Important Concepts in Political Obligation

by Aaron Ross Powell at http://www.libertarianism.org/blog/important-concepts-political-obligation

My first post on political obligation provoked some terrific debate. So I’m now at work on a series of posts intended to introduce this fascinating branch of political philosophy.
To begin, it makes sense to clarify the concepts at play in the questions where political obligation comes from and who can claim it. In this post, I’ll discuss three: (1) what we mean by an obligation; (2) how to distinguish political obligations from general, non-political ones; and (3) the difference between political obligation and political authority.

Obligation vs. Prudence

There may be many reasons why we choose to obey laws or otherwise support a given state. We might be scared of what the state’s agents will do to us if we disobey. We might think our lives will go better if comply. We might feel the benefits we get from being the sort of person who complies with a particular state’s laws are worth the cost of giving up the freedom to do whatever those laws prohibit.
But none of these represent political obligations. An obligation is a moral duty. There’s nothing morally wrong with getting beaten up for something you believe in. Nor is it morally wrong to make choices that lower the overall quality of one’s life—or to decide that the costs of an action outweigh the benefits. So the above reasons answer the question of why it might be prudent to obey the state but not why we are obligated to do so.
Instead, if we are politically obligated to obey the laws of the state, then it is morally wrong for us to disobey them.
Most of us feel that we owe precisely this sort of obligation to the nation we live in. We may have a sense that the obligation can be obviated if the nation does certain things (becomes horrifically unjust, say), but, in general, most of us believe that government does, in fact, have (some degree of) authority over its constituents—authority we are obligated (in some degree) to obey.

The Law vs. Common Morality

It’s rather common to hear that we are obligated to obey the state because the state’s laws are just. (And, relatedly, that we are not obligated to obey acutely unjust laws, even if they come about through proper state procedures.)
But an important distinction must be drawn: We can have obligations to behave morally even without the state. If it is immoral to murder people, then I have an obligation not to murder people whether the state prohibits it or not.
In cases like this, it seems odd to talk of having a political obligation not to commit murder. Rather, I have a general (non-political) obligation to avoid killing. The state didn’t create that obligation and that obligation is not owed to the state.
Thus we don’t talk about a political obligation to refrain from murder, but we can explore the state’s authority to prevent murder.

Political Obligation and Political Authority

Frequently, the terms “political obligation” and “political authority” get used interchangeably. In most case, there’s nothing troubling about that. Where legitimate political authority exists, so too will political obligations.
But they can be distinguished, and the distinction can be important.
When a state has legitimate political authority, it has a right to compel whoever it has authority over to do its (just) bidding. Thus, if it is within a state’s authority to levy taxes, then the state is morally justified in forcing non-compliers to pay up. Note, however, that this remains independent of what the non-compliers are obligated to do. For that, we need to turn to political obligations.
We have political obligations to a state when we are morally bound to obey or support it. So, even if the state does not act to enforce its authority, we still have a moral duty (an obligation) to comply with its (just) laws.
Political obligations, then, pertain to what the subjects of state authority are morally required to do. Political authority pertains to what the state may do to us.

Where This All Leads

In my next post, I’ll discuss the value of exploring political obligation. We need not be anarchists to have deep concerns about what sorts of obligations a state may legitimately claim.

Let’s Divest of GM Yesterday

Posted by Daniel Ikenson at http://www.cato-at-liberty.org/lets-divest-of-gm-yesterday/


Writing in today’s Washington Post, Charles Lane posits that the time is now for the U.S. Treasury to divest of its remaining 500 million shares of General Motors stock.  I agree with that conclusion, but not with Lane’s rationale or his recommendation for a heavy-handed, government-imposed exit strategy.
Just to recap: the Treasury recouped $23 billion of taxpayers’ $50 billion outlay when it sold GM shares to the public in an IPO in November 2010; the outstanding 500 million shares in government coffers must be sold at an average price of $54 to recover the remaining $27 billion; the IPO price was $33; today’s price is $21.69.  If all 500 million shares could be sold at today’s price, the Treasury would raise $10.8 billion, leaving taxpayers at a loss of just over $16 billion. (Of course, the sale of such a large number of shares would drive the average selling price way below today’s price, resulting in a much larger taxpayer loss.)
Lane is correct to conclude that GM’s immediate future isn’t looking quite so rosy. Demand is tanking in Europe. Concerns remain about whether GM will continue to be able to fund its $128 billion pension plan. And sales of the “game-changing” Chevy Volt have been lagging since the vehicle’s commercial introduction some 13 months ago—well before its engines demonstrated an annoying propensity to spontaneously combust. (Not to worry, says GM’s public relations team: the engines don’t seem to catch fire while being driven, only an hour or two after they’ve been parked in the garage.) Recognizing that that qualifier hasn’t been reassuring enough, GM is now offering to buy back any Chevy Volt it has ever sold, which doesn’t bode well for the bottom line, but also affirms how few of these Government Motors show pieces have even sold.
That grim analysis is the basis for Lane’s preference for government divestment now. There is more downside risk than upside potential. It is an argument based on market-timing, rather than on the principle that bad things happen when the government has a stake in the outcome of a race that it can influence. Sure, the administration would love to divest of GM at a profit to taxpayers. But the longer it is allowed to wait for that train to arrive, the greater the temptation to grease the skids.
The government should divest now. It should have divested in June, when it was first legally permissible to do so.  But the administration (following, by logic, what would have been Lane’s advice at the time) rolled the dice, expecting the stock value to rise. Instead it fell. And then there was this.
But my bigger problem is with Lane’s proposal for a managed divestment.  He writes:

It’s time to cut our losses.  Treasury should start selling its stake in GM.
And I know just the buyer: GM. The company is sitting on more than $33 billion in cash, about triple the market value of Treasury’s 500 million shares, which is roughly $10.8 billion.
Though GM wants to dedicate much of its cash to shoring up its pension plan, it could still absorb most or all of Treasury’s shares, even if Treasury charges a modest premium over the current market price, as it should.

Lane proposes this under the guise of some perverse fealty to a “free-enterprise economy,” as it would spare shareholders from the stock price-depressing impact of an unnatural 500 million share dump. But those shareholders knew the risks they were taking when they purchased GM stock in the first place. They certainly knew that the largest single shareholder didn’t intend to hold its position for very long. Lane’s argument for protecting those shareholders in the name of free-enterprise in unconvincing, if not misplaced.
Furthermore, Lane’s zeal for sticking it to GM seems to eclipse any real commitment to free markets. Forcing GM to divert resources from where management wants to commit them in order to achieve some favorable political outcome (a smaller taxpayer loss) is just as coercive as some of the administration’s actions on the road to GM’s nationalization in the first place.
GM should not be entitled to any favors or exceptional treatment by virtue of its ownership structure. To be certain of that, it should be 100 privatized yesterday. But likewise, GM should not be subject to compensatory or otherwise countervailing policies designed to punish or remove any perceived advantage. For starters, it is impossible to measure the benefits received or the penalties suffered with any precision. Demanding that GM not be exposed to special treatment goes in both directions.

Border Security, the War on Drugs, and the 2012 GOP Presidential Race

Posted by Ted Galen Carpenter at http://www.cato-at-liberty.org/border-security-the-war-on-drugs-and-the-2012-gop-presidential-race/


The issue of border security has made its way into the 2012 GOP presidential race and candidates are jockeying to separate themselves from the pack. The topic garnered some attention at the Republican national security debate on November 22. An Associated Press story today examines the candidate’s platforms on the topic and as the title implies, rightly concludes securing the border is impossible. I am quoted in the article and make exactly that point:

Mitt Romney and Newt Gingrich have promised to complete a nearly 1,950-mile fence. Michele Bachmann wants a double fence. Ron Paul pledges to secure the nation’s southern border by any means necessary, and Rick Perry says he can secure it without a fence — and do so within a year of taking office as president.
But a border that is sealed off to all illegal immigrants and drugs flowing north is a promise none of them could keep.
“Securing the border is a wonderful slogan, but that’s pretty much all it is,” said Ted Galen Carpenter, a senior fellow at the libertarian Cato Institute. “Even to come close would require measures that would make legal commerce with Mexico impossible. That’s an enormous price for what would still be a very leaky system.”

