Marian L. Tupy
The press is reporting record prices for beef. According to a June 18 story in the New York Post,
“It’s a barbecue-season bummer! Meat, poultry and fish prices have spiked an average of 8 percent since last year — soaring to an all-time high, national data show. The cost of ground beef has gone up 11 percent… ‘Everything is going through the roof,’ said Jim Hopkins, 52, a supervisor at Associated Supermarket in the West Village, who has worked in the grocery business for 30 years. ‘I’ve never seen increases like this — where they jump as much as this.’”
Yet the World Bank data shows remarkable stability in the inflation-adjusted price of ground beef over the last half century. That is all the more remarkable considering that:
- There were 3 billion people in the world in 1960. Today there are 7 billion of us.
- In 1960, the average income per person was $3,000 (in inflation adjusted 2000 dollars). Today it is $7,500.
- More people earning more money = higher demand for meat, especially beef.
- Yet, beef prices are, roughly where they were in 1960.
So, cheer up and don’t let those pessimists spoil your barbecue-season.
The debate over an appropriate American response to Iraq’s resurgent violence and the threat of radical rebels has highlighted the challenges and risks of even limited U.S. assistance.
As I argue in a post at The National Interest, Iraq is emblematic of a larger challenge in U.S. foreign policy. President Obama’s West Point address last month emphasized the role of “partner nations” who may leverage US assistance to counter security threats within their own borders and regions. But the president’s speech and subsequent debate about it have largely failed to provide criteria for selecting these partners.
Both the threats (insurgency, instability, radical rebels) and the possible solutions (military advisers and training, direct intervention, pushing for better governance) have cropped up in discussion of numerous other events: Boko Haram’s kidnappings in Nigeria, Al-Shabaab’s siege of Westgate Mall in Kenya, unrest in northern Mali, continuing instability in Libya, and so on.
All of these policy suggestions constitute calls for foreign internal defense (FID) assistance. FID, or “Helping others defend themselves,” sounds like an attractive option while facing a fiscal and domestic political reality that limits prospects for direct intervention. However, the Iraq debate highlights a crucial question: how do we tell the difference between states we can “partner” into effective and self-sufficient stability, versus those that risk pulling the US into local quagmires or exacerbating security problems?
Policymakers, media, and the American public are asking these questions about Iraq, in part because we have a lot of information about Iraq’s internal dynamics. But we should ask these questions about other potential partners too.
Join us to discuss the challenges and opportunities of Foreign Internal Defense aid next month at our Cato Policy Forum on the topic. Register here.
23andMe, the Google-backed personal genomics company ordered by the Food and Drug Administration to stop marketing its health-related services in November last year, is closer to a reconciliation with the government agency. The FDA did not object to the ancestry information 23andMe provides, but rather the information on inherited risks it released to customers.
Before halting the release of health information 23andMe had provided its customers with information on their ancestry and health. 23andMe gathered genetic information from customers by having them send saliva in a $99 kit.
What had the FDA concerned was the possibility that a false result from a 23andMe test could lead to customers undergoing drastic procedures such as “prophylactic surgery, chemoprevention, intensive screening, or other morbidity-inducing actions.” Reason magazine’s Ron Bailey pointed out such a fear is misplaced because not only is the biochip used by 23andMe and researchers around the word very accurate, anyone who received worrying health news from a 23andMe test would almost certainly consult a doctor and/or get a more comprehensive screening done before undergoing any surgery or procedure.
Last week 23andMe’s Chief Legal and Regulatory Officer, Kathy Hibbs, wrote on the company’s blog that the FDA had “accepted for review 23andMe’s submission for a new 510 (k) application,” which Reuters describes as “a regulatory process that applies to most medical devices sold in the United States.” The FDA considers the 23andMe saliva collection kit a device.
Although 23andMe’s submission focuses on one condition — Bloom Syndrome — Hibbs wrote the following:
Once cleared, it will help 23andMe, and the FDA, establish the parameters for future submissions. More importantly, for our customers, it marks a baseline on the accuracy and validity of the information we report back to them. The submission includes robust validation data covering major components of our product such as the genotyping chip, software and saliva kit.
While it is good news that 23andMe seems to be on its way to being in good standing with federal regulators, Stephanie M. Lee of SFGate.com notes that 23andMe could potentially face months of questions and data requests before being granted FDA approval.
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“Meet the Marxist behind Seattle’s wage hike,” read the headline of the lead item at CNN Money late this morning. It seems that one Kshama Sawant, an immigrant from India who earned a Ph.D. in economics from North Carolina State University before taking a teaching position at Seattle Central Community College, is credited by the local press with being the political force behind the city council’s recent vote to raise the minimum wage there to $15 an hour, phased in for large businesses by 2017 and all businesses by 2021.
A self-described Marxist, Ms. Sawant went from Occupy Wall Street to occupying Seattle City Council, the story says, adding that she was “radicalized politically by the gaping inequality she observed upon arriving in the world’s richest country.” Thus, she ran for city council last year “under the banner of Socialist Alternative, an organization that calls for ‘international struggle’ against global capitalism.”
