The federal government has taken over ever larger swaths of American life, most recently health care. ObamaCare demonstrates that as state dictates expand, religious liberties recede.
The Supreme Court’s ruling in Burwell v. Hobby Lobby was extremely narrow but also extremely important. Religious liberty is the first freedom and must be protected from government.
The Founders chose not to create a church-based government. Previous experiments had turned out tragically for both human liberty and religious faith.
Religion’s relationship to politics has become more important as politics has swallowed more of American life. In 1789, the new national government was minuscule. Moreover, in America’s early days, there was a shared Biblical worldview, if not faith, and a common belief in the value of civil religion.
However, that world has disappeared. Today there is little government does not do, pushing ever more aspects of life into the public square. Equally important, Americans have increasingly divergent views of the transcendent. The First Amendment simultaneously guarantees individuals the right to practice and denies government the right to impose. There may be no more tortured area of federal jurisprudence.
But no doctrine appears to adequately take into account the steady expansion of government. I argue in my new column on Forbes online: “Since the state not just touches but controls far more of society, it threatens to marginalize religion by creating what Richard John Neuhaus called the ‘naked public square.’ A new approach is necessary to implement the Founders’ vision, protect the spiritual liberty of all, and encourage political peace.”
The prohibition against government promotion of sectarian faith or particular churches should be absolute. Doing so would be the most unfair, divisive, and contrary to the principles of a free society.
There should be strong protection from even unintentional infringement of religious practice. In general, the government’s default position should be to respect liberty. A serious infringement should require a compelling interest as justification. Unfortunately, bitter confrontations have increased as government has expanded its role. As with the Washington’s contraceptives mandate.
Prudential balancing should determine cases in the expanded public square. In many instances government involvement—providing services, funding programs, and owning property—can be seen either as establishing religion or protecting free exercise.
As government moves beyond its core functions, it increasingly threatens Americans’ spiritual beliefs. Today states and especially the national government intrude in education, health care, charity, employment, social services, job training, and more. Government prohibitions become, in effect, bans on private expression.
Of course, allowing manifestations of faith after the state is involved also may challenge those of no faith or different faiths. Sufficient space is required for all people. Setting religious parameters for the public square requires careful balancing—and considering how much government is necessary.
Lawmakers should minimize state involvement to reduce the need for winner-take-all political decisions. For instance, government should reduce barriers to private schools and home schooling, which allow people to follow their faith without infringing the beliefs of others.
Where government is providing money, such as for social services, religious organizations should be able to participate like secular agencies. At the same time, decisions should be transferred from lawmakers to taxpayers. For instance, privatizing schools while providing financial support to poor families would reduce conflict over moral education. Allowing people to take larger tax deductions or credits for charity is better than sending taxpayer funds to social service agencies.
The Hobby Lobby decision was second best. The best way to prevent misuse of the state by clerics and misuse of religion by politicians is to keep government small. Until then, Americans will be forced to increasingly call upon the First Amendment and legislation like Religious Freedom Restoration Act, upon which Hobby Lobby as decided, to protect their religious liberty.
North Korea has imprisoned one American since 2012 and announced its intention to try two other U.S. citizens recently arrested for “perpetrating hostile acts.” Having no diplomatic relations with the Democratic People’s Republic of Korea, the Obama administration cannot even inquire as to the prisoners’ welfare. The U.S. should open official ties with the DPRK.
Recognition confirms geopolitical reality rather than validates government policy. Nevertheless, politics long has dominated diplomacy surrounding the Korean peninsula.
Washington and Pyongyang never recognized each other. South Korea and Japan also do not have relations with the North. Throughout the Cold War the Soviet Union and People’s Republic of China did not deal with the Republic of Korea.
But after the end of the Cold War Russia and then China recognized the South. In contrast, two decades later the allied powers still have not formally acknowledged North Korea’s existence.
After all, the North is building nuclear weapons, developing long-range missiles, conducting a confrontational foreign policy, and violating human rights. But this bill of particulars also largely applied to the Soviet Union, with which Washington maintained official ties throughout the Cold War, and the PRC, with which the Nixon administration opened relations.
Refusing to talk with Moscow would have been grossly irresponsible because the two nations confronted each other militarily around the globe. Worse, as I point out in my new article on National Interest online: “The lack of any diplomatic channel between America and the PRC during the Korean War may have expanded that conflict. Beijing had no effective means to warn against the U.S. advance to the Yalu.”
While Pyongyang is not a global power, its activities affect America. Which means there is much for the United States and North Korea to talk about.
Negotiations obviously don’t guarantee results. Both multilateral and bilateral discussions have occurred outside of official diplomatic channels. Most of the deals ingloriously collapsed.
However, the lesson is not that ongoing relations are valueless, but that big agreements are unlikely, whatever the negotiating framework. For instance, Pyongyang is unlikely to give up its existing nuclear arsenal. Nevertheless, secondary but still important objectives may be achievable.
First, treating Pyongyang as a diplomatic equal would meet one of the DPRK’s longstanding demands. Second, sitting down with North Korea might help moderate the regime’s natural paranoia. Third, more regular discussions would help American officials better understand the Kim regime. Fourth, routine contacts would allow talks to develop informally over time.
Of course, Washington might find itself disappointed on all counts. But even a negative result would be an important lesson for America, and even more so for China, which has pressed Washington to engage North Korea.
No doubt, critics would complain that initiating diplomatic ties was a “reward” for the North. However, as the world’s dominant power, America could afford to make such a faux concession.
Moreover, opening a small mission would be less embarrassing than having to periodically send Bill Clinton or Dennis Rodman to the North to rescue jailed Americans. And simply having a small window into North Korean society would be useful.
Now is a propitious moment for Washington to move. The DPRK remains heavily dependent on China, which evidently makes the former uncomfortable. With PRC-ROK relations improving—President Xi Jinping recently visited Seoul—the North has been looking elsewhere. It is talking to Tokyo and rebuilding ties with Russia.
Washington should offer North Korea another alternative. Critical issues divide the two nations, of course, but they do not prevent diplomatic footsie. Present policy obviously is not working. Why not try something else?
