Archive for May, 2010
Ground-Breaking Constitutional Theories
As Larry Solum notes and Randy Barnett seconds, Georgetown law professor and friend-of-Cato Nick Rosenkranz has just published a tremendous article in the Stanford Law Review. I saw an earlier version of it and can tell you that it offers one of those singular re-thinks of accepted learning. As Randy puts it, “It is one of those rare pieces that hits you between the eyes and causes you to reconsider how you think about the Constitution.” The article, entitled “The Subjects of the Constitution,” argues that all of us are going about our constitutional theorizing, at least with respect to judicial review, the wrong way. Here’s the first paragraph of the abstract:
Two centuries after Marbury v. Madison, there remains a deep confusion about quite what a court is reviewing when it engages in judicial review. Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations. But strictly speaking, this is not quite right. The Constitution prohibits not objects but actions. Judicial review is the review of such actions. And actions require actors: verbs require subjects. So before judicial review focuses on verbs, let alone objects, it should begin at the beginning, with subjects. Every constitutional inquiry should begin with a basic question that has been almost universally overlooked. The fundamental question, from which all else follows, is the who question: who has violated the Constitution?
In thinking about who violated (or allegedly violated) the Constitution, Rosenkranz contends, we get to a truer understanding of whether the Constitution was violated, and how. Fascinating stuff, which you can download here – and the sequel, titled “The Objects of the Constitution,” is coming soon to a legal journal near you (perhaps for next summer’s blockbuster law review article season). (Coincidentally, today the Supreme Court unanimously ruled against Nick in his first argument before the Court — a technical case regarding the award of attorneys fees under Employee Retirement Income Security Act (ERISA) — so we now know where his comparative advantage lies!)
And while I have you thinking about such high-fallutin’ theoretical matters, let me also direct your attention to a new article by an up-and-coming legal scholar, also a friend-of-Cato (and my sometime co-author), Josh Blackman. Josh argues that the Supreme Court’s relatively new “class of one” doctrine, by which a single person can present himself as a class discriminated against in violation of the Equal Protection Clause, should be used to challenge eminent domain abuse. That is, homeowners can establish a class of one (i.e., the person whose home the government takes) if their property is singled out for condemnation while other similarly situated properties are not. The singled-out homeowner(s) can thus challenge the arbitrariness of the government’s taking of their property.
Josh obviously hopes that some court will accept this novel strategy of borrowing equal protection jurisprudence to check rampant eminent domain abuse and vindicate property rights. Here you can download his article, which is titled “Equal Protection from Eminent Domain: Protecting the Home of Olech’s Class of One.” Coincidentally, two years ago Roger Pilon wrote an essay on the Supreme Court’s most recent “class of one” decision, which you can read here.
FTA Chief: Paint Is Cheaper Than Trains
In March, Cato published my review of every rail transit system in America (as of 2008), showing that in nearly every case buses would have been more cost-effective at moving people. This same view was expressed last week by a surprising source: Peter Rogoff, the Obama administration’s appointee in charge of the Federal Transit Administration (FTA).
Appropriately, Rogoff spoke before the Federal Reserve Bank of Boston, whose transit system, he pointed out, is in a “grim” state. Nationwide, he noted, America’s transit industry suffers from $78 billion worth of deferred maintenance — most of which is due to rail transit lines that cities cannot afford to keep in shape. Rogoff was disturbed that cities were asking for federal grants to build more rail lines when they can’t keep the existing trains in a state of good repair.
Monday Links
- Julian Sanchez in Newsweek: Why Rand Paul is right…and wrong.
- Four policies that can reduce illegal immigration.
- It’s time to stop using the BP oil spill to grind old political axes and move the debate forward on energy policy.
- Podcast:”Avoiding the Skid of Greece” featuring Jeffrey A. Miron.
Grenades and Paramilitary Policing
The police threw a grenade through a window and then entered as they sought a murder suspect. Paramilitary weapons and tactics too often lead to unnecessary deaths and injuries. Rep. John Conyers wrote a letter to the Attorney General, asking him to monitor the case. In that letter, Conyers cites the Cato work, Overkill. That’s a start, but Conyers should go to work in the Congress and stop the Pentagon practice of selling surplus military equipment to local police departments. More here [pdf].
