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Hobby Lobby, Harris, and Stealing Each Others' Clothes

Mon, 06/30/2014 - 14:42

Walter Olson

Legal issues have a way of changing form over the years in such a way that the liberal and conservative teams, such as they are, each periodically migrate over to occupy the positions the other formerly held. Examples from today’s two big cases: 

  • In 1990, when the Court decided Employment Division v. Smith, the Indian peyote case, it seemed clear that the liberal stand was to sympathize with religious believers seeking exemption from otherwise applicable general laws, while the conservative position – expressed by Justice Scalia in a majority opinion over a dissent by Blackmun, Brennan, and Marshall – was that sorry, but asserting religious scruples doesn’t place you above the law. Congress then proceeded to adopt by way of RFRA, the Religious Freedom Restoration Act, a mechanism using statutory means to achieve much the same ends as the liberals had sought to locate in constitutional law. Two decades later, where are we? The analogy with Hobby Lobby is by no means exact – one might decline to constitutionalize religious conscience rights yet still favor their vigorous statutory application, and the Smith case involved individuals rather than family corporations. But still: by prevailing back then, Scalia and the conservatives shaped a more favorable terrain for what to become the liberal position in Hobby Lobby, while the position embraced by Brennan and Marshall back then, had it prevailed, would have given the religious objectors in Hobby Lobby stronger ground to stand on.
  • Protection for the speech and expression rights of public-sector employees is a specialized area of constitutional law and, under existing Supreme Court precedent, a bit of a balancing act in which the interests of the government-as-employer in maintaining an orderly and efficient workplace often outweigh the expression rights of individual public employees. Not that long ago, it would have been a plausible generalization that liberals on the Court were enthusiastic about guarding and expanding the individual expression rights of public-sector workers, while conservatives tended more to stress management prerogatives. But in today’s Harris v. Quinn, it was the conservative majority that demanded respect for individual employees’ expression rights even where doing so might tend to destabilize an overall public policy, while the dissenting liberals led by Justice Kagan deprecated those same individual expression rights as all very nice in their way but needing to yield to the rights of management. 

Has anyone tried to compile a list of all the various issues in which liberal and conservative blocs have traded positions with each other over living memory? I suspect it would be a long one.

Categories: Policy Institutes

Liberty at the High Court: Not Just (A) Hobby

Mon, 06/30/2014 - 12:20

Walter Olson

As someone observed, the pundit world showed deep interest in Harris v. Quinn for about twenty minutes, after which Hobby Lobby was announced and it seemed everyone wanted to talk about that and nothing else. 

My own opinion is that Harris was the more important decision today and Hobby Lobby the less, because constitutional law endures. When Congress sooner or later gets around to amending RFRA, Obamacare, or both, Hobby Lobby, a case of statutory interpretation, will become a footnote of purely historical interest. That doesn’t happen with a First Amendment case, unless of course it is overruled, overturned by Constitutional amendment, etc.

It’s surprising how many commentators are referring to today as a double win for the First Amendment. But Hobby Lobby, while an important case in its way, never reached the First Amendment. Harris did.

Categories: Policy Institutes

The Practical Impact of Harris v. Quinn: A Major Blow to Organized Labor

Mon, 06/30/2014 - 11:20

Andrew M. Grossman

As noted in this previous post, the Supreme Court’s decision today in Harris v. Quinn does not remake private-sector labor law but does put an end to one of the labor movement’s greatest hopes for expansion: commandeering dues payments by recipients of state subsidies. While the decision may be narrow—the Court, after all, did not rule that no public workers may be forced to support a labor union—its impact will be anything but that.

The Illinois law at issue here in Harris was at the leading edge of a nationwide movement over the past decade to organize home-based care workers, including medical assistants and even family child-care providers, and thereby to “reinvigorate organized labor.”

Though a recent phenomenon, the use of sham employment relationships to support mandatory union representation has spread rapidly across the nation.  In just the decade since SEIU waged a “massive campaign to pressure [] policymakers” in Los Angeles to authorize union bargaining for homecare workers, home-based care workers “have become the darlings of the labor movement” and “helped to reinvigorate organized labor.”  From around zero a decade ago, now several hundred thousand home workers are covered by collective-bargaining agreements.

This quick growth is the result of a concerted campaign by national unions, particularly SEIU, to boost sagging labor-union membership through the organization of individuals who provide home-based services to Medicaid recipients.  Since SEIU’s Los Angeles victory in 1999, labor unions have undertaken successful campaigns to establish nominal employers for homecare workers in Oregon (2000), Washington (2001), Illinois (2003), Michigan (2004), Wisconsin (2005), Iowa (2005), Massachusetts (2006), Missouri (2008), Ohio (2009), Pennsylvania (2010), Connecticut (2011), Maryland (2011).  (Three states—Ohio, Pennsylvania, and Wisconsin—subsequently repealed this authority.)  As labor law expert Peggie Smith puts it, those campaigns have “been hailed as labor’s biggest victory in over sixty years.”

Nor has this model been limited to homecare providers.  Over the past five years, organized labor has directed its efforts to organizing home-based childcare providers, including childcare provided by family members who receive public support or subsidies.  By February 2007, seven states had recognized unions as the exclusive representative of home-based child care providers; over the next three years, an additional seven states followed suit. 

All this has added up to big money for big labor. Just one of the Illinois programs at issue in Harris involved approximately 20,000 personal assistants who pay SEIU over $3.6 million per year.

Today’s decision will slow, and perhaps eventually end, that flow of funds, as workers decide they can represent their own interests and would prefer to keep their earnings for themselves and their families. So while the Court did not go all the way to striking down compulsory support of public-sector unions—as union supporters feared it would—it does deal a major blow to organized labor where it hurts the most: members and money.

Categories: Policy Institutes

Of Course Government Can't Violate Religious Liberty for No Good Reason

Mon, 06/30/2014 - 11:12

Ilya Shapiro

Hobby Lobby is a much simpler and less important case than it’s been made out to be, for reasons the Court clearly spelled out today. Obamacare’s contraceptive mandate had to fall under the Religious Freedom Restoration Act (without even getting to the First Amendment) because it didn’t show – couldn’t show – that there’s no other way of achieving its goal without violating religious beliefs. Moreover, the fact that a for-profit corporation is asserting the statute’s protections is of no moment because neither the corporate form nor the profit motive undermines RFRA’s solicitude for the rights of humans – including owners, officers, and shareholders. In short, the mandate fell because it was a rights-busting government compulsion that lacked sufficient justification. Nobody has been denied access to contraceptives and there’s now more freedom for all Americans to live their lives how they want, without checking their freedom at the office door. 

For more on how the “corporate rights” issue in the case was really a misnomer – because the free exercise of individual humans is at issue regardless of how you style the legalese – see Cato’s amicus brief

Categories: Policy Institutes

Harris v. Quinn: A Win for Workers' First Amendment Rights

Mon, 06/30/2014 - 10:47

Andrew M. Grossman

Enough is enough, the Supreme Court ruled today in Harris v. Quinn regarding the power of government to force public employees to associate with a labor union and pay for its speech. Although the Court did not overturn its 1977 precedent, Abood v. Detroit Board of Education, allowing states to make their workers contribute to labor unions, it declined to extend that principle to reach recipients of state subsidies—in this case, home-care workers who receive modest stipends from the state of Illinois’ Medicaid program but are not properly considered “employees” of the state.