Say this for Ms. Sawant: Whatever she learned about economics in the course of getting her degree, at least she’s not hiding her views. But what can we say about the Seattle City Council, which passed her proposal unanimously? Perhaps there’s something in the coffee out there. Or perhaps they really believe, as Ms. Sawant does, that this measure will “transfer $3 billion from businesses to low-wage workers over the next decade.”
Well it turns out that you don’t need a Ph.D. in economics to understand that economies are not static. That elementary insight from Econ 101 was captured, in fact, in an earlier lead item at CNN Money, “Seattle $15 wage plan is unfair to me.” Quoting several small business owners on what’s in store for them—and their employees—here we find Subway franchise owner Matthew Hollek lamenting that, although he has only eight employees, he’ll have to start paying them 60 percent more by 2017—while the sandwich shop next door will be immune from the law for another four years. The reason? The law counts him as a large employer because he’s part of a national chain. It looks like these “gaping inequalities” are more difficult to close than Ms. Sawant seems to have realized.
Indeed, not only are economies dynamic and is Seattle not an island, but if the benefits of a minimum wage were as good as its advocates believe, then why stop at $15? Why not $20, or $30, or more? You never hear an answer to that because there is none. For a sampling from Cato of a more serious approach to the subject, see here, here, and here.
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Michael F. Cannon
The D.C. Circuit is due to rule any day now, quite possibly today, on Halbig v. Sebelius. For those who haven’t been watching the vigil I keep over at DarwinsFool.com, Newsweek calls Halbig “the case that could topple ObamaCare.”
First a little background. The Patient Protection and Affordable Care Act offers refundable “premium-assistance tax credits” to qualified taxpayers who purchase health insurance “through an Exchange established by the State.” The PPACA contains no language authorizing tax credits through the 34 Exchanges established by the federal government in states that declined to establish one themselves, nor does it authorize the Internal Revenue Service to treat those federally established Exchanges as if they had been “established by the State.” Offering benefits only in compliant states was proposed by numerous Republicans and Democrats in 2009, for obvious reasons: Congress cannot force states to implement federal programs, but it can create incentives for states to act, such as by offering health-insurance subsidies to residents of compliant states.
Halbig is one of four cases challenging the IRS’s decision to rewrite the statute and offer tax credits in the 34 states with federal Exchanges. The plaintiffs are individuals and employers who are injured by the IRS’s overreach because, due to the PPACA’s many inter-locking pieces, issuing those illegal tax credits subjects them to illegal penalties.
Since a ruling may come today (or some Tuesday or Friday hence, as is the D.C. Circuit’s habit), here are some materials for those who want to hit the ground running.
- “For Reporters, Law Professors, Citizens: A Reference Guide To President Obama’s Illegal ObamaCare Taxes” is a complete guide to everything ever been written about the Halbig cases. Statutes, legislative history, regulations, court documents, news reports, opinion pieces, everything. A good place to harvest hyperlinks.
- Here are summaries of amicus briefs filed in Halbig by several groups in support of the plaintiffs, and briefs in support of the IRS filed by public-health scholars, members of Congress and state legislators, the hospital lobby, the health-insurance lobby, AARP, left-leaning economists, and Families USA.
- “Who Needs Hobby Lobby When You’ve Got Halbig? Yesterday’s Appellate Arguments In Halbig v. Sebelius” summarizes the oral arguments before the D.C. Circuit.
- “What Kagan And Scalia Might Say About Halbig v. Sebelius” shows how the Supreme Court has recently dealt with issues similar to those presented in Halbig. See also “What the Supreme Court said about the IRS tax credit rule” by Volokh Conspiracy blogger, law professor, and my sometime coauthor Jonathan Adler.
- “King v. Sebelius: If The Plain Meaning Of The ACA Was Good Enough For Congress, Then It’s Good Enough For The Fourth Circuit” is a write-up of oral arguments in a similar case (King v. Sebelius) heard by the 4th Circuit.
- “Modern Healthcare’s Take On Halbig v. Sebelius Is A Comedy Of Errors” and “In Which Modern Healthcare Questions My Honesty” show how reporters often misstate basic facts about these cases.
- Like the last two, “The IRS’s Case In Halbig v. Sebelius Is Crumbling, With A Little Help From Its Friends (UPDATED)” shows how many of the arguments made by the IRS’s supporters, including law professors like Yale’s Abbe Gluck, actually undermine the IRS’s case in court. “Hafa Adai: Obama Administration Contradicts Its Own Brief In ‘The Case That Could Topple ObamaCare’” shows that even the Obama administration has gotten in on that game.
- My congressional testimony on “The President’s Failure To Execute Faithfully The PPACA” puts Halbig in a broader context.
Update: The D.C. Circuit has handed down rulings for today, and Halbig is not among them. Click here to check on the court’s most recent rulings.
Perhaps the most suspicious thing about the disappearance of Lois Lerner’s emails is that the IRS is not a small business operation that cannot afford high-quality computer, email, and backup systems. It is a huge modern bureaucracy that has computer technology at the core of its operations. The IRS IT budget in 2014 is a massive $2.4 billion (page 149 here).
