are supposed to use to check the legal work status of all new employees. Besides failing to detect unauthorized immigrants 54 percent of the time — thus flunking its core function — E-Verify falsely identifies legal workers as illegal about one percent of the time.

Arizona’s immigration law also expands the so-called “business death penalty,” where second-time offenders who knowingly or intentionally hire unauthorized workers lose their business licenses. This penalty deters businesses from moving to Arizona, expanding within in the state, or even starting up in the first place.

Cato: Immigration Laws at the Supreme Court: Constitutional but Bad Policy

For anyone suffering from post-Obamacare-argument Supreme Court withdrawal, this Wednesday the Court takes up Arizona’s controversial Senate Bill (“SB”) 1070. See my blogpost from when the Court granted review for some background.

SB 1070 is much-misunderstood: it has nothing to do with sexy political issues like racial profiling and everything to do with boring legal ones like whether a given state provision is “preempted” by federal law. That is, do the various parts of the state law – each one of which the Court will be evaluating independently – conflict with federal law (direct preemption) or intrude in an area exclusively reserved to Congress (implied preemption).

United States v. Arizona shows that there’s a difference between what’s constitutional and what’s good policy. SB 1070 was crafted to mirror federal law rather than asserting new state powers that interfere with federal authority over immigration. That’s why lower courts only enjoined four of its provisions and why the Supreme Court would not be wrong to resurrect even those four.

Cato: TED Goes to School

In this new TEDx video, University of Newcastle (England) lecturer Pauline Dixon takes viewers on a tour of schools serving some of the poorest people on Earth. Private schools … that charge fees … that are paid for by the poor parents themselves … and that outperform local government schools spending far more per pupil. I know. You’ll just have to watch it.

If your curiosity is piqued afterwards, check out her colleague James Tooley’s wonderful book, The Beautiful Tree, which tells the story of their travels and research. It will blow your mind.

Cato: The Death of Economic Liberty and the Birth of Crony Capitalism

The sordid history of crony capitalism in America was highlighted in Hettinga v. United States, a recent opinion by Judge Janice Rogers Brown of the United States Court of Appeals for the District of Columbia Circuit. Contrary to popular belief, that history didn’t begin when big businesses and billionaires began spending fortunes on lobbying and campaign contributions. It began when the New Deal-era Supreme Court stopped protecting fundamental economic liberties guaranteed by the Constitution.

Hettinga arose from a challenge by an enterprising dairyman to the dairy industry’s regulatory stranglehold on milk distribution. As the Washington Post reported in 2006, Hein Hettinga is a Dutch-born immigrant who, by bottling milk from his own cows, was able to work outside the antiquated, industry-backed system of milk regulation. This “loophole” allowed him to charge 20 cents less per gallon than his competition. Unfortunately for him, his competition was “big dairy,” and they didn’t appreciate being undercut in price. According to an economist for the Dairy Farmers of America, Hettinga’s cheaper milk was “damaging to the marketplace,” even though the existing regulatory system raises costs to American consumers by nearly $1.5 billion per year.

Big dairy eliminated their competitor by lobbying Washington, D.C. lawmakers to close the “loophole” that was being “exploited” by Mr. Hettinga. Senators John Kyl (R-Ariz.) and Harry Reid (D-Nev.) compromised on a deal that would exempt milk producers in Nevada from the regulatory framework and make Mr. Hettinga pay dues into the price-controlled pool, effectively subsidizing his competitors.

Cato: Making the Case for Marijuana Legalization

The outlook for marijuana legalization is brighter than ever.

Numerous states have decriminalized or medicalized, and many others are considering these steps or even full legalization. The situation is similar across Europe, and several Latin American presidents want to discuss legalization.

The opportunity for legalization is therefore ripe, but the task is still daunting. About half of Americans still oppose legalization. Public opinion has swung toward legalization in the past, only to reverse in subsequent years. A legalization bill in California polled well initially but then failed at the ballot box in November 2010.

Thus, advocates of legalization must figure out which arguments are effective, and which are not. Unfortunately, many standard defenses are unpersuasive and risk doing more harm than good.