The Obama administration should offer to talk with North Korea. Doing so might change nothing, but that would be no worse than the status quo and the results just might surprise.
Andrew J. Coulson
Education secretary Arne Duncan has just announced the Obama administration’s latest initiative to improve educational quality for low-income and minority students: pressure states to measure the distribution of “quality” teachers across districts; and then to make that distribution more uniform. The emphasis is on the pursuit of equity rather excellence. In fact, a state could make a massive leap forward on this scale by simply randomizing the assignment of public school teachers to schools. And if it turned out that some districts were badly managed and actually had a consistently negative effect, over time, on the performance of their teachers, well then the randomized teacher assignment process could be repeated every school year—or even every half-year!
But is a uniform distribution of today’s “quality” teachers really the best we can do for low-income and minority students (or, for that matter, everyone else)? Would they be better off today if Arne Duncan’s and Barack Obama’s equity focus had driven, say, the telelphone industry over the last century? Back around 1900, most telephones were hand-cranked, and not everyone had one. Would the poor, minorities, and others be better off today if we had achieved and maintained a perfectly equitable distribution of hand-crank phones?
The alternative, of course, is what we do have: a vigorously competitive phone market that has given rise to cell phones and then smart phones containing super-computers, global positioning satellite receivers, wireless networking, etc. But of course only rich whites have cell phones and smart phones, right? Not according to Pew Research. Based on 2013 data,
92% of African Americans own a cell phone, and 56% own a smartphone… blacks and whites are equally likely to own a cell phone of some kind, and also have identical rates of smartphone ownership.
In fact, Pew’s comparable smart-phone ownership figure for whites is 53%, but the difference is not statistically significant. With regard to income, Pew finds a 9 point difference in smartphone ownership between those making < $30,000 and those making between $30,000 and $49,999. Most of that difference seems to be accounted for by age, however. Among 18-24 year olds, 77% of those making < $30,000 own a smartphone vs. 81% for those making $30,000 to $74,999.
So pretty much everyone who wants one now has a cell phone which is rather more functional than the old hand cranked variety, and the majority of young people, at all income levels, even have smartphones. That’s a relatively high level of equity, coupled with excellence. Brought to you, again, by a competitive industry. Could the federal government’s Lifeline (a.k.a., “ObamaPhone”) phone subsidy programs be helping out? Certainly, to some extent. Though it’s far from true that every low-income American’s cell phone is paid for by Uncle Sam.
Ironically, many of the people who staunchly support subsidized access to the cell phone marketplace are dead set against programs that subsidize access to the educational marketplace. They’d much rather just redistribute teachers within our hand-crank-era public school systems, sentencing everyone—rich and poor alike—to more generations of academic stagnation. We can do better. We can encourage the same dynamism, choice, and entrepreneurship in education that have driven the fantastic progress in every other field, and we can ensure universal access to the educational marketplace via state-level education tax credit programs.
The Pew Research Center recently issued a major study of political ideology in America, based on 10,000 interviews early this year. That’s far bigger than most polls, so it allows more detailed examination of diverse political opinions. Indeed, the study is titled “Beyond Red vs. Blue: The Political Typology.” And yet, disappointingly, it continues to try to place Americans into red and blue boxes: different groups are characterized as “consistently” liberal or conservative, or as groups that “don’t hold consistently liberal or consistently conservative views.” There’s no suggestion that there might be consistent views other than contemporary liberalism and conservatism.
Take the interesting discussion of the “Young Outsiders” group:
Young Outsiders lean Republican but do not have a strong allegiance to the Republican Party; in fact they tend to dislike both political parties. On many issues, from their support for environmental regulation to their liberal views on social issues, they diverge from traditional GOP orthodoxy. Yet in their support for limited government, Young Outsiders are firmly in the Republicans’ camp….
Young Outsiders share Republicans’ deep opposition to increased government spending on social programs. About three-quarters of Young Outsiders (76%) say the government can’t afford to spend more to help the needy.
However, the Young Outsiders’ generational imprint on issues like homosexuality, diversity and the environment make the Republican Party an uncomfortable fit. In views of societal acceptance of homosexuality, for instance, Young Outsiders have more liberal views than the public overall, and are much more liberal than Republicans….
The Young Outsiders today are very different, as they share the GOP base’s deep skepticism of government programs, but favor a more limited foreign policy, and hold decidedly liberal social views.
As I read this, I keep thinking there’s a word at the tip of my tongue … wait a minute … Oh, I know: The Young Outsiders hold libertarian views. Was that so hard?
Indeed, they’re not so different from the voters that David Kirby and I identified eight years ago in “The Libertarian Vote”: 14 to 15 percent of the electorate, fiscally conservative, socially liberal, likely but not certain to vote Republican in most elections. Yet in the complete 185-page report, the Pew researchers never associate the word “libertarian” with the Young Outsiders.
Perhaps surprisingly, on page 101, they do identify a different group, the Business Conservatives, as somewhat libertarian:
Business Conservatives are traditional small-government Republicans. Overwhelming percentages think that government is almost always wasteful and it does too much better left to businesses and individuals….
Business Conservatives are more likely than other typology groups to identify as “libertarians,” though just 27% say that term describes them well. Their political values and attitudes do reflect a libertarian philosophy in some respects, though there are important differences as well….
Business Conservatives are not liberal on most social issues, but they are more progressive than Steadfast Conservatives. For instance, while nearly half of Business Conservatives (49%) oppose same-sex marriage, 58% say homosexuality should be accepted rather than discouraged.
That seems a somewhat less libertarian profile than the Young Outsiders, though it would be interesting to know how many Young Outsiders accept the description “libertarian.” (In a question asking “Which of these describes you well?” with “Video or computer gamer, Outdoor person, Libertarian, Religious person, and Focused on health and fitness” as the presumably non-exclusive options.)
One strange thing about Pew’s ongoing “Political Typology” series is its mutability. Every few years the center does another huge survey and classifies Americans by ideology. But the classifications keep shifting. In 2005 you could see a few libertarian voters in the “Enterprisers” category, and other groups included Upbeats and Disaffecteds. In 2011 the Libertarians got their own category and were characterized as independents, not Republicans. Now the libertarians are invisible again, but can be ferreted out in one of the Republican groups. Either Americans wander all over the map, or Pew researchers just like a little variety.
