Cato Op-Eds

Subscribe to Cato Op-Eds feed
Individual Liberty, Free Markets, and Peace
Updated: 30 min 22 sec ago

Florida Parents Fight for Educational Choice

Thu, 07/31/2014 - 13:17

Jason Bedrick

On what would have been the 102nd birthday of Milton Friedman—the godfather of educational choice—six families with children that have special needs are fighting back against Florida’s largest teachers union, which is seeking to kill the Sunshine State’s newest educational choice program.

The Florida Education Association is suing the state of Florida to eliminate the new Personal Learning Scholarship Account (PLSA) program, among other recent education reforms, including an expansion of the state’s scholarship tax credit law. Modeled after Arizona’s popular education savings account (ESA), the PLSA would provide ESAs to families of students with special needs, which they could use to pay for a wide variety of educational expenses, such as tuition, tutoring, textbooks, online learning, and educational therapy. Six families with special-needs children who would have qualified for the program are seeking to intervene as defendants in the lawsuit, represented by the Goldwater Institute’s Clint Bolick.

The union’s lawsuit argues that the legislation creating the PLSA, Florida’s Senate Bill 850, violated the state constitution’s “one subject rule” because it contained a variety of education reforms.

“FEA felt that somebody needed to say, ‘Wait a minute. You can’t do it this way. There’s a constitutional requirement that legislation be of a single subject and matters related to this subject,’” [FEA attorney Ron] Meyer said. “This is so far over the line, somebody needs to say, ‘You can’t do that.’ Otherwise this is going to become the norm.”

The question the court must decide is procedural: how closely must a bill’s provisions be related to avoid running afoul of the constitution’s “one subject” rule? The legislature held that a topic as broad as “education” sufficed. If the court disagrees, it could affect legislation far beyond the bill in question. The plaintiffs’ complaint notes that the challenged bill’s title extends over several pages, but it’s not unique in that regard. Several other recently-enacted bills also have lengthy titles, including Senate Bill 856 on “ethics” (four pages), Senate Bill 1012 on “financial services” (six pages), Senate Bill 1194 on “citizen support and direct-support organizations” (four pages), and Senate Bill 1238 on “family trust companies” (five pages).

The union’s lawyer referred to the PLSA as “a collateral casualty” of its lawsuit, as the union was most concerned with the expansion of the scholarship tax credit program that the union believes has “lost its focus” because it supposedly “was not intended to become a major enterprise.” In a press release from the Goldwater Institute, parents of special needs students took umbrage:

“All I can say is wow, I don’t feel like collateral damage, I don’t feel like my son is collateral damage,” said Ashli McCall, a certified teacher in Florida who’s son Emmil is autistic. “I feel like we’re people. And we’re precious and we matter. Is that wrong? That’s really hurtful and really infuriating…If we’re not convenient to their cause then we just don’t matter. We matter.” […]

“These children deserve high-quality educational opportunities that are customized to suit their unique needs, and we will stand up with their families and defend these scholarships from the very people who have failed these students in the public schools,” said Goldwater’s Vice President for Litigation Clint Bolick. “We will not allow these children to simply be left behind as the ‘collateral casualties’ in the aftermath of ends-justifies-the-means legal action.”

Categories: Policy Institutes

Suing the President: Maybe Legal, Likely Unwise

Thu, 07/31/2014 - 10:20

Roger Pilon

“So sue me,” said the president. Late yesterday, in a mostly party-line vote, the House authorized Speaker Boehner to do just that—to call President Obama over his repeated acts of constitutional dereliction. This is a close call, legally. But as I argued recently, I believe it would be unwise for Boehner to actually bring such a suit, much less to initiate impeachment proceedings, as some Republicans are urging him to do. With mid-term elections less than 100 days ahead, the nation’s attention should be focused on Obama’s sorry record, not on the legal merits of a partisan suit, as inevitably would happen given the legal problems surrounding such a suit.

