Archive for July, 2009
Randal O’Toole Takes on Smart Growth in the NYT
The New York Times has a long profile today of Cato’s Randal O’Toole, scourge of urban planners.
But O’Toole doesn’t fit the portrait of a corporate advocate. On visits to Capitol Hill, he blends in as a middle-aged, middle-height man in a dark suit — but his beard gives him away, its shaggy twists seemingly fitting for a forest dweller. He wears a string tie that most Americans would only recognize on Colonel Sanders. His lapel doesn’t carry the standard-issue flag pin but a bronze bust of his dog, Chip. The Belgian tervuren won it in a dog show.
O’Toole routinely hikes and bikes dozens of miles, and he proudly announces that he has never driven a car to work. Far from living on a luxurious Virginia manor, he left his last Oregon town when it added a third stoplight.
Now, from his home computer in Camp Sherman, Ore., population 300, O’Toole rails against smart-growth policies as money sponges that never calm traffic, fill seats on trains, or help the environment.
The story ends with Randal on his way to a conference in Las Vegas, which I also attended. There in the 80-degree early morning heat, he biked 50 miles each morning, on a folding bicycle that he could fit into a suitcase – and still got back to the hotel in time to fix my Powerpoint before my speech. He’s a Renaissance man.
Review of the Big REAL ID Hearing
The Senate Homeland Security and Governmental Affairs Committee held a hearing yesterday on the REAL ID Act and the REAL ID revival bill, known as PASS ID. I attended and want to share with you some highlights.
Good News!
Little good came from the hearing, as it was primarily focused on how to get the states and people to accept a national ID. But there is some good news.
First, Department of Homeland Security Secretary Janet Napolitano declared REAL ID dead (much as I did in my testimony two-plus years ago). “DOA” is how she referred to it.
She also said that no state will be in compliance with REAL ID by the current December 31, 2009 deadline. This is important because a lot of people think that states doing anything about the security of drivers’ licenses and ID cards are complying with REAL ID.
Another highlight was the commentary of Senator Roland Burris (D-IL). He is a beleaguered outsider to the Senate and evidently wasn’t coached on the talking points around REAL ID and PASS ID. So he flat out asked why we shouldn’t just have “a national ID.”
Senator Susan Collins’ (R-ME) nervous smile was particularly noticeable when Burris asked why the emperor had no clothes. No one was supposed to talk about national IDs at this hearing! But that’s what PASS ID is.
REAL ID and PASS ID are two versions of the same national ID system, and nobody is denying it. That’s good news because the effort to rebrand REAL ID through PASS ID has failed.
Lack of Deep Thinking = Belief in the Living Constitution?
In a twist on the “lack of deep thinking” idea, part of what might be going on in Sotomayor’s head—why she keeps answering questions about judicial philosophy with reference to precedent rather than constitutional first principles is because she’s not an originalist. How can we hope for her to tell us her understanding of the meaning of the constitutional text, after all, if that text’s meaning changes with the times?
For example, Stuart Smalley Al Franken asked Sotomayor point blank, “do you believe the right to privacy includes the right to have an abortion?” The nominee began here response with: “The Court has said….” That is, it is not the Constitution—whatever your view of it may be, whether you think it contains a right to abortion or not—that is the supreme law of the land, but what nine black-robed philosopher-kings say. Of course, if your (non-)theory of constitutional interpretation is to keep “improving” the document—and to keep one step ahead of public opinion, so judges can effect social “progress”—then it’s irrelevant what the Constitution said before the Supreme Court put its gloss on it.
And if you subscribe to this “living Constitution” or “active liberty” theory, then naturally the life experiences of a “wise Latina,” along with lessons from foreign and international law—which, Sotomayor said as recently as her April speech to ACLU, get a judge’s “creative juices flowing”—are all valid parts of your jurisprudential toolkit.
CP Townhall
The Price of Universal Health Care: Our Freedom
In today’s Wall Street Journal, Thomas Szasz argues that universal health care is impossible and the quest for it will cost us our freedom. “If we persevere in our quixotic quest for a fetishized medical equality we will sacrifice personal freedom as its price.”
Hate Crimes Bill Becomes an Amendment
Unsure about prospects on passing the Local Law Enforcement Hate Crimes Prevention Act as a stand-alone bill, proponents intend to attach it as an amendment to the Department of Defense Authorization bill. As I have said previously, this bill is an affront to federalism and counterproductive hater-aid.
Federal Criminal Law Power Grab
This legislation awards grants to jurisdictions for the purpose of combating hate crimes. It also creates a substantive federal crime of violent acts motivated by the “actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person.”
This is a federalization of a huge number of intrastate crimes. It is hard to imagine a rape case where the sex of the victim is not an issue. The same goes for robbery – why grab a wallet from someone who can fight back on equal terms when you can pick a victim who is smaller and weaker than you are?
