Archive for July, 2010
Justice Thomas, Pandora, and Stephen Colbert Walk into a Gun Store…
My sometime co-author Josh Blackman points out a parallel between Justice Thomas’s fascinating concurrence in McDonald v. Chicago — which extended the right to keep and bear arms to the states – and the “Keeping Pandora’s Box Sealed” article we published earlier this year.
Justice Thomas in McDonald v. Chicago:
With the inquiry appropriately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.
Blackman & Shapiro in Pandora’s Box:
The purpose of this article is to provide a roadmap to welcome the Privileges or Immunities Clause back into constitutional jurisprudence. The Slaughter-House Cases “sapped the [Privileges or Immunities Clause] of any meaning” but the Supreme Court now has the opportunity correct this mistake. Taking up Justice Thomas’s gauntlet, we “endeavor to understand what the framers of the Fourteenth Amendment thought” the Privileges or Immunities Clause meant, and seek to restore that original meaning.
Relatedly, for my attempt to explain the meaning of the right to keep and bear arms while talking to a crazy character and a humorless gun-control advocate, see my recent appearance on the Colbert Report.
You Can Laugh All You Want To, But I’ve Got My Philosophy
There’s an interesting back-and-forth between Dan Foster at National Review and Ezra Klein at the Washington Post over whether there’s a symmetry between libertarian (or conservative) preference for smaller government and progressive advocacy for a larger or more active one. Ezra wants to maintain that the former is “philosophical”—one might use the more loaded “ideological”—in a way that the latter is not. And his argument has some intuitive appeal, but I think ultimately misfires:
But like a lot of people, I actually don’t have an abstract preference for either bigger government or smaller government. If we made the Defense Department a lot smaller, or reformed the health-care system so that we were getting a deal more akin to European countries, or got the federal government out of farm subsidies, that would be fine with me, even as the government would shrink. A lot of conservatives believe, I think, that their philosophical preference for small government is counterbalanced by other people’s philosophical preference for big government. But that’s not true: Their philosophical preference for small government is counterbalanced by other people’s practical preference for larger government in certain areas where it seems to make sense.
Now, this much I take to be true: Ezra and other progressives, talk show rhetoric notwithstanding, don’t have some abstract desire to increase the size and power of government independently of particular functions they want government to serve. But that doesn’t mean his contrast between his “practical preference” for larger government “where it seems to make sense” and the “philosophical preference for small goverment” will fly. As long as we’re invoking philosophy, it may be useful to deploy the hoary distinction ethicists often make between teleological and deontological principles—very crudely, the distinction between principles that specify ends or goals, and principles that specify rules that constrain our pursuit of ends or goals.
The Deadly Impact of the Death Tax
Australia got rid of its death tax in 1979. A couple of Aussie academics investigated whether the elimination of the tax had any impact on death rates. They found the ultimate example of supply-side economics, as reported in the abstract of their study.
In 1979, Australia abolished federal inheritance taxes. Using daily deaths data, we show that approximately 50 deaths were shifted from the week before the abolition to the week after. This amounts to over half of those who would have been eligible to pay the tax. Although we cannot rule out the possibility that our results are driven by misreporting, our results imply that over the very short run, the death rate may be highly elastic with respect to the inheritance tax rate.
It looks like this experiment is going to be repeated in the United States, but in the opposite direction. There was a rather unsettling article in the Wall Street Journal over the weekend. The story begins with a description of how the death tax rate dropped from 45 percent in 2009 to zero in 2010, and then notes the huge implications of a scheduled increase to 55 percent in 2011.
Congress, quite by accident, is incentivizing death. When the Senate allowed the estate tax to lapse at the end of last year, it encouraged wealthy people near death’s door to stay alive until Jan. 1 so they could spare their heirs a 45% tax hit. Now the situation has reversed: If Congress doesn’t change the law soon—and many experts think it won’t—the estate tax will come roaring back in 2011. …The math is ugly: On a $5 million estate, the tax consequence of dying a minute after midnight on Jan. 1, 2011 rather than two minutes earlier could be more than $2 million; on a $15 million estate, the difference could be about $8 million.
