Cato Op-Eds

Subscribe to Cato Op-Eds feed
Individual Liberty, Free Markets, and Peace
Updated: 39 min 34 sec ago

How Destroying Fish is Not Like Destroying Financial Records

Thu, 07/10/2014 - 17:03

Trevor Burrus

Overcriminalization is a significant problem in the United States, particularly federal overcriminalization. There are a variety of reasons for this, but one is that federal prosecutors consistently stretch laws to encompass conduct that the law was never meant to cover. Normal people who committed minor infractions will often find themselves facing long prison sentences that are entirely disproportionate to the wrongness of the act. Such is the case in an upcoming Supreme Court case, Yates v. United States.  

While commercial fishing in the Gulf of Mexico, John Yates had his catch inspected by the Florida Fish and Wildlife Commission for whether it complied with size restrictions. Finding some undersized fish, officials cited him for a civil violation and he was ordered to bring the undersized fish back to the docks. Instead, he threw them overboard. While he probably knew he would face a fine, what he could not have foreseen was his subsequent criminal prosecution under the Sarbanes-Oxley Act three-years later.

Sarbanes-Oxley was enacted in the wake of the Enron financial scandal and cover-up. It includes a document shredding provision, Section 1519, that punishes those who knowingly destroy or conceal “any record, document, or tangible object” in order to impede an investigation. To Mr. Yates’s surprise, he was convicted of violating Section 1519 and sentenced to 30 days in prison and three years of supervised release. On appeal, the Eleventh Circuit upheld his conviction by narrowly focusing on the dictionary definition of “tangible object.”

Now, on appeal to the Supreme Court, Mr. Yates asks the Court to overturn his conviction on the ground that he did not have fair notice that the destruction of fish would fall under Section 1519. We agree. In an amicus brief supporting Mr. Yates, Cato argues that well-established canons of statutory construction—that is, the rules that guide judges in interpreting statutes—do not allow Section 1519 to be reasonably interpreted to apply to fish. Those canons teach us that a word in a statute, such as “tangible,” should be given more precise content based on its surrounding words, and that it should only be applied objects similar to the precise words preceding it. In short, the other words in the statute, such as “record” and “document,” modify the term “tangible object” to include things like hard drives and diskettes, not fish.

Moreover, an all-encompassing reading of “tangible object” would render the words “record” and “document” unnecessary. Additionally, the broader context of the Sarbanes-Oxley Act illuminates the meaning of “tangible object.” The Act focuses on financial fraud in the context of companies, not destroying fish. Thus, the words “tangible object” should be read differently in Sarbanes-Oxley than they would be in, say, the Federal Rules of Criminal Procedure. If the term “tangible object” is read as broadly as the Eleventh Circuit’s interpretation, it could potentially criminalize an unfathomable range of activities. As such, it would not provide adequate notice to those who may violate the law. Individuals have a right to fair notice of what conduct is proscribed by the law so they may plan their actions accordingly. Legislatures, not courts, should define criminal activity.

Read Cato’s brief here

Categories: Policy Institutes

Google Co-Founders Sergey Brin & Larry Page: Health Care Regulation Is Blocking Innovation

Thu, 07/10/2014 - 15:51

Michael F. Cannon

At a forum sponsored by Khosla Ventures, Google co-founders Sergey Brin and Larry Page discussed the burden of health care regulations in the United States. When asked, “Can you imagine Google becoming a health company?”, Brin responded:

Health is just so heavily regulated, it’s just a painful business to be in. It’s just not necessarily how I want to spend my time. Even though we do have some health projects, and we’ll be doing that to a certain extent. But I think the regulatory burden in the U.S. is so high that I think it would dissuade a lot of entrepreneurs.

Page agreed:

I am really excited about the possibility of data also to improve health. But I think that’s what Sergey’s saying. It’s so heavily regulated, it’s a difficult area…I do worry, you know, we kind of regulate ourselves out of some really great possibilities.

But surely, the United States does not have government-run health care.

The discussion begins at about 29:00.

Fireside chat with Google co-founders, Larry Page and Sergey Brin with Vinod Khosla
Categories: Policy Institutes

Still No Halbig v. Burwell Ruling, But Plenty of Halbig Chatter

Thu, 07/10/2014 - 14:46

Michael F. Cannon

The latest bit of chatter about a someday-forthcoming ruling from the D.C. Circuit in Halbig v. Burwell is the banter between myself and Washington & Lee University law professor Timothy Jost. (For a quick primer on the Halbig cases, click here. For a comprehensive reference guide to the cases, click here.) Or as my email traffic has described it, “The subtle repartee between Michael Cannon and Tim Jost continues.” And, “What a summer! Argentina vs. Germany, Cannon vs. Jost. What’s next?“ 

Jost’s contribution appeared on the oped page of the Washington Post. Mine…didn’t.