This would be different if this were a tweak to sentencing factors.
If this were a sentence enhancement on crimes motivated by racial animus – a practice sanctioned by the Supreme Court in Wisconsin v. Mitchell – then it would be less objectionable if there were independent federal jurisdiction.
Thing is, the federal government has already done this, with the exception of gender identity, with the Federal Sentencing Guidelines (scroll to page 334 at the link):
If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, increase by 3 levels.
The contrast between a sentence enhancement and a substantive crime gives us an honest assessment of what Congress is doing – federalizing intrastate acts of violence.
If Congress were to pass a law prohibiting the use of a firearm or any object that has passed in interstate commerce to commit a violent crime, it would clearly be an unconstitutional abuse of the Commerce Clause.
Minus the hate crime window dressing, that is exactly what this law purports to do.
The Myth of Arne Duncan’s “Chicago Miracle”
Last week, I blogged about the fact that Chicago students’ NAEP test score gains were modest under Arne Duncan’s leadership, and statistically indistinguishable from the modest gains made in urban districts around the nation. My analysis — which contradicts the rosy impression given by Illinois’ ISAT test – has just been released here.
Secretary Duncan has said that state and district officials should not make inflated claims about student achievement based on misleading state test scores, and has used the NAEP to fact check their claims. He’s right about that.
End the Credit Rating Monopoly
Earlier this week, SEC Chair Mary Shapiro appeared before Congress to suggest ways to fix the failings in our credit rating agencies. Sadly her proposals miss the market, although that shouldn’t be so surprising as her suggestions appear to rest upon a misunderstanding of the problem.
The thrust of the SEC’s current approach is more disclosure, such as releasing “pre-ratings” that debt issuers may get before final issuance. Additional disclosure of ratings methodology and assumptions is likely to be useless. Almost all that information was available during the building housing bubble. The problem is that the rating agencies had little incentive to go beyond the consensus forecasts of increasing to at most modest declines in home prices. These same assumptions were the foundation of almost all government economic forecasting as well, yet few believe that forcing CBO or OMB to disclosure more of their forecasts will cure our budget imbalances. What is needed is a change in incentives.
Sotomayor Displays a Lack of Deep Thinking
It strikes me that Sotomayor has been fairly forthright in her responses to questioning, not hiding too much behind the tired cliché that she can’t answer a question because it could lead to prejudging a case—certainly far less than Ruth Bader Ginsburg and even John Roberts. Still, on several important issues, such as property rights, national security law, abortion, and even her overall judicial philosophy, she has appeared disingenuous in saying that she has no firm views on the subject—hiding behind precedent again and again as if first principles didn’t exist. In other words, she says a lot—displaying a broad knowledge of cases and legal doctrine—without answering larger questions. She answers questions about what the law should be with what the law is, questions about what the Constitution says with what the Supreme Court has said about the Constitution.
This would be barely appropriate for a nominee to a lower court, who is, of course, bound by precedent. But senators rightly want to know a Supreme Court nominee’s preferred legal theories, what her view of the Constitution is unencumbered by others’ attempts to interpret that document.
The more Sotomayor speaks, the more it becomes clear that these types of nonanswers, this inability to see (or lack of desire to express) a big picture view, is her own essence. It continues a pattern that is evident from her judicial opinions, which are mostly unremarkable and, in the neutral sense of that term, unimpressive. For all her career success and a personal story we should all celebrate, she is an average judge who apparently gives little thought to the broad swath of law and where her rulings fit into that.
That is, Sonia Sotomayor is not a Cass Sunstein or Larry Tribe or Elana Kagan or (fellow circuit judge) Diane Wood. She is not a scholar or an ideologue. Her liberality is reflexive and warmed-over, a product of the post-modern educational environment that formed her in the 1970s—complete with ethnic activism—but not an intellectual edifice. This does not mean she isn’t a danger to liberty and the rule of law, or that her votes and opinions won’t harm the Constitution. But it does indicate that, for all her bluster about being a “wise Latina,” she is little more than a left-leaning empty robe.
CP Townhall
The Health Care Reform Bill Will Cost $500 Billion in New Taxes
House Democrats released their 1,018 page health care reform bill, America’s Affordable Health Choices Act of 2009, yesterday.
This bill is a dog’s breakfast of bad ideas paid for by more than $500 billion in new taxes. The reform would impose an individual mandate on individuals, requiring every American to buy a government designed insurance package or pay a new tax equal to 2.5 percent of their income. At a time of rising unemployment, businesses would be required to provide health insurance to workers or pay a new tax equal to 8 percent of workers wages. These new taxes could drive the total cost to taxpayers much higher than the $500 billion in direct taxes in the bill.