Update: Radley Balko has more on this incident here.
Charles Murray in Slovakia
Cato co-sponsored a successful conference in Bratislava, Slovakia last week with Trend business magazine, “Slovakia at the Crossroads of Reform.” At a time when the crisis in the eurozone is exposing the unsustainable nature of the European welfare state — and one month before general elections in the country — the event brought together international experts and political and opinion leaders from a broad ideological spectrum, including from the newly formed classical liberal party, Freedom and Solidarity, which is now polling at 10-11 percent. Here’s a video of Charles Murray’s timely keynote address on “Freedom in the 21st Century.”
$288/Month for an Upper East Side Studio
“Rent Control Is a Vanishing New York Treasure,” proclaims the headline over a New York Times story. Like Josh Blackman, I think “treasure” isn’t the right word here: “anachronism“, “disgrace” and “abject policy calamity” are more like it.
P.S. The Times article sympathetically depicts a Gotham tenant who pays the legally dictated rent of $288 to live in one of the nation’s most desirable neighborhoods. You guessed it: he feels put upon in that situation, believes his landlord should be doing much more to spruce up the place, and has teamed up with Manhattan State Sen. Liz Krueger to pursue his fight.
Support for Repealing ObamaCare Hits 63 Percent
The polling firm Rasmussen Reports reports:
Support for repeal of the new national health care plan has jumped to its highest level ever. A new Rasmussen Reports national telephone survey finds that 63% of U.S. voters now favor repeal of the plan passed by congressional Democrats and signed into law by President Obama in March.
Prior to today, weekly polling had shown support for repeal ranging from 54% to 58%.
Currently, just 32% oppose repeal.
The new findings include 46% who Strongly Favor repeal of the health care bill and 25% who Strongly Oppose it.
Repeal the bill.
Cato’s Amicus Brief Helps School Choice Get to the Court; Congrats, IJ!
As Andrew Coulson noted, the Supreme Court has agreed to hear Arizona Christian School Tuition Organization v. Winn, the education tax credit case whose cert petition Cato supported with an amicus brief. So we didn’t get the summary reversal we optimistically hoped for but I’m confident that this means only that the Ninth Circuit’s reversal will have to wait 8-10 months. Congratulations to Tim Keller, Dick Komer, and our friends at the Institute for Justice, which successfully litigated the Zelman v. Simmons-Harris case that is the pro-school choice precedent the Ninth Circuit so blithely ignored here.
I should note that ours was one of only three amicus briefs filed in this case, and studies have shown that the first few such briefs increase chances of Supreme Court review significantly (having more than about three seems to be redundant). Which isn’t to say that we take credit for the successful strategy that IJ and its co-counsel are pursuing — indeed, as is good appellate practice, we coordinated with IJ so our brief would offer the Court some arguments and nuance for which the parties’ briefs didn’t have space — but it is gratifying to see the Court impliedly see the validity of our position. We will of course be filing again at the merits stage, which briefs won’t be due for a few months. The Court will likely hear the case in late fall, so we should expect a final decision in winter 2011.
For all the filings in the case, see its SCOTUSwiki page or its Supreme Court docket page. I blogged about the case here and here and George Will wrote about it last week. Andrew also blogged the original Ninth Circuit decision here.
Police Accountability in Maryland
Several people videotaped the arrest of a belligerent woman at the Preakness Stakes and posted it online. The woman assaulted another patron of the race and two officers during her well-deserved arrest.
The criminalization of citizens’ recordings of the arrest, which culminates in the woman lying face down and bleeding, is a different matter.
Toward the end of the video, posted on YouTube (warning: violence and language), a police officer approaches the person filming the arrest and says, “Do me a favor and turn that off. It’s illegal to videotape anybody’s voice or anything else, against the law in the state of Maryland.”
Unfortunately, the officer was right.
