Archive for the ‘Government and Politics’ Category
EPA Actions Should Be Subject to Judicial Review
Michael and Chantelle Sackett bought some Idaho land and began placing gravel fill on the site to prepare for laying a foundation for their dream home. Then they got something from the EPA: a “Compliance Order,” declaring that they were in violation of the Clean Water Act, because their land had been deemed a “wetland” subject to federal jurisdiction.
By beginning construction without a federal permit, the Sacketts were breaking the law and exposing themselves to civil and possibly criminal penalties, according to the Order. The Order instructed them to stop their construction and restore the property to its “original state” — it even told them what type of shrubbery to plant on the site, and exactly where to plant it. If they failed to comply with the order, they were subject to $37,500 fines per day.
The Sacketts were, understandably, shocked: they had no reason to think their property was a wetland; their neighbors had been allowed to build homes, and there was no indication in their title documents that the land was subject to federal control. So they asked for a hearing — and that was when they learned that the Compliance Order process does not entitle them to a hearing. They must either comply with the Order immediately to avoid the fines, or play chicken with the EPA — waiting until the EPA decides to file an “enforcement action.” At that time, they would be allowed to present their arguments that the land is not actually a “wetland.” But of course, by that time, the fines would have accumulated to hundreds of thousands or millions of dollars.
Worse, these Compliance Orders are issued by a single EPA bureaucrat, on the basis of “any evidence.” That’s the language of the statute itself — and federal courts have interpreted “any evidence” to mean even an anonymous phone call or a newspaper story.
And a Compliance Order doesn’t just demand that you obey EPA’s orders or face fines — ignoring a Compliance Order is a separately punishable offense against federal law, aside from the liability for any environmental damage. In other words, you can face penalties for violating the Clean Water Act and also for ignoring a Compliance Order. Worse still, ignoring a Compliance Order can serve as the basis of a finding of “wilfulness,” and thus the basis of criminal charges.
Pacific Legal Foundation represents the Sacketts and argues that they should have their day in court — either under federal statutes like the Administrative Procedure Act or under the Due Process Clause — without having to face the possibility of devastating penalties. PLF lawyer Damien Schiff argued the case today before the Supreme Court; while the justices were active in probing the weaknesses of both sides, the government’s lawyer didn’t do the EPA any favors. So today may have ended being a very good day for the Sacketts, even if the New York Times editorial page took the alarmist stance that allowing them to seek pre-enforcement judicial review would be a ”big victory to corporations and developers who want to evade the requirements of the Clean Water Act.”
The case is Sackett v. EPA; read the argument transcript here and the briefs here.
This blogpost was coauthored by adjunct scholar Timothy Sandefur, who is a principal attorney at PLF and wrote about the case in Regulation magazine.
War Vets and the New Hampshire Primary
Like many Americans, a growing number of post-9/11 veterans care more about protecting and defending the United States and less about transforming failed states, democratizing the Middle East, protecting wealthy allies, and sacrificing more American lives in the name of global hegemony.
Last Friday, ahead of Tuesday’s New Hampshire Primary, Gwen Ifill of the PBS Newshour interviewed five Granite State Republicans and independents about their views on the Republican presidential field. In alluding to the divergence between keeping America safe and fighting wars indefinitely in the war on terror, New Hampshire voter and Iraq war veteran Joshua Holmes told Ifill:
HOLMES: …We haven’t defined what it is that is going to satisfy basically victory in the global war on terror. And until we define victory, until we develop a plan to achieve that victory and then to end the war, soldiers are going to continue to die.
IFILL: And who [of the candidates] do you think has got a plan?
HOLMES: I think that Dr. Paul is the first person, the only person now that Gary Johnson is out of the race. All of the other candidates are planning on continuing the global war on terror without any objectives.
(Presidential contender Jon Huntsman also favors more limited and concrete counterterrorism objectives as well as reducing the active-duty Army and closing 50 overseas bases.) Moments later in her interview, Ifill circled back to Holmes and asked him why he thought Paul was doing better this year compared to four years ago, in terms of more attention, more support, and more money. He replied:
Well, simply, the things that he was talking about four years ago have – they’ve manifested. I mean, he predicted the financial meltdown back in 2001 and warned about it for almost a decade before it happened.
He warned about the consequences of the Iraq war, especially the long-term consequences. And now we’re actually seeing those consequences. And that opens people’s minds to the idea that this guy, who did warn us, might have the solutions.