The Court is right that Abood is “something of an anomaly” because it sacrifices public workers’ First Amendment rights of speech and association to avoid their “free-riding” on the dues of workers who’ve chosen to join a union, the kind of thing that rarely if ever is sufficient to overcome First Amendment objections. But Abood treated that issue as already decided by prior cases, which the Harris Court recognizes it was not–a point discussed at length in Cato’s amicus brief. Abood was a serious mistake, the Harris Court concludes, because public-sector union speech on “core issues such as wages, pensions, and benefits are important political issues” and cannot be distinguished from other political speech, which is due the First Amendment’s strongest protection. A ruling along those lines would spell the end of compulsory support of public-sector unions, a major source of funds and their clout. 

It was enough, however, in Harris for the Court to decline Illinois’ invitation “to approve a very substantial expansion of Abood’s reach.” Illinois claimed that home-care workers were public employees for one purpose only: collective bargaining. But these workers were not hired or fired by the state, supervised by the state, given benefits by the state, or otherwise treated as state workers. And for that reason, Abood’s purposes, which relate only to actual “public employees,” simply do not apply. Were the law otherwise, the Court observed, “a host of workers who receive payments from a governmental entity for some sort of service would be candidates for inclusion within Abood’s reach.”

While Harris is not a watershed opinion that remakes labor law consistent with First Amendment principles, it does put an end to the forced unionization of home-based workers, a practice that has spread to nearly a dozen states and had provided a substantial number of new workers to the labor movement in recent years. Harris also lays the groundwork for a challenge to what it calls “Abood’s questionable foundations.” If recent Roberts Court precedents like Shelby County and Citizens United are any guide, Harris is a warning shot that the Abood regime is not long for this world and that the next case will be the one to vindicate all public workers’ First Amendment rights. 

Categories: Policy Institutes

Immigration Enforcement Aids Smugglers – Unaccompanied Children Edition

Mon, 06/30/2014 - 10:16

Alex Nowrasteh

The increase of human smugglers transporting unauthorized immigrants to the United States is likely a consequence of more effective border enforcement.  Although the Obama administration has de-emphasized internal immigration enforcement after 2011, his administration has ramped up enforcement along the border – focusing on increasing the legal and economic costs imposed on unlawful immigrants apprehended while trying to enter the United States.  Since border and internal enforcement are substitutes, the shift in resources and increase in penalties for unlawful crossers does not represent a decrease in total enforcement.  Matt Graham from the Bipartisan Policy Center wrote an excellent breakdown of the reprioritization of immigration enforcement, the increase in penalties, and how it has deterred unauthorized immigration.

The price of smuggling is an indication of the effectiveness of immigration enforcement along the border.  The first effect of increased enforcement is to decrease the supply of human smugglers.  As the supply of human smugglers decreases, the price that remaining human smugglers can charge increases.  Before border enforcement tightened in the early 1990s, migrants typically paid about $725 (2014 dollars).  Currently, unauthorized migrants from Central America are paying around $7500.  

The kink in the human smuggling demand curve represents a hypothesized increase in inelasticity for certain consumers of human smuggling.  The inelastic portion of the demand curve represents consumers who very much want to come to the United States and who will pay a very high price to do so.  For that group, an increase in price does not much decrease their quantity demanded for human smuggling.  For the relatively elastic portion of the demand curve, a small rise in price causes a large drop off in the quantity demanded for human smuggling.  The increase in enforcement has shifted the supply curve to the left, pricing the immigrants with a relatively elastic demand for human smuggling out of the market while raising the price on the inelastic demanders. 

The immigrants most likely to have inelastic quantity demand for human smuggling are those fleeing violence or seeking to reunite with their families in the United States.  An increase in smuggling price will not much decrease the quantity of smuggling demanded by parents seeking to reunite with their children and children fleeing the threat of death.  Smugglers know that children reuniting with their families and those fleeing violence are the most likely to pay high prices, thus the smugglers have focused on recruiting those groups as customers – one large reason why so many unaccompanied children (UAC) are transported to the border by smugglers.     

Another result of more effective immigration border enforcement is that it increases immigrant reliance on human smugglers.  Unauthorized immigrants who used to walk across the border when immigration enforcement was light now increasingly rely on human smugglers to avoid detection.  The crackdown on unauthorized immigrants, especially after 1993, caused a big increase in the use of smugglers by unauthorized immigrants.  In 1999, 3.2 percent of apprehended unlawful immigrants reported hiring a human smuggler.  In 2008, 18 percent of apprehended unlawful immigrants reported hiring a human smuggler – an almost six-fold increase.  The Department of Homeland Security (DHS) and private organizations have also noted an increase in the price of smuggling. 

From 1972 to 2003, a 10 percent increase in the number of border patrol enforcement hours increases the price that smugglers can charge by 2.5 percent.  Line watch hours have grown by over 400 percent since the early 1990s.   

The economics of industrial organization can shed some light on why smugglers have shifted from mom and pop operations to large, organized, and violent criminal cartels who now seek children clients instead of adults.  Mom and pop smugglers ran small and unsophisticated operations to smuggle immigrants over the border.  As border patrol cracked down on them and put many out of business, more intensive smuggling operations that required more capital, planning, and violence to overcome enforcement were needed to satisfy the demand.  As a result of the shrinking mom and pop smuggling operations, serious criminal organizations and drug gangs have become specialized in smuggling migrants because of the higher profits.  The shift from mom and pop smugglers to sophisticated criminal smugglers that focus on smuggling those with an inelastic demand for smuggling is the result of larger and more effective border enforcement. 

Another consequence of higher smuggling prices is that migrants have to work for a longer period of time in the United States to justify the larger financial cost of immigrating.  As a result, migrants do not return to their home countries as frequently and many end up making the United States their permanent home.  This also incentivizes unlawful immigrants to send for their children after they arrive in the United States – further increasing the quantity demanded for smuggling.   

More intensive and expanded border enforcement can explain part of the increased reliance of UAC on human smuggling.  And just because it is not obvious to some – the number of UAC in custody is a result of effective immigration enforcement along the border.  The surge in UAC is portrayed by many immigration restrictionists as a failure of immigration enforcement.  Those commentators should realize that the shift toward human smugglers is evidence that increased border enforcement is decreasing unauthorized immigration.  Immigration restrictions are not immune from the law of unintended consequences.

Categories: Policy Institutes

The Coming School Choice Tidal Wave

Mon, 06/30/2014 - 09:01

Jason Bedrick

Last week I reviewed the latest survey on education policy from the Friedman Foundation but I missed something that should warm the cockles of the hearts of everyone who supports greater choice in education: each generation is progressively more favorable and less opposed to educational choice. 