Washington Post reporter Dan Balz made good use of the Pew poll to explore the meaning of “the political center.” He correctly points out that “the fact that people who may be classified as part of the political middle aren’t necessarily in the middle of the electorate and doesn’t mean they really are moderate in their views.” And he quotes Gary Jacobson, a political science professor at the University of California at San Diego, on the political middle: “It does not form a potentially coherent coalition around which some political entrepreneur might build a centrist party.” All true, partly because people may be “in the middle” between the parties because they’re fiscally conservative and socially liberal (libertarian-leaning) or because they’re fiscally liberal and socially conservative (populist or authoritarian-leaning).
Balz adopts Pew’s language about “consistent views”: “People who didn’t fall into the polarized extremes sometimes hold views similar to those who are. They’re just not consistent about it.” But maybe they are consistent. Maybe some of the Young Outsiders and Business Conservatives think government coercion tends to be a bad way to handle both personal and economic matters. And maybe some other voters generally trust government more than individuals to manage both economic and social issues. Those aren’t inconsistent views. Indeed, one might argue that it’s the liberals and conservatives – who favor freedom in some areas of life but not others – who are the inconsistent ones.
David Kirby and I have written several studies and numerous shorter pieces on the often-overlooked libertarian voters. Much of that material is collected in the ebook The Libertarian Vote: Swing Voters, Tea Parties, and the Fiscally Conservative, Socially Liberal Center. More recently Kirby wrote about the rising libertarian strength in the Republican Party in this blog post, which might profitably be read in conjunction with Pew’s analysis of Business Conservatives and Young Outsiders.
By the way, based on Pew’s actual questions, which you can answer for yourself, it’s a wonder anyone comes out on the libertarian side. It is, as Matt Welch described an earlier iteration, “a festival of hoo-larious false choices.” But that’s common in polls by political scientists, which typically include a series of questions along the lines of “If people are poor, (a) the government should give them money, or (b) they should quietly accept their fate.”
House Speaker John Boehner (R-Ohio) has announced his intention to sue President Obama for “failure to faithfully follow the nation’s laws” by taking extra-legal executive actions in some areas and failing to execute the laws in other areas such as immigration, judicial appointments, health care, foreign affairs, and so on.
One area where he’s failing to execute the law is Social Security. For instance, the President and his leadership have repeatedly failed to publish on time the Annual Report of the Social Security Trustees, the yearly description of the program’s finances and future outlook. The legal deadline for its publication is April 1. We’re now more than three months past that deadline and there’s no indication that it will appear soon.
Social Security’s trustees include the secretaries of the Treasury, Labor, and Health and Human Services, and the (currently acting) commissioner of the program. There are also two public trustees, nominated by the President and confirmed by the Senate. (Of those last two, at least one must be from the opposing political party.)
It’s well known that Social Security benefits comprise the largest share of income for a majority of the program’s beneficiaries—incomes that they could not do without. So the Trustees’ Report is a crucial document. The information it contains is important to millions of stakeholders—retirees, disability beneficiaries and applicants, financial planners, workers nearing retirement, and others.
Policymakers need to know this information so they can make timely decisions intended to ensure that the program remains on a sound financial footing. For example, the 2013 Report (which didn’t appear until the end of May) estimated that the Disability Insurance (DI) Trust Fund will be exhausted and the program will be unable to pay full benefits at some point in 2016. Not much time remains for lawmakers to consider and enact sensible reforms to DI—and the clock is ticking.
No doubt, there could be valid reasons for publication delays. New information about the program’s financial status may not become available in a timely manner, and the development of new estimates using updated technical methods may take longer than anticipated. However, there are professional cadres of actuaries and economists dedicated to completing this task. They should, more often than not, anticipate such issues, and instances of publication delay should be the exception rather than the rule.
The table below notes the report’s publication dates during the Bill Clinton, George W. Bush, and Obama (to date) presidencies. It shows that the Obama administration has always been consistently and exceptionally late in issuing the report. In only one of the last six instances has Obama’s designees managed to get the report out within one month after the statutory deadline. In contrast, George W. Bush’s administration released five of its eight annual reports on time and always released the report within a month of the deadline; Bill Clinton released three of his eight reports on time and usually managed to issue the report within a month of the deadline. President Obama’s consistently tardy publication record is difficult to attribute to extenuating circumstances.Annual Report of the Social Security Trustees: Publication Date History Year Publication: Day and Date Timely/Late President 2014 ? Late Barack Obama 2013 Friday, May 31, 2013 Late Barack Obama 2012 Monday, April 23, 2012 Late* Barack Obama 2011 Friday, May 13, 2011 Late Barack Obama 2010 Thursday, August 05, 2010 Late Barack Obama 2009 Tuesday, May 12, 2009 Late Barack Obama 2008 Tuesday, March 25, 2008 Timely George W. Bush 2007 Monday, April 23, 2007 Late* George W. Bush 2006 Monday, May 01, 2006 Late* George W. Bush 2005 Wednesday, March 23, 2005 Timely George W. Bush 2004 Tuesday, March 23, 2004 Timely George W. Bush 2003 Monday, March 17, 2003 Timely George W. Bush 2002 Tuesday, April 09, 2002 Late* George W. Bush 2001 Monday, March 19, 2001 Timely George W. Bush 2000 Thursday, March 30, 2000 Timely Bill Clinton 1999 Tuesday, March 30, 1999 Timely Bill Clinton 1998 Tuesday, April 28, 1998 Late* Bill Clinton 1997 Thursday, April 24, 1997 Late* Bill Clinton 1996 Wednesday, June 05, 1996 Late Bill Clinton 1995 Monday, April 03, 1995** Timely Bill Clinton 1994 Monday, April 11, 1994 Late* Bill Clinton 1993 Wednesday, April 06, 1993 Late* Bill Clinton * Report published within 1 month after the legal deadline of April 1st. **April 1st was a Saturday.