Mr. Holmes is not alone, particularly on the subject of war. One in three veterans of the post-9/11 military believe the wars in Iraq and Afghanistan were not worth fighting. A majority, according to the Pew Research Center, think America should be focusing less on foreign affairs and more on its own problems.
Most of the Republican presidential candidates, however, seem all too willing to surrender more American treasure and possibly more American soldiers, sailors, Marines, and airmen for preemptive strikes against Iran. Republicans would do best to appreciate the critics of intervention, a growing number of whom now reside within the post-9/11 military.
But Don’t We Really Need Government Research?
It’s a valuable public good, research is, isn’t it? Think of where we’d be without it! I mean, it was government research that came up with the Internet, for heaven sake.
That’s a response to the argument I made last week against government funding of scientific research. Moving away from public funding of scientific research would solve the problem of private companies capturing publication spoils from research that taxpayers funded.
The Defense Advanced Research Projects Agency did indeed come up with and popularize the protocol called TCP/IP, which the Internet uses. (Everyone’s use of the protocol really makes the Internet what it is, of course, but nevermind that.)
To take the Internet as proof that the government is a necessary producer of research and innovation, you have to reject the scientific method. Unfortunately, there are rarely controls in public policy. We can’t find out what would have happened if government policy had taken a different course, so we don’t know anything more about who should fund research from the fact that government-funded research has produced good things in the past.
But what would have happened if U.S. public policy had taken a different course? I’ve thought about the impossible-to-answer question of where we would have been without DARPA and other government influences on telecom. What most people don’t consider, I believe, is the restraining influence the government-granted AT&T monopoly had on telecommunications for most of the 20th century. AT&T developed a “Teletypewriter Exchange” system in 1931, for example, but had no need to develop it, there being little or no competitive pressure to do so. (Its patent on attaching devices to phone wires undoubtedly helped as well, preventing anyone using AT&T’s wires for modem service.)
Had there been competition, I suspect that someone would have come up with the idea of packet-switched networks—that’s what the Internet is—before Leonard Kleinrock did in 1962. Kleinrock was a student at MIT—he wasn’t at DARPA, which didn’t get into packet-switching until about 1966. (Then again, MIT was almost certainly awash in government money—specifically military money—so there you go. Maybe we owe all the good things we’ve got to war, but I doubt it.)
My guess—and it’s only that—is that we would have had the Internet some decades earlier if not for government interventions in telecommunications. We probably would have had multiple, competing “Internets,” actually, adopted more slowly than the Internet we got. (In a chapter of Privacy in America: Interdisciplinary Perspectives, I explored how government has accelerated the development of computing and communications, overpowering society’s capacity to adjust, with negative consequences for privacy.)
Support for government-funded research requires one to elide opportunity costs, the things foregone when one thing is chosen. As I said before, tradeoffs are ineluctable: Money spent on government research takes away from private research, or from other priorities such as reducing debt. In the absence of taxation to support research, the money would go to the public’s priorities as determined directly by the public in manifold spending and investing decision. Taxation and spending on government research is merely the substitution of centralized, political decision-making for a distributed, direct decision-making system. Its supporters are generally going to be beneficiaries of that system—elites, in short.
Even these beneficiaries of the status quo tend to agree that political decisions about funding for scientific research are warped. The solution to that problem, they’ll say, is fixing the political system—that is, creating a political system that is not so political.
Such a breakthrough is as unlikely as the invention of water that is not wet. Perhaps we can put DARPA on both projects.
Austan Goolsbee’s Budget Math Is Wrong – More than 100 Percent of Long-Term Fiscal Challenge Is Government Spending
Austan Goolsbee, the former Chairman of President Obama’s Council of Economic Advisers, had a column in the Wall Street Journal that argues government spending isn’t too high.
That’s obviously a silly assertion, as I explain here, here, and here, but I want to focus on what he wrote about tax revenues.
Here’s the relevant passage from his column.
The true fiscal challenge is 10, 20 and 30 years down the road. An aging population and rising health-care costs mean that spending will rise again and imply a larger size of government than we have ever had but with all the growth coming from entitlements—while projected federal revenues as a percentage of GDP after the rate cuts of the 2000s will likely remain below even historic levels of 18%.
He’s right that the main problem is in the future. As I’ve noted before, America is doomed to become Greece because of rising entitlement spending.