Scholarship tax credits (STCs) remain the most popular form of educational choice. Even among the 55+ cohort, there is a 20 point spread in favor of choice, 53 percent to 33 percent. Support increases in each cohort by 8 to 13 points. Meanwhile, opposition falls precipitously from 33 percent to only 14 percent. The 35-54 cohort has a 39 point spread in favor of educational choice and the 18-34 cohort has a whopping 60 point spread, 74 percent to 14 percent.

Vouchers are the second most popular of the three reforms. While the oldest cohort is slightly more pro-voucher than pro-STC, opposition is 7 points higher at 33 percent, for a spread of 16 points. The margin widens considerably to 32 points for the middle cohort (65 percent support to 33 percent opposition) and 44 points for the youngest cohort (69 percent support to 25 percent opposition), which is 16 points narrower than the spread for STCs.

Education savings accounts aroused the most skepticism among the 55+ cohort. The 2 point spread (45 percent support to 43 percent opposition) was the narrowest of any category in the survey. The gap widened to 23 points in the middle cohort (57 percent support to 34 percent opposition) and 46 points among the youngest cohort (68 percent support to 22 percent opposition).

The survey data do not give us enough information to state with any certainty why younger Americans are more pro-educational choice than older Americans. Nostalgia for the “common school” among the oldest cohort may play a role. Another factor may be efforts to influence the culture like National School Choice Week or films like “Waiting for Superman” or “Won’t Back Down.” Or perhaps it’s simply that members of the iPhone generation expect and demand choices and the ability to customize nearly every aspect of their lives, and the geographically-assigned, one-size-fits-all government schools seem like an anachronistic hold-out from another era.

These numbers accord with the findings of Harvard University’s Program on Education Policy and Governance/Education Next, as detailed in Teachers versus the Public, which also found that younger Americans are significantly more likely to favor educational choice than older Americans

More research is needed on what’s actually driving these generational differences, but if trends continue, then we’re likely to see a tidal wave of new and expanded educational choice programs in the coming decades.

Categories: Policy Institutes

Uh Oh: The North Koreans are Mad and Won’t Take it Any More!

Mon, 06/30/2014 - 08:56

Doug Bandow

It’s hard being dictator of North Korea.  You’re a god, or the nearest human thing to it, but you aren’t allowed any time to yourself.  The rest of the world privately admires you and publicly envies you. 

Some of them even mock you. 

In 2002 Pierce Brosnan played a hero in fighting against the Korean people in the James Bond movie “Die Another Day.”  Worse, two years later the great and wonderful “Dear Leader” Kim Jong-il was mercilessly insulted by the movie “Team America:  World Police.”  Unable to stop him from impoverishing his desperate people to build nuclear weapons, the U.S. government turned loose the most fearsome of weapons against the movie-loving Kim:  Hollywood.

Of course, the Dear Leader was a convenient target, with his bouffant hairdo and platform shoes.  As I point out in my article at American Spectator online:  “The great and wonderful man-god was too busy traveling the country giving guidance to farmers and workers whose farms and workplaces were no longer operating to take time off to retool his appearance to satisfy international critics.  But he persevered, drowning his many sorrows in Hennessy cognac while comforting the beautiful young virgin girls who flocked to his side.”

Now “Great Successor” Kim Jong-un has taken over the sacred mission of his grandfather and father:  to reinvigorate monarchy in Asia.  He has shown the way to the next century by dancing with Mickey Mouse and partying with Dennis Rodman.

Naturally, Washington has rejected Kim’s friendly demands for tribute to remedy the economic injustices created by the unfair success of market economics compared to Stalinesque central planning.  Now the common criminals who run Washington—at least there is one thing Americans and North Koreans can agree upon—have turned again to their secret agents in the movie industry. 

The film “The Interview” posits an attempt—one shudders at the thought in a civilized society—to assassinate Kim Jong-un, once declared the world’s “Sexiest Man Alive” by the Onion and widely referred to as “Cute Leader” by his followers.  The starving masses of the DPRK, despite lacking food, homes, and transportation, have risen up and demanded action.

Said officials in Pyongyang, the movie had inspired “a gust of hatred and rage” across the land.  If only the North had electricity, the people could be seen at night shaking their fists at the American oppressors.

Acting on the people’s behalf, after shipping off to labor camps anyone so clueless not to express outrage over a film they had not seen, the government called the movie a “reckless U.S. provocative insanity” from a “gangster filmmaker,” which was “the most blatant act of terrorism and an act of war that we will never tolerate.”  These patriotic Koreans held the illegitimate Obama regime accountable:  “If the United States administration tacitly approves or supports the release of this film, we will take a decisive and merciless countermeasure.” 

To be both a boy-god and the sexiest man alive would be an incredible burden for anyone.  But especially for someone so committed to his people’s welfare that he feels the need to eat all the time, lest any of his starving subjects be insulted by him rejecting their offer of hospitality. 

While world peace hangs in the balance, the Hollywood parasites are leading the attack on the true tribune of all the peoples of the world.  The mocking must stop, as the boy-god prepares to lead the human race to an even greater future.

Categories: Policy Institutes

Nixon and the IRS

Fri, 06/27/2014 - 18:22

Chris Edwards

With the Internal Revenue Service currently in the news, it’s worth a quick look back on President Richard Nixon’s relationship with that agency. Here are some of the interesting bits from a Washington Post obituary today of former IRS chief Johnnie Walters:

In a recorded conversation in the Oval Office on May 13, 1971, Richard M. Nixon laid out for his aides the job qualifications for the next commissioner of the Internal Revenue Service. “I want to be sure he is a ruthless son of a bitch, that he will do what he’s told, that every income tax return I want to see I see, that he will go after our enemies and not go after our friends,” the president told H.R. Haldeman and John D. Ehrlichman, according to a transcript published years later in The Washington Post. “Now it’s as simple as that. If he isn’t, he doesn’t get the job.”

The man who got the job was Johnnie Walters, a fellow Republican then serving as assistant attorney general in charge of the Justice Department’s tax division.

Mr. Walters said he did not know of the president’s demands when he became commissioner on Aug. 6, 1971. Once in office, by all accounts, he refused to participate in the administration’s attempts to use the tax agency for political purposes—most notably, to intimidate through audits or threatened audits the individuals on the Nixon “enemies list…”

The president bitterly recalled being audited during the Democratic administration of President John F. Kennedy, who had defeated him in the 1960 election. In the run-up to Nixon’s 1972 reelection campaign, White House counsel John W. Dean III furnished Mr. Walters with the administration’s “enemies list,” naming hundreds of individuals to be targeted for tax investigations…

“Johnnie has been a disappointment,” Dean said in a Sept. 15, 1972, conversation in the Oval Office. “Well, he’s going to be out,” Nixon replied. “He’s finished.”

In due course, Americans would find out who the real ruthless SOB was, and it wasn’t Walters.