One problematic claim is that legalization will generate a huge budgetary windfall. This argument has some truth, since legalization means reduced expenditure and increased tax revenue. For marijuana only, however, the magnitudes are modest, so it is easy to exaggerate this benefit. And the public knows that legalizers would still be legalizers even without a budgetary benefit, so this approach diminishes credibility.

Another awkward argument is that legalization is mainly about helping the sick via medical marijuana. Everyone knows that medical marijuana facilitates recreational use, and that many “medicalizers” are content with this outcome. So the medical marijuana approach seems sneaky. Worse, it has generated a new opponent of full legalization, medical marijuana producers who do not want competition.

Cato: Tax Complexity: Am I a Liar?

Andrew Sullivan cited an op-ed of mine last week regarding the complexity of the tax code.

One person commenting on Andrew’s article said:

I am a corporate tax lawyer with 25 years’ experience. I can’t prove it, but in my experience the vast majority of the complexity of the tax law has nothing to do with tax breaks. It has to do with providing precise rules to deal with an infinite variety of structures and transactions, in the face of taxpayers and their tax counsel who are determined to minimize their tax bill. Rules relating to tax breaks are insignificant in volume compared to the rules relating to consolidated tax returns, corporate reorganizations, foreign tax credits, taxation of the foreign subsidiaries of U.S. corporations (Subpart F) and hundreds of other things.

The Cato Institute article you link to is filled with lies and half-truths (which is about what I would expect from a Cato Institute article on taxes). The ‘tax rules’ do not span 73,608 pages and do not cover nine feet of shelf space. The standard CCH edition of the Code is 5,500 pages long, but that is highly misleading. That volume is targeted at tax practitioners and includes old statutory provisions that have been repealed or revised. Because of the obscure way that the regs are paginated, it is not easy to tell how many pages they are, but I would estimate it at about 30,000 pages, which includes proposed regs and the preambles to regulations. The entire set of Code and regs takes up about 18 inches on my shelf. To give you an idea about how much the Code and regs have expanded over the years, my set from 1987 takes up around 10 inches.

The volume that Chris Edwards describes in the Cato article probably refers to the bound CCH Standard Federal Tax Reporter, which may indeed cover nine feet and contain 73,608 pages. However, that volume is exclusively designed for practitioners and includes not only the Code and regs, but also commentary written by CCH and annotations from case law.

I don’t understand why people make such snarky comments when they clearly haven’t done their homework. Let me note first that I mainly agree with the writer’s first paragraph, at least with respect to the business tax code. He points to what I call “homemade” loopholes, which are different from the loopholes specifically legislated by Congress for special interests. Homemade loopholes stem from the inherent complexity of taxing business income, and they are an important reason why chopping the high U.S. corporate tax rate would create a large dynamic response from businesses. That is, it would not be worth the cost or legal risk for businesses to invent so many tax avoidance tricks if we had a much lower corporate tax rate. If we cut the rate, the U.S. corporate tax base would expand automatically as homemade loopholes shrank.

Cato: Capitalism Will Eliminate Poverty in Africa

The recent recession has reinvigorated anti-capitalists everywhere, not least in Africa. In the continent’s economic powerhouse, South Africa, the rhetoric has, perhaps surprisingly, been most ardent. Blade Nzimande, the Minister of Higher Education and Training, said that there were no capitalist ideas that could address the problems that South Africa faces. Jeremy Cronin, the Minister of Transport said that “There is now a well-established scientific consensus that our present global economic trajectory is leading human civilization towards catastrophe.” Not to be outdone, the Deputy President Kgalema Motlanthe warned that “Capitalist crisis threatens world peace because it may… result in fascism.” Other leaders on the African continent have expressed similar anti-capitalist sentiments.

Yet, the last decade was great for Africa. The real gross domestic product rose at an average annual rate of 4.9 percent between 2000 and 2008 — twice as fast as that in the 1990s. It is true that as a result of the financial crisis, African growth had slowed to 2 percent in 2009. But, it has since returned to an average annual rate of 5 percent. Developed economies, which contracted by 3.5 percent in 2009, have also returned to growth.