The bottom line is the border is simply too big to control. Attempting to fully police the border must pass a simple cost-benefit analysis, and it is not clear that our current policy passes that test. And yet, the candidates all agree securing the border is necessary to combat terrorism, illegal immigration, and drug violence stemming from Mexico.
The candidates have little reason to reexamine that assumption. Not only is it politically advantageous to call for securing the border, but it is a convenient one-size-fits-all solution to those three broader policy issues. They have calculated that this is what voters want to hear.
But it is an illusory solution. Laws protecting the border must exist and be enforced, but it is not clear that this alone, even if done more effectively or efficiently, will prevent terrorists or illegal immigrants from entering the United States. And the “securing the border” panacea certainly will not end the flow of drugs into the United States.
Curiously, while the GOP candidates all express worries about terrorism and illegal immigration, the subject of the war on drugs has hardly been discussed.  Although drug violence in Mexico is the only major security problem the Untied States faces on any of its borders, the issue has not produced serious consideration thus far.  Rep. Ron Paul (R-TX) has been the only candidate to offer a thoughtful, consistent approach the issue, calling for an end to the failed policy.
The candidates should be pressured to answer why Washington continues to spend billions of dollars to wage the war on drugs each year with little to show for it. The power of the drug cartels has reached the point that the Mexican government no longer controls some areas of the country. And there are worrying signs that the violence is beginning to bleed across the border into the United States.
Our prohibitionist efforts have failed and a new policy is needed. Only by removing the lucrative black-market drug trade and thus effectively defunding the Mexican drug cartels can we begin to end the violence and illegal activity that plagues Mexico and the southern U.S. border region.
That is the substantive discussion that should be taking place in the GOP debates, rather than the posturing and repeated faux policy prescriptions to secure the border.

The Security Theater Cycle

Posted by Julian Sanchez at http://www.cato-at-liberty.org/the-security-theater-cycle/


“What we obtain too cheap,” Thomas Paine famously wrote, “we esteem too lightly”—and it turns out that the converse holds true as well. It’s a well known and robustly confirmed finding of social psychology that people tend to ascribe greater value to things they had to pay a high cost to obtain. So, for instance, people who must endure some form of embarrassing or uncomfortable hazing process or initiation rite to join a group will report valuing their participation in that group much more highly than those admitted without any such requirement—which is one reason such rituals are all but ubiquitous in human societies as a way of creating commitment. Studies suggest that people are more likely to read automobile reviews after purchasing a new car than before—suggesting that people are sometimes less concerned with spending money in the most judicious fashion than with convincing themselves, after the fact, that they have done so. More morbidly, relatives of soldiers killed in action sometimes become much more fervent supporters of the war that cost them a loved one—because the thought that such a grave loss served no good purpose is too much to stomach.
I suspect that this phenomenon may help explain the dispiriting state of affairs described by an airline industry insider in an important Wired piece on airport security. The short version: we’ve spent some $56 billion on “enhancing” airport security over the past decade, with almost no actual security enhancement to show for it. We’re spending huge amounts of money and effort on burdensome passenger screening that doesn’t seem very effective, while neglecting other, far more vulnerable attack surfaces. It is, when you think about it, a somewhat strange priority given the abundance of highly vulnerable domestic targets. Reinforced cockpit doors and changed passenger behavior pretty much made a repeat of a 9/11-style suicide hijacking of a domestic flight infeasible—at negligible economic and privacy cost—long before we started installing Total Recall style naked-scanners, which makes explosives the real remaining risk. Yet the notable bombing attempts by passengers we’ve seen since 9/11 have (a) originated outside the United States, and (b) been foiled by alert passengers after the aspiring bomber slipped through the originating country’s formal screening process.
This shouldn’t be terribly surprising: when a terror group has already managed to get an operative into the United States, a domestic flight (that can’t be turned into a missile) would be one of the stupider, riskier targets to select, given the enormous array of much softer target options that would be available at that point, even assuming pre-9/11 airport security protocols. As far as I’m aware, the last time a passenger successfully detonated a bomb on a U.S. domestic flight was in 1962. This presents something of a puzzle: Why have we focused so disproportionately on this specific attack vector, at such disproportionate cost, when the terrorists themselves have not? Why haven’t we reallocated scarce resources to security measures (such as better screening of airline employees) that would provide greater security benefit at the margins? One possibility is that, having accustomed ourselves to submitting to the hassle and indignity of ever more aggressive passenger screening, we become more disposed to believe that these measures are necessary.
It’s become commonplace to refer to many aspects of airport screening—the removal of shoes, the transparent plastic baggies for your small allotment of shampoo—as “security theater.” Security guru Bruce Schneier coined the term to refer to security measures whose ritualistic purpose is to make passengers feel safer, even though they do almost nothing to actually increase safety. But on reflection, this seems wrong. It probably holds true in the immediate aftermath of a high-profile attack or disaster. Once the initial heightened fear subsides, however, these visible and elaborate security measures probably do more to increase our perception of risk than to assuage our fears. It is, after all, something of a cliche that hyperprotective parents tend to end up raising children who see the world as a more dangerous place. Overreacting to childhood illnesses is one reliable way of producing adult hypochondriacs down the road.
Security theater, then, isn’t only—or even primarily—about making us feel safer. It’s about making us feel we wouldn’t be safe without it. The more we submit to intrusive monitoring, the more convinced we become that the intrusions are an absolute necessity. To think otherwise is to face the demeaning possibility that we have been stripped, probed, and made to jump through hoops all this time for no good reason at all. The longer we pay the costs—in time, privacy, and dignity no less than tax dollars—the more convinced we become that we must be buying something worth the price. Hence, the Security Theater Cycle: the longer the ritual persists, the more normal it comes to seem, the more it serves as psychological proof of its own necessity.

Tax Rates, Inequality and the 1%

by Alan Reynolds at www.cato.org

A recent report from the Congressional Budget Office (CB0) says, "The share of income received by the top 1% grew from about 8% in 1979 to over 17% in 2007."

This news caused quite a stir, feeding the left's obsession with inequality. Washington Post columnist Eugene Robinson, for example, said this "jaw-dropping report" shows "why the Occupy Wall Street protests have struck such a nerve." The New York Times opined that the study is "likely to have a major impact on the debate in Congress over the fairness of federal tax and spending policies."
But here's a question: Why did the report stop at 2007? The CBO didn't say, although its report briefly acknowledged — in a footnote — that "high income taxpayers had especially large declines in adjusted gross income between 2007 and 2009."
No kidding. Once these two years are brought into the picture, the share of after-tax income of the top 1% by my estimate fell to 11.3% in 2009 from the 17.3% that the CBO reported for 2007.
The larger truth is that recessions always destroy wealth and small business incomes at the top. Perhaps those who obsess over income shares should welcome stock market crashes and deep recessions because such calamities invariably reduce "inequality." Of course, the same recessions also increase poverty and unemployment.
The latest cyclical destruction of top incomes has been unusually deep and persistent, because fully 43.7% of top earners' incomes in 2007 were from capital gains, dividends and interest, with another 17.1% from small business. Since 2007, capital gains on stocks and real estate have often turned to losses, dividends on financial stocks were slashed, interest income nearly disappeared, and many small businesses remain unprofitable.
The incomes that top earners report to the IRS have long been tightly linked to the ups and downs of capital gains. Changes in the tax law in 1986, for example, evoked a remarkable response — with capital gains accounting for an extraordinary 47.7% of top earners' reported income as investors rushed to cash in gains before the capital gains tax rose to 28%.
That was obviously temporary, but the subsequent slowdown in realized gains lasted a decade. Taxable gains accounted for only 16.7% of the top earners' income between 1987 and 1996. And the paucity of realized capital gains kept the top earners' share of income flat.
When the top capital gains tax fell to 20% in 1997 and remained there until 2002, realized capital gains rose to 25.4% of the top earners' income, and it explained much of the surge of their income share to 15.5% in 2000. Stock gains were more modest from 2003 to 2007, yet the tax rate on profitable trades was down to 15%, so realized capital gains rose to 26.7% of income reported by the top 1%.