Those problems are not insignificant. Under the Constitution’s Case or Controversy Clause, a plaintiff must have “standing” to bring a suit. In this case, the House must show some injury in fact that is fairly traceable to the president’s conduct and is redressable by the court. The theory the House is relying on here is novel: the idea is that Congress as an institution is injured when the president refuses to perform his constitutional duty to execute the law, as when he postponed Obamacare’s employer mandate, thus nullifying Congress’s act and leaving it no remedy—it’s power to withhold funds from the executive branch in this regard would have no effect on his failure to act, as it would had he acted contrary to the law.

That may get Congress over the standing hurdle. But again, if it doesn’t, and even if it does, attention will still be focused on the suit, not on Obama’s record. As for impeachment, that would be an even greater distraction, as we saw in the case of President Clinton, and would be a fool’s errand as well, given the Democratic Senate. Frustration over this lawless president is palpable, as the polls show. But at the end of the day, the remedy is likely to be political, not legal. Put plainly, there is a constitutional remedy for these constitutional wrongs: it’s in the voting booth.

Categories: Policy Institutes

House Lawsuit against Obama Has Legal Merit

Thu, 07/31/2014 - 10:08

Ilya Shapiro

When the president violates the Constitution, there has to be a remedy short of impeachment, which is a blunt political tool that does nothing to reverse the illegal actions at issue. Speaker Boehner’s proposed lawsuit seems measured to challenge what is perhaps President Obama’s most egregious extra-constitutional action, rewriting the Affordable Care Act to suit his political needs. 

When Congress passes a law, it is the president’s duty to enforce it. The president has discretion in how to enforce it, to be sure, but he can’t suspend, waive, ignore, or change it. The House of Representatives is thus well-placed to sue over the institutional injury that the executive branch has foisted on the legislative branch. 

For more, see this week’s op-eds by David Rivkin and Elizabeth Price Foley in the Wall Street Journal and Washington Post.

Categories: Policy Institutes

The Export-Import Bank and Its Victims: Which Industries Bear the Brunt

Thu, 07/31/2014 - 09:54

Daniel J. Ikenson

The Export-Import Bank of the United States is a government-run export credit agency, which provides access to favorable financing for the foreign customers of some U.S. companies.  For several months, Washington has been embroiled in a debate over whether to reauthorize the Bank’s charter, which will otherwise expire on September 30.  While Republican House leadership remains publicly committed to shutting down the Bank, a bipartisan group of eight senators introduced reauthorization legislation last night, setting the stage for a post-August recess showdown.

Reauthorization buffs contend that Ex-Im fills a void left by private sector lenders unwilling to provide financing for certain transactions and, by doing so, contributes importantly to U.S. export and job growth.  Rather than burdening taxpayers, the Bank generates profits for the U.S. Treasury, helps small businesses succeed abroad, encourages exports of green goods, contributes to development in sub-Saharan Africa, and helps “level the playing field” for U.S. companies competing in export markets with foreign companies benefitting from their own governments’ generous export financing programs.  Accordingly, failure to reauthorize the Bank’s charter would be akin to unilateral disarmament.

But those justifications – two rationalizations, really, and a few token appeals to liberal sensibilities intended to create the illusion of a bipartisan imperative for reauthorization – are unpersuasive or non-responsive to Ex-Im’s critics.  By effectively superseding the risk-based decision-making processes of legions of private-sector, profit-maximizing financial firms with the choices of a handful of bureaucrats using non-market benchmarks and pursuing often opaque, political objectives, Ex-Im risks taxpayer dollars.  That Ex-Im is currently self-sustaining and generating revenues is entirely beside the point and is no more reassuring than a drunk driver rationalizing that he made it home safely last night so there’s no danger in drunk driving tonight.

The truth is that Ex-Im’s revenue stream is a function of fluid global circumstances and given its inadequately diversified portfolio (heavily concentrated in aircraft loans), the Bank is exposed to a decline in demand for air travel, which could prompt a slew of defaults on aircraft loans.  Recall that Fannie Mae and Freddie Mac also showed book profits for years until the housing market suddenly crashed and taxpayers were left holding the bag.