There are other instances of slippage by the Social Security Administration in executing the program’s laws faithfully. For instance, two members of the House Subcommittee on Energy Policy, Health Care and Entitlements—Reps. James Lankford (R-Okla.) and Jackie Spier (D-Calif.)—recently issued a stern letter to Social Security’s acting commissioner, Caroline Colvin, charging the agency with consistently failing to “confront the problems of rapidly rising disability rolls” and “abdicating its responsibility to protect the truly disabled and taxpayers from out-of-control ALJs (Administrative Law Judges) who refuse to follow the law.”
Such failures are symptomatic of a failing presidency. Multiply the likelihood of poor compliance with the law across all government departments—you be the judge on whether that’s happening—and President Obama’s historic low poll ratings (currently in the low 40s) seem surprisingly high. It brings to mind an important sound-bite from the 2008 presidential campaign: Hillary Clinton’s question about who would be more competent to answer a 3 AM phone call on a policy emergency. The White House phones must be ringing constantly, like church-bells.
Michael F. Cannon
A panel of the U.S. Court of Appeals for the D.C. Circuit, which is often referred to as the second-highest court in the land, is expected to rule any day now on Halbig v. Burwell, a legal challenge that “may actually crush,” “kill,” and “wreck” the Patient Protection and Affordable Care Act, a.k.a. Obamacare.
The tax-law journal Tax Notes has chosen the law-journal article that got Halbig and similar cases rolling – Jonathan H. Adler and Michael F. Cannon, Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA, Health Matrix: Journal of Law-Medicine 23, No. 1 (2013): 119-195 – as one of “the 10 law most noteworthy law review articles on employee benefits and executive compensation issues published in 2013 that a broad audience of employee benefits professionals would find relevant and worthy of attention.” Tax Notes calls the Adler-Cannon article “innovative and thought provoking” and one that “practitioners should have read” in 2013.
A June 24 article in the Washington Post looked at sea level rise in North Carolina. Unfortunately, the article followed a common template of portraying a battle of science vs. conservative politics and environmentalism vs. capitalism. But as I noted here about water and drought in the West, liberals and libertarians can agree on the benefits of cutting anti-environmental subsidies.
My Washington Post letter on Friday pointed to the newspaper’s omission of the government subsidy angle:
There is disagreement about rising sea levels on the North Carolina coast, but there is one reform that all policymakers should support: ending subsidies that promote building in high-risk places. For decades, the National Flood Insurance Program has allowed people on the sea coasts to buy insurance with premiums less than half the market level, and the program does not cut off people even after multiple floods. Meanwhile, the Army Corps of Engineers continually rebuilds beaches, thus encouraging development in areas that nature is trying to reclaim. Ending this wave of subsidies would be sound fiscal and environmental policy.
Polish Ambassador Ryszard Schnepf has a tough job: making nice with American officials after his boss in Warsaw, Foreign Minister Radoslaw Sikorski, indiscreetly denounced Poland’s alliance with America as “worthless.” The ambassador responded to my earlier article and made a convincing case that Poles and Americans are friends. He had less success in explaining why Washington should extend a security guarantee to Warsaw, putting U.S. citizens at risk in any the war that might result.
NATO is a military alliance. But as I point out in my latest article in National Interest online, “in the aftermath of the Cold War American policymakers treated the organization like a venerable social club. When a bunch of old friends showed up after the Iron Curtain collapsed, the decent course seemed to be to invite them to join.”
Notably absent from the discussion at the time was consideration of the most important characteristic of military alliances: a willingness to go to war. In the euphoria of the moment that possibility was simply assumed away.
However, Vladimir Putin’s Crimean adventure set off fevered demands from NATO’s newer members for the alliance to return to its old purpose. Polish officials, including Minister Sikorski, have been particularly insistent that the U.S. put its full military faith and credit on the line for Poland.
The advantage of this approach for Poland is obvious. But the benefits for America are not. “Friendship and mutual trust,” cited by Ambassador Schnepf, are not the same as strategic interest.
There’s a wonderful history, of course, with such celebrated figures as “Kosciuszko and Pulaski who aided Washington in the American Revolution,” noted the ambassador. But the memory is no justification for Washington going head-to-head with a nuclear power, if necessary, more than two centuries later.
More recently Polish personnel have served “responding to the challenges faced by the global community, such as humanitarian disasters or terrorist threats.” Presumably Warsaw took those stands to serve the “global community,” and not as a pay-off for an American defense guarantee.
If Poland did act for more self-interested reasons, the U.S. got by far the worse deal. Warsaw provided marginal aid in wars that America should not have fought. In exchange Washington is supposed to prepare for global war with Russia.
Yet the Polish government seems to assume a sense of entitlement. Minister Sikorski and his colleagues insist on concrete “reassurance.” At the same time, Poland won’t sacrifice to build up its own military.
Ambassador Schnepf proudly announced that “Polish authorities pledged to spend 2% of GDP on defense expenditures, thus being one of very few Alliance members to reach this NATO benchmark.” That’s not much of a standard, however.
Despite enjoying rapid economic growth, Warsaw has made no extra effort to improve its defenses as a “front-line state.” Instead of doing more, Poles want America to do the job for them, by establishing a military tripwire at their border.
Which leaves the ambassador to argue, who cares about strategic importance? Washington should guarantee Poland’s security because the Poles are nice people. Of course, it’s always easier to be generous with other people’s lives and money, especially on your own people’s behalf.
Moreover, there are lots of nice people in the world. But that’s no reason to turn Washington into the guardian for them all. The U.S. should maintain alliances only when doing so makes Americans safer. Backing Poland against Russia does not.
There is much to appreciate about Polish-American ties over the years, even centuries. So, too, should Americans sympathize with the fact that Poland is located in a bad neighborhood.
However, neither point is an argument for defending Poland. The promise to go to war should be limited to cases where the American people have fundamental, even vital interests at stake.
Defenders of the status quo in education have long used lawsuits to protect themselves from competition and force state legislatures to increase funding. Lately, rather than merely play legal defense, some education reformers have turned to the courts to push reform. In some cases, the long-term prospects of positive reform through litigation are slim, even when the court’s ruling is favorable.