What was the impact of that growth on the lives of ordinary Africans? According to the most recent World Bank estimate, “For the first time since 1981, less than half of … [sub-Saharan Africa’s] population (47 percent) lived below $1.25 a day. The rate [of poverty] was 51 percent in 1981. The $1.25-a-day poverty rate in SSA has fallen 10 percentage points since 1999. Nine million fewer people [were] living below $1.25 a day in 2008 than 2005.” That reduction in poverty is especially encouraging considering that the population of SSA more than doubled between 1981 and 2008, rising from 398 million to 813 million.

Cato: ObamaCare’s Now a Bigger Mess

If the new health care law wasn’t enough of a mess before last week’s Supreme Court decision, that ruling actually added another layer of cost, complexity and political contentiousness to the bill.

By striking down part of the law that required states to expand their Medicaid programs, the court tossed a very hot potato into the laps of state lawmakers everywhere.

ObamaCare required states to increase eligibility for Medicaid to 133 percent of the poverty line, or roughly $30,000 per year for a family of four. The expansion would also make childless single men (a notoriously high-cost group) eligible for Medicaid for the first time. In all, about 40 percent of all the people projected to gain coverage under ObamaCare would do so via Medicaid.

But this imposed real costs on states. For example, the Medicaid expansion would cost New Jersey taxpayers roughly $35 billion over 10 years, and New Yorkers as much as $52 billion.

Not surprisingly, many states balked — and now the high court has agreed: Congress can’t stripall Medicaid funds from states that refuse the expansion, as the ObamaCare law threatened.

So what will state legislators do now?

Cato: John Roberts: Rarely Has Such a Smart Judge Written Such a Bad Opinion

Rarely has so smart a judge written so bad an opinion with such ill consequences for the nation. Such is the handiwork of Chief Justice John Roberts in NFIB vs. Sebelius, the constitutional challenge to ObamaCare.

His support for the president’s signature legislation has secured plaudits from the Washington establishment, which undoubtedly will make his stay in the nation’s capital more pleasant. But his gain comes at the cost of Americans’ liberties. That Justice Roberts would abandon the Constitution for his reputation was feared, but none expected him to do so in such calculated fashion.

More than two years ago President Barack Obama won a celebrated political victory with passage of the misnamed Patient Protection and Affordable Care Act. As usual, Congress promised the impossible: expanded coverage of more people for more services at lower cost and reduced federal spending. The measure exceeded even the extraordinary powers previously claimed by the federal government. Legislators simply assumed they could do whatever they wanted, irrespective of the Constitution.

However, the Founders created a government of limited, enumerated powers, none of which empowered Congress to mandate that people purchase a private product, in this case health insurance. So multiple lawsuits were filed. ObamaCare supporters were shocked, shocked that anyone still believed that the Constitution limited federal authority. But the issue went to the Supreme Court.

Cato: Why the Obamacare Ruling Matters

As we eagerly await the Supreme Court’s decision on the constitutionality of the Patient Protection and Affordable Care Act, a.k.a. Obamacare, expected shortly after 10 a.m. Thursday morning, much of the political Left remains mystified by the health-care law’s continued unpopularity.

According to an Associated Press/GfK poll released last week, 47 percent of Americans oppose the health-care law, while just 33 percent support it. Similarly, a Rasmussen presidential-election poll released just this week found that 54 percent of likely voters want the law repealed. And even more devastating, a New York Times/CBS News poll, which traditionally skews Democratic, found that fully two-thirds of Americans wanted either the individual mandate or the entire law to be found unconstitutional.

In the face of this ongoing opposition, the media has trotted out the usual excuses. First, the public doesn’t understand all the good things the health-care bill will supposedly do for them. As Chris Cillizza said on MSNBC, “People don’t know what they want.” They point to surveys showing that Americans express confusion about what the law would or would not do. Other surveys show that some benefits of the law, such as allowing children to stay on their parents’ policy until age 26 or guaranteeing coverage for individuals with preexisting conditions, are quite popular, even if the overall bill is not.

Cato: How to Fix the Supreme Court After the ObamaCare Judgment

Until March it apparently didn’t occur to anyone on the legal Left that the actual Constitution was still relevant to government. Judges had been zealously ignoring the nation’s basic law while aiding and abetting the expansion of the state for decades, so why should they start interpreting the Constitution now? Then came the legal challenge to ObamaCare.