The second pillar of reauthroization rationalization – that Beijing, Brasilia, and Brussels subsidize their exporters so Washington must, too – sweeps under the rug the fact that there are dozens of criteria that feed into the ultimate purchasing decision, including product quality, price, producer’s reputation, local investment and employment opportunities created by the sale, warranties, after-market servicing, and the extent to which the transaction contributes toward building a long-term relationship between buyer and seller.  To say that U.S. exporters need assistance with financing to “level the playing field” suggests that U.S. exporters do not already have inherent advantages among the multitude of factors that inform the purchasing decision.  Moreover, by “leveling the playing field” – to continue with that euphemism – Ex-Im “unlevels” the playing field for many more U.S. companies competing at home and abroad. This adverse effect has been ignored, downplayed, or mischaracterized, but the collateral damage is substantial and should be a central part of the story.

When U.S. taxpayers provide foreign firms with low-rate financing to purchase U.S. exports, we are subsidizing the foreign competitors of downstream U.S. companies.  While Ex-Im helps some U.S. companies by reducing their costs of doing business, it hurts other U.S. companies by increasing their costs relative to their lucky foreign competitors’ costs. On that point, Delta Airlines has been vocal in its objection to Ex-Im-facilitated sales of Boeing jetliners to foreign carriers, such as Air India.  Delta rightly complains that the U.S. government, as a matter of policy, is subsidizing its foreign competition by reducing Air India’s cost of capital.  Money is fungible and that cost reduction enables Air India to offer lower prices in its bid to compete for passengers, which has a direct impact on Delta’s bottom line.  This is a legitimate concern and it is not limited to this example.

Consider the generic case.  A U.S. supplier sells to both U.S. and foreign customers.  Those customers compete in the same downstream industry in U.S. and foreign markets. The U.S. supplier is thrilled that Ex-Im is providing his foreign customer with cheap credit to make the purchase – so thrilled, in fact, that he might even extrapolate from his experience in a testimonial about how essential the Ex-Im Bank is to the U.S. economy.  Meanwhile, the foreign customer is happy to accept the advantageous financing terms for a variety of reasons, among which is the fact that his capital costs are now lower relative to what they would have been and relative to the costs of his U.S. competitors (aka the U.S. customers of the same U.S. supplier). Moreover, by subsidizing export sales, Ex-Im is diverting domestic supply and making U.S. customers less important to their U.S. suppliers. Especially in industries where there are few producers, numerous customers, and limited substitute products, Ex-Im changes the relationships between U.S. buyers and U.S. sellers by providing the latter with greater market power and leverage.  Ex-Im helps some companies (in the short run), but hurts others – very many others.

Delta was able to make the connection.  Others have connected the dots.  But most of the time, the downstream U.S. companies are unwitting victims of this cost-shifting.  These costly externalities are endemic features of Ex-Im’s model. 

Based on a review of Ex-Im Bank transaction data for the period 2007 through 2013:

  • Ex-Im authorized $167.8 billion in transactions over the 7-year period;
  • Manufactured exports accounted for $107.1 billion of those subsidies;
  • Aircraft and aircraft parts accounted for $57 billion of the manufacturing total;
  • Producers in all 21 broad manufacturing industries (3-digit NAICS) received subsidies;
  • Producers in 225 of 237 manufacturing sub-industries (6-digit NAICS) received subsidies.

Although subsidies like these have been shown to weaken firms over time by reducing their incentives to be efficient and competitive, assume for now that the subsidy amounts authorized are approximations of the “benefits” of Ex-Im.  In other words, start with the assumptions made by Ex-Im supporters. Over seven years, the U.S. manufacturing sector received $107 billion of benefits from Ex-Im in the form of export subsidies.  While most of the largesse went to aircraft and aircraft parts manufacturers (Boeing), subsidies were provided across the spectrum of industries. About $50 billion in authorizations was spread over exports of products in all 21 broad U.S. manufacturing industries – as defined by the 3-digit North American Industry Classification System – from food, textiles, and wood products to machinery, computers, and transportation equipment.