Here is what the administration’s most recent IRS budget says (page 150) about its IT strategy:
IT is a key enabler for efficient and effective tax administration … To ensure the public trust, the IRS also is making significant investments to secure infrastructure, data, and applications. With continued investment in new technologies and the modernization of existing IT systems, the IRS is improving service to taxpayers, achieving productivity gains, and distinguishing itself as a model of tax administration around the world. The IRS also has established world-class practices and tools to manage and implement its portfolio of IT investments more efficiently.
There is no doubt that the IRS has distinguished itself recently, but not as a model of world-class practices.
The uber-hawks and neocons who led America into the disastrous invasion of Iraq are campaigning for a repeat. If only the U.S. will go to war along the Euphrates a second time, they promise, everything will turn out well.
As I point out on Forbes online: “Americans should ignore these Sirens of Death. Attempting to forcibly transform Iraq never was Washington’s responsibility. Having botched the job once, U.S. policymakers should not try again.”
There was much to despise about Saddam Hussein’s Iraq, but he helped constrain Iran and enforced an ugly stability at home, suppressing sectarian violence and al-Qaeda. As many analysts, including yours truly, warned, his forced departure would be welcome in principle but bloody in practice.
Prime Minister Nouri al-Maliki ruled with a harsh hand, favored his Shia supporters, and rejected a permanent U.S. military garrison. Nor would an American presence have saved Iraq from internal collapse.
U.S. troops could not have forced positive political change. Employing U.S. troops against Baghdad’s opponents, such as the Islamic State of Iraq and al-Sham (ISIS), would have been far worse.
Washington nevertheless helped arm the Iraqi military, but a secret program begun last year to aid Baghdad against Sunni militants foundered. The Maliki government simply failed to maintain an effective force. As a result, Iraqi military units melted away in the face of ISIS attacks.
Yet the situation is not nearly as threatening for Washington as for Baghdad. So far ISIS has acted as an insurgency in both Syria and Iraq, not a terrorist group targeting America. In fact, the organization’s break with al-Qaeda reflected the latter’s focus on the “far enemy,” that is, the U.S.
In contrast, ISIS is seeking to establish a real state and may not want to risk its practical gains in a war against the U.S. Obviously this could change, but Washington should not encourage retaliation against Americans by needlessly striking the group.
Moreover, Iraq will not fall under ISIS control. The radicals lack the resources necessary to conquer Iraq or even take Baghdad. Moreover, by making the conflict into a religious war ISIS has galvanized Iraq’s Shia majority. A bitter and potentially long struggle between essentially lawless paramilitaries impends.
Into this violent and unpredictable imbroglio President Obama is sending “up to 300” Special Forces. Even worse, he maintains the possibility of “targeted, precise military action,” presumably meaning air and drone strikes.
However, Baghdad’s military lacks leadership and commitment while the Iraqi state lacks credibility and will. These Washington cannot provide, especially with the Iraqi people having so little faith in their government.
The administration now is not so subtly attempting to oust Maliki from power. But Maliki has pointedly rejected demands for his scalp, even as a condition of aid. Many Shiites have rallied around Maliki and Iran continues to back him. Many possible successors are untested or even less credible than Maliki.
Military action is even more problematic. Airpower offers no simple solution.
Air strikes have limited effectiveness in urban warfare and cannot liberate captured cities. To minimize “collateral damage” airpower best relies on ground support for targeting, something that could not be left to sectarian Iraqi forces.
Unfortunately, another war on Muslims would make even more enemies of America. Indeed, targeting Sunni areas would kill people, including noncombatants, who once allied with Washington against al-Qaeda. De facto partition, perhaps with autonomous Shia, Sunni, and Kurdish zones within a highly federalized state, might offer the best possibility of peaceful coexistence.
The Middle East appears to be a tragedy permanently set on repeat. That is a reason for America to stay out, not jump in.
After blowing up the country, the U.S. obviously did not leave behind “a sovereign, stable and self-reliant Iraq,” as President Obama claimed in 2011. America cannot put Humpty Dumpty back together again. Washington should learn a little humility and leave the clean-up to others.
Peter Van Doren
The Sunday Washington Post published a very interesting long article on the effects of Uber and other similar ride-sharing services on the value of the medallions required for operation of conventional taxis in Chicago and other cities.
The medallions have value because the supply of rights to operate taxis, restricted by city regulation, is low relative to demand. The Post article presents data on the number of taxis per 100,000 residents. Washington D. C. licenses cabs, but does not restrict the number of cabs operating through a medallion requirement, and has almost 900 taxis per 100,000 residents. In contrast, Chicago and New York, which have medallion restrictions, only have approximately 230 to 250 taxis per 100,000 residents. The supply restrictions in Chicago and New York lead to excess profits, which reveal themselves in the bids for medallions in the secondary market. The present value of the profits from owning the “rights to cruise for passengers” relative to the profits of other investments is the market value of the medallions, which until recently ranged from $500,000 to a million dollars depending on the city and the severity of the medallion restrictions.
Uber, which supplies luxury town-car service, and especially UberX, which supplies service similar to cabs, in effect, have increased the supply of taxis to eliminate some, if not all, of the difference between the number of vehicles per capita in Washington D.C. and those cities with medallion supply restrictions. This increased supply reduces the market value of the medallions. The article asks whether reductions in the value of the medallions are a “taking” by the government that deserves compensation like any normal taking of “property” by government action.
