Archive for May, 2010
Estrada and Taylor on Kagan
Kagan gets an endorsement from superstar conservative appellate litigator and Bush II appellate nominee (also my old boss) Miguel Estrada here (see last paragraph).
Plus, Stuart Taylor says Kagan’s nomination could mean a more conservative Court:
Commentators on the left . . . complain that Kagan never compiled much of a record of aggressively championing liberal causes during her years as a law professor. Some say she was too friendly as dean of Harvard Law School to conservatives and did not recruit as many women and minorities for the faculty as diversitycrats desired.
Speaking as a moderate independent, I like everything about Kagan that the left dislikes. To borrow from my friend Harvey Silverglate, a leading Boston lawyer who champions both civil liberties and an old-fashioned liberal’s brand of political incorrectness, ‘they want people who look different but think alike.’
Kagan seems to be a woman who thinks for herself.
Taylor also highlights what many libertarians will find most troubling about her record (other than strong hints of her lack of sympathy, albeit predictable for a Democratic nominee, with the litigation interests of the business community): her apparent endorsement of the Bush administration’s legal framework for detention of enemy combatants.
Guess Who’s Behind the New Fire-Sprinkler Mandates
California just adopted effective next year a requirement that all new one- and two-family dwellings include indoor sprinkler systems. Other states are debating similar mandates, spurred by changes to national building code standards. Earlier legal mandates have required the inclusion of smoke alarms and carbon monoxide alarms, but the cost of those devices is relatively minor, whereas full-blown sprinkler systems add measurably to the cost of a new home, as well as posing challenges in such areas as maintenance, aesthetics, and risk of property damage through accidental activation.
It will surprise not a single reader of these columns, I suspect, to learn that the fire sprinkler industry has been a major force in pushing the new mandate. As for the opposition, home builders have managed to mount a bit of resistance — New Jersey, for example, saw the current depressed state of the residential construction business as reason to postpone its mandate for a year. But the builders are pretty much on their own in the fight, since future buyers of new homes are a group with no organized political presence whatsoever.
Real estate blogger Christopher Fountain writes that he’s “never heard of a home buyer voluntarily ordering this equipment when building a house, so it sounds to me like one more instance of people who know better dictating to those who don’t.” Exactly. A South Carolina paper quotes a state official as saying if buyers feel priced out of the new home market by the cost of the mandate, they have other ways to save money “such as choosing less expensive flooring or countertops, or not installing yard sprinklers”. Easy to make someone else’s budget decisions for them, isn’t it? And shouldn’t the “affordable housing” community be taking more of an interest?
The Next Ronald Reagan?
Very rarely does one find a politician with the moral clarity to provide the blunt and necessary truth about a controversial issue, but that has finally happened. But this is a good news/bad news situation for American taxpayers. The good news is that a politician has proposed to slash both bureaucrat pay and public pensions and publicly stated that, “The state sector is like a fat man of 200kg sitting on the back of a 50kg little man who is the real economy.” The bad news is that this politician is the President of Romania. A caveat is probably appropriate at this stage. I have no idea whether Presdident Basescu actually is a genuine small-government proponent. Perhaps he is just an ordinary politician forced to do the right thing by extraordinary circumstances. Nonetheless, I have a hard time imagining we will see a better quote from an elected official this year. Here’s an excerpt from a story in the Irish Times:
President Traian Basescu said officials had decided…to reduce the pay of state employees by 25 per cent from next month and pensions and unemployment benefits by 15 per cent this year. …He said the cutbacks would also help reinvigorate an economy that is being crushed by a bloated and inefficient state sector, and allow Romania to avoid steep tax hikes that could hamper investment and destroy hopes of a swift recovery from recession. “This plan was inevitable. The state sector is like a fat man of 200kg sitting on the back of a 50kg little man who is the real economy,” said Mr Basescu, who narrowly won re-election at the end of last year.
Leaves Lady Gaga in the Dust
In their 2006 Cato Policy Analysis, “Amateur-to-Amateur: The Rise of a New Creative Culture,” Gregory Lastowka and Dan Hunter wrote about how the functions that make up the creative cycle—creation, selection, production, dissemination, promotion, sale, and use of expressive content—are undergoing revolutionary decentralization and disintermediation.
The only thing professional in the clip below was the writing of the song. It deserves its credit, but the performance itself, production of the video, its selection, dissemination, and promotion (Twitter users, YouTube) are all amateur or amateur supported by a professionally managed, ad-supported platform.