At the 6-digit level of specificity, manufacturers in 225 of 236 industries benefitted from that $50 billion in non-aircraft manufacturing authorizations.  Plotting the subsidies received by firms in each of the 236 industries on a horizontal axis, the range spans from $0 (for 11 industries receiving no benefits) to $5,213,669,271 (for “turbine and turbine generator set units”). The median value of benefits for the 236 industries was $39,926,778 and the mean (skewed far to the right by billion dollar-plus subsidies to 11 industries) was $213,853,857.

Now consider the costs.

While stimulating export growth has long been a fetish of policymakers, the consequences for downstream industries (industries that rely on other industries’ output as production inputs) in terms of domestic supply and price can be adverse.  If you receive an export subsidy, you benefit by exporting. If your supplier receives an export subsidy, he benefits by exporting, but you likely incur a cost. If that supplier accounts for 90 percent of your inputs, the cost to you is likely more significant than if he accounts for only 10 percent of your inputs.

With those basics in mind, the costs of Ex-Im’s subsidies can be estimated from input-output tables and Ex-Im authorization data.  On its website, the Bureau of Economic Analysis maintains a set of input-output tables, which map the relationships between U.S. industries throughout the economy. Among the information that can be discerned from those tables is the disposition of output from any and all industries and the input use requirements of any and all industries.

One quick takeaway from the BEA 2007 I-O Use Table is that fully two-thirds of the value of output of U.S. manufacturing industries is incorporated as intermediate inputs in the production of other industries. With that picture of industrial interdependence in mind, it is easier to see how artificial incentives aimed at changing the behavior of particular industries can have ripple effects throughout the economy.

The benefit of Ex-Im to Industry A was calculated simply as the aggregate of Ex-Im authorizations for Industry A.  The cost of Ex-Im to Industry A is approximated to be the aggregated benefits accruing to Industry A’s upstream industries, weighted by the relative importance of each upstream industry to Industry A’s output.  Deriving the cost required the following steps:

  1. Industry A’s upstream industries were identified.
  2. Ex-Im authorizations were aggregated for each of those upstream industries.
  3. Each industry’s aggregate was weighted by the ratio of its use by Industry A over Industry A’s use of all intermediate inputs.
  4. All of Industry A’s upstream, adjusted benefits were aggregated to represent the costs of Ex-Im to Industry A.
  5. The costs for all other industries (Industry B, C, D, etc.) were calculated the same way.

Those adjusted, aggregated costs ranged from $8,024,418 for “Primary smelting and refining of copper” (331411) to $2,557,512,806 for “Broadcast and wireless communications equipment” manufacturing (334220) with a median value of $132,164,800.  Plotting these costs on the vertical axis and combining with the benefits on the horizontal axis, the following scatterplot tells the first part of the story.

First note that the axes are in logarithmic scales because otherwise the wide range of values for both metrics would have obscured the details.  That means that the distance between each point on each axis is larger than it appears as you move away from the origin horizontally or vertically.  Values on the X-axis represent benefits (dollar authorizations from Ex-Im) to each industry and values of the Y-axis represent costs (adjusted, aggregated benefits to each industry’s upstream supplier industries). The quadrants are formed by the intersection of the lines drawn at the median values of each metric.

With all that in mind, the 36 industries represented by dots in the bottom right quadrant are those industries that received above-median benefits and incurred below-median costs.  One might expect to find the “winners” of Ex-Im’s policies concentrated in this most desirable quadrant.  The 82 industries in the top right quadrant are those that received above-median benefits and incurred above-median costs. The 82 industries in the bottom left received below-median benefits and incurred below-median costs.  And the 36 industries in the top left received below-median benefits and incurred above-median costs, which by most definitions would constitute the “victims” of Ex-Im’s policies.