I (along with Richard Sansing, a Professor at Dartmouth Business School) wrote an article in the Journal of Policy Analysis and Management (volume 13, issue 3, Summer 1994 pp. 565- 570) that analyzed the question of whether governments should compensate those citizens who lose wealth because public policies change. (Here is a version published in Regulation in Winter 1997)
We analyzed data on lease versus purchase of tax medallions in New York City. If there were no risk, the purchase price of a medallion would reflect the present value of leasing in perpetuity. Unlike other assets the medallion’s only value is the entry restrictions created by government. At the time we conducted our analysis the present value of leasing in perpetuity at 5 percent interest was $240,000 whereas the sale price of medallions was only $100,000. That is the purchase price of a medallion at that time amortized the cash flows over a period of 20 years as if they would go to zero in year 21. Unlike other investments the only reason that cash flows might go to zero was the possibility of deregulation or reduction in enforcement of the entry restrictions. If policy change created any reduction in cash flows in years one through 19 investors made less than normal profits. Investors made “excess” profits if any reduction in cash flow occurred after year 20. Thus the medallion market was like a fairly priced lottery ticket that took into account the possibility of deregulation, even though at the time we did this calculation no change in taxi regulation had ever taken place since it was instituted in the late 1930s. We concluded that no compensation was required to preserve equity or fairness because the price for medallions reflected the risk investors faced from policy change.
We then analyzed the efficiency consequences of a no-compensation regime. The lack of compensation for policy change increases the riskiness (variance) of returns on assets even though it does not change the average return. Investors handle risk by diversification: owning assets whose returns do not all increase or decrease at the same time. As long as the risk of policy change in taxi medallions does not occur at the same time as the risk to assets in all other markets, the risk of taxi medallion policy change can be managed through asset diversification. Thus in the case of taxi medallion deregulation due to changes such as the advent of Uber and Lyft, compensation is not required for efficiency either.
 Chicago has 6904 medallions according to the Post article and 2,718,782 population in 2013 for 254 cabs per 100k people. NYC has 13,605 medallions http://en.wikipedia.org/wiki/Taxicabs_of_New_York_City In December 2011, Governor Cuomo signed law allowing 18,000 new outer borough medallions. 6, 000 of the outer borough medallions have been issued. Thus New York City has 19,605 medallions and 8,405,837 people in 2013 according to the census, which equals 233 cabs per 100k people.
On Friday, Gov. Rick Scott signed legislation that expands eligibility for the Florida’s longstanding scholarship tax credit (STC) program and creates a new education savings account for students with special needs. Earlier this year, Oklahoma expanded its STC program and Arizona expanded both its STC and education savings account programs. Kansas Gov. Sam Brownback signed legislation creating a new STC program, though unfortunately it is limited only to low-income students assigned to government schools that are designated as “failing” by the state’s board of education. Students in “non-failing” schools that are nevertheless failing to meet their needs are not eligible to receive scholarships.
The changes to Florida’s scholarship program were mostly positive. Florida eliminated the requirement that students first spend a year at a government school before being eligible to receive a scholarship. Also, starting in 2016-17, the income eligibility cap for first-time recipients will increase to include middle-income families (from 185 percent of the federal poverty line to 260 percent), with priority given to lower-income students. Students from middle-income families will receive smaller scholarships. Students in foster homes will be eligible regardless of their foster family’s income.
Unfortunately, the law adds new rules regulating the operation of scholarship organizations. Florida already has the most regulated scholarship program in the nation, which explains why the state has only one scholarship organization while other states have dozens or even (in the case of Pennsylvania) hundreds.
Back in March, the bill’s prospects seemed dim. The Florida Speaker of the House and Senate President battled over whether to mandate that private schools administer the state test (i.e. – Common Core) as a condition of receiving scholarship students. As a result, the bill’s sponsor withdrew the legislation. That poison pill would have severely restricted school autonomy and parental choice. Fortunately, the resurrected bill that the governor signed into law did not mandate state tests. Participating schools must still administer nationally norm-referenced tests.
Florida’s new education savings account for students with special needs is based on Arizona’s highly popular program, but with a twist: nonprofit scholarship organizations will administer the program rather than the state, though the accounts will still use public funds.
Parents will be able to use the funds to pay for a variety of educational services, including private school tuition, tutoring, online education, curriculum, therapy, post-secondary educational institutions in Florida, and other defined educational services. … The maximum amount for the Personal Learning Scholarship Account shall be equivalent to 90 percent of the state and local funds reflected in the state funding formula that would have gone to the student had he or she attended public school.
Students qualify if they reside in Florida and are eligible to enroll in kindergarten through 12th grade who have an Individualized Education Plan or have been diagnosed with one of the following: autism, Down syndrome, Intellectual disability, Prader-Willi syndrome, Spina-bifida, Williams syndrome, and kindergartners who are considered high-risk.