Categories: Policy Institutes

Court Tosses D.C. Tour Guide Licensing Scheme

Fri, 06/27/2014 - 18:17

Ilya Shapiro

Since there isn’t any other legal news this or next week, the U.S. Court of Appeals for the D.C. Circuit today decided to strike down D.C.’s absurd licensing regulations regarding Uber food trucks raw milk guns campaign finance tour guides. Believe it or not, until today District law required people to pay the government $200 and pass a 100-question test on 14 subjects, covering material from no less than eight different publications, before they can give city tours—all for the purpose of “protecting” tourists from misinformation. If you didn’t comply, you faced a fine and 90 days in jail.

I previously wrote about this case when Cato filed a brief last fall, so I’ll just provide some key excerpts from the court opinion (written by Judge Janice Rogers Brown, whom we had the honor to publish in the Cato Supreme Court Review the first year I edited it). Here’s how it starts:

This case is about speech and whether the government’s regulations actually accomplish their intended purpose. Unsurprisingly, the government answers in the affirmative. But when, as occurred here, explaining how the regulations do so renders the government’s counsel literally speechless, we are constrained to disagree.

The court later describes the reason for its disagreement:

The District’s reliance on a Washington Post article dating from 1927 to justify the exam requirement is equally underwhelming. [Citation omitted.] The article merely establishes that, nearly a century ago, the newspaper expressed concern about unscrupulous or fraudulent charitable solicitation and that an unidentified number of persons said self-styled tour guides were overly aggressive in soliciting business. Reliance on decades-old evidence says nothing of the present state of affairs. Current burdens demand contemporary evidence. [Citations of last term’s big voting right case, Shelby County v. Holder, and other cases are omitted.]

Continuing the theme that D.C. failed to justify its speech regulation, the court says:

Even if we indulged the District’s apparently active imagination, the record is equally wanting of evidence the exam regulation actually furthers the District’s interest in preventing the stated harms. Curiously, the District trumpets as a redeeming quality the fact that, once licensed, “[t]our guides may say whatever they wish about any site, or anything else for that matter.” [Citation omitted.] But we are left nonplussed. Exactly how does a tour guide with carte blanche to—Heaven forfend—call the White House the Washington Monument further the District’s interest in ensuring a quality consumer experience? [Footnote omitted.]

And there’s no need for the District to ensure that tour guides provide quality products either, because the market will do that right quick:

Further incentivizing a quality consumer experience are the numerous consumer review websites, like Yelp and TripAdvisor, which provide consumers a forum to rate the quality of their experiences. One need only peruse such websites to sample the expressed outrage and contempt that would likely befall a less than scrupulous tour guide. Put simply, bad reviews are bad for business. Plainly, then, a tour operator’s self-interest diminishes—in a much more direct way than does the exam requirement—the harms the District merely hypothesizes. [Citation omitted.] That the coal of
self-interest often yields a gem-like consumer experience should come as no surprise. In his seminal work, The Wealth of Nations, celebrated economist and philosopher Adam Smith captured the essence of this timeless principle: “It is not from the benevolence of the butcher, the brewer or the baker that we expect our dinner, but from their regard to their own interest.” [Citation omitted.]

As it turns out, this ruling goes completely against what the Fifth Circuit recently did in a similar case challenging New Orleans’ tour-guide licensing regulations, to which Judge Brown responds in a final footnote:

We are of course aware of the Fifth Circuit’s contrary conclusion in Kagan v. New Orleans, [citation], which affirmed the constitutionality of a similar tour guide licensing scheme. We decline to follow that decision, however, because the opinion either did not discuss, or gave cursory treatment to, significant legal issues. [Citations of two D.C. Circuit precedents declining to follow Fifth Circuit rulings that neglected to discuss important issues or binding precedent omitted.]

Read the whole thing.(As a former Fifth Circuit clerk, I do hope that that venerable court takes up Kagan en banc, reverses the panel decision, and vindicates its honor.) 

Congratulations to our friends at the Institute for Justice and specifically lead counsel Robert McNamara! For further commentary, see IJ’s press release and Orin Kerr.

Categories: Policy Institutes

Salon Writer Not a Fan of Sharing Economy Start-up or 'Transnational Neocolonialist Libertarian Arrogance'

Fri, 06/27/2014 - 18:08

Matthew Feeney

Over at Salon, Andrew Leonard has written an article headlined “Libertarians’ anti-government crusade: Now there’s an app for that,” in which he criticizes MonkeyParking, a start-up that enables users to auction off information about parking spaces. MonkeyParking recently received a cease and desist demand from San Francisco City Attorney Dennis Herrera, stating that it is in violation of a provision in San Francisco’s Police Code that “specifically prohibits individuals and companies from buying, selling or leasing public on‐street parking.”

According to Leonard, MonkeyParking and another app that offers to pay car owners to occupy parking spaces “is an example of how the ‘sharing economy’ can be totally bullshit.”

He contrasts MonkeyParking with Forage Oakland, which allows residents to “share” produce from local fruit trees such as figs and lemons.

Forage Oakland sounds great, and a libertarian would be the last person to object to residents setting up a way to give away produce for free. Indeed, last month it was reported that lawmakers and regulators in 33 American cities have restrictions or are considering implementing restrictions that hamper those hoping to hand out food to homeless people.

Leonard argues that Forage Oakland is different from MoneyParking because

Monkey Parking’s [sic] solution intended to generate profit off of a public good by rewarding those who are able to pay — and shutting out the less affluent. That’s outrageous and not something any civilized society should tolerate.

He doesn’t elaborate on what measures a “civilized society” should take in order to prevent MonkeyParking from operating, especially given the fact that the technology being used by MonkeyParking isn’t going anywhere soon and that, according to Pew, the number of Americans who own smartphones has increased over the last few years.

He goes on to criticize MonkeyParking’s “obvious self interest”:

The entitlement and obvious self-interest that led MonkeyParking to decide it could solve a San Francisco municipal problem with a blatantly illegal business model is shared by many “disruptive” entrepreneurs—often cloaked under the cover of libertarian ideology.

It’s a shame that he doesn’t appreciate that the price system is extremely efficient at communicating information to producers and customers and that the regulatory environment that is affecting MonkeyParking is only the latest example of regulators and lawmakers not being able to keep up with changes in technology.

The most worrying part of Leonard’s article is when he lambasts MonkeyParking CEO Paolo Dobrowolny for displaying “classic transnational neocolonialist libertarian arrogance.” What did Dobrowolny do to incite Leonard? He pointed out that MonkeyParking is not auctioning parking spaces, but rather is auctioning information about parking spaces. According to Ars Technica, MonkeyParking is claiming that its users have a First Amendment right to express and sell information about parking spaces.

It’s this talk of an Italian company claiming First Amendment protection while operating in the United States that prompted Leonard to use the nonsensical phrase “transnational neocolonialist libertarian”:

Let’s take a moment to appreciate the chutzpah at work here. Monkey Parking [sic] is an Italian start-up based in Rome. Dobrowolny is claiming the right to operate as he pleases in a foreign municipality and even dares to claim that his business model is constitutionally protected free speech!

This is a frightening example of national protectionism, but it also highlights an important issue, namely that “sharing economy” companies such as Uber, Airbnb, and MonkeyParking simply provide information. Uber and Airbnb make it easier for users to do something very familiar (catch a ride, let a stranger crash in your house). Unsurprisingly, investors believe that these companies will grow and be profitable.