The Maryland wiretapping law makes it illegal to record a conversation without the consent of all parties involved. The Preakness incident sparked a debate about the wisdom of a law that makes it illegal to provide public accountability of police actions.
This is the latest in a rash of incidents where Maryland police were recorded while using force or making arrests. While the Maryland law makes an exception for police to record their encounters with citizens, Maryland law enforcement officers will arrest and indict anyone who records their encounter with the police.
Case in point: Anthony Graber was riding his motorcycle and recording the experience with a helmet-mounted camera. He was riding recklessly and beyond the speed limit, which warranted a citation, but not his detention by a Maryland State Police officer at gunpoint and the trooper not first identifying himself as an officer of the law. The first few seconds of the encounter look like a carjacking, not enforcement of traffic laws. Graber posted his interaction with law enforcement officers on YouTube and was arrested for it. He now faces felony charges under the wiretapping statute, and prosecutors sought $15,000 bond for a crime that carries a maximum $10,000 fine. The judge reportedly questioned the charges at the bond hearing. Graber goes to trial on June 1st.
This is a questionable policy in the same state where excessive use of force against a University of Maryland student resulted in discipline and possible criminal charges for three Prince George’s County officers. The same jurisdiction knew that Berwyn Heights Mayor Cheye Calvo may have had nothing to do with a drug trafficking ring, but raided his home at gunpoint anyway, terrorized his family, and shot his dogs. The result of the raid was that there was no wrongdoing by Calvo and his family.
The Maryland wiretapping law is itching for an update. It’s time for the Maryland code to stop acting as a barrier to transparency in law enforcement operations.
Supreme Court Will Hear Appeal of School Choice Case
The SCOTUS Blog reports this morning that the United States Supreme Court has agreed to hear an appeal of the Ninth Circuit’s ruling in the Arizona k-12 scholarship tax credit case. This is great news, and paves the way for the Court to ultimately overturn the 9th Circuit’s credulity-straining legal misadventure.
For the details, see the Cato brief in this case, which was joined by the American Federation for Children and Foundation for Educational Choice.
ObamaCare, Social Democracy & Socialism
The following excerpt from Jeffrey Friedman’s article in the January/February 2010 issue of Cato Policy Report, though about the financial industry rather than health care reform, captures why so many critics of ObamaCare are comfortable describing it as socialism:
What I am calling social democracy is, in its form, very different from socialism. Under social democracy, laws and regulations are issued piecemeal, as flexible responses to the side effects of progress — social and economic problems — as they arise, one by one…. The case-by-case approach is supposed to be the height of pragmatism. But in substance, there is a striking similarity between social democracy and the most utopian socialism. Whether through piecemeal regulation or central planning, both systems share the conceit that modern societies are so legible that the causes of their problems yield easily to inspection. Social democracy rests on the premise that when something goes wrong, somebody — whether the voter, the legislator, or the specialist regulator — will know what to do about it. This is less ambitious than the premise that central planners will know what to do about everything all at once, but it is no different in principle.
Repeal the bill.
ObamaCare’s Price Controls Threaten HSAs
John Goodman is correct that ObamaCare’s individual mandate — and Kathleen Sebelius’s power to make the mandate more burdensome at whim — threaten the continued existence of health savings accounts (HSAs). But ObamaCare’s price controls are no less a threat.
The new law requires insurers to charge enrollees of the same age the same average premium, regardless of health status. That’s a price control, and it will cause premiums for healthy people to rise dramatically and thus lead to massive adverse selection. Healthy people will gravitate to less-comprehensive insurance — in particular, HSA-compatible high-deductible plans — where the implicit tax is smaller.
As premiums for comprehensive plans spiral upward (ultimately causing comprehensive plans to disappear) and as ObamaCare proves more costly than projected, supporters will be desperate for new revenue. They will call for the elimination of both HSAs and high-deductible health plans on the grounds that those products — not the price controls, mind you — are causing the market to unravel.
HSAs allow young and healthy consumers to avoid the raw deal that ObamaCare offers them. And that’s precisely why ObamaCare’s supporters will try to kill HSAs. We will end up repealing one or the other.
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