But he’s completely wrong when he implies that the problem is because taxes will stay below the long-run average of 18 percent of economic output. Here’s a chart I posted last year showing that tax receipts will soon rise above the long-tun average – even if the 2001 and 2003 tax cuts are made permanent. And these numbers are from the left-of-center Congressional Budget Office.
It’s rather shocking that a former Chairman of the Council of Economic Advisers isn’t aware of this CBO data. Or, if he is aware of the data, it’s unseemly that he would deliberately mislead readers.
But let’s set aside any discussion of why Goolsbee made such a fatuous claim about revenue. What really matters is that this is a debate about fiscal policy and the size of government.
The folks on the left want to convince us that inadequate revenue is causing deficits, both in the short run and long run.
We can see that they’re wrong in the short run.
But what’s especially remarkable is that they are wildly wrong about the future. The long-run data from the Congressional Budget Office shows that the federal tax burden over the next 70-plus years will jump to more than 30 percent of GDP.
This CBO baseline data assumes the 2001 and 2003 tax cuts expire, so it exaggerates the increase in the future tax burden compared to current policy. But even if you correct for this assumption and reduce tax receipts by about 2-percentage points of GDP (and presumably even more than that in the long run), it’s clear that the tax burden will be far above the historical average of 18 percent of GDP.
It’s easy to understand why Goolsbee ignores this data. After all, why report on information that completely debunks the left-wing argument about the supposed need to increase the tax burden.
But this isn’t the first time Goolsbee’s been wrong about tax policy. Let’s dig into the 2010 archives and share this video, which takes apart his arguments for class-warfare tax policy.
So what’s the bottom line? Well, we know Goolsbee and other leftists are being deceptive about taxation.
But my main takeaway is that I wish the left would be honest and admit that taxes already are projected to increase. And I’d like them to level with the American people and admit that they want the tax burden to climb even faster because they want government to get even bigger.
Don’t Forget Romneycare
I’ve been pretty critical of Rick Santorum lately, so it seems only fair to devote some attention to Mitt Romney. Take a look at this video Michael Cannon and I made last year:
And now for something not completely different, Tom Toles’s cartoon from Friday’s Washington Post:
Meanwhile, Dan Mitchell warns that Mitt Romney seems suspiciously liable to impose a value-added tax on the backs of American taxpayers.
Obamacare at the Supreme Court: Can the Individual Mandate Be Severed?
The Obamacare litigation has arrived on the big stage: the Supreme Court. The first opportunity for those opposing the legislation to weigh in comes on the issue that will be the last one the Court considers, “severability.” That is, if the individual mandate is struck down as unconstitutional, what (if any) of the rest of the law must fall with it?
On one hand, even in the absence of a severability clause, the Court should avoid striking down an entire law when only one small part is declared unconstitutional, particularly if the remainder of the law is unrelated to the defective bit (imagine an omnibus spending bill). On the other, the Court cannot go provision-by-provision and execute some sort of judicial line-item veto (creating a new law completely unrecognizable from what Congress enacted).
Many think that the rules in this area are unclear, but the analysis boils down to two questions:
- Can the remainder “fully operate as law”?
- Would Congress have passed the remainder?
In our brief, joined by the Texas Public Policy Foundation and co-authored by Prof. Richard Epstein, we examine these questions with a focus on Titles I and II of the law, which contain all the key provisions relating to Obamacare’s fundamental transformation of the national health care system: the requirement that insurers cover people with preexisting conditions (“guaranteed issue”), the requirement that premiums be assessed by a “community rating” formula, the creation of state insurance exchanges, Medicaid expansion, premium supports, etc.
Michael Gerson Just Can’t Get Enough of Libertarianism
Poor Michael Gerson. The former speechwriter for George W. Bush writes about libertarianism more than any other major columnist. And yet, after at least six years of attacks, he still can’t grasp the concept. Take today’s column defending Rick Santorum against “anti-government activists.” I pointed out his error in calling libertarians “anti-government” in 2010:
Libertarians are not against all government. We are precisely “advocates of limited government.” Perhaps to the man who wrote the speeches in which a Republican president advocated a trillion dollars of new spending, the largest expansion of entitlements in 40 years, federal takeovers of education and marriage, presidential power to arrest and incarcerate American citizens without access to a lawyer or a judge, and two endless “nation-building” enterprises, the distinction between “limited government” and “anti-government” is hard to see. But it is real and important.