If Leonard is so concerned about the profit motive, he might want to consider helping start an app to rival MonkeyParking that gives away information about parking spaces for free. It is worth remembering that Herrera’s cease and desist demand cited a provision of the San Francisco’s Police Code that prohibits the “buying, selling or leasing public on‐street parking,” not the buying, selling or leasing of information relating to public on‐street parking.                                            

In the coming years it is likely that we will see an increasing number of “sharing economy” companies operating in the United States. This should be welcomed, but it shouldn’t be a surprise if amid the rise of the sharing economy we see more objections to the profit motive as well as the occasional complaint about foreign companies trying to take advantage of constitutional protections.

Categories: Policy Institutes

The IRS Scandal: Who's Really Being Gullible?

Fri, 06/27/2014 - 17:57

Walter Olson

Some figures on the left have aggressively sought to dismiss the renewed Internal Revenue Service scandal as unserious. Rep. Lloyd Doggett (D-Tex.) captured this mood at one recent Capitol Hill hearing when he suggested that after questioning whether the loss of emails was truly accidental, his GOP colleagues might go on next to quiz the IRS’s leadership about the president’s birth certificate and space aliens in Roswell, N.M. It’s not a “serious inquiry,” Rep. Doggett said. “I believe it’s an endless conspiracy theory here.”

And yet many Americans who do not care about space aliens do doubt the IRS’s account of what has happened. While we covered the story a year ago as well as more recently, this might be a good time to recapitulate why.

The IRS grants 501(c)(4) nonprofit status (less favorable than (c)(3) tax status, which affords donors charitable deductibility) to a wide array of “social welfare” organizations–many, like the ACLU, with a definite ideological valence. In recent years the status has been sought and obtained by groups whose missions are closely related to campaign and electoral politics, most notably Organizing for America, whose role on the national scene is to support President Obama’s messaging. Not surprisingly this has excited controversy about whether the eligibility rules for (c)(4) status are being drawn in the right place. Most advocates profess to believe, though, that whatever the right set of rules, they should apply alike to all sides in our political life.

By March 2012 the Associated Press was reporting on a flurry of bizarre and seemingly unprecedented IRS demands that some (c)(4) applicants of a right-of-center valence provide extraordinarily burdensome and intrusive documentation of their activities–things like copies of all books and literature distributed to participants, transcripts of leaders’ radio appearances and live speeches, printouts of all Facebook and Twitter output, and so forth, along with donor lists and names of family members. The IRS was also delaying groups’ approval for long periods–in fact, seemingly indefinitely–without explanation or a firm denial that could be appealed to a court. Defenders of the agency leadership subsequently put out a search for left-of-center groups that might have run into similar treatment, and although they did manage to turn up a few tales of bureaucratic red tape and rigmarole, they were unable to come up with anything remotely comparable.

IRS nonprofit chief Lois Lerner at first denied any targeting, then sought to blame rogue employees at the IRS Cincinnati office for it. But emails soon emerged clearly indicating guidance by high-level IRS managers in Washington. Lerner then declined to testify, asserting her Fifth Amendment privilege against admissions exposing herself to criminal liability.

Through the ensuing scandal, there was little hard proof that Lerner and other IRS insiders had coordinated the targeting with political actors outside the agency–on Capitol Hill, say, or in party organizations, or the White House–although a number of details on the record, such as frequent White House visits by agency insiders and coordination with outside figures on press messaging, made for suggestive circumstantial evidence. To establish that political operatives or officials outside the agency were aware of targeting at the time, or even perhaps instigated or directed it, would be to blow the scandal wide open, perhaps threatening the careers of well-known public figures. If any email documentation of such coordination is to be found, it would most likely be in the “external” (outside the agency) emails of Lerner and other key players in the targeting effort.

Those are the same emails that have now mysteriously vanished, supposedly because of a crash of Lerner’s computer–a crash that happened 10 days after the House Ways & Means Committee wrote her to inquire about targeting. Emails of six other key IRS employees are also said to have vanished in a series of coincidental crashes.

This week, as if to confirm that shabby treatment of politically disliked adversaries was not unheard-of at the Lerner-era IRS, the agency agreed to pay $50,000 to the National Organization for Marriage over an episode in which persons unknown leaked the group’s confidential return and donor list to its ideological adversary, the Human Rights Campaign, which proceeded to have it published. And the Ways & Means Committee has just released an email indicating that when an invitation intended for a congressional opponent wound up by mistake in the hands of Lerner, her immediate reaction was to wonder whether it might be used to generate an IRS investigation embarrassing to the opponent.

After all those revelations, is it really those who distrust the agency’s leadership whose gullibility should be compared to that of flying saucer cultists? Or are the credulous true believers the ones who insist that the latest jaw-dropping IRS revelations must have an innocent explanation, though the earlier ones did not?

[Cross-posted, with minor revisions, from Overlawyered.com.]

Categories: Policy Institutes

Magna Carta and Constitutional Criminal Procedure

Fri, 06/27/2014 - 15:50

Ilya Shapiro

In United States v. Booker (2005), the Supreme Court held that the Sixth Amendment prohibits a judge from sentencing a convicted defendant to a prison term exceeding the law’s maximum penalty for the crime committed, unless additional aggravating facts are found by the jury (or admitted by the defendant). The Court also held that all sentences must be reasonable.

In a subsequent case, Justice Scalia issued a concurrence in which he expressed concern about situations in which judges issue sentences below the statutory maximum, but which would only be reasonable in light of additional facts found solely by the judge. He proposed an “as-applied” doctrine, in which the reviewing court asks whether the sentence would be reasonable as applied to only those facts that were found by the jury.

The situation that Justice Scalia feared has now become manifest for three criminal defendants who were all convicted of selling small quantities of drugs but acquitted of conspiracy charges relating to the distribution of much larger quantities. Despite the acquittals, all three defendants received sentences four times greater than any other defendant convicted of the same crimes in the post-Booker era using the guidelines issued by the U.S. Sentencing Commission.

The defendants argue—and no prosecutor or judge has disputed—that their sentences would not be deemed reasonable without consideration of the additional evidence of conspiracy. In reviewing the sentences, the U.S. Court of Appeals for the D.C. Circuit adhered to settled precedent and declined to adopt the as-applied doctrine, and so the defendants seek to further appeal their sentences to the Supreme Court and finally resolve the question, under the Sixth Amendment, of whether a judge can base a sentence on facts that the jury did not find beyond a reasonable doubt.

In an amicus brief supporting that petition, the Cato Institute, joined by the Rutherford Institute, argues that the Sixth Amendment prohibits the increased sentencing of defendants based solely on judge-found facts of the crime, regardless of whether the final sentence remains below the statutory maximum. The defendants’ constitutional right to a jury trial can be traced back to Article 39 of the Magna Carta, which is also the historical origin of the Constitution’s prohibition on ex post facto, or retrospective, criminal laws.