Jost explains that while the Supreme Court’s ruling against the government in Hobby Lobby will not have much of an impact on the Patient Protection and Affordable Care Act, “a number of ACA lawsuits percolating up through the courts could be much more destructive. The theory of these suits seems to be that the drafters of the ACA planted a secret bomb in the heart of the statute.” Jost, along with a federal judge he quotes approvingly, thinks it’s “preposterous” that Congress would have intended to give states the power to block the expansion of health-insurance coverage that’s supposed to happen through the PPACA’s health-insurance “exchanges.”

Never mind that Congress did exactly that with the other coverage expansion – the Medicaid expansion – in the very same bill. Or that Congress has allowed states to block the entire Medicaid program for the past 49 years. Or that that’s how Jost himself proposed Congress could set up the bill’s health insurance Exchanges. Or that in 2009, both Republicans and Democrats introduced legislation that would have conditioned health-insurance subsidies on states establishing Exchanges. Or that, in particular, the other leading bill advanced by Senate Democrats in 2009 also gave states the power to block Exchange subsidies. Or that that’s what Jost admits the plain language of the PPACA “clearly” says.

Forget all that. Following the clear, consistent, uncontradicted language of the statute, which is completely consistent with the law’s legislative history, would be preposterous. Why? Because if the courts implement the law as Congress intended, then not even ObamaCare’s supporters would like how ObamaCare works. 

Categories: Policy Institutes

Subsidies Make Businesses Weaker

Thu, 07/10/2014 - 13:07

Chris Edwards

The technical arguments against the Export-Import Bank are provided in this excellent summary by Veronique de Rugy. However, one argument against Ex-Im and other business subsidies is not stressed enough in policy debates: subsidies weaken the businesses that receive them.

Subsidies change the behavior of recipients. Just like individual welfare reduces work incentives, corporate welfare dulls business competitiveness. Subsidies give companies a crutch, an incentive not to improve efficiency or to innovate, as I noted here.

Yesterday, I looked at Chapter 1 of Burton and Anita Folsom’s new book, Uncle Sam Can’t Count, which examines federal fur trading boondoggles of 1795-1822. 

Now let’s look at Chapter 2, which focuses on the steamboat industry of the 19th century. The historical lesson is clear: subsidies make companies weak, inefficient, and resistant to innovation.

Here is a thumbnail sketch of the Folsoms’ steamboat story:

  • In 1806 New York gives Robert Fulton a legal monopoly on steamboat travel in the state. Breaking this misguided law, a young Cornelius Vanderbilt launches a competitive service in 1817.
  • The U.S. Supreme Court strikes down the New York law in 1824. The effect is to usher in an era of steamboat innovation and falling prices for consumers.
  • Vanderbilt launches many new steamboat routes whenever he sees an opportunity to drive down prices.
  • With subsidies from the British government, Samuel Cunard launches a steamship service from England to North America in 1840. In response, Edward Collins successfully lobbies Congress to give him subsidies to challenge Cunard on the Atlantic route. With this unfortunate precedent, Congress proceeds to hand out subsidies to steamship firms on other routes.
  • By the 1850s, Congress is providing Collins a huge annual subsidy of $858,000. Irked by the subsidies and Collins’ inefficient service, Vanderbilt builds a better and faster ship and launches his own Atlantic service.
  • In 1856 two of Collins’ inferior ships sink, killing almost 500 people. Collins builds a new ship, but it is so shoddy that it is scrapped after only two trips.
  • Congress finally realizes that the aid to Collins is damaging, as it has spawned an inferior and mismanaged business. Congress cuts off the subsidies in 1858. Without subsidies, Collins’ steamship company collapses.
  • Vanderbilt also out-competes subsidized steamship companies on the East Coast-to-West Coast route through Central America.
  • In England, an unsubsidized competitor to Cunard—the Inman Line—is launched and begins out-competing and out-innovating the subsidized incumbent.
  • The subsidized Cunard and Collins aim their services at the high-end luxury market. The more efficient and unsubsidized Vanderbilt and Inman focus on driving down prices for people with more moderate incomes.
  • Government subsidies “actually retarded progress because Cunard and Collins both used their monopolies to stifle innovation and delay technological changes in steamship construction.”

Government subsidies have similar negative effects today, whether it is subsidies to energy companies, aid to farm businesses, or the Ex-Im program.

The difference is that in the 19th century Congress eventually cut off subsidies when the damage became clear, as it did with steamship subsidies in 1858 and fur trading subsidies in 1822. Maybe I’m overlooking something, but I can’t think of a business subsidy program terminated by Congress in recent years, or even in recent decades.  

Categories: Policy Institutes

Pages