The story then features several anecdotes from successful people, along with observations from those who deal with wealthy taxpayers. The obvious lesson is that taxpayers don’t want the IRS to confiscate huge portions of what has been saved and invested over lifetimes of hard work.
Don’t Look Around, Get the For-Profits!
Yesterday, I brought you up to date on the under-the-radar advance of federal K-12 education control. But that’s not the only education sector under largely silent assault. Most people are also probably unaware of the siege of for-profit colleges and universities, a group loathed because, well, they dare to be honest about trying to make a profit, and they do it in an industry utterly dependent on federal cash.
The complaint — which you might have heard before — is that for-profit enrollment is growing very fast; the schools are more expensive than taxpayer-subsidized public institutions or non-profit private schools; and for-profit students often struggle to graduate and pay back their mainly federal student loans. This story on NPR’s Marketplace is somewhat representative of the coverage afforded these schools, with its focus on a former for-profit employee accusing one school — but by implication the whole sector — of deceiving students about their employment and earning prospects after they’ve completed the school’s pricey program. Here’s the pretty standard stuff:
Garnett knows a lot about the value of education. She worked as director of graduate placement at for-profit Allied College in St. Louis. It’s now called Anthem College. Here’s a clip from one of its promotional videos.
Allied College video: We can help you break into that career you’ve always dreamed of, and your future starts right now!
It was Garnett’s job to help students start those careers as pharmacy technicians or dental assistants.
Garnett: We sent resumes on their behalf, we called potential employers on their behalf, we called the graduates every week, sometimes every day, to say “have you followed up on this, have you talked to anyone, what have you been doing?”
All that effort paid off. Garnett says more than 70 percent of graduates found the kinds of jobs they went to school for. But she says a lot of those jobs paid just $8 to $10 an hour. And the students often took on a lot of debt.
Garnett: A lot of it would depend on what program the student was in, how hard they were willing to work, the effort that they were willing to put in. But just being honest, if you’re making $10 an hour and you have $15,000 in student loans, that would be pretty difficult to pay back, for anyone.
You get the picture: The for-profit school deceived students so it could rake in cash for it’s owners. Well it’s stories like this — as well as some truly alarming statistics about for-profit costs and graduation rates — that are driving a series of Capitol Hill floggings of proprietary schools, as well as a drive to tighten regulation of the schools: Read the rest of this post »
I Didn’t Know People Like This Still Existed
Justin Amash, a state legislator from Michigan, describes how laws get made based on his experience. Notice his antidote to such failures: independent judgment and deliberation combined with a sense of responsibility to his constituents.
Amash, by the way, is running for a seat in the U.S. House of Representatives. If he wins, he’ll find the process here to be much the same as in Michigan.
WaPo on No-Fly: Black Hole to Quicksand
I wrote here Monday, and the Washington Post editorialized today, about the lawsuit in which the ACLU is representing a group of people who believe they have been wrongly placed on the government’s no-fly list. I find the Post‘s editorial needlessly equivocal and muddied.
The plaintiffs “have a point — to a point,” says the Post. “[T]he list is essentially a black hole.” But it never says how their suit overshoots the mark.
When someone vindicating a constitutional right has a point, he or she has a point—period. Due process is a right prescribed by the Constitution, not something to dither about like Hamlet.
Hewing to a reasoned-sounding middle ground, the Post says, “There are legitimate law enforcement reasons for keeping the list secret: Disclosure of such information would tip off known or suspected terrorists, who could then change their habits or identities to escape government scrutiny.”
Think this through. The no-fly list is self-revealing. Any terrorist who tries to fly and can’t is “tipped off” that he or she is a suspect. (Does it matter whether the list or something else prevented him or her from flying? No.) Said terrorist will take steps to evade the list or someone else will take over—terrorists are fungible. The benefit of secrecy is small to the point of superfluous.
The Post correctly states that “U.S. citizens who believe they are on the list because of bad information should have a chance to challenge that designation before an independent arbiter.” But then it goes all mealy: “A federal court may be an appropriate forum, if governed by procedural safeguards to protect national security information. Creating an independent review panel within the executive might also meet the need.”
The secrecy rationale is tiny. The federal courts have vast experience with issues of all sensitivities. Developing a new (suitably) ”independent” panel would be a mountainous chore. And the constitutional doctrine of separation of powers cuts strongly against the Post‘s proposal.