Watch it a second time to take in the reactions of the girls sitting in front of the map. If you like, compare it with the tacky, overproduced, and flat “professional video“.
This is amateur entertainment that rivals any professional production, in part because it’s amateur. Assuming this performer dedicates himself further to his craft, he can rival or surpass anything put out by yesterday’s professionals.
(And, yes, I’m waiting to learn that I’ve been duped by some clever marketing scheme, but I hope this is real.)
Kagan on Military Recruitment
Elena Kagan has been getting a lot of flak from the right for her position on military recruitment at Harvard. While the military’s don’t ask don’t tell policy is unjust, Harvard’s position on recruitment was also misplaced—and, were the question ever presented to my faculty, I’d vote against barring the military from recruiting at my law school for the same reasons as Ilya Somin.
But, although Harvard made the wrong call on recruitment (albeit one that, in fairness, is not attributable just to Kagan, but, reportedly, to an overwhelming majority of the Harvard law faculty), Kagan’s opposition to the Solomon Amendment, which conditioned federal funding on JAG recruiters’ access to campus, has much to recommend it from a libertarian standpoint, for the reasons put forward in Cato’s amicus brief in Rumsfeld v. FAIR, the case challenging the Solomon Amendment (which you can download here). (Disclosure: I co-wrote the brief when I was at Cato. As I recall, this was a controversial position within Cato, and I’d guess that remains true today. Cato’s current legal shop might well take a different view were the question presented to it now.)
True, the Supreme Court rejected our position 8-0. But it’s not the first time, and will be not be the last, that the Court musters eight votes for what some libertarians think is a questionable outcome.
And for the record, my view on Kagan—while she’s, as Kagan would say, “not my people,” she’s a top-notch scholar, a great Dean (who was very fair to faculty conservatives and libertarians), by all accounts an outstanding teacher, and likely to fall somewhere on the liberal continuum to the left of Breyer and to the right of Stevens. Could be worse!
Shocking News: People Are Less Likely to Work When Government Subsidizes Joblessness
Kudos to the Detroit News for a great story revealing that people are refusing to accept jobs because of government unemployment benefits. None of this should be surprising to people who understand that if you subsidize something, you get more of it. Alan Reynolds has been beating this drum for quite some time, but the message doesn’t seem to get through to politicians who think it is compassionate to lure workers into lives of dependency. But perhaps this excerpt from the Detroit News report will help (In a perverse way, I admire the one guy who admits that he doesn’t plan to find work until the government stops sending him checks):
In a state with the nation’s highest jobless rate, landscaping companies are finding some job applicants are rejecting work offers so they can continue collecting unemployment benefits. …the fact that some seasonal landscaping workers choose to stay home and collect a check from the state, rather than work outside for a full week and spend money for gas, taxes and other expenses, raises questions about whether extended unemployment benefits give the jobless an incentive to avoid work. …Chris Pompeo, vice president of operations for Landscape America in Warren, said he has had about a dozen offers declined. One applicant, who had eight weeks to go until his state unemployment benefits ran out, asked for a deferred start date. …A full-time landscaping employee would make $225 more a week working than from an unemployment check of $255. But after federal and state taxes are deducted, a full-time landscaper would earn $350 a week, or $95 more than a jobless check. …The federal jobless benefits extension “is the most generous safety net we’ve ever offered nationally,” said David Littmann, senior economist of the Mackinac Center for Public Policy, a free-market-oriented research group in Midland. …One former landscaper, who has been on unemployment for a year, said he will search for work when the benefits expire, but he estimates he earns about $50 to $60 less a week than he would if he were working. “It’s crazy,” he said. “They keep doing all of these extensions.”
NYT: Attorneys General Advance “a Credible Theory for Eviscerating” ObamaCare
The New York Times‘ Kevin Sack reports on the legal challenge to ObamaCare’s individual mandate launched by 20 state attorneys general:
Some legal scholars, including some who normally lean to the left, believe the states have identified the law’s weak spot and devised a credible theory for eviscerating it…
Jonathan Turley, who teaches at George Washington University Law School, said that if forced to bet, he would predict that the courts would uphold the health care law. But Mr. Turley said that the federal government’s case was far from open-and-shut, and that he found the arguments against the mandate compelling.