However, one lawsuit currently making its way through the court system has the potential to remove a major obstacle to reform: compulsory union dues. In 19 states, would-be government school teachers are forced either to join the teachers union or to remain a non-member but pays dues anyway—sometimes more than $1,000 per year.
The unions contend that these compulsory dues are necessary to overcome the free rider problem (non-union members may benefit from the collectively-bargained wages and benefits without contributing to the union), but plaintiffs in Friedrichs v. California Teachers Association point out that numerous organizations engage in activities (e.g. – lobbying) that benefit members and non-members alike without giving such organizations the right to coerce non-members to pay. That’s especially true when the individuals who supposedly benefit actually disagree with the position of the organization. Indeed, the plaintiffs argue that the compulsory dues violate their First Amendment rights because collective bargaining is inherently political:
Current federal law allows union workers to opt out of the political portion of union dues — for California teachers that usually amounts to between 30 and 40 percent of the total dues automatically taken from their salaries each year — but in closed-shop states such as California, workers cannot opt out of the rest of the dues, predominantly designated for collective bargaining. However, the plaintiffs argue that collective bargaining is inherently political, involving such debated issues as school vouchers and teacher tenure.
“Since my first years of teaching, I’ve been bothered by the fact that a large portion of my mandatory dues goes to pay for political endeavors of a union whose political positions have nothing to do with my job and have nothing to do with improving education for me, for my students, or for their parents,” Friedrichs tells me. “In fact, often these policies have negative effects.”
The legal justification for compulsory union dues rests primarily on a 1977 U.S. Supreme Court decision, Abood v. Detroit Board of Education. But as Andy Smarick noted last week, the recent majority opinion in Harris v. Quinn displayed a willingness to revisit and perhaps overturn Abood:
The Abood Court’s analysis is questionable on several grounds. Some of these were noted or apparent at or before the time of the decision, but several have become more evident and troubling in the years since then.
Abood failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector. In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector.
Justice Alito also wrote that “preventing nonmembers from freeriding on the union’s efforts” is a rationale “generally insufficient to overcome First Amendment objections.”
The Friedrichs case, resting as it does on a First Amendment objection based on the premise the collective bargaining in the public sector is inherently political, appears to match perfectly the majority’s objections to Abood in Harris. It very well may spell the end of compulsory public sector union dues.
If you have a free ten minutes over the weekend, your time will be well spent watching Cato’s spanking-new interview with the best-selling author of The Rational Optimist, Matt Ridley. In it, Ridley, who is also a member of the Advisory Board of HumanProgress.org, argues that humanity’s impact on the environment need not be catastrophic. This is partly because there is a strong relationship between economic growth and a greener planet. I am going to reiterate that fact - acknowledged by no lesser authority than the IPCC - because everyone should know it: the richer we become, the lesser our impact on the environment will be. Since economic freedom and growth are correlated (i.e.: more economic freedom means higher growth), economic freedom encourages a higher quality of life and a healthier environment. Gloomy predictions about the future of the planet are based on unrealistic assumptions that are unlikely to happen. The current scare, in other words, may be just like the doomsday scenarios from the past that have never materialized. Watch the video here:
And if you have another few minutes, check out HumanProgress.org, Cato’s newest website. It is a data-heavy site that presents reputable, third-party data and a host of analytical tools. Use it to discover what Matt Ridley spoke about: the state of humanity is improving, and fast!
Aaron Ross Powell
Happy Independence Day from Libertarianism.org and the Cato Institute! What better time than the Fourth of July to think about individual liberty, limited government, free markets, and the foundational role they have played in our nation’s history? In honor of America’s birthday, Libertarianism.org is sponsoring a Twitter contest; tweet the best short description of libertarianism with #LibertyIn140 and you could win up to $500!
You can find all the details on Libertarianism.org’s Tumblr page.
As America prepares to celebrate its independence, many Americans are caught up in the political squabbles over several recent Supreme Court decisions. If the SCOTUS decisions and their fallout reveal anything, it’s that too many Americans are willing to use the government to coerce their fellow citizens into behaving a certain way. Such people lack the virtue of political tolerance, which Thomas Jefferson believed was the foundation of “social harmony… the first of human felicities.”
What sort of education system is most likely to foster that political tolerance?
People often assume that government-run “public” schools are the best inculcators of political tolerance. After all, Horace Mann’s vision of the “common school” involved bringing together students from ethnically and religiously diverse backgrounds and training them to be good citizens. By contrast, private schools are not required to take all students and many of them are religiously sectarian. Indeed, even President Obama made this claim when visiting Ireland in 2013:
If towns remain divided — if Catholics have their schools and buildings, and Protestants have theirs — if we can’t see ourselves in one another, if fear and resentment are allowed to harden, that encourages division. It discourages cooperation.
Surely the common schools do a better job inculcating the value of political tolerance than the sectarian schools… right?
In reality, as my colleague Neal McCluskey has painstakingly demonstrated, government schools often force citizens into political conflict. Parents and educators clash over issues of pedagogy, curriculum, morality, sexuality, etc. Too often, deciding which policies a government school will adopt is a zero-sum game.
Moreover, the empirical evidence demonstrates that private schools (including religiously sectarian ones) do as well or better than government schools at inculcating political tolerance. In 2007, Dr. Patrick Wolf conducted a literature review of the research on schooling and political toleration, finding:
The most commonly used method of measuring such political tolerance first asks respondents to either think of their least-liked political group or select one from a list that includes such groups as the Ku Klux Klan, American Nazis, the religious right, and gay activists. It then asks whether respondents would permit members of the disliked group to exercise constitutional rights such as making a public speech, running for political office, and teaching in the public schools. Other studies simply ask respondents whether they would permit various activities from a group with whom they disagree, without first asking them to choose their least-liked group. In either case, responses are aggregated into a tolerance scale.
With one exception, the findings regarding the effect of school choice on political tolerance are confined to the neutral-to-positive range. Eleven findings—five of them from the more-rigorous studies—indicate that school choice increases political tolerance.