Skeptical questions from justices during the oral arguments in March alerted even advocates of a liberal “everything goes” jurisprudence that this court was no longer willing to simply rubber stamp every government attempt to do more. Swing Justice Anthony Kennedy acknowledged that the Obama administration’s health insurance mandate “changes the relationship of the federal government to the individual in a very fundamental way.”

Upon learning that the justices were not guaranteed to vote left, President Barack Obama led a chorus of denunciations of judicial “activism.” For years liberal political activists relied on jurists to impose liberal values and policies whenever the electorate resisted—like Roe v. Wade, which struck down every abortion law in the nation based on vacuous emanations from newly discovered penumbras of long established constitutional provisions. It was an extraordinary performance, with the high court acting like a continuing constitutional convention which could simultaneously propose and ratify amendments. There could have been no more “activist” a decision, but the legal Left largely cheered the result. Over the years the high court has tossed out hundreds of federal and state enactments.

Now, however, the same activists are shocked, shocked to think that the same jurists might strike down ObamaCare as exceeding the federal government’s power. That prospect led to a cacophony of wailing and howling, with demands for judicial reform.

Cato: Songbun Communism

The Cold War ended more than two decades ago. The Soviet Union disintegrated less than 75 years after its tumultuous birth. China expunged its Maoist experiment in about half that time. Pol Pot’s Cambodian utopia didn’t last even four years.

However, the so-called Democratic People’s Republic of Korea lives on, 64 years after its creation under the protective arms of the Soviet Red Army. The DPRK has fused communism with monarchy, twice elevating to godlike status a son of the previous dictator. North Korea’s obituary has oft been written, but the Kim dynasty staggers on, seemingly unaffected by mass starvation, pervasive poverty, extraordinary repression, and social collapse.

It is hard to imagine a starker comparison than between the North and the Republic of Korea, a prosperous and democratic state. Yet even more dramatic may be the contrast between what the DPRK is and what it was supposed to be.

North Korean founder Kim Il-sung was an anti-Japanese guerrilla. Give him his due: he fought against a system of foreign repression. Japan had turned the once independent kingdom into a colony. Tokyo’s brutal suppression of Koreans’ identity rankles still, poisoning the relationship between two modern nations that should be cooperating to promote a democratic, market-oriented order in East Asia.

Cato: The Second Amendment Protects Both Keeping and Bearing Arms

Even before its recent enactment of ill-advised and (at least partially) unconstitutional gun-control measures, New York was no stranger to draconian restrictions on the right to keep and bear arms. The Empire State, like most states, requires a license to carry a handgun outside of one’s home, but differs from many by requiring prospective licensees to show “proper cause” before obtaining a license. State officials have broad discretion in finding such proper cause, which for non-celebrities typically requires proof of extraordinary personal danger documented by threats to one’s life — effectively leaving criminals, bodyguards, and retired law enforcement officers as the only armed civilians in public places.

Unable to make such a showing and thus denied licenses, a diverse group of New Yorkers, represented by Alan Gura — who successfully argued District of Columbia v. Heller (2008) and McDonald v. Chicago (2010) at the Supreme Court — filed suit in federal court challenging the constitutionality of the licensing scheme. Both the district court and the U.S. Court of Appeals for the Second Circuit upheld the law after purportedly applying “intermediate scrutiny,” which allows a challenged statute to survive only if it is “substantially related to the achievement of an important governmental interest.”

Cato: So You Want to Cut Spending

Back in 2011 there was a titanic fight between President Obama and the newly energized House Republicans over the federal budget. The ballyhooed result, which averted the frightening specter of a “government shutdown,” was “the largest annual spending cut in our history,” in the words of President Obama and the national media. I raised some doubts about it at the time, noting that it certainly wasn’t the largest budget cut in history and then pointing to a National Journal story suggesting that the cuts weren’t really there.

Now, in the Sunday Washington Post, David Fahrenthold follows up: What happened to the much-touted $38 billion in cuts (out of a $3,800 billion budget)? Oops. Not so much:

Nearly two years later, however, these landmark budget cuts have fallen far short of their promises.

In some areas, they did bring significant cutbacks in federal spending. Grants for clean water dried up. Cities got less money for affordable housing.