In addition, the bill includes a host of new insurance regulations that will drive up the cost of insurance premiums, and a new government-run insurance plan that will “compete” with private insurance. That government-run plan will ultimately force millions of Americans out of their current insurance plan and into the government-run system. This is a health care “reform” under which Americans will pay more for worse care.
To get an idea of what sort of bureaucratic nightmare that would ensue with passage of this bill is illustrated by the Republican Staff of the Joint Economic Committee here.
For regular updates on the reform process as it progresses, check out Cato’s health care Web site.
Why Taxing the Rich Is Not Enough to Fund Big Government
Appearing on Fox News on Monday, Cato’s Daniel J. Mitchell explained why taxing the rich to pay for big government programs may make for a good sound bite on the campaign trail, but when there aren’t enough wealthy people to tax, the middle class ends up footing the bill.
“When politicians are aiming at the rich, it’s the middle class that winds up getting hit in the crossfire,” Mitchell said. “They use ‘tax the rich’ as the rhetoric, but they always go after the ordinary people to get more money to fund their big government schemes.”
Watch the whole thing:
Intervention Begets Intervention, Which Begets…
The logic in Washington is ineluctable. If government provides money, then it needs to impose regulations. If the government takes ownership, then it must provide management.
Bail out the banks. Set bankers’ salaries. Bail out the insurers. Decide on corporate bonuses.
And if the government takes over the automakers, then it should run the automakers. That, of course, means deciding who can be dealers.
Now that the Obama administration has spent billions of dollars on the bailouts of General Motors and Chrysler, Congress is considering making its first major management decision at the automakers.
Under legislation that has rapidly gained support, GM and Chrysler would have to reinstate more than 2,000 dealerships that the companies had slated for closure.
The automakers say the ranks of their dealers must be thinned in order to match the fallen demand for cars. But some of the rejected dealers and their Capitol Hill supporters argue that the process of selecting dealerships for closure was arbitrary and went too far.
Since federal money has been used to sustain the automakers, they say Congress has an obligation to intervene.
At a gathering of dozens of dealers who came to Capitol Hill yesterday to lobby their representatives, House Majority Leader Steny H. Hoyer (D-Md.) and several other congressmen spoke in support of the dealers. More than 240 House members have signed onto the bill, supporters said.
“We are going to stand with them for as long as it takes,” Hoyer told an approving crowd.
What is next? Congress deciding the prices that should be charged for autos? The accessories to be offered? The colors cars should be painted?
I have no idea who should or should not be an auto dealer. But I do know that it is a decision which should not be made in Washington, D.C.
The “Washington Monument Syndrome” Backfires in Massachusetts
While politicians and bureaucrats generally are on the same side, there are occasional conflicts. For instance, if politicians want to limit the growth of an agency’s budget (an infrequent impulse, to be sure), the bureaucrats get upset and sometimes they fight back. A common tactic is to try and generate public opposition by leaking to the press that they will have to curtail something that taxpayers actually value. This is known as the Washington Monument Syndrome, which is a reference to the National Park Service’s petulant decision about 40 years ago to close national monuments two days per week because of a very small budget reduction. A very perverse example of the Washington Monument Syndrome just took place in Massachusetts, where officials at the New England Zoo threatened to kill some of the animals if their subsidy was reduced. This was so over the top that even the state’s collectivist governor felt compelled to condemn the bureaucrats for using dishonest scare tactics. The Boston Globe reports:
Governor Deval Patrick yesterday accused Zoo New England officials of creating a false and inflammatory scare with their warning that state budget cuts may force them to close two Greater Boston zoos and euthanize some animals. “As a supporter of the zoo and a parent who has visited often, the governor is disappointed to learn that Zoo New England has responded to this difficult but unavoidable budget cut by spreading inaccurate and incendiary information,’’ Kyle Sullivan, a spokesman for the governor, said in a statement. And a second Patrick aide emphatically ruled out the killing of any animals. …Zoo officials declined to comment on Patrick’s remarks yesterday. They also canceled a public event to welcome two French Poitou donkeys to the Franklin Park facility in honor of Bastille Day tomorrow. John Linehan, Zoo New England chief executive, was scheduled to attend the event. …On Friday zoo officials released a statement saying the funding reduction might require them to shutter both zoos. Then on Saturday, they issued a statement that said state bureaucrats – and not animal-care professionals – would be responsible for deciding whether some animals would have to be killed if the zoos closed. …At least one visitor to the Franklin Park Zoo yesterday suggested the operator solve the budget crisis on its own. “I wonder why the Franklin Park Zoo doesn’t raise their prices so they can support themselves,’’ said Emanuel Achidiev, 28. “They shouldn’t have to rely on the state.’’
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