Unfortunately, New York legislators ended the session without passing an educational choice bill, despite majority support in both chambers of the legislature and a promise by Gov. Andrew Cuomo to Timothy Cardinal Dolan that he would support STC legislation. Given the legislative support, the New York Post faulted Gov. Cuomo for the failure to pass the legislation:
The human tragedy, of course, is who will pay the price for Cuomo’s alliance with the Working Families Party & Co.: i.e., the children of actual working families, who have no avenues of escape from rotten public schools where they aren’t learning.
The U.S. government is financially bankrupt and can ill afford to police the world. Unfortunately, U.S. policymakers refuse to reconsider even the most antiquated security promise. The result is strategic bankruptcy as well.
In the aftermath of World War II the U.S. effectively took over the defense of much of Asia and Europe, fought or supported combatants in several Third World proxy wars, engaged in nation-building, and otherwise routinely intervened around the globe.
Despite a changed world, the U.S. continues to defend now wealthy Asian and European client states. American military personnel continue to die fighting in Third World conflicts, only in different nations. Washington continues to attempt to micromanage the globe.
On the day President Barack Obama announced America’s return to Iraq’s conflict, Air Force Lt. Gen. Jan-Marc Jouas said Air-Sea Battle was the Pentagon’s new war-fighting doctrine in the Korean peninsula. Is there anywhere America is prepared to say does not warrant military intervention?
For a time President Barack Obama followed his predecessors in acting as if there were no limits to U.S. capabilities. However, the so-called “pivot” to Asia suggested that the administration finally realized some choices had to be made. Yet Washington’s commitment of more resources and attention to Asia appeared to have little effect on American policy elsewhere in the world.
Administration officials continued to treat a U.S.-dominated NATO as essential. The war in Afghanistan went on. Last year the president proposed to launch air strikes against Syria, backing away only after failing to win congressional approval.
More dramatically, Russia’s absorption of Crimea prompted manifold administration efforts to “reassure” the Europeans, including shifting ground, air, and naval units to the region. Washington even appeared open to proposals for adding permanent U.S. garrisons to NATO’s eastern-most members.
Now the president is sending limited ground forces to Iraq, with the added possibility of air and drone strikes. He may find it hard to limit U.S. involvement in a complex and evolving conflict.
Yet military officials are discussing their war doctrines for Korea.
U.S. foreign and military policy has a mad quality to it, suggesting that involvement everywhere should be forever. If President Obama is unwilling to keep America out of any conflict in any part of the world, he should at least set priorities within regions.
In the Middle East, for instance, the president should halt incremental escalation in Syria. The battle is tragic, but no one knows what would emerge if Bashar al-Assad is ousted. Almost certainly fighting would continue, reprisals would be made, and radical forces, such as ISIS, would be empowered.
In Europe Ukraine remains far from the continent’s population and economic centers which the U.S. spent decades defending. Kiev’s situation is unfortunate, even tragic, but the country matters not strategically to America. There should be no thought of military involvement by the U.S or NATO.
In Asia there is no more dramatic disparity than on the Korean peninsula, where the South has a GDP and population respectively forty times and twice those of the North. The Republic of Korea could deploy a military capable of deterring North Korea. Instead of concentrating on defense, in the past Seoul has shipped cash, food, and other goods north in an attempt to buy goodwill—even as the Democratic People’s Republic of Korea was building nuclear weapons.
As I point out in my latest article on National Interest online: “These should be just the start. In a world of diminishing resources—Washington faces a debt tsunami in the years ahead, with more than $200 trillion in accumulated unfunded liabilities—the U.S. no longer can be expected to solve every international problem, especially through military means. American policymakers should begin to make tough choices. Now.”
I will have more to say about this fairly soon, but this might serve as a preview.
Thomas Piketty is now advising innocent readers of his book to (1) not demand a refund or dump the book used on Amazon, and (2) ignore his own flawed estimates of top 1% U.S. wealth shares and instead utilize a PowerPoint by Gabriel Zucman and Emmanuel Saez. Zucman and Saez use capital income reported on individual tax returns (dividends, interest, rent and capital gains) to infer ownership of capital assets, and not just greater realization of gains or portfolio shifts from tax-exempt bonds to dividend-paying stock.
That might be semi-plausible if businesses and professionals were not free to report income on either corporate or individual tax forms, and if tax rates never changed. But this methodology can’t possibly work after the huge tax rate reductions of 1986 (for partnerships & SubS corps), 1997 (capital gains) and 2003 (dividends and capital gains). The reason it can’t work was fairly well explained by Piketty, Saez and Stantcheva in the original unsanitized version of a paper they published this February (which I have cited beforebut also critiqued):
“There is a clear negative overall correlation between the [reported] top 1% income share and the top marginal tax rate: … [T]he top 1% income share has increased significantly since 1980 after the top tax rate has been greatly lowered… . [T]he top 1% income share more than doubled from around 8% in the late 1970s to around 18% in last five years, while the net-of-tax (retention) rate increased from 30% (when the top marginal tax rate was 70%) to 65% (when the top tax rate is 35%).”