The studies do not tell us why the private schools tend to outperform the government schools at fostering political tolerance. Prof. Jay P. Greene, the author of two of the studies in Wolf’s literature review, offered two potential explanations:
It may be that private schools are better at teaching civic values like tolerance, just as they may be more effective at teaching math or reading. It is also possible that, contrary to elite suspicion, religion can teach important lessons about human equality and dignity that inspire tolerance.
It may also be that private schools recognize the importance of the political tolerance that allows them to operate without government intrusion. The same political tolerance that protects them also protects other institutions and groups, including those with diametrically opposite values. Whereas the government schools force zero-sum conflicts—meaning that some people ultimately prevail at forcing their view on others—a market in education allows parents to select the schools that reflect their values.
A free society requires political tolerance. The most likely education system to foster that tolerance is one that is rooted in free choice.
There’s been a lot of talk lately about “The Supreme Court’s Libertarian Moment,” perhaps mostly though not entirely from Ilya Shapiro. A detailed analysis of the 2013-14 Supreme Court term in the Washington Post provides some evidence for that, if you read to the very end. In an article on the rising number of unanimous decisions this term, Robert Barnes notes at the end:
Criminal cases are often ones where the lines between the court’s liberal and conservative wings are blurred.
“There’s been a lot of talk in progressive circles about how you want to avoid taking cases to this particular Supreme Court,” said Elizabeth Wydra, chief counsel with the liberal Constitutional Accountability Center. “One of the areas we’ve seen the Roberts court taking what might be called liberal positions are areas where there are a liberal-libertarian alliance.” [A point that two of her colleagues had made at length in the Post a few days earlier.]
Noel Francisco, a Washington lawyer and former Scalia clerk who represented challengers in the recess appointments case, said there is the same gravitation on the right.
“I think one of the most interesting phenomenon we’ve seen on the court over the last 30 or 40 years is what I would call the evolution of the conservative instinct,” Francisco said. It no longer means “a thumb on the scale for the government.”
Roger Pilon explored the revival of libertarian legal thought in the Chapman Law Review last year.
Since the 1960s, the Catalog of Federal Domestic Assistance (CFDA) has provided a list of all federal subsidy programs. That includes subsidies to individuals, businesses, nonprofit groups, and state and local governments. The CFDA includes subsidies for farmers, retirees, school lunches, rural utilities, the energy industry, rental housing, public broadcasting, job training, foreign aid, urban transit, and much more.
The chart below shows that the number of federal subsidy programs has almost doubled since 1990, reaching 2,282 today. The genesis of the CFDA was the explosion of hand-out programs under President Lyndon Johnson. Members of Congress needed a handy guide to inform their constituents about all the new freebies.
The growth in subsidies may be good for the politicians, but it is terribly corrosive for American society. Each subsidy program costs money and creates economic distortions. Each program generates a bureaucracy, spawns lobby groups, and encourages more people to demand further benefits from the government.
Individuals, businesses, and nonprofit groups that become hooked on subsidies essentially become tools of the state. They have less incentive to innovate, and they shy away from criticizing the hand that feeds them. Government subsidies are like an addictive drug, undermining American traditions of individual reliance, voluntary charity, and entrepreneurialism.
The rise in the size and scope of federal subsidies means that Americans are steadily losing their independence. That is something sobering to think about on July 4.
Which subsidies should we cut? We should start with these.
Today London’s transport regulator, Transport for London (TfL), said that Uber can legally operate in the U.K.’s capital. The news comes after drivers of London’s black cabs deliberately congested traffic last month in protest over how Uber, the San Francisco-based transportation technology company, was being regulated.
The Licensed Taxi Drivers Association (LTDA) said that it believed Uber was operating in violation of the Private Hire Vehicles (London) Act 1998, as I explained when writing about the protest last month:
The Licensed Taxi Drivers Association (LTDA) believes that Uber, the San Francisco-based transport technology company, is operating illegally in London. Thanks to the Private Hire Vehicles (London) Act 1998, it is illegal for a London vehicle with a private hire vehicle license to have a taximeter. Up until yesterday Uber’s website stated that anyone who wanted to be an Uber driver in London must have a private hire vehicle license. Today those requirements remain the same, however in response to the London protest Uber has opened to licensed black cabs.
TfL does not, unlike the LTDA, consider the smartphones used by drivers using Uber to be taximeters:
TfL’s view is that smart phones that transmit location information (based on GPS data) between vehicles and operators, have no operational or physical connection with the vehicles, and receive information about fares which are calculated remotely from the vehicle, are not taximeters within the meaning of the legislation.
TfL said it intended to have the High Court rule on the legality of Uber’s operation in London. However, TfL noted in its statement that the High Court would not consider the issue while separate criminal proceedings involving Uber drivers brought about by LTDA were being dealt with in the Westminster Magistrates’ Court, although it did say that the High Court would probably rule on the issue eventually:
… the LDTA (sic) has issued summonses in the Westminster Magistrates’ Court against a number of Uber drivers under s.11 of the 1998 Act. This now prevents TfL proceeding as we had intended as the High Court will not consider the issue whilst there are ongoing criminal proceedings on the same issues of law.
TfL is therefore now unable to seek early clarification from the High Court. In due course the LTDA summonses will be heard in the Magistrates’ court. The Magistrates’ decision is not binding, will almost certainly be appealed (by someone), which inevitably means the matter will end up, rather later than sooner, in the High Court.
It looks as if the LTDA has scored at least two own goals in its dealings with Uber. Firstly, the protest it supported was great free advertising for Uber, which reportedly enjoyed an 850% increase in sign-ups in the U.K. thanks to the demonstration. Secondly, LTDA’s actions against Uber drivers have prevented the High Court from considering Uber’s legality.
Should courts allow the federal government to ignore time deadlines for filing suit on the grounds that there’s a war on, even though it’s been 70 years since the end of the war on which such a delay was premised? On Tuesday the U.S. Supreme Court granted certiorari in a case raising that question, Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter. I wrote about the issue last year; an excerpt:
War is the health of the state,” wrote Randolph Bourne a century ago—from the special war taxes that can linger for a century, to the mohair subsidy program from Korean War days, to New York City’s wartime emergency rent controls, to the many incursions on civil liberties that don’t get rolled back afterward. War, it now turns out, can even give a boost to the lawyers who represent the federal government in civil litigation, magically transmuting losing cases into winners….
