Archive for the ‘Government and Politics’ Category
The ‘War on Women’ — a Rhetorical Distraction
Today POLITICO Arena asks:
Now that Rush Limbaugh has apologized, will voters see the Democrats’ “war on women” language as overkill?
My response:
We’re in the season of rhetorical overkill. Rush Limbaugh’s vile attack last week on Sandra Fluke was reprehensible. So too is the Democratic campaign to paint a Republican “war on women” — not least because it treats women as a monolithic class, ignoring the many women who grasp what’s at issue here — liberty.
ObamaCare is a major step toward socialized health care. You can pretend otherwise — the “war on women” rhetoric aims at that — but the coercive elements inherent in any socialized scheme come to the surface when conflicts like the one before us arise.
And it’s only the beginning. Soon enough, as costs to “the public” mount (the only costs that matter in socialized arrangements), Republicans will be talking about a “war on the elderly,” and they’ll be right. After all, “We’re all in this together.” We have that on high authority. Welcome to the world of all against all.
James Q. Wilson on Crime and Drugs
James Q. Wilson, the prominent scholar on political science and crime, has died. His most well-known work was an essay that he co-published with George Kelling in the Atlantic, “Broken Windows” (which is not to be confused with the broken windows fallacy that is so well known in libertarian circles). The gist of that article was that our social order can be pretty fragile. If a broken window is not promptly repaired/replaced, the other windows of that building will soon be intentionally broken–and if nothing is done about that, the neighborhood might well spiral downward and will soon be regarded as a lousy area. The article is now a classic. In my opinion, it was his best work.
Dr. Wilson wrote on a wide range of subjects, but I am most familiar with his writings in the criminal law field. He was a neoconservative — so it will not surprise anyone that I found his record to be mixed. He skewered the liberal ideas that (1) poverty “causes” crime and (2) that prisons are passé. And he cautioned policymakers bent on more gun control laws, pointing to the growing body of evidence that armed citizens thwart a lot of criminal mayhem.
But then there was his approach to drug policy. When Bill Bennett needed academic support or intellectual guidance, he seemed to turn to James Q. Wilson, who, before the creation of the drug czar’s office, called for the creation of the Drug Enforcement Agency in the Nixon period. Like many of the zealots who pushed for alcohol prohibition, he saw the police effort against drug use as a moral crusade: “[D]rug use is wrong because it is immoral and it is immoral because it enslaves the mind and destroys the soul.” For years and years, he championed the conservative program of more police, more prosecutors, more prisons, stiffer penalties. Despite the escalation, drugs remain readily available. And the gang violence–especially in Mexico–is getting worse.
Dr. Wilson was also a big proponent of police “stop and frisk” tactics–the idea that cops should stop pedestrians in the city and frisk them for weapons. For white, middle-class Americans, think about having to endure a TSA airport search on your trips to the grocery store or on your commute to work! (For background, go here and here.)
I never met Dr. Wilson in person, but we spoke several times on the phone after he accepted my invitation to prepare an essay for my book, In the Name of Justice (2009). He was a gentleman-scholar who influenced many.
American People: Of Course the Individual Mandate Is Unconstitutional
Cato senior fellow Randy Barnett (also, of course, a Georgetown law professor and the “intellectual godfather” of the Obamacare litigation) blogs the results of a new USA Today/Gallup poll: 72% of Americans (including 56% of Democrats and 54% of those who think “the healthcare law is a good thing”) think the individual mandate is unconstitutional. This follows a Rasmussen poll showing that a majority of Americans favor repeal and an AP poll from August that found 82% to opine that the federal government “should not have the power to require all Americans to buy health insurance.”
Now, no court should rule a given way simply because a majority—even an overwhelming majority—of people want it to. Indeed, the judiciary is by design the non-political branch of government, one often required by the Constitution to reach counter-majoritarian results. But to the extent that in this unprecedented litigation over an unprecedented assertion of federal power, where the outcome could turn on whether something is “proper”—the intepretation of which term may depend on concepts such as “legitimacy” and “accountability”—the sustained, strong views of the public may, at the margins, matter.