Article 39 reflected a deep concern that the government would undermine the jury’s role and imprison defendants without the input of their peers. Given the status of sentencing guidelines as “law” for purposes of the Ex Post Facto Clause, the Sixth Amendment should extend to the defendant’s right to the “lawful judgment of his peers,” meaning that a judge can only render a sentence based on the jury’s factual findings. 

In other words, if it’s unconstitutional to sentence a defendant based on rules issued after he commits the purported crime, it must be unconstitutional to sentence a defendant without the input of his peers.

The Supreme Court will decide whether to take the case of Jones v. United States when it comes back from its summer recess.

Categories: Policy Institutes

Americans Underestimate Government School Spending

Fri, 06/27/2014 - 15:31

Jason Bedrick

In addition to showing that American parents favor educational choice and are skeptical of Common Core, the new national survey on education policy from the Friedman Foundation demonstrates that Americans still vastly underestimate how much is spent per pupil at government-run schools. 

According to the latest National Center for Education Statistics data, the average total per pupil expenditure in U.S. public schools was $12,136 in the 2009-10 school year. However, 63 percent of respondents thought that government schools spend less than $12,000 per pupil, including 49 percent who estimated that they spend less than $8,000 per pupil. Those findings are consistent with the 2013 Education Next survey, in which the average guess was $6,680 per pupil, barely more than half of what is actually spent.

Like the Education Next survey, the Friedman survey asked respondents whether they thought public school spending was too high, about right, or too low, after first randomly assigning the respondents into two groups: one that first heard a prompt explaining that the average U.S. public school spends $10,658 per pupil (this is average operating expenditure per pupil), while the other group was not given any prompt. Whereas 56 percent of the uninformed group thought spending was too low, only 47 percent of the informed group agreed. (It’s likely that the shift would have been even more pronounced had the Friedman Foundation cited the higher total per pupil expenditures in the prompt rather than the partial figure. Indeed, a previous Friedman survey found that the public prefers to know the total figure.) Those findings are consistent with the 2013 Education Next survey, which found that 63 percent of uninformed respondents wanted to increase public school spending but only 43 percent of informed respondents agreed.

At an American Enterprise Institute event discussing the findings, AEI’s Ramesh Ponnuru observed that politicians could loudly promise to spend $9,000 per pupil and most voters would think that they were calling for an increase in school funding rather than a significant cut.

Categories: Policy Institutes

Maybe Deceive-and-Denigrate Isn’t Such a Great Strategy

Fri, 06/27/2014 - 15:24

Neal McCluskey

Yesterday, I wrote about new survey results from the Friedman Foundation showing that the Common Core, if even close to fairly presented, has either negative, or thinly positive, levels of public support. But I posted that too soon; not long after I wrote it, two new polls came out showing even bigger trouble for the Core.

The first was a Rasmussen survey that revealed plummeting support for the Common Core effort among parents of school-aged children. Support dropped from 52 percent in November 2013 to just 34 percent in yesterday’s release. Opposition now outweighs support 47 percent to 34 percent. Assuming the question was unchanged between surveys, that is a huge drop.

The second survey was a University of Southern California poll of Golden State residents. The Core hasn’t been as controversial there as in many states–at least, there doesn’t seem to be a major groundswell to dump it–but it’s getting drubbed there, too. The USC research showed a marked increase in the percentage of Californians who claimed to know about the Core since the survey’s 2013 administration, and among those who reported knowing something only 38 percent had a positive feeling about the Core. Some 44 percent had negative impressions. Presented with pro- and anti-Core statements, a larger percentage of respondents–41 percent to 32 percent–agreed more with the negative statement. In 2013, the pro statement got the plurality, 36 percent to 25 percent.

The Core has clearly been taking a public relations beating. Why? No doubt largely because most people only started to become aware of the Core a couple of years ago as long-silent implementation hit districts and schools. And the more aware they became, the more they disliked what they saw and learned about how the Core ended up in their schools.  

It is also quite possible that the primary strategy Core proponents have employed in the face of mounting opposition–deceive the public about everything from the federal role in moving the Core, to its impact on curricula, and denigrate opponents as misinformed, loony, or both–has blown up in their faces. Perhaps it has amplified the impression that the Core has been foisted on Americans by a relatively small, well-connected group of elites who hold regular people in contempt. I don’t think that most supporters actually are contemptuous of the average American, but it is almost impossible not to feel they are given how many have used the tactic of belittling Core opponents, who are, in many cases, just concerned citizens.

I have long thought Core supporters should publicly admit the truth about the Core–it is heavily federalized and intended, along with related tests, to direct curricula–and apologize to the public for having dodged those basic truths. Maybe now, for their own cause’s sake, they’ll do that.

Categories: Policy Institutes

Not Just Another Friday in Brussels

Fri, 06/27/2014 - 12:44

Dalibor Rohac

While a typical summer Friday in the capital of the European Union might sound like a rather dull affair, today brought two significant events–one of them good, the other one less so.

First, the good news. Today, Ukraine, Moldova, and Georgia signed their association agreements with the European Union (EU). The treaties consist of, in part, free trade agreements between the EU and the three countries, and also a roadmap toward a prospective EU membership. Given the economic and political shape these countries find themselves in, the latter will likely take a long time and will not be without hurdles. After all, Turkey signed its association agreement back in 1963 and the country is still not a member.

There can be little doubt that free trade agreements with the EU will do good to these impoverished economies (GDP per capita in Moldova is just a little over $2,000) as well as to the EU. Furthermore, the prospect of a timely EU membership will hopefully serve as an impetus for economic and institutional reforms–just as was the case in the countries of Central and Eastern Europe that joined the EU in the past decade.

Of course, the EU is far from perfect and it is quite possible that these countries will soon grapple with the same problems as Slovakia, Czech Republic, or Bulgaria–namely how to manage the inflow of “structural funds” into their economies without encouraging corruption and entrenchment of venal elites. But arguably, that will not be the worst problem to have, considering that the alternative is the continuation of the status quo, muddling along from one crisis to another and being part of Russia’s zone of influence. Further enlargement, extending the common market and free movement of people further east, will likely prove to be beneficial to the EU as well.

Second, the bad news. The EU leaders have appointed Jean-Claude Juncker as the new head of the European Commission. Although initially the governments of Sweden and Netherlands had misgivings about his presidency, in the end it was only the UK’s prime minister, David Cameron, who decided to openly oppose the nomination.

The issue is not just with the personality of the candidate, but also with the process through which Juncker was selected. For the first time, the European Parliament took the lead in picking the head of the Commission, while no treaty empowers it to do so. While the appointment needs to rely on a parliamentary majority, the choice has always been made by the political leaders of EU member states, not by the Parliament. For those who do not wish to see the accountability of the Commission to national politicians wane completely, the Juncker appointment should be a cause for concern.

Let us hope that these two events are not completely unrelated. Hopefully, the prospect of another eastward enlargement will serve as an impetus for European policymakers to look for a model of European governance that provides the benefits of the common market and effective action on issues of mutual interest, without entrenching an obscure and unaccountable center of power in Brussels. 