The Supreme Court this morning announced that in its next term it will hear oral argument in a case called Department of Transportation v. Association of American Railroads, which asks whether Congress, when it passed the Passenger Rail Investment and Improvement Act of 2008, unconstitutionally delegated its legislative power to a private entity—in this case, Amtrak. The non-delegation doctrine, grounded in the separation of powers, arises from the very first word of the Constitution, after the Preamble: “All legislative Powers herein granted shall be vested in a Congress of the United States ….” (emphasis added). Taken at face value, that clear a statement would seem to preclude much of the “lawmaking” that goes on every day in the 300 and more executive branch agencies to which Congress over the years has delegated vast regulatory authority. Unfortunately, the Court long ago held otherwise, unleashing the modern executive state, indulged no more assiduously that by President Obama with his resort to “pen and phone” as he wills his agencies to action, the will of Congress often notwithstanding.
This case, however, challenges the next step in undermining the constitutional doctrine: again, whether Congress can delegate its lawmaking authority to a private entity. In time, one hopes, the case may sow the seeds for the Court’s revisiting the main form of legislative delegation, if only by putting the issue in play. That was at least implicit in the opinion below from the D.C. Circuit, written by the irrepressible Judge Janice Rogers Brown and joined by Senior Judges Stephen Williams and David Sentelle, each of whom has been a presence at Cato. In fact, it was only three weeks ago that Judge Williams was here, commenting on Professor Philip Hamburger’s new book entitled, appropriately, Is Administrative Law Unlawful?—the broad question at issue here.
As with so many administrative law cases, DOT v. AAR involves a complex tangle of agencies and authorities that the reader will be taxed to untangle. But Judge Brown put the principle of the matter plainly: “While often phrased in terms of an affirmative prohibition [as with rights], Congress’s inability to delegate government power to private entities is really just a function of its constitutional authority not extending that far in the first place. In other words, rather than proscribing what Congress cannot do, the doctrine defines the limits on what Congress can do.” This is one to watch.
Following the decision upholding numerous death penalties for Muslim Brotherhood members accused of a 2013 attack on a police station, Egypt has recently seen the conclusion of another sham trial, resulting in harsh sentences for three al-Jazeera journalists, accused of aiding terrorists.
While it is obvious that trials like these move Egypt further away from freedom, could they also be inadvertently helping Islamic radicals? My new development bulletin argues that political repression of the kind we are seeing in Egypt creates incentives for Islamists to use violence in order to attain their goals.
Iraq, where ISIS is making continual progress fighting the government of Nouri al-Maliki, is an extreme example of where things can end when political elites exclude a significant part of the population from democratic politics. Al-Maliki’s premiership has been marked by a strengthening of his own hold to power, progressively alienating the country’s Sunni population.
My paper argues that the electoral successes of Islamists in Arab Spring countries have relatively little to do with religion but rather with the organizational characteristics of Islamic political groups, which were typically active in the provision of local public goods and social services. Instead of seeing the rise of Islamic political organizations as a pathology that needs to be countered – possibly through repressive means – we should note that,
[I]n transitional environments, the electoral success of Islamists is a natural result of the political environment, which can be mitigated only by an increase in the credibility of alternative political groups. The electoral advantage enjoyed by Islamic parties can be expected to dissipate over time as competing political groups establish channels of communication, promise verification for their voters, and build reputation over time.
There is no denying that religion and politics do not always mix well. However, the appropriate answer to the ugly side of religious politics is not political repression of the kind we are seeing in Egypt but rather open, competitive democratic politics.
Today the Supreme Court missed an opportunity to undo one of its worst corporate-law mistakes of modern times, its 1988 decision in Basic, Inc., v. Levinson that lawyers can file class-action suits on behalf of investors without proving class members’ actual reliance on allegedly fraudulent statements, by presuming the price of the stock was affected. (Colleague Andrew Grossman covered the oral argument in Halliburton v. Erica P. John Fund, Inc. in this space in March.)
In the narrower sense, the Court did unanimously grant relief to defendant Halliburton by recognizing its right to offer proof at an earlier stage that its claimed misstatement had not affected the price of its stock. That’s welcome, and shows that the Court recognizes – maybe even unanimously recognizes – that the current class-action mechanism operates unfairly to pressure defendants to settle at the certification stage, and needs procedural overhaul aimed at fixing that.
Unfortunately, a six-member majority led by Chief Justice Roberts invoked the doctrine of stare decisis to reaffirm its general holding in Basic, reasoning that it will not inquire whether earlier precedents are wrong, just whether they are so extra-super-wrong as to stand out from the usual run of wrong precedent. Chief Justice Roberts’s majority opinion makes much of the idea that securities law is statutory and that Congress could therefore alter matters if it chose.
But Justice Thomas, writing in concurrence for himself and Justices Scalia and Alito, has the better logic when he points out that Basic v. Levinson never emerged from an engagement with statutory text at all – it was a product of the Court’s now-discredited “implied private rights of action” period, in which Justices for a while took it upon themselves to invent new civil causes of action from whole cloth. And as with the so-called Pottery Barn rule in government (you break it, you own it) the Court might want to consider taking responsibility for undoing messes that are entirely of its own making.
TaskRabbit, a site that connects people looking to outsource tasks such as household repairs and keg deliveries, recently announced that its business model will be changing from one that resembles an eBay-style auction house to one that more closely resembles companies like Uber. The new TaskRabbit will be launched “before the end of July.”