This editorial’s “middle ground” looks a lot like quicksand—a lot like the black hole the no-fly list is.
On the Separation of Press and State
As it often does, The Wall Street Journal this morning offers us an op-ed with which it surely must disagree, entitled “Journalism Needs Government Help” – bringing to mind the fabled knock on the door: “Hi. I’m from the IRS and I’m here to help.” The author is no less than Lee Bollinger, former dean of the law school at the University of Michigan and now president of Columbia University, my undergraduate alma mater. As with many an academic, Bollinger has long been a friend of public-private partnerships: indeed, one could say he has lived by them. But the partnership at issue here is so fraught with peril that one wonders how it can be advanced as uncritically as it is in this little piece.
The argument, in essence, is this. The communications revolution has decimated media budgets. Indeed, “the proliferation of communications outlets has fractured the base of advertising and readers,” leading to shrunken newsrooms, especially in foreign bureaus. Thus the FCC and FTC are now studying the idea of enhanced public funding for journalism. Not to worry, Bollinger assures us, since “we already have a hybrid system of private enterprise and public support” – to wit, public regulation of the broadcast news industry and the Corporation for Public Broadcasting. And the most compelling example of state support not translating into official control, he continues, can be found in our public and private research universities, which receive billions of government dollars annually with no apparent problem.
Really? Try getting your hands on some of those funds, or an appointment in one of those departments, if you have reservations about global warming. Or do we need any better example than the case of Elena Kagan, now before us. When the good dean took her principled stand against admitting military recruiters to the Harvard Law School, the larger university community reminded her of the government funds that were thus put in jeopardy, and she adjusted her position accordingly.
But here comes the kicker: Like those who imagine that there’d be no art without the National Endowment for the Arts, Bollinger tells us that “trusting the market alone to provide all the news coverage we need would mean venturing into the unknown—a risky proposition with a vital public institution hanging in the balance.” Was there no news before the invention of NPR, all things considered? And back on the academic analogy, he adds, “Indeed, the most problematic funding issues in academic research come from alliances with the corporate sector. This reinforces the point that all media systems, whether advertiser-based or governmental, come with potential editorial risks.” True, but government is categorically different than private businesses, of which there is no shortage. Yet those who fail to notice that difference, or discount it, are forever drawn to government because it is, as we say, so easy to get in bed with.
John Stagliano’s Obscenity Trial
Pornography producer John Stagliano is on trial in Washington, D.C., accused of interstate trafficking of obscenity. Reason has been producing workmanlike coverage of the trial.
Setting aside the constitutionally difficult prospect of defining obscenity, the trial is replete with procedural anomalies that call into question the basic fairness of the proceedings.
District Court Judge Richard Leon ruled that Stagliano cannot use expert witnesses, and shut the press out of the jury selection process (which, after a full week, has yet to finish). Things don’t bode well for a free and open trial: The courtroom monitors that will display the crucial evidence are all arranged to be out of the sightlines of press and interested citizens, viewable only by jurors and lawyers. If the press and the public cannot see the evidence, how will we know if the trial is fair?
One of the proposed expert witnesses for the defense is University of California Santa Barbara Film Studies Professor Constance Penley, who would have testified to the artistic value of the indicted films. Artistic value is one of the characteristics of non-obscene materials, so this cripples Stagliano’s defense from the outset. Reason’s interview with Penley is available here.
The judge has even kept the jury selection questionnaire’s secret. Richard Abowitz is covering the trial for Reason. His latest dispatch is available here. Read the whole thing. Additional coverage from The Blog of Legal Times is available here. Full disclosure: Stagliano is a former Cato donor.
Senate Bill Sows Seeds of Next Financial Crisis
With Majority Leader Harry Reid’s announcement that Democrats have the 60 votes needed for final passage of the Dodd-Frank financial bill, we can take a moment and remember this as the moment Congress planted the seeds of the next financial crisis.