Categories: Policy Institutes

Is the Export-Import Bank More Important than Economics?

Fri, 06/27/2014 - 11:58

K. William Watson

There are many arguments against reauthorization of the Export-Import Bank, a government-run bank that helps finance export sales at below-market rates. Some of these arguments include that it hurts U.S. businesses, that it provides corporate welfare for politically connected companies, and that it distorts and politicizes the U.S. economy. But the New York Times editorial board thinks all those arguments are “ridiculous,” while also agreeing with them:

In one of their odder quests, some Tea Party members have decided that the United States must shut down the Export-Import Bank of the United States, an obscure but important federal agency that helps American businesses sell their goods abroad.

The bank provides loans and loan guarantees to foreign businesses to help them buy American products and services. In an ideal world, businesses would obtain such financing from privately owned banks. But most governments around the world support exports in similar ways, and if the United States dismantled the bank unilaterally, as some lawmakers are advocating, American companies could lose billions of dollars in overseas orders and decide to move their operations to other countries that provide generous export financing. [emphasis added]

The New York Times recognizes that getting rid of the Ex-Im Bank would bring us closer to realizing an ideal world, but they nevertheless support the bank to prevent some U.S. firms from losing businesses to foreign competitors. It’s difficult to read this as anything but a defense of crony capitalism. Indeed, the Times’ Neil Irwin wrote a defense of Ex-Im depressingly titled “Why We’re All Crony Capitalists, Like It or Not.”

There will always be challenges for U.S. companies in a global economy. Small, targeted amounts of mercantilist industrial policy like Ex-Im subsidies will not create growth regardless of the character of those challenges.  In other words, subsidies to counteract subsidies are not more beneficial to our economy  than subsidies to counteract relative disadvantages in climate, terrain, or workforce productivity. 

The most compelling take down of the “Ex-Im is necessary for competitiveness” argument may have come from leftist economist Dean Baker, who thinks “free traders” who support the Ex-Im Bank are being awfully hypocritical.  He notes the economic case against subsidies—“by diverting capital to the winners picked by the Ex-Im Bank, we are raising the price of capital for other firms”—and questions the motives of Ex-Im supporters who understand that consequence. Specifically in response to Irwin’s piece, Baker writes:

When Irwin tells us that we have to be crony capitalists “whether we like it or not,” why don’t we also have to be crony protectors of workers’ livelihoods? It seems that there is a very fundamental inconsistency here. When it comes to business interests we are prepared to throw the economics textbook theory in the garbage, but when the question is worker’s jobs, that textbook is the Bible.

I don’t think the generally pro-free trade New York Times wants to throw workers under the bus or help big business, but Baker is right that the argument of Ex-Im defenders that we need subsidies to counteract foreign competition could just as easily be used to justify tariffs or any other form of protection in countless other situations. Does every foreign government subsidy warrant a protectionist response? If not, why is the Ex-Im Bank the protectionist program so many “free traders” want to keep?

Categories: Policy Institutes

ObamaCare's Exchanges Perform More than a Dozen Functions Besides Issuing Subsidies

Fri, 06/27/2014 - 10:12

Michael F. Cannon

One of the issues underlying Halbig v. Sebelius and three similar lawsuits making their way through federal courts is whether Congress intentionally restricted the Patient Protection and Affordable Care Act’s (PPACA) private health-insurance subsidies to individuals who buy coverage through state-established exchanges. If so, that would mean the Internal Revenue Service’s decision to issue subsidies in the 34 states that did not establish exchanges (i.e., that have federally established exchanges) is illegal. For more on the IRS’s attempt to rewrite the PPACA in this fashion, click here.

On Twitter, a skeptic challenges my coauthor Jonathan Adler claim that Congress intended to withhold subsidies in states that did not establish exchanges, arguing “The exchanges serve no purpose at all absent subsidies. Is there no golden rule at all in American jurisprudence?” (Read the entire exchange here.)

In legal jargon, the skeptic argues that a literal interpretation of the statutory language restricting subsidies to those enrolled “through an Exchange established by the State” would be absurd, and the courts should defer to the agency’s reasonable interpretation.

Exchanges, however, are regulatory bureaucracies that perform other functions and serve other purposes besides dispensing subsidies, as the PPACA’s authors and the president acknowledged. In 2009, President Obama said that health insurance exchanges “would allow families and some small businesses the benefit of one-stop-shopping for their health care coverage and enable them to compare price and quality and pick the plan that best suits their needs.” Senate Majority Leader Harry Reid (D-NV) said PPACA “guarantees real choice and competition to keep insurers in check… By creating strong competition, we’ll reduce skyrocketing health care costs.” The PPACA’s Senate drafters wrote, “Insurers that jack up their premiums before the Exchanges begin will be excluded–a powerful incentive to keep premiums affordable.”

In fact, the exchanges are supposed to perform more than a dozen functions besides issuing subsidies. Here are some of the ways PPACA’s health insurance exchanges attempt to serve the goals of “one-stop shopping,” price and quality comparisons, expanding choice and competition, and reducing health insurance premiums, even in the absence of subsidies:

  1. Facilitate the creation of SHOP Exchanges, where premium-assistance tax credits are not available. §1311(b).
  2. Certify, recertify, and decertify qualified health plans. §1311(d)(4)(A).
  3. Maintain a toll-free telephone hotline. §1311(d)(4)(B).
  4. Monitor premiums and require issuers of QHPs to justify premium increases. §1311(e)(2). 
  5. Monitor QHPs’ compliance with hospital quality measures. §1311(h).
  6. Monitor QHPs’ compliance with mental health parity regulations. §1311(j).
  7. Require transparency from issuers of QHPs, including periodic financial disclosures; and oversee compilation of information on enrollment, disenrollment, the number of claims that are denied, rating practices, cost-sharing and payments with respect to any out-of-network coverage, enrollee and participant rights, and “other information as determined appropriate by the Secretary.” §1311(e)(3)(A).
  8. Collect data from QHPs on the quality of care, including “case management, care coordination, chronic disease management, medication and care compliance initiatives…, prevent[ing] hospital readmissions through a comprehensive program for hospital discharge that includes patient-centered education and counseling, comprehensive discharge planning, and post-discharge reinforcement by an appropriate health care professional…, reduc[ing] medical errors through the appropriate use of best clinical practices, evidence based medicine, and health information technology…, [and] the implementation of wellness and health promotion activities [and] activities to reduce health and health care disparities.” §1311(g).
  9. Rate QHPs based on quality, price, and patient satisfaction. §1311(d)(4)(D).
  10. Maintain a website with standardized comparative information on qualified health plans. §1311(d)(4)(C), (E).
  11. Make eligibility determinations and enrolling applicants for Medicaid and SCHIP. §1311(d)(4)(F).
  12. Issue exemptions from the individual mandate, and certify such exemptions to the IRS. §1311(d)(4)(H).
  13. Facilitate the purchase of health insurance across state lines. §1311(f).
  14. Establish a Navigator program and awarding grants to Navigators. §1311(i).
  15. Facilitate the merger of the individual and small-group markets (at each state’s discretion). §1312(c)(3).
  16. Provide an employee benefit (health insurance coverage) for members of Congress. §1312(d)(3)(D).