This time he includes me as his example of an “anti-government activist” and purports to quote my objection to Santorum:
David Boaz of the Cato Institute cites evidence implicating him in shocking ideological crimes, such as “promotion of prison ministries” and wanting to “expand colon cancer screenings for Medicare beneficiaries.”
The first quotation there is from Jonathan Rauch’s review of Santorum’s book, It Takes a Family, and the second is from a New York Times article on Santorum’s campaign brochure listing all the pork he’d brought home to Pennsylvanians. As for Rauch’s list of Santorum’s ideas for an activist federal government, here’s what I quoted:
In his book he comments, seemingly with a shrug, “Some will reject what I have to say as a kind of ‘Big Government’ conservatism.”
They sure will. A list of the government interventions that Santorum endorses includes national service, promotion of prison ministries, “individual development accounts,” publicly financed trust funds for children, community-investment incentives, strengthened obscenity enforcement, covenant marriage, assorted tax breaks, economic literacy programs in “every school in America” (his italics), and more. Lots more.
Out of that list Gerson picks “promotion of prison ministries” as a dismissal of my concerns. Some readers might well think that government sponsorship of Christianity in prisons is problematic enough. But others might think that you don’t have to be “anti-government” to oppose the three new government transfer programs that immediately follow the reference to prison ministries.
Obama’s ‘Court-Packing’ Moment?
Although Franklin Roosevelt did go on to win another term after his court-packing debacle in 1937, his support dramatically declined after the incident. Whereas his 1936 election came with the support of 62% of voters, his 1940 was down to 55% (granted, still a “landslide by modern standards). And while it wouldn’t be until 1946 that Republicans would take the Senate, the 1938 mid-terms did cost the Democrats five Senate seats. The point of all this? Constitutional overreach comes at a cost, and in a nation split roughly evenly on Red/Blue ideological lines, that coust could make all the difference.
While it is still too early to tell, President Obama’s recent “recess” appointments have the potential to erode his support among independents, many of whom actually care about the Constitution. While the National Journal‘s Shane Goldmacher is pondering why Republicans even want to take on this fight, it really should be the White House questioning whether it is worth it. When Ron Paul says, “The president is not a dictator or a king who can simply ignore the Constitution whenever he feels frustrated by the system of checks and balances,” this is something that anyone can understand, even former law professors.
A few things to remember about FDR’s court-packing scheme. First, unlike Obama’s recent appointments, FDR’s plot was actually constitutional, but still struck at the checks and balances behind the Constitution. FDR also painted his plan as a way to rein in an out-of-touch, conservative Court that, in his view, protected “big business” (sounds a little familiar). Despite FDR’s massive popularity at the time, and the unpopularity of both Republicans and the Court, the plan still cost him.
It is also worth remembering that court-packing initially had some support. From its announcement in February until about April, Gallup showed a steady support of around 45%. In fact, support never fell below 30% before the plan was shelved. Goes to show no matter how offensive, there will also be some blind partisans to support any scheme.
By now most of the public has already made up their mind about “who is the bigger front for Wall Street,” so yes this maneuver will energize the base some. But it is unlikely to change anyone’s mind about Republicans and Wall Street. What it does do, however, is further raise issues about Obama’s commitment to and understanding of the Constitution. When the Obama campaign says, “He’ll work with Congress when he can, but if they refuse to act—he will,” it really displays either a deep misunderstanding or outright contempt for the separation of powers inherent in our system. If Obama doesn’t place any value upon that notion, perhaps the American public will.
New Unemployment Numbers Are Good News for the White House, but the Silver Cloud Has a Dark Lining
The White House doubtlessly is happy that the unemployment rate has dropped to 8.5 percent, in part because the President is much more likely to get reelected if voters think the economy is heading in the right direction.
But the latest drop in the unemployment is not unambiguous good news for the Obama Administration.
Before explaining why, let’s take a brief detour and look at how the unemployment rate is calculated. The key thing to understand is that there are two moving parts. First, the government estimates the number of unemployed people. That’s the obvious part of the calculation.
But in order to calculate the unemployment rate, the government has to estimate the size of the labor force. But this is not a simple number to calculate because many people who could work – such as women with young children, students, people approaching retirement age – sometimes decide that their time could be better spent doing other things.
So the government has to look at all the people who don’t have jobs and guess how many of them would like to work.
With this in mind, let’s look at the unemployment rate. The simple way to think about unemployment numbers is that the joblessness rate can rise or fall for good reasons and bad reasons.