As Casey Newton noted at The Verge last week in an article titled “TaskRabbit is blowing up its business model and becoming the Uber for everything,” when the new system goes live next month users will find a landing page that steers them to the platform’s four most popular types of service: handyman, house cleaning, moving, and personal assistants. (You can still request other services, though it takes a few more clicks.) After you submit some details about the job, TaskRabbit will present three contractors, along with their hourly rates, who represent a range of prices and experience levels. After you select one, you can schedule a time for the job and communicate with the “Tasker” in real time using a custom messaging platform built by the company.
It seems that news of TaskRabbit’s makeover has increased interest in the company. TaskRabbit PR chief Johnny Brackett tweeted on Wednesday, the day after TaskRabbit announced the planned changes, that TaskRabbit had “15X more user signups yesterday than an average day.”
While Uber’s rideshare service, UberX, makes it simple for users to do one familiar thing (catching a ride), TaskRabbit allows for its users to easily find help carrying out a range of common tasks such as assembling furniture, replacing light switches, and so-called “virtual” tasks such as vacation planning and proofreading.
It remains to be seen if TaskRabbit’s redesign will yield the sort of growth enjoyed by other “sharing economy” companies. If Brackett’s tweet is accurate, there is at the very least some new interest in TaskRabbit, the “Uber for everything.” Investors have shown that they believe in the potential of the “sharing economy” despite numerous domestic and international regulatory battles, having provided Uber and Airbnb with huge valuations earlier this year.
If the new version of TaskRabbit takes off, it will likely have to contend with its own share of regulatory obstacles. In particular, many of the jobs that it helps people to get done could be subject to state and local occupational licensing rules. Established service providers may try to use these laws to squelch unlicensed competition from TaskRabbit, just as taxi services have sought to stop Uber.
It will be interesting to see how TaskRabbit does with its Uber-like system. I was quite eager to use TaskRabbit myself, but after signing up as a TaskRabbit (a term that will be changed to “Tasker” once the new site is launched) in Washington, D.C. I received a message that said in part:
There is high application volume in your city right now so we’ve temporarily put a hold on all new applications. The number of tasks on our site is growing rapidly, so it shouldn’t be long before we start accepting new applications.
So, it doesn’t look like I’ll be helping strangers out with IKEA furniture assembly via TaskRabbit any time soon, but that seems to be because of the popularity of the “Uber for everything,” which shouldn’t come as a surprise.
One of the policy fissures in the Republican Party is over business subsides, and the current debate about the Export-Import Bank illustrates the conflict. The Ex-Im Bank is one of many corporate welfare or crony capitalist programs that litter the federal budget. The Bank’s authorization runs out in September, and so Congress must act if it wants to extend the operations of this business subsidy machine.
Veronique de Rugy at Mercatus and Sallie James at Downsizing Government have looked at the Bank’s operations and discussed why the economics of the Bank do not make sense. Veronique says, “the Export-Import Bank is one of the least defensible corporatist boondoggles that taxpayers are forced to subsidize.”
The main problem with corporate welfare programs like Ex-Im is often overlooked. It is that they undermine American capitalism by weakening the recipient businesses. All subsidies can change the behavior of recipients, and nearly always in a negative way. Just like individual welfare programs reduce work incentives, corporate welfare dulls the competitiveness of recipient companies.
Corporate welfare focuses the energy of business executives on Washington and away from the marketplace. It gives companies a crutch, an incentive not to make the innovations needed to remain on the leading edge. It induces recipient businesses to make foolhardy decisions, as we saw with export subsidies for Enron. And corporate welfare often steers business capital into dead-end markets favored by politicians, and away from uses that would more productive and profitable in the long run.
Here are some of the points made by Veronique and Sallie about Ex-Im:
- Veronique: The Bank backs less than 2 percent of the value of total U.S. exports.
- Veronique: The Bank mainly subsidies very large businesses, not small businesses.
- Veronique: Taxpayer exposure to possible Bank losses is rising.
- Sallie: Export subsidies cannot substantially change the U.S. trade balance, even if that were a good idea.
- Sallie: The Bank’s activities may slightly shift the U.S. employment mix, but they do not raise overall employment.
- Sallie: The Bank’s aid to some foreign businesses—such as foreign airlines—comes at the expense of U.S. businesses.
For more on the problems with corporate welfare, see my 2012 congressional testimony on Corporate Welfare Spending vs. the Entrepreneurial Economy.
Andrew M. Grossman
At the bottom of the Supreme Court’s decision today tossing out, in large part, the Obama Administration’s greenhouse gas emissions scheme is a stiff dose of constitutional common sense: “When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement with a measure of skepticism.”
Here, skepticism was certainly warranted. At issue was one of the Obama Administration’s earliest efforts to skirt Congress and achieve its major policy goals unilaterally through aggressive executive action.
A bit of background is necessary. The Clean Air Act’s 1970’s-era “Prevention of Significant Deterioration” and “Title V” programs are aimed at the few hundred largest industrial sources of pollution in the country and impose what the Court correctly identified as “heavy substantive and procedural burdens,” far beyond the red tape that most businesses are able to shoulder. To that end, the statute limits regulation to sources that emit more than 100 or 250 tons per year of certain “air pollutants.”