“There are few cases in the history of the court system that have a more significant assertion of authority by the government,” said Mr. Turley, a civil libertarian who acknowledged being strange bedfellows with the conservative theorists behind the lawsuit. “This case, more than any other, may give the court sticker shock in terms of its impact on federalism.”
Supporters claim the individual mandate will pass muster with the Supreme Court because in the past the Court has declared that the U.S. Constitution’s interstate commerce clause authorizes Congress to regulate non-commercial activity that affects interstate commerce. Sack writes:
Lawyers for the government will contend that, because of the cost-shifting nature of health insurance, people who do not obtain coverage inevitably affect the pricing and availability of policies for everyone else. That, they will argue, is enough to satisfy the Supreme Court’s test.
But to [the attorneys' general outside counsel David] Rivkin, the acceptance of that argument would herald an era without limits.
“Every decision you can make as a human being has an economic footprint — whether to procreate, whether to marry,” he said. “To say that is enough for your behavior to be regulated transforms the Commerce Clause into an infinitely capacious font of power, whose exercise is only restricted by the Bill of Rights.”
Sack’s article contains an inaccuracy. He writes:
Congressional bill writers took steps to immunize the law against constitutional challenge…They labeled the penalty on those who do not obtain coverage an “excise tax,” because such taxes enjoy substantial constitutional protection.
In fact, the law uses the term “excise tax” several times, but never in reference to the penalty for violating the individual mandate. It describes that penalty solely as a penalty. (The law does refer to the penalty for violating the employer mandate as a tax, but not an excise tax.)
As my Cato colleague Randy Barnett explains, that means supporters cannot reasonably claim that the individual mandate’s penalty is a tax, because that’s not what Congress approved. As Cato chairman Bob Levy explains, even if supporters do claim that penalty is a tax, it would be an unconstitutional tax, because it does not fit into any of the categories of taxes the Constitution authorizes Congress to impose.
The “substantial constitutional protections” afforded to excise taxes do not protect the individual mandate.
Sunlight Before Signing: Slow Improvement
It’s about time for an update on President Obama’s Sunlight Before Signing promise. On the campaign trail and on his campaign web site, the president said he would post all bills he received from Congress online for five days before he signed them.
He hasn’t fulfilled that promise every time. In fact, so far in 2010 he’s only done it about a quarter of the time, but that’s a big improvement over 2009!
Here’s a table that summarizes the Sunlight Before Signing status of the 163 bills President Obama has signed.
| Number of Bills | Bills Held 5 Days | Bills Posted Five Days | Emergency Bills | |
|---|---|---|---|---|
| Overall | 163 | 113 | 16 | 1 |
| 2009 | 123 | 90 | 6 | 0 |
| 2010 | 40 | 23 | 10 | 1 |
Of 163 bills, 113 have been held for five days as a matter of course, but only 16 have been posted on Whitehouse.gov for five days before signing. Five of the six bills posted for five days were in December, after Whitehouse.gov put a link on its home page pointing to pending legislation. The remaining ten so far in 2010 bring the president’s overall Sunlight Before Signing average to .098. Let’s round it up to 10%.
If you drop the administration’s first year, things start to look pretty good. (Hey, everything is relative…) The president is 10 for 40 in 2010—a straight .250 batting average. There have been 23 bills held five days, of course. The average could be above 50%!
Part of what is dragging the numbers down is the policy not to post bills that rename post offices. They’re not very important—that’s for sure—but the president’s promise wasn’t to post just the important bills online.
The public might benefit from knowing that Congress and the president spent time naming a post office in Saint Louis after Coach Jodie Bailey. (Coach Bailey had a record of 828 wins and 198 losses in his 42 seasons—quite a bit better than President Obama’s record on Sunlight Before Signing!)
Interestingly, the most recent new law—renaming a Department of Veterans Affairs facility—was posted online for five days. Perhaps the White House is going to start going after Sunlight Before Signing’s lowest-hanging fruit. Then things will really pick up!
After the jump, the table showing the Sunlight Before Signing treatment for all 163 laws President Obama has signed.
Taking Judicial Matters Seriously
Elena Kagan, with no judicial opinions and few legal writings, is the new “stealth” nominee for the Supreme Court. All the more reason senators should press her about the most important question before the country today: After ObamaCare, are there any longer any constitutional limits on government? For more, see my piece at Forbes.com.