If the unemployment rate drops because hundreds of thousands of jobs are being created each month, that’s obviously good news.
But if the jobless rate falls because the government estimates that lots of people have become discouraged and dropped out of the labor force, then that’s not good news.
In other words, sometimes the unemployment rate, by itself, doesn’t tell the full story.
That’s why one of the best statistics to look at is the employment-population ratio, which measures the number of people who have jobs and compares it to the number of people who could have jobs.
Playing Politics with the Constitution and the Law
Today POLITICO Arena asks:
Did Obama have the authority to make the Cordray and the NLRB appointments, since the Senate is technically not in recess? And will the president’s shift from bipartisan conciliator to partisan agitator pay off?
My response:
All of Obama’s appointments yesterday are illegal under the Constitution. And, in addition, as too little noted by the media, his appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) is legally futile. Under the plain language of the Dodd-Frank Act that created the CFPB, Cordray will have no authority whatsoever.
Yesterday, Professors John Yoo and Richard Epstein, writing separately, made it crystal clear that the president, under Article II, section 2, may make temporary recess appointments, but only when the Senate is in recess. Add in Article I, section 5, and it’s plain that the Senate is presently not in recess, just as it wasn’t under Senate Democrats when George W. Bush wanted to make recess appointments. The difference here is that Bush respected those constitutional provisions while Obama — never a constitutional law professor but only a part-time instructor – ignores them as politically inconvenient. Attempts by Obama’s apologists to say the Senate is not in session are pure sophistry and, in the case of Harry Reid, rank hypocrisy, as this morning’s Wall Street Journal brings out.
But clear beyond the slightest doubt is the language of the statute (itself unconstitutional on any number of grounds not relevant here). As my colleague Mark Calabria wrote yesterday, “authorities under the Act remain with the Treasury Secretary until the Director is ‘confirmed by the Senate.’” A recess appointment, even if it were constitutional, is not a Senate confirmation. There is simply no wiggle room in that language that gives Cordray any authority, as litigation will soon make plain.
So what is this? It’s politics — Chicago politics, plain and simple. If any doubt remained, three years into his presidency, that Obama is a master demagogue, with class warfare as his central tool, this incident should dispel it.
Against Forced Unionization of Independent Workers
Over the past decade, more than a dozen states have forced independent contractors who are paid through Medicaid to join public-sector unions.In 2003, Illinois unionized home healthcare workers and imbued the Service Employees International Union with the right to collect compulsory fees from the workers’ paychecks. Democracy is thus being turned on its head: the elected representatives for the people of Illinois have chosen a sub-representative for some of the people and given that sub-representative a taxing power.
In so doing, they have severely impaired home healthcare workers’ First Amendment right of association and the right to petition the government for a redress of grievances. Without limits on government’s ability to forcibly unionize people who indirectly receive government-funded compensation (an increasingly large group), more and more citizens will have to interact with their representatives through a government-designated intermediary (a union); our democracy will become even more dominated by special interests than it is now.
Cato, joined by the National Federation of Independent Business and the Mackinac Center, filed a brief urging the Supreme Court to address this issue and vindicate the First Amendment freedoms upon which a thriving democracy depends. We argue that the forcible unionization of home healthcare workers serves none of the compelling purposes for public-sector unionization that have been articulated by the Supreme Court.
Because the Court has long recognized that unionization impinges certain constitutional rights, it has limited public-sector collective bargaining to those situations which advance the aims of promoting “labor peace” and eliminating “free riders.” Labor peace is promoted by limiting competing workplace interests from bargaining over the conditions of employment — for example, two unions at the same workplace representing different colleagues. Free riders are non-union employees who enjoy the benefits of union-achieved gains without paying into the union’s war chest. But neither aim is promoted by a system, such as Illinois’s, in which employees work in different locations and in which the customer — the disabled person paying the homecare worker through a Medicaid disbursal—still controls every crucial aspect of the employment relationship, including hiring and firing.
This last fact is most telling: the Illinois law only allows collective bargaining for higher wages and more generous benefits. That is, the law is only about speech — petitioning the government for higher wages and benefits — and does not address workplace conditions at all.
As more and more states push to unionize more workers who indirectly receive government money — campaigns that, in face o dwindling private-sector union membership, have been called “labor’s biggest victory in over sixty years” — it is vital that the Supreme Court articulate a limiting principle on this practice. Otherwise, more and more of us will be forced to interact with our representatives only through government-appointed bodies.
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