Are you listening, Justice Kennedy Supreme Court?
Why Corporate Speech Rights But Not Corporate Liability for Violating the ‘Law of Nations’?
Yesterday the Supreme Court heard argument in Kiobel v. Royal Dutch Petroleum, the case (which I’ve discussed before and in which Cato filed a brief) that asks whether, under the Alien Tort Statute, the “law of nations” can be applied against an entity that is not a natural person: a corporation. As the majority of the Court seemed to think, and as I wrote in the New York Times online, the answer is no because Congress never gave U.S. courts the power to entertain lawsuits alleging corporate malfeasance involving foreign actors abroad.
It seems like a discrete enough issue — does this statute contemplate corporate liability? — one that international law junkies and the “human rights” establishment are passionate about, but not one that should have much broader purchase. Yet the blogosphere, not least the response to my Times piece, is up in arms about organizations like Cato saying that “corporations are people” when it gets them political speech rights (Citizens United) but not when it subjects them to liability for their dastardly deeds (Kiobel).
But to make this charge — whether labeled shilling for corporations or just plain hypocrisy — is to misunderstand both Citizens United and Kiobel.
Before explaining why, let me just reiterate that I agree with the keen point that corporations are not human beings. But that brilliant observation is legally irrelevant. Corporations are formed by individuals as a means of exercising their constitutionally protected rights. Corporate personhood is simply a convenient legal fiction that we use to enable that rights-pooling for all sorts of purposes. If using the word “person” in relation to an inanimate entity is confusing or offensive, you could try calling it something else (but then nobody you’re talking to would understand you, so we’re stuck with the word, for better or worse). In any event, as I explain in my recent law review article — “So What If Corporations Aren’t People?” – none of this changes how the law treats corporations.
Now then, I’m not saying that corporate personhood is operative for purposes of political speech but not for purposes of liability for malfeasance. Instead, I’m clarifying two areas of law as they relate to corporate actors. First, the First Amendment guarantees that rights-bearing individuals don’t forfeit their rights (to speak about politics or anything else) when they associate in groups, whether in corporate form or otherwise. Second, the Alien Tort Statute — a peculiar law by which Congress gave federal courts jurisdiction over ”law of nations” violations alleged by foreigners against other foreigners — doesn’t recognize corporations as a type of party that can in that manner be haled into our courts. That is so because the “law of nations” doesn’t extend to corporate actions (for reasons explained in our brief and elsewhere that I won’t repeat here).
Kiobel has nothing to do with corporate liability in general — e.g., liability for manufacturing defective products, dumping chemicals, etc., in violation of U.S. or even foreign law — but rather only concerns corporate liability for human rights abuses and other violations of the “law of nations” by foreign corporations in foreign countries.
The law can surely be “a ass,” but you have to understand what law you’re discussing to understand what type of ass it might be.
Congress Poised to Escalate the U.S.-China Trade War
U.S. policymakers hold the key to vastly improved economic relations with China. They also have the key to the vehicle that will take the bilateral relationship over the cliff, which appears to be the route that has been chosen. Republican House Ways and Means Chairman Dave Camp will introduce legislation this afternoon that makes explicit the applicability of the U.S. Countervailing Duty (anti-subsidy) law to imports from countries considered to have “Non-Market Economies” (i.e., China and Vietnam).
Maybe that’s not as obvious an example of escalation as Nixon’s bombing of Cambodia during the Vietnam War, but it is very likely to accelerate the deterioration of U.S.-China economic relations. Costs will rise and life will become more difficult for U.S. companies trying to do business in China, as well as for U.S. producers and consumers who rely on imports from China.
Those pushing the legislation don’t want the public to understand the issues, which are highly technical and legalistic (and, quite frankly, too much trouble for our legislators to think through, particularly when there’s only political upside in China-bashing). But the consequences will be felt broadly – and there’s danger in that – so let me attempt to boil the matter down to a few salient points.
