Cato Op-Eds

Subscribe to Cato Op-Eds feed
Individual Liberty, Free Markets, and Peace
Updated: 46 min 22 sec ago

The New Yorker Maps NYC's Shadow Transit System

Tue, 07/01/2014 - 13:51

Matthew Feeney

In a recent article for The New Yorker, Aaron Reiss explores New York City’s shadow transportation system – a network of so-called “dollar vans” that serve mostly low- income areas with large immigrant communities. The system lacks “service maps, posted timetables, and official stations or stops,” but Ross uses interactive maps and videos made with Nate Lavey to detail routes in Chinatown, Flatbush, Eastern Queens, Eastern New Jersey, and the Bronx.

Not too surprisingly, this ingenious shadow system faces serious regulatory obstacles. Vans have had a long and tumultuous regulatory history, with oversight changing hands several times in the past thirty or so years and the largely immigrant drivers facing police harassment. Since 1994, the New York City Taxi and Limousine Commission has been issuing van licenses, allowing vehicles to serve parts of the city with sufficient public need. Still, the number of illegal, unlicensed vans continues to outstrip by far the 481 licensed ones. The licensed vans operate under highly restrictive rules, which forbid them from picking up along New York City’s innumerable bus routes and require all pick-ups to be prearranged and documented in a passenger manifest.

In August last year Sean Malone of the Charles Koch Institute spoke to Reason TV about a film he had made featuring a Jamaican immigrant, Hector Ricketts, who faced regulatory hurdles after starting a commuter van service that transported healthcare workers to New York City’s outer boroughs. Thankfully, with the help of the Institute for Justice, Ricketts was allowed to stay in business.

Reiss’s article and Malone’s film both highlight the perversities of regulations that shield traditional public transit from competition in a free market. You might think that policymakers concerned with improving opportunities in low-income areas would want to celebrate and encourage the entrepreneurial initiative and community service represented by “dollar vans” and the service run by Hector Ricketts. Instead, they choose to chase such enterprising service providers into the legal shadows.

Categories: Policy Institutes

Medical Licensing in the States: Some Room for Agreement-and Reform

Tue, 07/01/2014 - 11:03

Charles Hughes

Even before Obamacare, many states faced the prospect of a doctor shortage due to an aging population and a limited supply of physicians. Obamacare will exacerbate this shortage by expanding insurance coverage to some degree, which will further increase the demand for care. One study projects that this increased demand will require between 4,300 and 7,000 more physicians by 2019.

Earlier this week, the New York Times reported that state medical boards across the country “have drafted a model law that would make it much easier for doctors licensed in one state to treat patients in other states, whether in person, by videoconference or online,” in what they are saying has the potential to be “the biggest change in medical licensing in decades.” This is a positive development, especially given that it seems to have a measure of bipartisan support, with 10 Republicans and 6 Democrats endorsing the plan in a recent letter.  If ultimately enacted, it could go a long way to increasing access to care, especially in underserved areas, but there are still many obstacles to seeing this plan become a reality, and it is far from the only option at the disposal of policymakers.

Another proposal to address this doctor shortfall is to expand the role of nurse practitioners (NP’s), who are registered nurses who have also received a graduate degree in nursing. States determine what services these NP’s can perform, and their scope of practice varies significantly. States that currently have reduced or restricted scope of practice should explore loosening these restrictions, because doing so could go some way to addressing the looming doctor shortage and increase access to care without a reduction in quality.

This idea has been explored in the past, garnering support from non-partisan organizations, and some states have already made progress in expanding scope of practice for NP’s. A 2010 Institute of Medicine report recommended that state legislatures “remove scope of practice barriers,” and a 2012 National Governor’s Association report suggested states “consider changing scope of practice legislation” as a way to increase the role of NP’s in providing primary care.  Despite this support that in some ways transcends traditional partisan lines, there is still much to be done, as this map shows:

Source: American Association of Nurse Practitioners, “2014 Nurse Practitioner State Practice Environment,” http://www.aanp.org/images/documents/state-leg-reg/stateregulatorymap.pdf.

This year, 19 states (and D.C.)  allow nurse practitioners to diagnose and, to some extent, treat patients without a physician’s involvement, otherwise known as ‘full practice.’ The remaining states only allow ‘reduced’ or ‘restricted’ practice, which means NP’s require some degree of physician involvement.

There has been some progress in recent years; Massachusetts and Minnesota transitioned from ‘reduced’ to ‘full’ practice this past year, but many of the most populous states like Florida, Texas and California still have restrictive scope of practice laws in place.

Skeptics of expanded scope of practice raise the concern that the quality of care could suffer as some duties are shifted from physicians to NP’s, but a systematic review of 26 recent studies in a Health Policy Brief for Health Affairs found that “health status, treatment practices, and prescribing behavior were consistent between nurse practitioners and physicians.” Some studies even find that NP’s score higher in patient satisfaction than physicians for certain services.

In a time when health care policy at the state level so often seems to be gridlocked, there are still channels to improve the access to care without increasing costs or reducing quality. This is not to say state lawmakers should shift all focus from the many pervasive problems with Obamacare, but perhaps, on this specific issue, there could be a separate peace and real, positive reform can be enacted.