True enough, capital gains are not the whole story, and the CBO's report, "Trends in the Distribution of Household Income Between 1979 and 2007," notes that "business income was the fastest growing source of income for the top 1 percent." But that too was a behavioral response to lower tax rates.
In 1988, business income jumped to 16.5% of the reported income of the top 1%, from 8.2% in 1986. Why? As the CBO explains, "many C corporations... were converted to S corporations which pass corporate income through to their shareholders where it is taxed under the individual income tax."
The CBO estimates top incomes from individual tax returns. So it looked like a big spurt in top income in 1988 when thousands of businesses switched to reporting income on individual rather than corporate returns as the top individual tax rate dropped to 28% from 50%.
In reality, it was just a switching between tax forms to take advantage of the lower individual tax rate. Such tax-induced switching from corporate to individual tax forms in 1986-1988 makes it illegitimate to compare top income shares between 1979 and 2007.
After the tax rate on dividends fell to 15% in 2003 from 35%, the share of income reported by top earners from dividends doubled to 8.4% in 2007 from 4.2% in 2002, according to similar tax-based estimates from economists Thomas Piketty and Emmanuel Saez. Top earners held more dividend-paying stocks in taxable accounts rather than in tax-exempt bonds, or they kept dividends in tax-free retirement accounts.
In short, what the Congressional Budget Office presents as increased inequality from 2003 to 2007 was actually evidence that the top 1% of earners report more taxable income when tax rates are reduced on dividends, capital gains and businesses filing under the individual tax code.
If Congress raises top individual tax rates much above the corporate rate, many billions in business income would rapidly vanish from the individual tax returns the CBO uses to measure the income of the top 1%. Small businesses and professionals would revert to reporting most income on corporate tax returns as they did in 1979.
If Congress raises top tax rates on capital gains and dividends, the highest income earners would report less income from capital gains and dividends and hold more tax-exempt bonds. Such tax policies would reduce the share of reported income of the top earners almost as effectively as the recession the policies would likely provoke. The top 1% would then pay a much smaller portion of federal income taxes, just as they did in 1979. And the other 99% would pay more. As the CBO found, "the federal income tax was notably more progressive in 2007 than in 1979."

It's Time to Occupy Capitol Hill and Fight Political Greed

by Doug Bandow at www.cato.org

Many Americans are frustrated and angry with American politics. These sentiments helped spawn the Tea Party movement. Similar attitudes animate Occupy Wall Street protesters.

The latter activists are confused, but that doesn't make their movement illegitimate. Look at how the U.S. political and economic systems operate.The issue is not how much the top one percent own. The issue is whether they have acquired their wealth legitimately. In fact, as OWS activists recognize, many people have not.
The problem is politics rather than economics, however. A competitive market economy is the most effective system for generating wealth. It also is the fairest mechanism for distributing wealth once created. Those who generate the most value for others earn the most. In economics, open markets are fairness exemplified.
But this is not the only, or even most important, human responsibility. Markets reward economic productivity, not human value. So whatever the initial distribution of income, as people we all have additional and larger moral responsibilities to one another. To determine what these are we should turn to theology and philosophy rather than economics and politics.
Unfortunately, politics now malforms the economic system. The distribution of wealth sometimes is unfair, not because of the operation of markets, but because markets so often are not allowed to operate. Some members of the OWS-reviled "one percent" have unfairly acquired their wealth, but most of them have done so by using politics to manipulate economic system.
One can blame corporate greed, but how does corporate greed differ from any other form of greed? Companies are not greedy. Human beings are greedy. They may act as individuals, small businessmen, corporate officers, or political officials. The particular form taken by greed doesn't matter.
OWS protestors also go wrong in targeting financial institutions and, through their Black Friday events, major retailers. The latter make money because — hold the presses! — consumers, too, are greedy, and spend lots of money on items which they don't "need." However, there's nothing illegitimate in companies responding to such demands. The last time I looked, no one forced anyone to go shopping on Black Friday or any other day.
Worse, though, is the fact that OWS activists blame Wall Street and similar entities for their subsidies, bailouts, and other benefits. True, people shouldn't request handouts. But the economic system has become so pervaded by political privilege that asking politicians for help has become the principal lobbying objective in Washington. These days most everyone — not just bankers — seems to think they are entitled to a handout.
Thus, OWS should direct its ire at Capitol Hill. After all, nothing the protestors do will eliminate greed, corporate or other. That is a natural desire of sinful human beings. But OWS could discourage politicians from giving in to corporate (and other) greed. That is, Americans, whether OWS demonstrators, Tea Party activists, or average citizens, should target political greed.
A good place to start would be to occupy the offices of legislators who voted in 2008 to bail out anyone and everyone. Indeed, is there a worse form of greed than that of government officials, entrusted with the common good, stealing money from the public to give away to satisfy their own selfish (political) purposes?
This is what income redistribution is all about. Legislators follow political, not moral, norms in taking money from the productive and giving it to the influential. That's what the Wall Street bailout was all about. It's also what motivates the cornucopia of federal largesse distributed as benefits, grants, loans, and loan guarantees.
Of course, some money goes to people who are truly needy. But those transfers are but a small fraction of the cash passed out by Uncle Sam. Even Social Security and Medicare are political mining enterprises, extracting wealth from younger generations to pay the largely middle class elderly. In voting for these programs politicians seek votes, not justice.
Worst is when legislators seize private wealth to enrich favored interests in the name of "compassion." In fact, compassion is a private virtue, not a public policy. Compassion certainly cannot be imposed through coercion. Whatever one wants to call taking from one person to give to another ("stealing" comes to mind), it is the antithesis of real compassion.
Tea Party and OWS activists may disagree about the appropriate breadth of a government "safety net," but they should cooperate to oppose most of the special interest legislating that occurs in Washington. Even if OWS demonstrators generally see a bigger role for government to "correct" private markets, they should oppose government greed — market interventions for the purpose of enriching private interests. Unfortunately, this behavior is the normal business of Washington.
Worse than greed is envy. The greedy are with us always, but most greedy people satisfy their desire for more in socially useful ways — producing and earning more. The envious are harder to satisfy, since their anger is directed at some or all people with more. In today's society envy is most easily satisfied by taking from others. And there is no more effective way to take from others than to enlist the government. That is why Washington is filled with rhetoric complaining about wealth distribution without addressing the role of wealth creation. Government policies in response are both personally unjust and destructive of community.
It is easy to criticize OWS demonstrators. But they deserve neither expressions of derision nor doses of pepper spray. As American Enterprise President Arthur Brooks observed, "Conservatives and free-enterprise advocates should seize the moment to show their own passion for the issues being debated — and where appropriate, even embrace the protesters' moral critique of America's distorted and depressed system."
For years America's politicized economic system has cheated the vast majority of Americans. OWS protesters (as well as Tea Party activists) understand this fact even if they don't understand exactly why and how. Only by drawing support from disparate reform currents across the U.S. are we likely to achieve real change in Washington.

Why Public Schools Crumble, and Why Another $30 Billion Won’t Change That

Posted by Andrew J. Coulson at http://www.cato-at-liberty.org/why-public-schools-crumble-and-why-another-30-billion-wont-change-that/


The Congressional Quarterly reports that Senate Democrats are pushing another $30 billion bailout—this time for public school buildings. By all accounts, many of those buildings are indeed sinking into decrepitude. But as I discovered a couple of years back, public schools are already spending 50% more per pupil than private schools that do manage to maintain their buildings. So what’s the real problem?
The answer comes from one of the federal government’s own assessments of school facilities nationwide. According to that report,

a decisive cause of the deterioration of public school buildings was public school districts’ decisions to defer maintenance and repair expenditures from year to year…. [And] deferred maintenance increases the cost of maintaining school facilities; it speeds up the deterioration of buildings and the need to replace equipment. [p. 3-4]

This is why we can’t have nice things: public school officials don’t take care of them. They already have far more money to spend than administrators of well-maintained private schools, so giving them yet more money won’t fix their problems. Perhaps Senate Democrats are not ignorant of these facts, and are merely proposing this new bailout in an attempt to make Republicans look bad for opposing a tax hike on the rich. Neither possibility shows the Democrats in a particularly favorable light.

Jury Nullification and Free Speech

Posted by Tim Lynch at http://www.cato-at-liberty.org/jury-nullification-and-free-speech/


Federal prosecutors are pressing their case against Julian Heicklen, the elderly man who distributed pamphlets about jury nullification. A lot of things are said about jury nullification and much of it is inaccurate.  But whatever one’s view happens to be on that subject, I would have thought that the idea of talking about (and that includes advocating) jury nullification would be a fairly simple matter of free speech.  We now know that the feds see the matter very differently. (FWIW, my own view is that in criminal cases jury nullification is part and parcel of what a jury trial is all about.)
In response to Julian Heicklen’s motion to dismiss his indictment on First Amendment grounds, federal attorneys have filed a response with the court.  Here is the federal government’s position: “[T]he defendant’s advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred” [emphasis added].  This is really astonishing.  A talk radio host is subject to arrest for saying something like, “Let me tell you all what I think.  Jurors should vote their conscience!”  Newspaper columnists and bloggers subject to arrest too?
If Heicklen had been distributing flyers that said, “I Love Prosecutors.  Criminals Have No Rights!” there would not have been any “investigation” and tape recording from an undercover agent.  Any complaint lodged by a public defender would have been scoffed at.
First Amendment experts will know more than I about the significance of the “plaza” outside the courthouse and whether or not that’s a public forum under Supreme Court precedents.  The feds make much of the fact that the plaza is government property.   Well, so is the Washington mall, but protesters have been seen there from time to time.  The plaza, however, is not the key issue.  Activists like Heicklen would simply move 10-20 yards further away (whatever the situation may be) and the prosecutors seem determined to harass them all the way back into their homes, and even there if they blog, send an email, post a comment on a web site, text, tweet, or use a phone to communicate with others.  After all, so many people are potential jurors.
Judges and prosecutors already take steps to exclude persons who know about jury nullification from actual service.  And the standard set of jury instructions says that jurors must “apply the law in the case whether they like it or not.”  But the prosecution of Heicklen shows that the government wants to expand its power far beyond the courthouse and outlaw pamphleteering and speech on a controversial subject.  Once again the government is trying to go over, around, and right through the Constitution.
For previous coverage and additional info, go here, here, and here.