Here Come the Disabled-Employee Quotas
I’ve got a new op-ed in the Daily Caller about one of the most significant employment-law initiatives out of Washington in years (also reported on by Melanie Trottman in today’s WSJ): the Obama administration is preparing to order federal contractors to comply with a quota (sorry, “required…hiring goal”) of disabled employees, perhaps as high as 7 percent. Businesses have flooded the Regulations.gov comments site with negative reactions to the idea, but to no seeming avail. As I explain, one of the scheme’s maddening aspects is that you’re supposed to achieve the quota even though you’re not allowed to ask employees whether or not they’re disabled:
So the rules contemplate a fan dance of “invited self-identification” in which workers are given repeated chances at successive stages of the hiring process to announce that they are disabled. Unfortunately for quota compliance, even after getting the job an employee may be too shy to offer such a self-identification, which means the employer may lose any “credit” for the hire. Perhaps equally frustrating, an employee hired with the quota in mind may turn out not to have any disability at all (“Dang it! And she looked so disabled!”).
The employment provisions of the Americans with Disabilities Act (ADA) and its associated Rehabilitation Act are already rife with absurd results. Last week, after a Colorado school bus driver who hit three middle school students turned out to have been hired though recently in rehab, a spokesman for the school district explained that the law was at work: “It is illegal under state and federal disability laws to deny employment solely on the basis of a history of treatment for alcohol or substance abuse.” Non-discrimination against school bus drivers with a taste for booze is bizarre enough, but not bizarre enough for Washington. Time for preference!
There Is No Objective Definition of ‘Medical Necessity’
California regulators are coming down on Kaiser Permanente. According to HealthLeaders Media, the regulators reviewed a batch of coverage denials and “found that in excess of 75% of the cases the services indeed were medically necessary, and 10% were not.” Indeed?
Now seems like a good time to post what University of Tennessee law professor Haavi Morreim wrote about “The Futility of Medical Necessity“ in Regulation:
Clinical artificiality The ill fit between “necessity” and ordinary medical care is immediately obvious in the question facetiously bandied about when health plans first considered what to do about a recently approved drug for male impotence: How often per month (per week? per day?) is drug-assisted sexual intercourse “medically necessary”?
As typified by that case, most medical decisions do not post clear choices of life versus death, nor juxtapose complete cures against pure quackery. Rather, the daily stuff of medicine is a continuum requiring a constant weighing of uncertainties and values. One antibiotic regimen may be medically comparable to and much less expensive than another, but with slightly higher risk of damage to hearing or to organs like kidneys or liver. For a patient needing hip replacement, one prosthetic joint may be longer-lasting but far costlier than an alternative. Of two equally effective drugs for hypertension, the costlier one may be more palatable because it has fewer side effects and a convenient once-a-day dosage.
Across such choices, it is artificially precise to say that one option is “necessary” — with the usual connotation of “essential” or “indispensable” – while the other is “unnecessary” — with the usual connotation of “superfluous” or “pointless.” Various options have merits, and often no single approach is the clear, “correct” choice. A given option might be better described as “a good idea in this case,” “reasonable, given the cost of the alternative,” “probably better than the alternative, given a specific goal,” “about as good as anything else,” or “not quite ideal, but still acceptable.”
In many cases, the real question is whether a particular medical risk or monetary cost is worth incurring in order to achieve a desired level of symptomatic relief or functional improvement, or to reduce the risk of an adverse outcome or a missed diagnosis. A huge array of treatments fits that description: more or less worthwhile, but the patient will not die without it and other alternatives (that might have some drawbacks) exist. [Emphasis mine.] Read the rest of this post »
Federal Workers Aren’t Victims
Federal employee Jason Ullner portrays federal workers as victims in today’s Washington Post.
It seems that all I hear these days are the once and future leaders of our country tripping over themselves to denigrate the work we do. I’m tired of it, and I’m fed up.
Mr. Ullner complains that he endures long hours, high stress, pay freezes, and (supposedly) lower pay than he would receive in the private sector. “I have sacrificed,” he says. Ullner concludes: “So to all our politicians, I implore you: Stop using the government workforce as a political football. Just stop.”