Cato Institute Adjunct Scholar Shirley Svorny has explored the many problems posed by medical licensing in depth, and you can find her research here.

Categories: Policy Institutes

Jonathan Turley on Halbig v. Burwell

Tue, 07/01/2014 - 10:21

Michael F. Cannon

Jonathan Turley, a professor of law at George Washington University, has an opinion piece in today’s Los Angeles Times on Halbig v. Burwell:

The administration’s loss in the Hobby Lobby case is a bitter pill to swallow, but it is not a lethal threat to Obamacare. For critics of the law, Halbig is everything that Hobby Lobby is not. Where Hobby Lobby exempts only closely held corporations from a portion of the ACA rules, Halbig could allow an mass exodus from the program. And like all insurance programs, it only works if large numbers are insured so that the risks are widely spread. Halbig could leave Obamacare on life support — and lead to another showdown in the Supreme Court.

Read the whole thing.

A ruling is expected from the D.C. Circuit in Halbig any day now. Here are some materials that will let you hit the ground running.

Categories: Policy Institutes

Cato Spending Charts

Mon, 06/30/2014 - 17:03

Chris Edwards

How much does Congress spend on Veterans Affairs, the IRS, or Customs and Border Protection? How much has spending increased over time?

You can answer those questions quickly and easily with Cato’s updated charting tool for the federal budget.

The tool allows you to plot real outlays for about 500 departments, agencies, and programs, 1970-2014. All data is from the Office of Management and Budget.

The chart page opens blank. Click “+” to open a department and then check boxes for the departments, agencies, and programs you want to plot.

To save your chart as an image or a pdf, right click on it.

This chart shows spending on the three largest federal agencies. The data is in constant 2014 dollars.

Categories: Policy Institutes

The Republic of Gilead is Not Nigh

Mon, 06/30/2014 - 16:03

Julian Sanchez

If you were judging only from the outraged reaction  online, you could be forgiven for thinking that the Supreme Court’s ruling in Burwell v. Hobby Lobby had just mandated the adoption of Margaret Atwood’s The Handmaid’s Tale as the blueprint for American society.  Yet as my colleague Ilya Shapiro notes, there’s a profound disconnect between all the rhetoric about “denial of access” to contraception and the substance of the ruling.

At the heart of the majority’s opinion is this: The Department of Health and Human Services has already developed a way to exempt religious non-profit corporations—such as churches, charities, and hospitals—from the legal mandate to pay for employees’ contraception coverage.  In what amounts to an accounting trick, they permit those corporations to purchase plans without such coverage, and then require that insurance companies themselves independently provide it to the uncovered employees.  Because pregnancy is quite a bit more expensive than contraception, this apparently ends up not imposing any additional net cost on the insurers.  The result is that employees of religious non-profits end up with no-copay contraception coverage, exactly as if the employer were required to provide it directly, but the employers are satisfied by this ledger shuffling that they aren’t being compelled to violate their most deeply held moral convictions.  Which, one would think, is a win-win.

Against this background, the Court simply held that since HHS has already found a way to achieve the government’s aim of ensuring employees have access to free contraception without compelling non-profit employers to act against their profound religious convictions, they must do the same in the case of for-profit employers, at least where the for-profit corporation is “closely held.”  The majority quite explicitly denied this ruling has any implications for cases where there might not be such a happy win-win means of achieving the government’s ends, at no additional cost, without forcing employers to violate their convictions. As Justice Alito’s opinion emphasizes:

The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.

In light of this, the outraged reaction to the ruling ought to seem a bit puzzling.  If what you are fundamentally concerned about is whether women have access to no-copay contraception, then there’s no obvious reason to invest such deep significance in the precise accounting details of the mechanism by which it is provided. You might even be heartened by a ruling that so centrally turns on the premise that accomodation for religious objectors is required when no women will lack such coverage who would have enjoyed it under a mandate.

The outrage does make sense, of course, if what one fundamentally cares about—or at least, additionally cares about—is the symbolic speech act embedded in the compulsion itself. In other words, if the purpose of the mandate is not merely to achieve a certain practical result, but to declare the qualms of believers with religious objections so utterly underserving of respect that they may be forced to act against their convictions regardless of whether this makes any real difference to the outcome.  And something like that does indeed seem to be lurking just beneath—if not at—the surface of many reactions. The ruling seems to provoke anger, not because it will result in women having to pay more for birth control (as it won’t), but at least in part because it fails to send the appropriate cultural signal. Or, at any rate, because it allows religious employers to continue sending the wrong cultural signal—disapproval of certain forms of contraception—when sending that signal does not impede the achievement of the government’s ends in any way.

Personally, I have no sympathy whatever with the substantive moral views of Hobby Lobby’s owners.   But I’m dismayed at how many friends who style themselves “liberals,” even recognizing the ruling will make no immediate difference in employee access to contraception, seem to regard it as an appalling betrayal that the Court refused to license what amounts to purely symbolic compulsion of people with retrograde ideas. If we accept that the exemption here makes no functional difference to whether people are covered, however, that’s the only rationale left for insisting on direct purchase of coverage by employers—and not, I had thought, a legitimate rationale for government coercion in a liberal democracy.

Categories: Policy Institutes

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

Pages