But the bill also turned out to be an epic kind of Washington illusion. It was stuffed with gimmicks that made the cuts seem far bigger — and the politicians far bolder — than they actually were.

In the real world, in fact, many of their “cuts” cut nothing at all. The Transportation Department got credit for “cutting” a $280 million tunnel that had been canceled six months earlier. It also “cut” a $375,000 road project that had been created by a legislative typo, on a road that did not exist.

At the Census Bureau, officials got credit for a whopping $6 billion cut, simply for obeying the calendar. They promised not to hold the expensive 2010 census again in 2011.

Cato: D.C. Treats Celebrities Better Than Veterans, Illustrating the Absurdity of Gun Laws

Last month, D.C. attorney general Irvin Nathan announced that he would not be prosecuting David Gregory for displaying an empty ammunition magazine on his national TV show Meet the Press—even though NBC knew ahead of time that this action would violate D.C. law. In a letter to NBC, Nathan admonished Gregory for knowingly flouting the law, but said he decided to exercise “prosecutorial discretion” and not pursue a criminal case. “Prosecution would not promote public safety in the District of Columbia, nor serve the best interests of the people,” Nathan wrote.

In the Washington Post story about this episode, I was quoted as calling Nathan’s decision “a wise use of prosecutorial discretion” but that the episode “illustrates the absurdity of some of these gun laws.” My position apparently paralleled that of the NRA—even though Gregory had waved the illegal magazine in front of the group’s executive VP, Wayne LaPierre—but “thousands of gun advocates” signed a White House petition calling for Gregory’s arrest because he ought to be treated the same as anyone else.

Indeed, a friend soon pointed out to me that D.C. authorities were not treating people equally: Last summer, Army Specialist Adam Meckler, a veteran of the Afghanistan and Iraq wars, was arrested and jailed for having a few long-forgotten rounds of ordinary ammunition—but no gun—in his backpack in Washington. Meckler violated the same section of D.C. law as Gregory did, and both offenses carry the same maximum penalty of a $1,000 fine and a year in jail. [H/t: Jason Epstein]

Cato: Obamacare’s Shell Games Collectivize Our Consciences

Facing increasing losses in federal courts over Obamacare’s contraceptive mandate, the Department of Health & Human Services last week promulgated a rule to expand exemptions for religious nonprofits. That sounds good, but what the government is actually doing is a sort of accounting shell game: employers will no longer have to pay for the products/services to which they objects, but the government requires them to contract with an insurance company that the government then requires to provide these products/services to employees who want them “for free.”

As Yuval Levin put it, “If religious people thought about their religious obligations the way HHS lawyers think about the law, this might just work. But they don’t.” Matt Bowman, an attorney litigating some of these cases, makes some amusing analogies to illustrate the point:

Suppose the government decides that college students need access to pornography for their sexual health. It forces all colleges to give their students a free subscription to the Playboy Channel. Christian colleges object. So the government says it will merely force those colleges to give their students a subscription to cable television, and then it will force that cable company to give those students a free subscription to the Playboy Channel. Why would the Christian colleges be content with this arrangement?

Imagine that the government wishes to empower Second Amendment rights. It pairs employers with local families struggling with mental illness and requires the employers to provide the families with free handguns. Religious groups object. So the government forces the religious groups to give people with mental illness a membership at a shooting range, and then forces the shooting ranges to provide those people with free handguns as a benefit of membership.

Perhaps the government decides that Americans need to just calm down, especially religious fanatics. It forces employers to supplement the water supply in their buildings with sedatives. Religious groups object. So the government forces the religious groups to maintain an account with the water company, and then forces the water company to put sedatives in the religious groups’ water supply.

Cato: The First Amendment Is a Sweet Emotion

Hawaii, no longer content to trample on the Fourteenth Amendment alone, is about to bid a sorry aloha (farewell) to the First Amendment. In a brazen giveaway to celebrities who like to like to vacation on its pristine beaches, Hawaii’s Senate is poised to pass the “Steven Tyler Act.”