EPA’s trick was to redefine “air pollutant,” as used in those programs, to include carbon-dioxide emissions. Because carbon-dioxide is emitted in large quantities even by smaller sources, that interpretation expanded the number of sources subject to regulation from a few hundred to millions altogether. Regulations that had previously been confined to major power plants, chemical factories, and the like would now apply to retail stores, offices, apartment buildings, shopping centers, schools, and churches. To avoid what even EPA recognized to be an “absurd result,” the agency went on to claim authority to decide exactly which sources have to comply—in other words, the power to choose winners and losers by exempting the vast majority of sources from compliance, for the time being at least. It called this approach “tailoring.”
The Court, in a lead opinion by Justice Scalia, called it “patently unreasonable—not to say outrageous.” EPA, it held, must abide by the statute: “An agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.” And if such tailoring is required to avoid a plainly “absurd result” at odds with congressional intentions, then obviously there is obviously something wrong with the agency’s interpretation of the statute. To hold otherwise, the Court recognized, “would deal a severe blow to the Constitution’s separation of powers” by allowing the executive to revise Congress’s handiwork.
The loss for the administration was not complete. The Court did allow that EPA can regulate greenhouse emissions by newly-built (or substantially modified) sources that would already be subject to PSD or Title V without taking into account their greenhouse gas emissions—known as “anyway sources.” But even this authority, the Court explained, is not “unbounded” and does not authorize to EPA to mandate any manner of efficiency gain.
The Court’s decision may be a prelude of more to come. Since the Obama Administration issued its first round of greenhouse gas regulations, it has become even more aggressive in wielding executive power so as to circumvent the need to work with Congress on legislation. That includes recent actions on such issues as immigration, welfare reform, and drug enforcement. It also includes new regulations for greenhouse gas emissions by power plants, proposed just this month, that go beyond traditional plant-level controls to include regulation of electricity usage and demand—that is, to convert EPA into a nationwide electricity regulator. Today’s decision—as well as one last month by the D.C. Circuit rejecting a nearly identical regulatory gambit by the Federal Energy Regulatory Commission—suggests that this won’t be the last court decision throwing out Obama Administration actions as incompatible with the law.
With continuing instability in Ukraine, and Poland’s foreign minister Radek Sikorski allegedly using vulgar and racist language to disparage the US-Poland alliance, now’s as good a time as any to evaluate what NATO does for Americans.
Not much, I argue in Foreign Policy (online). As I conclude:
NATO has produced some benefits, but the costs to the United States – tens of billions per year, validating Russian nationalist narratives about the West, and infantilizing its European partners – are often ignored. Washington should cut the Europeans loose, and encourage them to cooperate with each other on European security matters. With a combined GDP larger than the United States and a benign threat environment, Europeans are capable of defending themselves, but won’t until Washington makes them.
Please give it a read.
In a new paper, Emily Skarbek (King’s College London) presents some evidence:
Using a novel set of comprehensive donation and expenditure data collected from archival records, this paper examines a bottom-up relief effort following one of the most devastating natural disasters of the nineteenth century: the Chicago Fire of 1871. Findings show that while there was no central government relief agency present, individuals, businesses, corporate entities and municipal governments were able to finance the relief effort though donations. The Chicago Relief and Aid Society, a voluntary association of agents with a stake in relief outcomes, leveraged organizational assets and constitutional rules to administer aid.
This contrasts sharply with conventional wisdom and current public policy, which assumes that private agents and local governments will “free ride” on the charitable actions of others, leading to “insufficient” relief activity unless the central government plays a large role.
In fact, private and local government efforts are often substantial, as demonstrated by this example and many others (e.g., the billions given by individuals, foundations, and corporations to help victims of Katrina, Sandy, and the Asian Tsunami).
Local efforts, moreover, are likely more efficient than those directed by a far away central government, as residents of New Orleans can readily attest.
Don’t you wish more companies would do this when attacked? After New York Times columnist Tim Egan took a swipe at Wal-Mart over its wage policies, Wal-Mart swiped right back this weekend in a way that’s effective as well as funny.
One further point the company could have added: the company’s low prices significantly improve standards of living for low-wage and low-income shoppers across the nation. Here’s one economist’s comment from a few years back:
Wal-Mart’s low prices help to increase real wages for the 120 million Americans employed in other sectors of the economy. And the company itself does not appear to pay lower wages or benefits than similar companies, or to cause substantially lower wages in the retail sector…
[T]o the degree the anti-Wal-Mart campaign slows or halts the spread of Wal-Mart to new areas, it will lead to higher prices that disproportionately harm lower-income families…By acting in the interests of its shareholders, Wal-Mart has innovated and expanded competition, resulting in huge benefits for the American middle class and even proportionately larger benefits for moderate-income Americans.
Although the link is via a post by colleague Michael Cannon, it wasn’t any of us at Cato who wrote that: it was Jason Furman, adviser to Democratic candidates and President Obama’s current chairman of the Council of Economic Advisers. More Furman on Wal-Mart here.