In choosing to ignore the actual causes of the financial crisis — loose monetary policy, Fannie/Freddie, and never-ending efforts to expand homeownership — and instead further expanding government guarantees behind financial risk-taking, Congress is eliminating whatever market discipline might have been left in the banking industry. But we shouldn’t be surprised, since this administration and Congress have consistently chosen to ignore the real problems facing our country — unemployment, perverse government incentives for risk-taking, massive fiscal imbalances — and instead pursued an agenda of rewarding special interests and expanding government.
At least we’ll know what to call the next crisis: the Dodd-Frank Crash.
More about the Calorie Police
It’s nice to get quoted in the Los Angeles Times, even if the author obviously didn’t understand what I was getting at. I’ll try to clear up the confusion here.
Does Kuznicki (or anyone else) really think that the goal of a healthy diet is simply to minimize the total number of calories consumed? (Perhaps these are the same folks who swear by Taco Bell’s Drive-Thru Diet.)
A 12-ounce serving of whole milk contains 12 grams of protein, along with 45% of the calcium and 36% of the vitamin D you need each day. The same amount of soy milk also has 12 grams of protein and 14% of the daily recommended intake of iron.
Care to guess how many vitamins and minerals are in a can of Coke?
I certainly don’t think that a healthy diet means only reducing one’s calorie intake. I do, however, believe that the stated goal of the policy was not to improve overall health, but to reduce obesity. And for that, which one do you pick?
a) consume fewer calories
or
b) get more calcium and vitamin D.
Does anyone seriously suggest that (b) is the right choice? Is this what passes for nutritional advice at the Los Angeles Times? Eat whatever you want, and as long as you take your vitamins, you won’t get fat?
The policy we’re talking about was not intended to make sure that people get all their vitamins and minerals. It was intended to curb obesity. And for that purpose it will do essentially nothing, as I noted, I still think correctly, in the original post.
Kilcullen Joins the ‘To Hell with Karzai’ Faction?
"No, really—tell him that. 'Hanging from a lamppost!'"
Three weeks ago I observed that Stephen Biddle, a Council on Foreign Relations scholar who previously had emphasized the centrality of Hamid Karzai to the prospects for success in Afghanistan, had coauthored an article in Foreign Affairs on Afghanistan that hardly mentioned Karzai.
Now one of the archbishops of counterinsurgency and close Petraeus confidante David Kilcullen appears to have joined the “To Hell with Karzai” caucus as well. First, in an interview with Doyle McManus of the LA Times, Kilcullen lamented that Karzai “has been treating us as if he’s got us over a barrel,” and suggested that we might want to remind the Afghan president that “he’s a guy who will be hanging from a lamppost a month after we leave if we don’t protect him.” Tough stuff!
Today Kilcullen piles on some more in a NPR interview, advising a strategy of bypassing the central government and “empowering” local constituencies to fight the Taliban themselves. Kilcullen says that the Afghan National Police have been “raping people’s children” at checkpoints and “shaking people down.” By contrast, Kilcullen says, the Afghan National Army is better but is far too small to take the reins from the Americans any time soon.
It’s Summer in Washington and the Livin’ Is Good
“According to a new Regional Income Earnings Index developed by the Martin Prosperity Institute, Greater Washington, D.C. is the nation’s metropolitan region with the highest income,” writes Richard Florida, author of The Rise of the Creative Class.
Washington, which produces rules, regulations, and political consulting services, ranks just ahead of San Jose and Stamford, Connecticut, where people invest their own money to produce software and allocate capital for a complex economy.
Even before the Obama administration started concentrating job creation on the federal sector, the Washington Post was reporting –
The three most prosperous large counties in the United States are in the Washington suburbs, according to census figures released yesterday, which show that the region has the second-highest income and the least poverty of any major metropolitan area in the country.
Rapidly growing Loudoun County has emerged as the wealthiest jurisdiction in the nation, with its households last year having a median income of more than $98,000. It is followed by Fairfax and Howard counties, with Montgomery County not far behind.
This of course reflects partly the high level of federal pay, as Chris Edwards has been detailing. And it also reflects the boom in lobbying as government comes to claim and redistribute more of the wealth produced in all those other metropolitan areas.
To slightly amend a ditty I posted a few years ago,
Mamas, don’t let your babies grow up to be cowboys,
Don’t let ‘em make software and sell people trucks,
Make ‘em be bureaucrats and lobbyists and such.
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