Indeed, each of the 36 industries in the top left quadrant is an Ex-Im victim because its “net benefit” (Benefit minus Cost) is negative. But the other quadrants are also heavily populated by industries with negative “net benefit.”  Twenty-four of 36 industries in the bottom right quadrant incurred costs in excess of benefits; 48 of 82 in the top right quadrant had negative net benefits; and 81 of 82 in the bottom left quadrant had larger costs than benefits.  All told, 189 of 236 U.S manufacturing industries can be characterized as Ex-Im’s victims, when a reasonable method to account for the unseen, unspoken costs of Ex-Im subsidies are taken into account.

Following is a table presented in ascending order of “net benefit,” which means that the biggest industrial victims appear at the top (click the table segments for larger, more readable versions).

It turns out that for nearly every Ex-Im financing authorization that might advance the fortunes of a single U.S. company, there is at least one U.S. industry – and often dozens or scores of industries – whose firms are put at a competitive disadvantage because supply is being diverted, market power is being shifted, and the cost of capital is being lowered for their foreign competition.

Among the biggest victims of Ex-Im’s policies are U.S. manufacturers of dog and cat food; coffee and tea; leather and allied products; synthetic dyes and pigments; synthetic rubber; paints and coatings; pesticides and other agricultural chemicals; plastic bottles; polystyrene foam products; ferrous metals; heavy gauge metal tanks; cutlery and hand tools; ball and roller bearings; fabricated pipes and pipe fittings; plastics and rubber industry machinery; photographic and photocopying equipment; heating equipment; mechanical power transmission equipment; office machinery; telephone apparatus; other communications equipment; printed circuit assemblies; computer storage devices;  batteries; carbon and graphite products; household refrigerators and home freezers; other major household appliances; motor homes; motor vehicle metal stampings; motor vehicle electrical and electronic equipment; motor vehicle bodies; motor vehicle steering, suspension component, and brake systems; motor vehicle gasoline engine and engine parts; wood kitchen cabinets and countertops; office furniture; institutional furniture; ophthalmic goods; dolls, toys, and games; office supplies; and, surgical appliance and supplies.

That list of manufacturing industries (defined at the NAICS 6-digit level of specificity) includes only 40 of the 189 manufacturing industry victims of Ex-Im identified according to the methodology described below.  Only 48 industries (out of a total of 237) do not qualify as victims.

There are hundreds and probably thousands of U.S. companies scattered over 189 industries that produce in the United States, employ American workers, pay federal, state, and local taxes, and contribute to the social fabric of the communities in which they operate, but are competitively disadvantaged by Ex-Im’s provision of low-rate financing to their foreign competitors. These are the unseen consequences – the collateral damage – of Ex-Im’s mission.

Categories: Policy Institutes

House Border Bill Would Treat Children Worse than Adults

Wed, 07/30/2014 - 17:34

Alex Nowrasteh

After much debate, the House finally rolled out its version of a supplemental appropriations bill to deal with the surge of unaccompanied children (UAC) entering the United States.  The bill would treat Mexican and Central American UAC equally under the law - meaning they all would have fewer due process protections than many adults.  

1.       Interviews: The bill would treat Central Americans the same as how Mexican children are already treated. But Mexican children are subject to fewer due process protections than adults in two ways. First, apprehended adults are interviewed by asylum officers who are trained in country-conditions and asylum law.  Under current law, Mexican children are interviewed by Border Patrol agents who are untrained in this area.  In one case, a United Nations report found that a Border Patrol agent believed that a child who had expressed a fear of being trafficked had to be returned “because the paperwork was already filled out.”  Children are also expected to describe their fears of persecution and descriptions of traumatic and violent experiences to a gun-carrying law enforcement agent, which in many cases is an unreasonable request. In fact, a 2011 study by the Appleseed Foundation concluded that “no meaningful screening is being conducted” by Border Patrol.

2.       Appeals: Second, under current law, adult asylum seekers can appeal a determination by an asylum officer that they lack a “credible” asylum claim to an immigration judge (IJ).  The IJ can reverse the decision.  Mexican children cannot appeal the decision of a border agent – they are simply summarily removed from the United States.  This bill would treat Central American children in the same way, denying them an appeal.  The importance of these provisions was recently highlighted by the case of a Honduran girl who was accidentally deported to Mexico.  The United Nations found that border agents are requiring children to “prove they are being persecuted or trafficked” on the spot despite the fact that they are supposed to simply screen out those without any claim at all.  IJs mitigate that problem. 