Americans with Attitudes: Smuggling in Colonial America

posted by George H. Smith at http://www.libertarianism.org/publications/essays/excursions/americans-attitudes-smuggling-colonial-america

Since the seventeenth century American commerce had been regulated by a complex system of British laws. The basic idea behind this “mercantile system,” as Adam Smith called it—or “mercantilism,” as it was later called—was fairly simple. The colonies were to produce raw materials, many of which could be shipped only to Britain, and Britain, in turn, would produce finished products to sell to the colonies.
During the 1720s and 1730s, while Robert Walpole was the English Prime Minister, many of the trade laws were loosely enforced, if at all. Walpole’s motto, “Let sleeping dogs lie,” was reflected in his attitude toward the American colonies. A free-trader at heart, Walpole allowed the Board of Trade, the enforcement arm of mercantilism, to languish. And to the important position of Secretary of State for the Southern Department, Walpole appointed the like-minded Thomas Pelham, Duke of Newcastle.
The Duke of Newcastle was responsible for American affairs. More interested in the patronage of his office than in enforcing commercial regulations, Newcastle pursued a policy which the Irish statesman Edmund Burke later called “salutary neglect.” That is to say, Newcastle pretty much left the colonies alone, allowing customs officials to take bribes in exchange for looking the other way. In the view of Burke and other proponents of free trade, this neglect—or “corruption,” as some called it—allowed both Americans and Britons to prosper. It was said that Newcastle had a closet-full of unopened dispatches from colonial governors who were complaining about American lawlessness.
As a result of salutary neglect, smuggling was rampant in the colonies, and most Americans saw nothing wrong with it. They did not look kindly on government interference with their commercial activities. They agreed with Thomas Jefferson that free trade is a “natural right.”
For example, in 1756 and 1757, some 400 chests of tea were imported into Philadelphia, but only sixteen were imported legally. Indeed, three-quarters or more of the tea consumed by Americans was illegal. In 1763, the British government estimated the value of commodities smuggled into the colonies at 700,000 pounds annually, an enormous sum at that time.
The preference for inexpensive tea was not peculiar to Americans. Over half the tea consumed in England was smuggled, and English smugglers, like their American counterparts, could get quite indignant when their free-trade activities were interrupted by government. Consider this reaction of an English smuggler when his vessel was boarded and his men arrested by Captain Bursack of the Speedwell, a British revenue cutter. The captain of the smugglers was not aboard when this happened, but he made his feelings known in a letter to Captain Bursack:

Sir: Damn thee and God damn thy two purblind eyes thou bugger, thou death-looking son of a bitch. O, that I had been there (with my company) for thy sake when thou tookest them men of mine on board the Speedwell cutter on Monday, the 14^th of December. I would drove thee and thy gang to Hell where thou belongest, thou Devil incarnet. Go down, thou Hell Hound, unto they kennel below and bathe thyself in that sulphurous lake that has been so long prepared for such as thee, for it is time the world was rid of such a monster. Thou art no man but a devil, thou fiend. O Lucifer, I hope thou will soon fall into Hell like a star from the sky, there to lie unpitied and unrelented of any for ever and ever, which God grant of his infinite mercy. Amen.

The period of salutary neglect came to end during the Seven Years’ War (1756-63)—known in America as the French and Indian War—when many American merchants engaged in trade with the French. Trading with the enemies of Britain during wartime was something of a tradition among the colonials. During an earlier war, for instance, American merchants used neutral ports in the Caribbean to exchange their provisions for French molasses, while bribing customs officers to obtain false clearance papers.
One method of trading with the enemy was especially popular in Rhode Island, the smuggling capital of America. Flags of truce were used to exchange prisoners, and merchants found that these could be purchased at reasonable prices from colonial governors. Then, after hiring some men who spoke French to pose as prisoners, and sailing under flags of truce, American merchants traded with the French West Indies. In 1748, an American wrote to a correspondent in Amsterdam:

The sweets of the French trade by way of flags of truce has put me upon turning my navigation that way, which is the most profitable business I know of. But, my friend, of this you must not lisp a word.

This illegal trade continued during the Seven Years’ War, especially during its later phase when inhabitants of the French West Indies were desperate for food. Merchants from Newport, Boston, New York, Philadelphia, and other ports carried foodstuffs to the enemy for handsome profits.
Pennsylvania’s wartime governor, William Denny, conducted a brisk trade in flags of truce. He sold so many that by 1759 the flags were traded openly on the New York market.
This wartime commerce with the enemy infuriated British military commanders, but it was difficult to stop. Smugglers were typically acquitted by sympathetic American juries, and informing on a smuggler could prove dangerous. When a New Yorker wrote an article that implicated two justices of New York’s Supreme Court in the nefarious traffic, newspapers refused to print it. Then the informer was hauled in a cart through the streets, pelted with filth, and thrown in jail.
Americans continued their smuggling ways after the close of the Seven Years’ War in 1763. An English writer commented on the widespread violation of trade laws:

It was a matter of astonishment to observe what little care was taken to enforce the laws. The breaches openly committed against the Acts of Trade, and the shameful prostitution of office which prevailed in most of the ports on the Continent, could not escape the notice of the most superficial observer. The merchants had commonly undertaken these voyages which afforded the greatest prospect of gain, without any further regard to their illegality than that the Custom House must be silenced, by what means was but too obvious.

The loyalist Peter Oliver, former Chief Justice of the Superior Court of Massachusetts, recalled with horror how religious and upstanding merchants smuggled with a clear conscience. One prominent merchant, after sailing his ship full of contraband into Boston Harbor, would appear at the customhouse before it opened in the morning. He would raise a hand and swear that anything else he swore that day would be untrue. Then, after the customhouse opened for business, this merchant would swear before an officer that his contraband-laden ship contained no contraband.
Oliver related how another merchant solved the problem of swearing under oath that he was not smuggling:

Another Captain boasted, that he had evaded the law, by writing two manifests of his cargo, one of which contained the contraband goods he had on board, and in the other manifest those goods were left out. He then went to the customhouse and stuck the true manifest in the sleeve of that hand which he was to hold up in swearing, and delivered the false manifest to the Officer, and swore the manifest to be a true one, meaning that which was in his sleeve.