Good grief! Doesn’t he think that private-sector workers have long hours, high stress, and pay freezes? Doesn’t he know that private-sector workers get sacked, lose their jobs when their companies go belly up, and suffer pay cuts during recessions?
The recent “sacrifice” of federal civilian workers includes a temporary pay freeze during the worst recession since World War II, and changes that require new hires to pay a bit more for their pension plans. That treatment is apparently so barbaric that it is driving Mr. Ullner to despair, and driving federal unions to claim an “outrageous injustice.”
I receive emails occasionally from federal workers who have different views than those of Jason Ullner. I received this note on Friday:
I am employee for the Department of Veterans Affairs. As federal employee I feel extremely fortunate to have a job … I care about the future of this country and I am disturbed by the waste and misuse of taxpayers’ money that I see daily as a federal employee. My issue is that the common sense factor has been taken out of the veterans claims process, and the amounts of money being paid to veterans for conditions that have nothing whatsoever to do with a veterans military service.
I have heard about this problem before. Apparently, the taxpayer costs of unjustified health and disability payments to veterans are rising rapidly. To highlight such problems is not to “denigrate” anybody, but to explore whether we can make reforms to reduce the government’s huge overspending problem.
A few weeks ago, I received a series of emails from an employee at the Bureau of Indian Affairs, which came in response to my recent article on that agency. This employee was deeply concerned about poverty on Indian reservations, but he was also outraged at the dysfunction, misspending, and nepotism he has found at the BIA. Here are a few of his comments:
I started to discover that the nepotism at the BIA in D.C. is out of control. There is a custom of parents getting their children jobs in the BIA and they have twisted loyalties to each other that span generations … It is so easy to turn a blind eye [to bad behavior] by a family member… A lot of the decisions the BIA has made have been based on these family connections that have allowed corruption to exist.
You have urban Indians who have never lived on a reservation who use their ethnicity to claim entitlement to their jobs and could care less about improving conditions on the reservations.
The Inspector General investigates and reports to the BIA leadership, which in turn stalls on doing anything about the corruption and turns a blind eye.
Many of the top people in the BIA have gotten their positions based on favoritism or nepotism and are not qualified for their jobs.
The way it works in the BIA is that you put in the years and you get promoted. The other way is you use your family connections to get the next promotion. I wish I had the power to fire unqualified, incompetent employees, and I would [only] have to hire about 1/2 of the employees of the whole agency…
In the WaPo today, Jason Ullner says of federal workers: “We don’t do our jobs for glory, or money or power. We do them — and do them well — because we take pride in our work and pride in representing the United States of America.”
That’s all very nice, but wrapping oneself in the flag doesn’t do anything to solve the ongoing dysfunction in many government agencies, nor does it help solve the government’s huge financial problems.
The Modern Voting Rights Act Is Unconstitutional
I’ve written previously about how the current Texas redistricting saga — a decennial battle in that and many states — shows how the Voting Rights Act in its moden incarnation both doesn’t work and conflicts with the Constitution. The Supreme Court’s ruling last month telling a three-judge district court in San Antonio to go back to the map-drawing board did not begin to the address these deeper issues, which will surface again, perhaps as soon as this fall in a case out of Shelby County, Alabama.
Today I published an op-ed on the subject in the National Law Journal. Here’s an excerpt:
Originally conceived as a check on states where discrimination was prevalent in the 1960s, Section 5 [of the VRA] requires certain jurisdictions – a bizarre list that includes some of the Old Confederacy, plus Alaska, Arizona and certain counties or townships in eight other states, including (only) three New York City boroughs – to get federal approval before changing any election laws. To obtain this preclearance, these jurisdictions may propose only changes that do not result in “retrogression,” a reduction in minority voters’ ability to elect their “preferred” candidates.