In 1942, not long after the Japanese attacked Pearl Harbor, Congress passed the Wartime Suspension of Limitations Act (WSLA), providing that the statute of limitations would be suspended (or “tolled”) on claims of defrauding the federal government until hostilities had ended. When the Japanese surrendered three years later, Congress left WSLA on the books, where nearly everyone forgot about it. …
A few years ago the U.S. Department of Justice decided that the old law entitled it to file various civil fraud lawsuits for which the ordinary statute of limitations had passed, because we were after all at war in Iraq and Afghanistan – even though the original statute applied on its face to criminal rather than civil cases, although the newer wars unlike World War II do not call for all-consuming national focus that might pre-empt the ordinary course of business, and although the subject matter of most of the cases has nothing whatever to do with national defense or war or Afghanistan or Iraq. A couple of appeals courts have agreed with DoJ’s excuse, which has emboldened the government to roll out the theory to many other cases. That leaves business lawyers to fret, as I wrote last year, about “when, if at all, they can safely advise clients that a potential dispute is too old to worry about. If truth is the first casualty of war, perhaps the fairness of dispute resolution is the next.”
The Supreme Court now offers them a ray of hope – and in a more sensible world Congress would do so as well, by agreeing to revisit WSLA.
Yesterday the Consumer Electronics Association (CEA) issued a news release praising the Virginia DMV and Gov. Terry McAuliffe for reversing the ban imposed on Uber and Lyft last month:
We are encouraged by reports that the Virginia Department of Motor Vehicles (DMV) is taking steps to allow innovative transportation network providers Uber and Lyft to operate in the Commonwealth.
CEA’s news release comes ahead of an official announcement, but if confirmed the news would mark a victory for Uber and Lyft, both of which offer rideshare services via their apps. The DMV had issued both companies cease and desist letters, saying that they were violating Virginia law.
Towards the end of the news release CEA urges lawmakers to pass legislation that would allow ridesharing companies to operate in Virginia in the long term. Perhaps Virginian lawmakers will look to ridesharing legislation passed in Colorado earlier this year, which was praised by Uber and Lyft.
Although a repeal of the ban should be welcomed, it does not mean that Uber and Lyft do not still face problems in Virginia, as Eric Hal Schwartz explained in InTheCapital:
Uber and Lyft aren’t totally out of the woods yet. Talks are ongoing about finding a solution to the regulatory issues presented by how the companies operate, but it’s definitely a positive sign for those who are fans of the ride-share app system.
As I noted shortly after the Virginia DMV sent cease and desist letters to Uber and Lyft, lawmakers should consider repealing regulations related to taxis:
Rather than hinder the growth of innovative livery companies that are taking advantage of new technology, lawmakers in Virginia and elsewhere across the country should consider repealing current taxi regulations that restrict innovation, strengthen established market players, and stifle competition.
Although the CEA news release is encouraging, it comes soon after Uber and Lyft were ordered to halt operations in Pittsburgh.
I spoke to Caleb Brown about the Virginia Uber and Lyft ban on the Cato Daily Podcast, which you can listen to below.
Not to be missed, the Wall Street Journal offers us two house editorials this morning plus the always colorful online thoughts of James Taranto, all on the Left’s hysterical reaction to Monday’s Supreme Court decision in the Hobby Lobby case. With his usual wit, Taranto presents a rich catalog of the “aggressively ignorant commentary” while the first of the editorial board’s offerings is a clear-eyed statement of the raw politics behind this “ignorance.” It starts with White House press secretary Josh Earnest’s initial remarks—conveniently ignoring that the decision rested not on the Constitution but on a statute that Congress passed all but unanimously—then continuing to Hillary Clinton’s remarkable outburst—likening the result that flows from the statute her husband promoted as president to the treatment of women that we see in the worst Middle Eastern despotisms.
But it’s in its second offering, “The Political Ginsburg,” that the Journal takes off the gloves. The justice’s “hyperbolic dissent is a political call to arms unworthy of a junior judge, much less the nation’s highest Court,” the editors write. Indeed,
The excess begins with her first sentence: “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations … can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” She goes on to say that the Court’s “radical purpose” may unleash “havoc,” among other flourishes that distort the opinion to the point of intellectual dishonesty.
Summing up its assessment:
Justice Ginsburg’s dissent is so far removed from the legal reality that it doesn’t qualify as a judicial opinion. It is a political opinion whose purpose seems to be to mobilize opposition to the Court and perhaps even motivate Democrats to turn out at the polls. Justice Antonin Scalia sometimes unleashes his rhetorical ferocity on decisions he dislikes, but his dissents are rooted in the law. Justice Ginsburg’s is a flight from the law.
And yet, for all her gross distortion of Justice Alito’s narrow, statutory opinion for the Court, Justice Ginsburg has pointed, doubtless unwittingly, to how far we’ve strayed from our first principle, freedom—something to reflect on as we prepare to celebrate our independence. As I wrote in this space a while back, after oral argument in Hobby Lobby, religious liberty is treated today as an “exception” to the general power of government to rule—captured, indeed, in the very title of the statute on which the Hobby Lobby decision rests: The Religious Freedom Restoration Act. That Congress had to act to try to restore religious freedom—to carve out a space for it in a world of ubiquitous, omnipresent government—speaks volumes. So completely have we come to assume that it’s government first—supplying us with all manner of goods and services—liberty second, that Justice Alito himself was at pains to stress how narrow his opinion was (properly, from a consideration of the scope of judicial authority).
Yet that was not enough for his critics, who have so distorted his opinion. Although most don’t say it, their real beef is with the Act itself. They pit a woman’s “right” to “free” contraceptives, including the abortifacients at issue in this case, against the claim of an employer that he has a right not to provide those (in principle, on religious or on any other grounds). And they add that employers have no right to “interfere” with a woman’s reproductive choices—as if that’s what employers are doing. It’s “reasoning” like that that has undermined our freedoms. And no one has employed it more often than the man now in the White House, who repeatedly tells us that “We’re all in this together.” If we are, then it’s far more than religious liberty that needs restoring.