The bill, named after – indeed, written by – the Aerosmith frontman, could punish anyone who takes a photograph of a celebrity in public. That includes a tourist who takes out her iPhone to snap a pic of an aging rocker, or perhaps the Obama family. Specifically, the bill would prohibit recording someone “in a manner that is offensive to a reasonable person,” while that person is “engaging in a personal or familial activity.” The Steven Tyler Act not only departs from a century’s worth of privacy laws, but does so at a huge cost to the First Amendment’s guarantee of the freedom of speech. As my frequent co-author, law professor Josh Blackman explains, there are several constitutional defects here:

First, the bill offers no exceptions for newsworthy content. It simply assumes that if a person is “engaging in a personal or familial activity with a reasonable expectation of privacy,” any photograph would be illegal. Newspapers covering matters of public affairs (that may be personal or familial) could be snared by this staute.

2013-05-29

Cato: Obama’s And Paul Ryan’s Conflicting Budget Visions

With his speech to news editors and executives this week, President Obama has made it clear that he plans to run a starkly ideological campaign, contrasting his vision for the future of the country with that of his Republican opponents. And, he plans to make the Republican budget, written by rising GOP star Rep. Paul Ryan of Wisconsin and embraced by presumptive Republican nominee Mitt Romney, exhibit one in that contrast. It would be worthwhile therefore to actually compare that budget with the one proposed by the president.

Deficits and Debt
The president’s budget proposal would reduce future deficits — at least until 2018 — but would never achieve balance. By 2018, the president projects deficits to fall to only $575 billion. After that, they begin rising again, reaching $704 billion by 2022. Overall, the president’s budget would add an additional $6.7 trillion to the national debt over the next 10 years.

Paul Ryan does better when it comes to deficit reduction, but only because the president has set such a low bar. Unlike the president, Ryan would eventually balance the budget — but not until 2040 or so. He does, however, generally run much lower annual deficits than the president would, and adds $3.3 trillion less to the national debt over the next 10 years.

Over the longer-term, the differences are much more pronounced. By 2050, for instance, Ryan would be running a surplus equal to as much as 3 percent of GDP. The president’s budget, in contrast, projects that we would still face budget deficits in excess of 6 percent of GDP.

Cato: How Naysayers See the World Trade Organization

Public Citizen’s Lori Wallach is no fan of the World Trade Organization. But her mischaracerizations of how that body operates require correcting. Wallach published this piece on April 9 on the Huffington Post blog under the title, “WTO Orders U.S. to Dump Landmark Obama Youth Anti-Smoking Law.” Here are some excerpts followed by commentary.

Behind closed doors in Geneva, a World Trade Organization (WTO) tribunal issued a final ruling ordering the U.S. to dump a landmark 2009 youth anti-smoking law.

However, this is what the last paragraph of the WTO Appellate Body report actually says:

The Appellate Body [the highest “court” in the WTO] recommends that the DSB [WTO Dispute Settlement Body] request the United States to bring its measure, found in this Report, and in the Panel Report [the Panel is the equivalent of a lower court] as modified by this Report, to be inconsistent with the TBT Agreement [Technical Barriers to Trade], into conformity with its obligations under that Agreement. (My emphasis.)

Cato: We Can’t Hide from the National Security Agency

How many Americans know that as of September 2013, all of us engaged in any form of communication will be subject — with the approval of President Barack Obama and the silence of Congress — to continuous tracking and databasing by the National Security Agency?

As I reported here last week, the NSA’s massive new center in Bluffdale, Utah — more than five times larger than the U.S. Capitol — will be storing and analyzing:

“All forms of communication, including the complete contents of private emails, cell phone calls and Google searches, as well as all sorts of personal data trails — parking receipts, travel itineraries, bookstore purchases… ” (“The NSA Is Building the Country’s Biggest Spy Center (Watch What You Say),” James Bamford, wired.com, March 15).

Are you at all concerned? Note that this bottomless database is deceptively called the Utah Data Center (UDC), as if it were a minor league state agency. But journalist-historian James Bamford, as he has done in previous reports and books, breaks into the NSA’s deep secrecy.

Dig this: “The mammoth Bluffdale center will have another important and far more secret role that until now has gone unrevealed.”

Citing a senior intelligence official formerly involved in this endless spying, Bamford reports that the NSA is now also expert in breaking codes.