Section 5 was a valuable tool in the fight against systemic disenfranchisement, but it now facilitates the very discrimination it was designed to prevent. Indeed, the prohibition on retrogression effectively requires districting that assures that minority voters are the majority in some districts – an inherently race-conscious mandate. The law, most recently renewed in 2006 for another 25 years, is based on deeply flawed assumptions and outdated statistical triggers, and it flies in the face of the 15th Amendment’s requirement that all voters be treated equally.
Read the whole thing, as well as Cato’s brief in Perry v. Perez and Roger Clegg’s article in the Cato Supreme Court Review on which one section of our brief heavily relied.
Patriotism, Loyalty, Tax Competition, and ‘Tax Fugitives’
I fight to preserve tax competition, fiscal sovereignty, and financial privacy for the simple reason that politicians are less likely to impose destructive tax policy if they know that labor and capital can escape to jurisdictions with more responsible fiscal climates.
My opponents in this battle are high-tax governments, statist international bureaucracies such as the Organisation for Economic Co-operation and Development (OECD), and left-wing pressure groups, all of which want to impose some sort of global tax cartel—sort of an “OPEC for politicians.”
In my years of fighting this battle, I’ve has some strange experiences, most notably in 2008 when the OECD threatened to have me thrown in a Mexican jail for the supposed crime of standing in a public area of a hotel and advising representatives of low-tax jurisdictions on how best to resist fiscal imperialism.
A few other bizarre episodes occurred in Barbados, back when I was first getting involved in the issue. Here’s a summary of that adventure.
Read the rest of this post »
Does Mitt Romney Have Health Insurance?
It’s an interesting question. Romney is under age 65, which means that he would have to obtain private health insurance. He jokes that he is unemployed, which means he may have to purchase it on his own. Or he may get it as a retiree benefit from Bain Capital.
The question is interesting because Romney is so wealthy that to spend his money on health insurance might seem like a waste. (Of course, Romney may be very risk averse, and a man to whom $10,000 is a small wager probably isn’t going to notice a $20,000 health insurance premium. But Romney could pay for whatever medical care he and his wife — and his children, and his grandchildren — could possibly need.) On the other hand, if Romney doesn’t have private health insurance, it would look bad that he forced other people to buy it.
Moreover, Romney turns 65 on March 12, meaning he becomes eligible for Medicare on March 1. He likely received his Medicare card in the mail two months ago. If Romney does not enroll in Medicare, it would again look bad that he who forced others to purchase health insurance is opting not to obtain health insurance himself. But if he does enroll in Medicare, it’s worth asking whether the 99 percent should subsidize people like him.
Based on Where the Top 1 Percent Lives, the Occupy Crowd Should Be Protesting Against Big Government
I’ve written before about how big government is enriching people in the Washington metropolitan area. This is for two reasons.
First, bureaucrats are paid too much, getting twice as much compensation, on average, as people in the productive sector of the economy.
Second, lobbyists, contractors, and interest groups have figured out how to get lucrative positions at the federal trough.
A new report from MSN Money illustrates how the political elite is getting very rich by plundering honest Americans. America has 3,033 counties, and they identified the 15 richest jurisdictions from that list.
Of those 15 super-elite counties (the top 1/2 of one percent), 10 are in the Washington metropolitan area. I’ve identified them with stars in the map.
You may be wondering, by the way, about the location of the other counties in the top 15. Well, four of them are suburbs of New York City, meaning that they are home to rich Wall Street people who mooched from the taxpayers thanks to TARP bailouts and other subsidies.
So if you really want to be cynical, you could count them as auxiliary counties of Washington, DC. That’s probably an unfair conclusion, but TARP was unfair to honest and hard-working people, so I don’t feel too guilty.
As far as I can tell, the only untarnished jurisdiction in the top 15 is Douglas County, Colorado. And given that these are the folks who are implementing a good school choice plan, it seems that we have a group of productive people who also believe in doing the right thing.
For more information about the overcompensation of bureaucrats, this video is loaded with information.
Most important of all, remember that any proposals to increase government spending will further widen the income gulf between the political elite and regular Americans. And any initiative to boost the tax burden would lead to the same result.
Cato on Facebook
Cato on Twitter
Cato on Google+
Cato on YouTube