In the early 1980s a church in Leipzig, East Germany’s second-largest city, began holding “peace prayers” on Monday night. Two young pastors, Christian Führer and Christoph Wonneberger, at the Nikolaikirche, or St. Nicholas Church, led the services. As Andrew Curry wrote in the Wilson Quarterly, it was a dangerous undertaking, but the church was the only place where any dissent could be cautiously expressed. “The church was the one space someone could express themselves,” Führer said. “We had a monopoly on freedom, physically and spiritually.”
Through the 1980s, as Curry reported, the Monday meetings grew. Gorbachev’s reforms gave Eastern Europeans hope. But they knew their history.
In 1953, workers in 700 East German cities declared their opposition to the Unified Socialist Party of Germany, or SED, the party that was synonymous with the East German state, and demanded the reunification of the country. Soviet soldiers fired on demonstrators, and more than 100 were killed. In the years since, all opposition movements in the Soviet bloc had met the same fate: “’53 in Germany, ’56 in Hungary, ’68 in Prague, ’89 in China—that’s how communism dealt with critics,” Führer says.
Suddenly in 1989, with a breach in the Iron Curtain between Hungary and Austria, and Solidarity winning an election in Poland, more people started showing up for peace prayers, more than the small church could hold. People started flooding out of the church and marching with candles through Leipzig. Week by week that fall, more people joined the marches – hundreds, then thousands, then 70,000, 150,000, 300,000. And then, unbelievably, the Communist Party fell, the Berlin Wall opened, and East Germans were free after more than 40 years. As a Leipzig politician told me in 2006, “As it says in the Bible, we walked seven times around the inner city, and the wall came down.”
I was saddened to read that Christian Führer died Monday in Leipzig at 71. “Führer” is a German word meaning “leader.” Christian Führer was truly a Christian leader.
I talked about the Monday prayers and the fall of communism in this 2012 speech:David Boaz Discusses the Heroism That Hastened the Fall of Communism
ISIS’s public declaration that it has restored the caliphate has been noted as a bold move, potentially changing some elements of their revolutionary calculus. Even without such a pronouncement, however, rebel groups like ISIS always share some of the same challenges as states do—broadly speaking, both rebels and states are better off if the majority of their residents comply with their demands. Far from a declaration of outright victory, ISIS’s announcement has simply underscored a number of interrelated challenges that all rebels and states face.
In other words, ISIS now faces the same problems as its enemies.
- Factionalization, and disarmament: The very Sunni militias who facilitated ISIS’s sweep into Iraq may now pose a similar threat to ISIS control as they did to the Iraqi state. Elements of the Iraqi military scattered in the face of ISIS’s most recent onslaught, due to a variety of factors, including commanders who were incompetent or had other loyalties, and lack of local support. The strength of the partnership between ISIS and local discontents seems variable at best. Tension is already showing in these partnerships, which may fracture entirely if ISIS does not undertake serious efforts to solidify these alliances—efforts which may well involve negotiating and compromising around contradictory aims, and tensions between grander ideological goals and local dissatisfactions.
- Disarmament: ISIS now faces the same risk as the Iraqi state—erstwhile allies, if left out of the group’s internal processes, or holding different goals or religious/political preferences may resist ISIS control. Seemingly well aware of this possibility, ISIS is now attempting its own version of DDR (the practice of disarming, demobilizing and reintegrating combatants that often bedevils post-conflict resolution), demanding local fighters swear allegiance to ISIS, and lay down their weapons.
- Territorial control: Factionalization also gives ISIS the same challenge of territorial control as the Iraqi state. The loss of Mosul and other areas of northern Iraq was a political and military setback for the Iraqi state. Even before the pronouncement, ISIS touted much of its claims to victory in territorial terms, and has certainly sought to retain the control it has gained in Syria. In Iraq, participation of local Sunni resistance aided ISIS’s territorial sweep. Loss of local allies may yet cost ISIS some of this control. After all, many of these local Sunni forces are the same that first joined in resistance to American forces, and welcomed, but then expelled ISIS’s precursor Al Qaeda in Iraq.
- Running the caliphate: As the BBC’s Jim Muir notes, “if the caliphate project is to take root, it will need administrators and experts in many fields, whom Abu Bakr al Baghdadi is clearly hoping will flood to heed his call.” ISIS has demonstrated some capacity to do this in Syrian cities like Raqqa, where observers note its extensive and coercive reach into residents’ lives. But as any administrator will tell you, competent technocrats are not necessarily easy to come by. For ISIS, much may depend on how its declaration of the caliphate is taken among well-qualified individuals elsewhere, and the group’s willingness to engage in the compromise and politicking to build alliances. It is possible well-qualified personnel may find ISIS’s announcement attractive (augmented by the group’s ability to pay them, at least for now). But such individuals often bring with them their own political and religious preferences. If ISIS refuses to compromise, it will be fishing for administrators in a doubly shallow pool of those with sufficient competence and affinity for its particular ideological brand. Moreover, if ISIS does attract quality personnel, using them for administrative demands means the group cannot simultaneously use their skills in leading or planning attacks to expand or defend ISIS territory.
ISIS’s breathtaking victories and their proclamation that it has reestablished the caliphate have produced widespread alarm. But this headline-ready proclamation simply emphasizes a wider irony—ISIS’s conquests saddle them with the same challenges of state building as the Iraqi state they’ve pushed back. The past decade has ample evidence that proclaiming, “mission accomplished” vis-à-vis Iraq does not guarantee success.
ISIS’s success, and the weaknesses of the Iraqi state it highlights, cannot be dismissed. But neither can their military and media victories indefinitely paper over the hard realties of governance.
At the moment, ISIS has the advantage of momentum, cash, and an internally dysfunctional adversary. But it is early days yet, and it remains to be seen how ISIS will fare against these challenges. It must decide how much it is willing to compromise and negotiate to build robust alliances out of partnerships that may thus far have been more opportunistic. It must recruit and allocate both financial and personnel resources to managing the territory it holds, and in which its pronounced caliphate resides. ISIS’s ability to further expand its territories or pose a threat to other states depends in large part on its choices and abilities to address these challenges.