Senate to Limit ATM Charges?
The great thing about Cato policy papers is that even sometimes obscure topics are timeless, because government never rests when it comes to running our lives and restricting our choices.
Take the issue of bank ATM surcharges, those fees you can sometimes be charged for using another bank’s ATM. Back in 1998, then Senator Al D’Amato proposed capping those fees. Thankfully that effort failed. I would like to believe one of the reasons for its failure is a 1998 Cato Briefing Paper by John Charles Bradbury, describing how ATM surcharge fees actually increase consumer choice by funding ever increasing ATM locations.
Well the Senate is at it again. Senator Harkin has proposed an amendment to Dodd’s financial regulation bill that would cap ATM surcharge fees at 50 cents (it is not clear where Harkin came up with that number, perhaps his love of music). The same flaws in D’Amato’s scheme twelve years ago hold true today.
The other great thing about existing Cato briefing papers is that it saves me the work of writing on the topic. Just as well since I don’t believe I could improve upon Bradbury’s conclusions:
Consumers have the ability to obtain money from their bank accounts without paying a surcharge. ATM surcharges allow banks and other ATM operators to deploy machines in more convenient locations than might otherwise be possible. Customers who are unwilling to pay a surcharge incur the cost of inconvenience, while those who value the convenience more than the cost of the fee have the option of paying for it. Senator D’Amato, Rep. Bernie Sanders (I-Vt.)–Congress’s self-proclaimed socialist–and numerous consumer groups have formed an unlikely coalition to put an end to ATM surcharges. If successful, that campaign would limit the options of consumers, since there would be no means to support the more convenient ATM machines. Prohibiting ATM surcharges would only harm consumers by slowing the expansion of ATMs and reducing the number of ATMs currently deployed without making anyone better off.
FISA Applications Are Down, but Is Surveillance?
The invaluable Main Justice blog notes that we’ve just gotten our annual dribble of information from the Foreign Intelligence Surveillance Court, showing that the number of surveillance applications sought and approved by the court dropped for a second consecutive year, to their lowest level since 2002. Applications fell to 1,376—down from 2007′s record high of 2,370.
So does that mean there’s less FISA surveillance going on? Nope—according to an anonymous source at the Justice Department, you can’t infer much from the raw numbers, especially given the passage of the FISA Amendments Act of 2008, which empowered the executive branch to authorize broad programs of surveillance with slight court oversight:
“The number of Foreign Intelligence Surveillance Act applications submitted to the Foreign Intelligence Surveillance Court decreased in 2008 and again in 2009 due to significant changes in the legal authorities that govern FISA surveillance — specifically, the enactment of the FISA Amendments Act in 2008 — and shifting operational demands, but the fluctuation in the number of applications does not in any way reflect a change in coverage,” the official said.
I note with some disappointment that the normally astute folks at Main Justice repeat the canard that the FISA Amendments Act were a response to a 2007 court ruling that “surveillance of purely foreign communications that pass through a U.S. communications node was illegal without a warrant.” Boosters of broader executive power trumpeted that line, but as we learned in 2008, the court’s limitations were really centrally about certain kinds of e-mail traffic; it has never been the case that purely foreign communications in general required a warrant if they passed through the U.S.—and indeed, nobody reading the plain text of the FISA law could possibly believe that to be the case.
In any event, as I suggested recently when last year’s criminal wiretap figures were released, this is one more reason to suspect that current reporting requirements amount to so much oversight theater—giving us the illusion that we have some understanding of the real scope of electronic surveillance, while providing (at best) a spotty and incomplete picture.
Not Too Late to “Audit the Fed”
Last week I wrote about Senator Sanders’ “compromise” with Senator Dodd and the White House on auditing the Federal Reserve. To re-cap, the compromise would drop any auditing of monetary policy and simply focus on the Fed’s emergency lending facilities. See my previous post for why I believe that compromise is a big win for the Fed and a loss for the American public.
The good news is that Senator Sanders’ compromise does not end the debate. Senator Vitter has filed an amendment (#3760) that mirrors the original Sanders’ amendment, including an audit of monetary policy. With any luck, other Senators will be able to decide for themselves whether the Sanders-Dodd compromise offers sufficient transparency of the Fed’s actions.
I also highly suggest reading Arnold Kling’s recent Cato briefing paper on the issue, “The Case for Auditing the Fed Is Obvious.”
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