In 1763, Prime Minister George Grenville cracked down on bribery and illicit trade. Eight warships and twelve armed sloops were sent to patrol American waters and pull in smugglers. Previously, many customs officers had remained in England while sending low-paid underlings to America to do the dirty work. Grenville ordered these officers to take up their posts in America or resign. They would be fired immediately if they neglected their duties.
Grenville was just getting started. Customs duties had been designed to regulate the flow of trade, not to raise revenue. Indeed, the trade laws cost four times more to enforce than they brought in, so Grenville set to work on a long list of proposals to raise revenue and curtail smuggling. In 1764, Parliament enacted these proposals, commonly called the Sugar Act, into law.
Six sections of the Sugar Act dealt with new taxes, and over forty additional sections were devoted to far-reaching changes in commercial regulations, including rigorous methods of enforcement. These regulations were a bureaucratic nightmare that greatly increased the cost of doing business and, in some cases, made compliance for merchants engaged in intercolonial trade nearly impossible. Any small vessel engaged in inland trade would probably be guilty of some violation or other, even when there was no criminal intent. This left the door open for racketeering by customs officers who lined their pockets by seizing vessels for technical violations.
The Sugar Act facilitated this abuse by implementing new guidelines for prosecuting accused smugglers. The owner of a seized vessel had to pay the cost of his trial in advance or forfeit everything. Even if he was exonerated, the owner could not recover these court costs. Nor could he sue a customs officer, so long as the judge certified that the seizure had been made with probable cause. To make matters worse, the government did not have to present evidence of fraud. The owner was presumed guilty and had to prove his innocence.
Armed with these legal weapons, some customs officers declared open season on American commerce. Such was the case with the rapacious Daniel Moore, Collector of Customs for Charleston. Moore harassed small merchants in South Carolina ports. When some merchants sued Moore and won, he vowed revenge, declaring that he would “sweat the merchants at law with their own money.”
Moore was as good as his word. He seized a small vessel, the Active, and dragged its owner into a vice-admiralty court, which operated without a jury. The owner of the Active was cleared of all charges; but Moore, according to the judge, had seized the vessel with probable cause, so the owner was assessed court costs in the amount of 150 pounds—nearly double the value of the vessel itself. This is what Moore meant by sweating merchants at law with their own money.
Even rigorous enforcement of the Sugar Act could not always shield customs officers from the wrath of irate Americans. This was especially true in Rhode Island where, unlike most other colonies, the governor was elected by popular vote, not appointed by the Crown. Moreover, when a customs officer caught a smuggler red-handed he had to face a judge and prosecuting attorney who were native Rhode-Islanders—men sympathetic to the cause of free trade. The judge might call a trial on short notice when he knew the customs officer was far away and unable to testify, thereby resulting in a dismissal for lack of evidence. Or if a judge had no choice but to convict a smuggler and confiscate his ship, he might later sell the vessel back to the smuggler for a fraction of its true value. But the simplest way to keep the wheels of commerce turning was to grease the eagerly outstretched palms of customs officers.
As these and many similar examples illustrate, Americans who had grown accustomed to decades of “salutary neglect” deeply resented the post-war efforts of the British government to impose taxes—especially when those taxes were raised for the express purpose of maintaining 10,000 British troops in the colonies. As much as historians delight in tracing the influence of political philosophers, such as John Locke, on American thinking, there can be little doubt that no sophisticated ideological foundation was needed to motivate many Americans to evade British laws and even to resist their enforcement with violence.
So why did so many average Americans eventually leave their homes to fight against the British? One perspective was given by Captain Preston, an American who had fought the British at Concord on April 19, 1775. In 1842, this ninety-one-year-old veteran was interviewed by a twenty-one-year-old reporter. The young reporter apparently expected to hear stories of unjust taxes and oppression, and of revolutionaries schooled in theories of liberty. What he got was far different, and more to the point:

Reporter: “Captain Preston, did you take up arms against intolerable oppressions?”
Preston: “Oppression? I didn’t feel them.”
R: “What, were you not oppressed by the Stamp Act?”
P: “I never saw one of those stamps. I certainly never paid a penny for one of them.”
R: “Well, what then about the tea tax?”
P: “I never drank a drop of the stuff; the boys threw it all overboard.”
R: “Then I suppose you had been reading Harrington or Sidney or Locke about the eternal principles of liberty?”
P: “Never heard of ‘em. We read only the Bible, the Catechism, Watts’ Psalms, and the Almanac.”
R: “Well, then, what was the matter? And what did you mean in going to this fight?”
P: “Young man, what we meant in going for those redcoats was this: We always had governed ourselves, and we always meant to. They didn’t mean we should.”

President Obama's Top 10 Constitutional Violations

by Ilya Shapiro at www.cato.org

One of the biggest political changes that 2011 brought — in large part due to the tea parties and their effect on the 2010 election — is the centrality of the Constitution to our public discourse. Lawmakers and citizens no longer consider simply whether a given bill or policy proposal is a good idea but whether it is constitutional. "Where does the government get the power to do that?" is often critics' rallying cry.

That's a healthy development. For far too long, even in those rare moments when politicians were faced with constitutional concerns, they've had the attitude Nancy Pelosi did when asked about the authority for Obamacare's individual mandate: "Are you serious?" Because, of course, constitutional arguments are the last refuge of the scoundrel who has no good policy arguments to make or political power to levy.
And so it's a good thing that Americans are taking their founding document seriously. After all, the Constitution is the font of all federal power. Its carefully crafted structural provisions that we learned about in grade school, such as the separation of powers and checks and balances, are not merely an application of political theory.
"Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity," Justice Anthony Kennedy wrote for a unanimous Supreme Court earlier this year. "By denying any one government complete jurisdiction over all the concerns of public life," Kennedy continued, "federalism protects the liberty of the individual from arbitrary power." If the federal government acts outside the scope of its delegated and carefully enumerated powers, then it's no better than an armed mob.
The Obama administration and its allies in Congress have perpetrated more than their share of such mob-like actions. While it's hard to narrow them down, here's my stab at the government's top 10 constitutional violations since President Obama took office.
1. The individual mandate
No list of President Obama's constitutional violations would be complete without including the requirement that every American purchase health insurance, on penalty of civil fine. The individual mandate is unprecedented and exceeds Congress's power to regulate interstate commerce. If it is allowed to stand, Congress will be able to impose any kind of economic mandate as part of any kind of national regulatory scheme. Fortunately, the Supreme Court has a chance to strike this down during its current term.
2. Medicaid coercion
The Court will also be taking up Obamacare's massive intrusion on federal-state relations in the form of a coercive Medicaid expansion. The law compels states to drastically increase their Medicaid expenditures and reorganize their health care bureaucracies, on penalty of losing all (not just additional) Medicaid funds. No state contemplated such a program when it signed onto Medicaid — Arizona was the last to join, in 1982 — and now no state can afford to withdraw. Indeed, even if some withdrawal mechanism existed, withdrawn states' taxpayers would still be funding complying states' Medicaid programs. As the Supreme Court held in South Dakota v. Dole, there comes a point when "the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion."
3. The Independent Payment Advisory Board (a.k.a. "The Death Panel")
IPAB is the group of 15 presidential appointees who, beginning in 2014, are tasked with reducing Medicare spending. Any decisions IPAB makes automatically become law that can only be overridden by a three-fifths majority vote in the Senate. Unlike other federal agencies, IPAB is subject to no external review — no public notification in advance of proposed rules or opportunity for comment, no administrative guidelines and no judicial review. Medicare comprises about 13 percent of the federal budget, so that's an awesome amount of power for Congress to delegate to unelected executive-branch bureaucrats. Indeed, it's so basic a violation of traditional separation of powers that there's no historical analog. The Goldwater Institute has filed a strong lawsuit challenging this (yet another) unprecedented aspect of Obamacare, which will continue wending its way through the lower courts regardless of how the Supreme Court rules on the individual mandate and Medicaid-coercion issues.
4. The Chrysler bailout
Building on the Bush administration's illegal use of TARP funds to bail out the auto industry, the Obama administration bullied Chrysler's secured creditors — who were entitled to "absolute priority" — into accepting 30 cents on the dollar, while junior creditors such as labor unions received much more. This subversion of creditor rights violates not just bankruptcy law but also the Constitution's Takings and Due Process Clauses. This blatant crony capitalism — government-directed industrial policy to help political insiders — discourages investors and generally undermines confidence in American rule of law.
5. Dodd-Frank
Intended to remedy weaknesses in the U.S. financial system — ensuring transparency and accountability — the Dodd-Frank financial "reform" empowered unlimited, unreviewable and often secret bureaucratic discretion. The administrative bodies the legislation created face no constraints on the exercise of arbitrary authority. For example, the Treasury Department now has broad and essentially unchecked power to seize banks and other financial entities that it determines are unsound but "too big to fail." The new Consumer Financial Protection Bureau and Financial Stability Oversight Council, meanwhile, craft, execute and interpret their own law. Due process and separation of powers issues abound.
6. The deep-water drilling ban
Following the Deepwater Horizon oil spill, the Interior Department issued a blanket six-month moratorium on new oil and gas drilling in the Gulf of Mexico. A federal judge struck down that moratorium as arbitrary and capricious, but the government issued a new order to replace the one that was struck down. That order was subsequently withdrawn, but the judge was so shocked by the administration's conduct that he found the government in civil contempt of court.
7. Political-speech disclosure for federal contractors
In April of this year, President Obama released a draft executive order (still pending) that would require businesses with federal contracts to disclose independent expenditures on federal elections (political speech independent of candidates and parties). This order is intended to undermine the Supreme Court's Citizen United decision — allowing independent expenditures by corporations, unions and other associations — by discouraging federal contractors and their executives from engaging in political speech. Citizens United held that such expenditures do not enable the kind of quid pro quo corruption that campaign finance laws are allowed to regulate, so this draft executive order shows contempt for the First Amendment by chilling protected speech.
8. Taxing political contributions
Earlier this year, the IRS tried to muzzle political speech by asserting that donations to certain nonprofit advocacy groups (so-called 501(c)(4) organizations) would be subject to the gift tax. Historically, the IRS has not applied the gift tax in this way — donations to advocacy groups are not likely to be used to circumvent the estate tax — and when the IRS previously tried to tax political donations, it was rebuffed by the courts on the grounds that such transfers are not gifts (i.e., the donor is getting something in return). The IRS has since backed down, but the suspicion remains that it was trying to chill the political speech of those opposed to President Obama's policies, in violation of the First Amendment.
9. Graphic tobacco warnings
Late last year, the FDA issued regulations requiring cigarette manufacturers to display graphic warnings on all packs of cigarettes that must cover at least 50% of the packaging and graphically portray tobacco-related illnesses. These warnings violate the First Amendment because the government is compelling the cigarette manufacturers to discourage their customers from buying their lawful products. Last month, a federal judge blocked the new regulation, which was due to go into effect in January, but the administration is appealing.
10. Health care waivers
The Department of Health and Human Services has granted nearly 2,000 waivers to employers seeking relief from Obamacare's onerous regulations. Nearly 20 percent of these waivers went to gourmet restaurants and other businesses in Nancy Pelosi's San Francisco district. Nevada, home to Senate Majority Leader Harry Reid, got a blanket waiver, while Republican-controlled states like Indiana and Louisiana were denied. Even beyond the unseemly political favoritism, such arbitrary dispensations violate a host of constitutional and administrative law provisions ranging from equal protection to the "intelligible principle" required for congressional delegation of authority to cabinet agencies. Unlike 17th-century English monarchs, American presidents were not granted dispensing powers: As we've seen, the power to suspend a legal requirement can and will be used to arbitrarily favor the politically connected. Moreover, most of these waivers were never authorized by Congress in the first place!