Nor is PPACA the only piece of legislation Congress debated that would allow for exchanges without premium subsidies. As I have explained elsewhere, the Democrats who controlled the Senate’s Health, Education, Labor, and Pensions (HELP) Committee in 2009 approved a bill that would have withheld similar exchange subsidies in states that failed to implement that bill’s employer mandate. This is true whether the state established its own exchange, or the federal government established one for the state. Since the HELP Committee allowed for the creation of both state-run and federal exchanges without subsidies, its drafters presumably saw the exchange as serving more than just that one purpose. 

Twelve Senate Democrats voted for the HELP Committee bill. Why should we be surprised that they–and the remaining Senate Democrats, and the vast majority of House Democrats, and President Obama–would approve the PPACA’s similar provisions?

Categories: Policy Institutes

California, Drought, and Water Policy

Fri, 06/27/2014 - 09:31

Chris Edwards

In today’s Wall Street Journal, Stanford economics professor Edward Lazear provides an economist’s view of the California drought situation:

Many parts of the country, notably California and Texas, are experiencing intense drought… Yet weather isn’t the only problem: government-dictated prices, coupled with restrictions on the transfer of water, have made a bad situation much worse.

That is true. Freeing up markets would go a long way toward easing water battles and water shortages throughout the American West. Government controls on water transfers and prices suppress markets, and the resulting distortions harm the economy and the environment.

Lazear’s proposals make sense, but he overlooks one key reform: getting the federal government out of the water business. Much of the water infrastructure in the West is owned by the federal Bureau of Reclamation, and its policies are a fundamental problem, as Peter Hill and I discuss in this essay.

Hill and I examine Reclamation’s history of waste, bureaucratic arrogance, pork barrel politics, and environmental damage. We discuss water rights, water prices, and water economics. We recommend that Reclamation’s assets be transferred to state governments, or even better to the private sector.

Reclamation’s massive Central Valley Project, for example, should be handed over to the State of California. The CVP was originally supposed to be a state project. It was approved by the California legislature and by a state referendum in 1933. But then the state decided to lobby Washington for funding and was successful, so the federal government took it over.

But it is time to stop central-planning America’s water policies. Water issues in the West are far too complex for a distracted Washington to deal with properly. The states have different legal structures for water rights, different types of farming, and different access to groundwater. So the states should be the ones to control their water infrastructure, which would allow them to tailor their policies to the unique challenges they each face.

Categories: Policy Institutes

Drones Risk Putting US on 'Slippery Slope' to Perpetual War

Thu, 06/26/2014 - 18:06

Benjamin H. Friedman

As the New York Times reports, the Stimson Center today released a report warning that “the Obama administration’s embrace of targeted killings using armed drones risks putting the United States on a ‘slippery slope’ into perpetual war.” The Washington Post, the Guardian and Vox all lead their articles on the report with that warning.

The slippery slope point probably isn’t new to most readers. But it’s worth focusing on here, both because the argument is often misstated or misunderstood, and because, in this case, I helped make it. The report’s task force, co-chaired by retired General John Abizaid, former head of U.S. Central Command and Rosa Brooks of Georgetown Law, included working groups. I was on one that considered, among other things, what danger drones create for U.S. foreign policy. The report largely reflects those we identified: the erosion of sovereignty, blowback from those in targeted countries, drone strikes’ tendency to undermine democratic oversight, and the slippery slope problem.

The report puts those concerns in context. It points out that: drones can serve wise or dumb policies; that most drones are for surveillance or other non-strike uses; and that it is drone strikes that occur off declared battlefields that have generated the most controversy. The report notes that past military innovations, like cruise missiles, raised similar concerns by making waging war easier.

The report rejects several common complaints about drones. It denies that they create a reckless, “playstation mentality” among pilots. It explains that drones are not more prone than other weapons cause civilian casualties.

Having delimited the circumstances where drones raise concerns, the report goes into considerable causal detail, at least compared to most reports of this kind, about what the trouble is. The blowback, oversight, and sovereignty problems are relatively easy to understand, in theory. The tricky part is measuring the harm.

The slippery slope point is easier to confuse. What the report says is essentially that drones encourage us to get into avoidable fights without winning them. And that failure invites escalation:

The seemingly low-risk and low-cost missions enabled by UAV technologies may encourage the United States to fly such missions more often, pursuing targets with UAVs that would be deemed not worth pursuing if manned aircraft or special operations forces had to be put at risk. For similar reasons, however, adversarial states may be quicker to use force against American UAVs than against US manned aircraft or military personnel…increasing the risk of tit-for-tat escalation. UAVs also create an escalation risk insofar as they may lower the bar to enter a conflict, without increasing the likelihood of a satisfactory outcome. For example, the terrorists that US UAVs tend to be used to hunt are often mostly motivated by localized conflicts occurring in states with fractured political orders. The use of UAVs to track and kill such individuals does not repair the political rifts that give rise to terrorist violence. If US targeted killing campaigns fail to eradicate all threats of extremism, this may create a perceived policy failure. This, in turn, may create domestic political pressures to continue or escalate the use of lethal force, leading US UAV hunter-killer missions to continue indefinitely.

The standard rejoinder is that drones are not causing wars; they are preventing more costly wars involving traditional U.S. airpower, raids, or ground force. The report says no, in many case the alternative is doing nothing.

If lethal UAVs were not an option, we doubt that the United States would have engaged in nearly as many targeted strikes against suspected terrorists in places such as Pakistan and Yemen. In such contexts, airstrikes using manned aircraft would generally be viewed as creating an unacceptably high risk of civilian casualties. Raids involving US forces on the ground — including special operations forces— would create a similar risk of unintended civilian casualties, and would also create a risk of significant US casualties. Finally, the relative invisibility of UAVs enables relative deniability, often a convenience to host nations that are unwilling to appear to have welcomed a US military presence inside their territory. The existence of weaponized UAVs did not “cause” the United States to engage in targeted killings of terror suspects outside of traditional territorially bounded battlefields, but it seems reasonable to conclude that their existence enabled a significantly expanded US campaign of targeted cross-border strikes against suspected terrorists.

So drones encourage us to think we can repair problems we cannot, feeding our tendency to see U.S. military power as the answer to distant political conflicts. That tendency is an obstacle to peace. It also should cause us to ask whether military options are always worth having. As Bernard Brodie notes, the U.S. Constitution says otherwise. The Stimson report deserves credit for focusing us on that point amid all the clamor about drones.

Note that the report also deals with less controversial issues: FAA drone regulation and U.S. export controls. I should add that I don’t endorse all of the report’s analysis or recommendations. Two recommendations particularly trouble me. Forming another bipartisan commission to review drone policy seems like a waste of time born of a tendency to confuse report writing with policy-making. And an interagency or centralized approach to developing drone technology is liable to disrupt the development of diverse technologies and programmatic competition that encourages innovative uses of drones.

Categories: Policy Institutes

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