3.       Expedited Hearings: The bill would require a hearing on the case within seven days.  There is virtually no way to conduct an asylum hearing within seven days.  The applicant must find an attorney, compile the evidence, locate witnesses, and fulfill other requirements.   “Accelerated and truncated hearings force children to navigate the hurdles and the complexities of our immigration system in an unreasonably short timeframe,” concludes the American Immigration Lawyers Association. “Children cannot be expected to present a claim in mere days.”  A mere declaration that a hearing must be held in seven days will not make it so.

4.       Determinations: After this hearing, the IJ would have to determine within three days whether it is “likely” that the child will be granted admission to the United States.  There’s just one problem: most benefits under immigration law are not adjudicated by IJs, but by officers at U.S. Citizenship and Immigration Services (USCIS).  Currently, if an adult claims eligibility for a visa during a removal proceeding, the IJ determines if they have shown prima facie eligibility and will be given a stay of removal to allow for them to apply to USCIS.  This bill requires the IJ to make a determination that they are simply incapable of making.

Strangely, the bill includes procedures for screening by an asylum officer after the IJ concludes that the child is unlikely to be admitted.   If the asylum officer concludes that the child lacks a credible asylum claim, he or she can appeal to an IJ (possibly the same IJ that rejected them, which is confusing).  But these additional processes only occur after the limited process described above.

The problems this bill is attempting to fix could be rectified in other ways.  No matter what one thinks of the bill’s intent, it could be maintained without giving children fewer due process protections than adults.  The asylum system needs reform but it should not disregard the important processes intended to protect migrants from being returned to violent conditions that could threaten their lives.  

Categories: Policy Institutes

Ukraine Crisis Reminds Americans Why NATO Should Not Expand

Wed, 07/30/2014 - 14:24

Doug Bandow

The bitter conflict in Ukraine drags on.  Russia continues to destabilize Kiev and NATO remains divided on how to respond.

Washington has taken the lead against Moscow even though America has little at stake in Russia’s misbehavior.  In fact, the crisis has generated a spate of U.S. proposals to take military action and expand NATO.

For instance, Sen. John McCain urged adding Ukraine to the “transatlantic” alliance.  Former UN ambassador John Bolton suggested including Georgia and Ukraine.  Other proposed candidates for the alliance include Armenia, Bosnia-Herzegovina, Finland, Kosovo, Macedonia, Moldova, Montenegro, and Sweden. 

Efforts to expand NATO are strikingly misguided.  The end of the Cold War eliminated the reason for creating the alliance. 

However, alliance advocates acted like nothing had changed and proposed new justifications for the old organization.  Member governments eventually turned NATO into a mechanism to integrate Central and Eastern European states.   

NATO has turned into a dole for indolent rich countries.  After Moscow’s collapse the Europeans steadily reduced their military outlays. 

Now the Ukraine crisis has reminded everyone that the alliance might be called upon to confront nuclear-armed Russia.  Several of the newest members are screaming for America to “reassure” them by establishing bases and deploying troops.

This ludicrous situation demonstrates the folly of NATO expansion.  The U.S. should not compound its earlier mistake by bringing in additional members with even less strategic value. 

The list of potential members suggests strategic madness in Washington.  For instance, tiny Balkan states Bosnia-Herzegovina, Macedonia, and Montenegro never have mattered for U.S. security. 

Kosovo is the product of NATO’s first aggressive war, the 1989 campaign to dismember Serbia, which had threatened no member of the alliance.  Finland and Sweden followed independent, neutralist policies during the Cold War and face no significant threats today. 

It’s impossible to concoct even a vaguely plausible argument that Armenia, locked in a bitter territorial dispute with neighboring Azerbaijan, has the slightest relevance to the security of America.  Why should Washington protect any of them?