After the Supercommittee?

by Daniel J. Mitchell at www.cato.org

Taxpayers just dodged a bullet. Even though Republicans on the so-called supercommittee were willing to break their promises and support a tax hike, a 1990-style budget deal was not possible because Democrats demanded too much and offered too little in exchange.

This is good news for fiscal responsibility. Simply stated, any agreement would have been a typical inside-the-Beltway pact featuring real tax hikes and empty promises of future spending cuts. And if the 1990 tax-hike deal is any indication, that would have resulted in more red ink rather than less.
Moreover, the supercommittee's failure means that we get sequestration, which is a budget-wonk term for automatic reductions in the growth of spending.
Not that we should get too excited. The way the law is written, these automatic cuts don't begin until 2013. Even more important, they're "cuts" only if you use dishonest Washington budget math. In reality, spending will climb by nearly $2 trillion by 2021 if we have a sequester. Without the sequester, it will increase by about $2.1 trillion, so at least there could be a small shift in the right direction.
But the sequester isn't a sure thing. It might be derailed if pro-defense Republicans link arms with pro-redistribution Democrats and vote to cancel the money-saving provision.
Hawks on Capitol Hill correctly complain that defense would be disproportionately affected because the Pentagon accounts for less than one-fourth of the federal budget but would have to absorb about one-half of the sequester. As such, the defense budget would climb by only about $90 billion over the next ten years, which may wind up being less than inflation.
It does not require much imagination to see how a coalition could be formed to spend more money. President Obama has threatened to veto any legislation to cancel the sequester, but nobody believes him. And even if he were serious, politicians on Capitol Hill could do a back-door repeal of the sequester by padding other spending bills.
Another threat is that the crowd in Washington may resuscitate one of the many tax-hike plans that were proposed earlier this year. This includes the Gang of Six, Simpson-Bowles, and Domenici-Rivlin.
These plans are dangerous because many Republicans (regardless of the no-tax-hike pledge) are susceptible to a deal so long as something is being done to address entitlement costs and so long as the tax hikes are not based on class-warfare ideology. And all of the aforementioned plans satisfy these criteria.
To understand what's really happening, it helps to discard the usual Republican and Democrat labels and realize that there are several different camps in Congress, none of which has the ability to push through policy measures without help from at least one other group..
The hard-left ideologues: This group of congressional crazies shares the views of the Obama administration, Paul Krugman, and the Occupy Wall Street crowd. They want much bigger government with no real entitlement reform and lots of class-warfare tax hikes. Think Greece.
The rational Left: This is the most accurate description of the Gang of Six, Simpson-Bowles, and Domenici-Rivlin. They accept bigger government, but are willing to at least tinker with entitlements and also want to raise taxes in ways that don't do as much damage. Think Sweden.
The big-government Republicans: These are the so-called compassionate conservatives, who side with the rational Left if they get some political cover but sometimes will support smaller government if they get pressure. Think England.
The Reaganites: Mostly the members of the House Republican Study Committee and Senate Steering Committee, they support fiscal restraint, entitlement reform, and lower taxes. Think Hong Kong.
In this admittedly oversimplified analysis, every group is willing in certain situations to join forces with the adjoining group. This is why some of the tax-hike plans pose a clear and present danger. There are plenty of big-government Republicans, for instance, who are willing to ally themselves with the rational Left and support a big tax hike. Fortunately, Obama and the hard Left are saving us from that fate.
While this seems like a very discouraging situation for fiscal conservatives, the 2012 elections almost surely will bring in more Reaganites. This doesn't preclude an alliance of the rational Left and big-government Republicans, but it does make it more difficult (thank God for Grover's tax pledge).
Shifting from theory to reality, the real challenge for fiscal conservatives is figuring out how to adopt something akin to the Ryan budget. That means no tax increases, genuine spending cuts, and real entitlement reforms (i.e., not the policies promoted by the rational Left, such as unsustainable price controls or back-door tax hikes via means testing).
Sadly, there is no way for such a budget to be enacted in 2011 or 2012. And it may not happen in the four years after that. That would be both frustrating and worrisome — particularly since every year of delay brings us closer to European-style fiscal chaos.
But for fiscal conservatives there is no possible compromise with either the hard Left or the rational Left. Both of those camps want bigger government. Both want higher taxes. And both oppose real entitlement reform. The only real debate on the Left is how quickly to race in the wrong direction.

Let the Boss Decide What to Do

by Patrick Basham at www.cato.org

If the nation's public health mandate is to produce a significantly lower level of obesity in the near term, the use of discrimination by employers is a perfectly logical and defensible instrument to employ in such a war on fat. The painful and inconvenient truth is that any rapid reduction in the number of obese Americans would require the private sector to discriminate against, rather than in favor of, the obese.

Instead of expensive lawsuits, counterproductive fat taxes and endless lists of (ignored) nutritional information, we should allow employers, insurers and other institutions to act toward the obese as they see fit.
The thinner path was first mapped out in 2002, when Southwest Airlines initiated a policy of requesting that its largest passengers — those who require two seats on an airplane — purchase two tickets. This was a common sense solution to a growing problem, one that was achieved without government interference or fiat. However, today many states are preventing private health insurers from charging overweight and obese clients higher premiums, which effectively removes any financial incentive for maintaining a healthy lifestyle.
Why is employer-driven discrimination the correct approach? First, this policy would place the costs for being overweight squarely on individuals, giving them stronger incentives to slim down. Second, since most employers want a healthy workforce, it would give them an incentive to help employees control their weight, perhaps by restricting what is served in the company cafeteria, or offering exercise facilities.
Such marketplace-driven discrimination is clearly within the rights of private sector employers. If it turns out that such discrimination actually, if mistakenly, punishes otherwise productive and healthy employees, the marketplace will punish the discriminating company. Morale among overweight employees will plummet and competing firms will reap the economic benefit of retaining, hiring and indulging the obese, especially if consumers are also morally offended and choose to vote with their wallets against such discriminatory practices.
The decision to discriminate — or not — is a decision for each individual employer to make according to his or her own economic calculation and moral judgment. Critically, the employer should exclusively bear and enjoy the respective costs and benefits of that private decision.

FDA Considers Mandatory Salt Reductions

Posted by Walter Olson at http://www.cato-at-liberty.org/fda-considers-mandatory-salt-reductions/


With little publicity, the federal Food and Drug Administration has begun laying groundwork for one of the more audacious regulatory initiatives of the Obama administration: mandatory reductions in the salt content of processed foods in the supermarket aisle and at restaurants.
In a September 15 “Request for Comments, Data, and Information” (PDF) published in the Federal Register, the FDA solicits from the public “comments, data, and evidence relevant to the dietary intake of sodium as well as current and emerging approaches designed to promote sodium reduction.” Among the specific ideas it has in mind: setting federally prescribed “targets” for “stepwise” reductions in the amount of salt allowable in various foods, the phased nature of the reductions indicated because consumers’ “taste preference for sodium is acquired and can be modified.”
Various government programs (notably in Mayor Bloomberg’s New York City) already arm-twist producers into supposedly voluntary reductions, but the FDA notice hints broadly that voluntary measures will not suffice. Its public comment period ends next Tuesday, November 29; let’s hope the agency gets an earful from citizens about the importance of freedom and consumer choice.
As I noted last month in a Cato podcast with interviewer Caleb Brown, the FDA’s new initiative plunges it deeper into social engineering than it has gone in the past. It’s one thing to limit adulteration or contamination of foods, or the use of mysterious chemical additives; it is another to order the reformulation of recipes to reduce intake of a substance that 1) occurs naturally in virtually all foods; 2) is beneficial to health in many circumstances; and 3) has been sought out and purposely added to the human diet through recorded history.
As the FDA acknowledges, salt is far more than a flavor enhancer, capable of such miracles as turning vegetable soup into something small children will gladly eat. It also continues to be (as it has been through history) vital in preventing a wide range of bacterial spoilage and food poisoning dangers in the food supply. It also assists with texture, appearance, and shelf life. Consumers notice when it is missing, as Campbell’s found when it was forced by lagging sales to restore salt to its Select Harvest soup line, and as H.J. Heinz found when it faced a consumer revolt in Britain after reformulating its HP Sauce at the urging of the British government (see Telegraph and Daily Mail accounts).
As I noted a while back, the government’s dietary advice has changed often through the years, and its recommendations in retrospect have regularly proved to be unfounded and even damaging. Sure enough, reports have begun to come out that the salt panic has been exaggerated and may even pose some health dangers of its own. “New review questions benefit of cutting down on salt,” reported Reuters about a new review of more than 160 scientific studies published in the American Journal of Hypertension. “It’s time to end the war on salt,” per a July Scientific American article by Melinda Wenner Moyer.
And as for post-Thanksgiving dieting? As Reader’s Digest points out, eating more produce and less processed food is known to be a healthy step, and will much reduce your sodium intake. In the mean time, you can file comments here about whether you’d like to go on making these choices yourself, or have FDA Commissioner Margaret Hamburg make them for you.

Mandatory Medical Malpractice Caps Hurt Patients

by Shirley Svorny at www.cato.org

The U.S. Senate is set to consider on the Republicans' Jobs Through Growth Act, which contains a section aimed at reforming medical malpractice by imposing caps on economic and non-economic damages similar to those in place in Texas. Texas limits non-economic and exemplary (punitive) damages in all cases, and limits what relatives can get in cases of wrongful death. An obvious disturbing consequence is that caps reduce compensation to severely-injured individuals. Caps would hurt consumers in a second way — lower damage awards would reduce medical professional liability insurers' financial incentives to reduce practice risk.

Much of the protection consumers have against irresponsible and negligent behavior on the part of health care providers hinges on oversight and incentives created by the medical professional liability insurance industry. A nationwide shift to caps could result in more cases of negligence and substandard care.
Support for caps comes from individuals who see the medical malpractice system as broken, largely based on anecdotal observations. Everyone seems to have heard a story of a high verdict to a plaintiff whose claim was not valid. Yet, careful studies suggest these cases are anomalies, and the court system generally works. While there are no statistics for the country as a whole, based on the existing evidence, we can say confidently that a good chunk of initial claims (likely more than three-quarters) do not move forward because no negligence was involved. The vast majority of cases that do move forward settle.
This means that court signals from earlier trials are clear. If court awards were random, one would expect many more cases to go to court as there would be an expectation of an award even where there was no negligence. Many cases go to court because plaintiffs think they have a case when they do not. We know this because plaintiffs rarely win; less than a quarter of all cases that go to court are resolved in favor of the plaintiff. At least one study found court findings of negligence lined up with assessments by impartial reviewing physicians.
Critics of the legal system point out that many cases of negligence are not reported or adjudicated. However, every review has found claims are concentrated among a very small subset of physicians; less than five percent of physicians are responsible for the overwhelming share of claims. Even if a large percentage of negligent actions are not reported, it would seem that the present system works in identifying physicians whose practice patterns put patients at risk.
For the system to work to reduce practice risk, malpractice premiums must be experience rated — physicians who exhibit risky behaviors must face higher malpractice insurance premiums than their less-risky peers. The conventional wisdom among health policy experts has been that experience rating does not occur. But this is not true: high-risk physicians pay up to 500% more for insurance than their less-risky peers.
Insurance companies specialize. Some only insure physicians with spotless records. Others, the surplus lines carriers, specialize in underwriting the highest-risk physicians — at any given time between two and ten percent of practicing physicians. As one broker put it, because it is so costly, being forced into the surplus lines market gets a physician's attention and motivates efforts to reduce practice risk.
New procedures are often left to surplus lines carriers to underwrite, adding a layer of oversight to the introduction of new procedures such as Lasik eye surgery and laparoscopic gallbladder surgery. On rare occasions, carriers deny coverage, which precludes affiliation with most hospitals and health maintenance organizations — which effectively means these really risky physicians are forced out of practice, which is exactly the desired result.
Beyond individual underwriting to identify at-risk physicians, the medical professional liability insurance industry makes significant contributions to risk reduction in other ways. Companies offer premium discounts to physicians who take risk management seminars. The Physicians Insurers Association of America's Data Sharing Project identifies risky practice patterns. High insurance premiums motivated anesthesiologists to evaluate the risk associated with their practice patterns. As a result, anesthesiology is much safer than it used to be. Some insurers visit physician offices to evaluate safety and risk.
In 1992, when Congress tried to "help" community and migrant health centers by taking on their malpractice risk, many of the health centers resisted, lamenting the loss of the risk-management services the private carriers supplied.
Under the current system, liability motivates these efforts to reduce risk. Reducing liability, as caps do, is rarely a good idea in any situation. Placing caps would reduce malpractice insurers' incentives to oversee physician practice patterns and reduce incentives to manage risk in our health care system, and make health care that much riskier for all of us.

Should Thomas or Kagan Recuse Themselves Over ObamaCare?

Posted by Roger Pilon at http://www.cato-at-liberty.org/should-thomas-or-kagan-recuse-themselves-over-obamacare/


Today POLITICO Arena asks:

Should either Justices Thomas or Kagan recuse themselves from the ObamaCare case?

My response:
Justice Thomas is the easier case, because he had no involvement in the ObamaCare legislation or legal strategy, nor did his wife. As Tevi Troy commented in yesterday’s POLITICO, citing “alumni of the White House Counsel’s Office from several administrations,” Thomas’s ”wife’s activities would come into play only if she had a financial interest at stake in the case, which she does not.” And as Marcia Coyle and Tony Mauro noted in Monday’s National Law Journal, citing DePaul Law School’s Jeffrey Shaman, “Twenty-five years ago, they might have said judges should control their wives. But she has a right to her own life.”
Justice Kagan is a closer call. We already know her sentiments about ObamaCare from her breathless email to Harvard Law’s Laurence Tribe: “I hear they have the votes, Larry!!” But the real question is how closely she was involved in developing the legal strategy for defending the law – as head of the Justice Department office charged with that responsibility. As The Hill reported yesterday, “Emails show that Kagan’s office mounted an early and aggressive effort to prepare for legal challenges to the individual insurance mandate, but the records released so far do not contradict Kagan’s statement that she was not directly involved in the planning.” The operative words are “so far,” which is why House Judiciary Committee Chairman Lamar Smith, as POLITICO reported yesterday, “has asked the Obama administration to provide documents and internal correspondence on … Kagan’s role in defense of the health reform law.”
In the end, of course, recusal is the justice’s call. But especially in a case as important as this, the public deserves to know the facts.

The Broccoli Test

by Michael D. Tanner at http://www.cato.org

We should give it to the GOP presidential candidates.

Call it the broccoli test.
During oral arguments before the Court of Appeals for the District of Columbia Circuit on the constitutionality of Obamacare's health-insurance mandate, the Obama administration's lawyer, Beth Brinkmann, was asked whether a federal law requiring all Americans to eat broccoli would be constitutional.
"It depends," she replied. But she could certainly envision cases where it would be.

That makes her only slightly less certain than Supreme Court justice Elena Kagan, who was asked the same question during her confirmation hearings. Kagan, who will help decide the fate of Obamacare's mandate, had no doubts that a broccoli mandate would be constitutional.
Of course, it is unlikely that Congress will be mandating eating broccoli anytime soon — though given the Obama administration's ongoing concern over what we eat, who knows? But it perfectly illustrates the stakes in the Supreme Court's upcoming decision on the mandate's constitutionality.
The Left wants to pretend that this is just a case about health-care policy. You can't get to universal coverage without a mandate, they warn. Striking down the mandate may leave millions uninsured.
Those claims are debatable to say the least. But the question of the mandate is much bigger than health policy, good or bad. How the court decides will fundamentally define the boundary between government power and individual autonomy.
After all, if a government can order you to buy insurance, what can't it do?
As even the judges upholding the mandate's constitutionality have acknowledged, the government's lawyers have never been able — and have rarely tried — to articulate any limiting principle to Congress's power.
At the D.C. Circuit hearing, Brinkmann was asked whether people making more than $500,000 could be required to buy cars from General Motors to keep it in business.
"I would have to know much more about the empirical findings," she replied.
Today, we have a federal government that consumes 25 percent of GDP — and it's on its way to 42 percent by 2050. It is a government that intrudes on virtually every aspect of our daily lives — mandating, penalizing, incentivizing, criminalizing, or cajoling us to behave in a way that government thinks is best for us. If something is good, it should be required. If something is bad, it should be banned.
This ever bigger, pricier, and more intrusive government has been constructed by both the Left and Right, who want to use government to impose their versions of fairness, morality, and economic efficiency. Remember, many of the same people who are calling for the Court to strike down the individual mandate cheered when the Court upheld the federal government's right to overrule California's medical-marijuana law or struck down Oregon's right-to-die initiative.
That is why it is particular troubling that the current frontrunners for the GOP presidential nomination, Mitt Romney and Newt Gingrich, both supported a health-insurance mandate. Romney insists that he supported only a state mandate, not a federal one, which avoids the constitutional threat. But his continued defense of a state-level mandate as "a conservative idea," betrays an unhealthy affinity for government intrusion into individual decision-making. Gingrich, on the other hand, now disavows his previous support for the mandate, saying that he now believes it to be unconstitutional and unworkable. But his critique often sounds like a technocrat's objection to the outcome, rather than an understanding of the threat to liberty. And, unlike Romney, when Gingrich supported a mandate, he supported a federal one.
We can certainly hope that the Supreme Court will strike down the individual mandate and establish a firewall against unlimited government power. But regardless of how the Court ultimately rules, we should demand more. Every candidate, for every political office, should be asked what they believe is the proper role for government and where they think government power ends.
After all, a government big enough to give you everything you want, is a government big enough to make you eat broccoli.

Revisiting the ‘Christmas Tree Tax’

Posted by Tad DeHaven at http://www.cato-at-liberty.org/revisiting-the-christmas-tree-tax/


Three weeks ago, a national commotion erupted when the Drudge Report headlined a story from the Heritage Foundation on the Obama administration’s implementation of a new tax on Christmas trees. I noted here that the 1996 legislation enabling the U.S. Department of Agriculture to implement the tax received most of its support from Republicans, including co-sponsor John Boehner.
The National Taxpayers Union gives a tidy explanation of how the law almost led to the “Christmas Tree Tax”:

The Federal Agriculture Improvement and Reform Act of 1996 permitted producers of agricultural commodities such as beef, pork, or popcorn to create what are known as research and promotion programs, or “checkoffs.” These are analogous to unions: producers pay “dues” to the checkoff which works to fund research and advertising efforts on behalf of the industry represented. Board members are appointed by the Secretary of Agriculture who also has authority to enforce dues-payment. Because the dues are government-coerced, they are essentially taxes passed on to consumers.
There are currently 18 checkoff programs. And while the Obama administration quickly stopped the Christmas tree tax checkoff program from going into effect, there are still other agricultural commodity groups, such as the hardwood lumber industry, pushing for their own checkoff. There are also efforts to allow the creation of non-agricultural commodity checkoffs.

NTU notes that now another Republican wants to create a similar scheme at the Department of Commerce:

Congressman John Shimkus (R-IL) introduced H.R. 3395 to create the Concrete Masonry Products Board to promote and market concrete products. The Board would be made up of representatives of the concrete industry appointed by the Secretary of Commerce. Producers and importers of concrete masonry would initially be assessed $0.01 per concrete masonry unit sold in the United States. The Board will have authority to change the assessment rate, but it can be no higher than $0.05 per unit. The Secretary of Commerce would have authority to levy late-payment and interest charges on those producers who fail to remit an assessment.

That would be the same John Shimkus who received a “Taxpayer Hero” award from the Council for Citizens Against Government Waste in October. Carrying water for a special interest at the expense of consumers is not what I would consider to be an act of heroism. Worse, granting this authority to the Department of Commerce would add another layer of cement to the foundation (pun intended) of a bureaucracy that one former Commerce secretary derided as “nothing more than a hall closet where you throw in everything that you don’t know what to do with.” Fortunately, the bill only has two co-sponsors (Republican Rep. Richard Hanna of New York is one of them), so it’s probably not going anywhere.
Republicans who say they want smaller government should walk the talk by introducing legislation that would eliminate agencies and programs. For example, Rep. Mike Pompeo (R-KS) has introduced legislation to abolish Commerce’s Economic Development Administration. Otherwise, they’re just part of the problem, or—in the case of Shimkus and Hanna—they make matters worse.
See here for more on downsizing the Department of Commerce.

Things to Be Thankful For

Posted by David Boaz at http://www.cato-at-liberty.org/things-to-be-thankful-for-2/


Not long ago a journalist asked me what freedoms we take for granted in America. Now, I spend most of my time sounding the alarm about the freedoms we’re losing. But this was a good opportunity to step back and consider how America is different from much of world history — and why immigrants still flock here.
If we ask how life in the United States is different from life in most of the history of the world — and still  different from much of the world — a few key elements come to mind.
Rule of law. Perhaps the greatest achievement in history is the subordination of power to law. That is, in modern America we have created structures that limit and control the arbitrary power of government. No longer can one man — a king, a priest, a communist party boss — take another person’s life or property at the ruler’s whim. Citizens can go about their business, generally confident that they won’t be dragged off the streets to disappear forever, and confident that their hard-earned property won’t be confiscated without warning. We may take the rule of law for granted, but immigrants from China, Haiti, Syria, and other parts of the world know how rare it is.
Equality. For most of history people were firmly assigned to a particular status — clergy, nobility, and peasants. Kings and lords and serfs. Brahmans, other castes, and untouchables in India. If your father was a noble or a peasant, so would you be. The American Revolution swept away such distinctions. In America all men were created equal. Thomas Jefferson declared “that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God.” In America some people may be smarter, richer, stronger, or more beautiful than others, but “I’m as good as you” is our national creed. We are all citizens, equal before the law, free to rise as far as our talents will take us.
Equality for women. Throughout much of history women were the property of their fathers or their husbands. They were often barred from owning property, testifying in court, signing contracts, or participating in government. Equality for women took longer than equality for men, but today in America and other civilized parts of the world women have the same legal rights as men.
Self-government. The Declaration of Independence proclaims that “governments are instituted” to secure the rights of “life, liberty, and the pursuit of happiness,” and that those governments “derive their just powers from the consent of the governed.” Early governments were often formed in the conquest of one people by another, and the right of the rulers to rule was attributed to God’s will and passed along from father to son. In a few places — Athens, Rome, medieval Germany — there were fitful attempts to create a democratic government. Now, after America’s example, we take it for granted in civilized countries that governments stand or fall on popular consent.
Freedom of speech. In a world of Michael Moore, Ann Coulter, and cable pornography, it’s hard to imagine just how new and how rare free speech is. Lots of people died for the right to say what they believed. In China and Africa and the Arab world, they still do. Fortunately, we’ve realized that while free speech may irritate each of us at some point, we’re all better off for it.
Freedom of religion. Church and state have been bound together since time immemorial. The state claimed divine sanction, the church got money and power, the combination left little room for freedom. As late as the 17th century, Europe was wracked by religious wars. England, Sweden, and other countries still have an established church, though their citizens are free to worship elsewhere. Many people used to think that a country could only survive if everyone worshipped the one true God in the one true way. The American Founders established religious freedom.
Property and contract. We owe our unprecedented standard of living to the capitalist freedoms of private property and free markets. When people are able to own property and make contracts, they create wealth. Free markets and the legal institutions to enforce contracts make possible vast economic undertakings — from the design and construction of airplanes to worldwide computer networks and ATM systems. But to appreciate the benefits of free markets, we don’t have to marvel at skyscrapers while listening to MP3 players. We can just give thanks for enough food to live on, and central heating, and the medical care that has lowered the infant mortality rate from about 20 percent to less than 1 percent.
A Kenyan boy who managed to get to the United States told a reporter for Woman’s World magazine that America is “heaven.” Compared to countries that lack the rule of law, equality, property rights, free markets, and freedom of speech and worship, it certainly is. A good point to keep in mind this Thanksgiving Day.
This article originally appeared in the Washington Times in 2004 and was included in my book The Politics of Freedom.