Then there are Moldova, Georgia, and Ukraine.  As I point out in my latest Forbes online column, “attempting to defend them would dramatically degrade U.S. defense since all three have territorial disputes with nuclear-armed Russia that have triggered or could trigger war.” 

Moldova is a small nation nestled between Romania and Ukraine.  A piece of Moldova, Transnistria, broke away with Moscow’s support.  Chisinau’s difficult circumstances do not warrant American military involvement. 

Georgia long has wanted to join NATO.  In fact, Tbilisi sacrificed its soldiers in America’s Afghan and Iraqi misadventures hoping that providing cannon fodder for Washington would convince U.S. politicians to back Georgia in any war against Russia.

Tbilisi recklessly provoked Moscow to arms and attempted to drag Washington into war back in 2008.  Whatever America’s modest interests in the region do not warrant confronting Russia on its border, a region treated as a vital interest by Moscow. 

The only less appropriate NATO member would be Ukraine.  While Ukraine’s status is largely of theoretical interest to America, Russia views its connection to the former Soviet republic to be of critical security importance.  After preserving the peace with the Soviet Union throughout the entire Cold War, Washington should not risk conflict with Russia today over far lesser stakes.

Washington should turn Europe’s security back to Europe.  There’s no reason for Americans to threaten war over such tiny irrelevancies as Montenegro and Kosovo, distant obscurities as Armenia, and conflict magnets as Georgia and Ukraine.

The ongoing strife in Ukraine is a crime by Moscow and tragedy for Kiev.  It’s also a warning for America.  NATO is a military alliance, not a social club. 

Expanding NATO would make the U.S. less safe.  Instead, America should be shrinking its alliance commitments.

Categories: Policy Institutes

Playing Tourist in Beijing: Communing with the Greatest Mass Murderer in History

Wed, 07/30/2014 - 12:44

Doug Bandow

It isn’t often that I get to spend time with mass murderers, let alone the greatest mass murderer in history.  But in playing tourist in Beijing I had a chance to hang out with the Great Helmsman himself, Mao Zedong.

His mausoleum sits at the center of Tiananmen Square, facing the Gate of Heavenly Peace with its famous Mao portrait.  The facility’s hours of operation are few and the number of visitors many.  When I joined the line mid-morning it began at the building’s side, headed to the rear, then reversed course back toward the front.  The line moved at a steady slow walk, with individuals and groups constantly attempting to push by and gain a couple feet. 

The lines split apart going through a security check-point—no doubt, al-Qaeda has placed the mausoleum high on its target list.  The line then reformed and moved forward again.  Vendors sold flowers which people deposited on entering the mausoleum, in front of a statue of a sitting Mao, backed by a painting of a peaceful mountain scene.  He looked thoughtful, as if plotting his next madcap scheme, a la the “Great Leap Forward,” actually into the abyss, and the Cultural Revolution, which consumed even the most dedicated communists. 

In the next room the Great Man—assuming it really is him—lies under glass beneath a blanket decorated by a hammer and sickle. Two soldiers stood guard behind him, while mausoleum staff urged onlookers to move along.  No time to look at the body of the greatest mass murderer in history, who caused decades of human carnage.

The two lines reunited in the final room before exiting the mausoleum.  Outside were a variety of vendors offering Mao tchotchke. What home should be without a Mao picture, or even better, a Mao statue?

Then the viewers flowed back into Tiananmen Square.  How many revered the man, whom the government today claims was 70 percent right, 30 percent wrong, is impossible to know.  A number bought flowers, an obvious sign of respect.  The mausoleum reportedly is a favored destination of rural folks.  

Eventually the People’s Republic of China will have to confront Mao’s legacy.  The country has moved dramatically beyond him—he wouldn’t recognize his nation’s capital, highlighted by wide boulevards, modern office buildings, and frenetic economic activity.  His ruthless, unpredictable dictatorship has disappeared, but in its place has emerged a blander, more prosaic and bureaucratic authoritarian system.  Some day the Chinese people will bury Mao along with his legacy.  Then they truly will be free.

Categories: Policy Institutes

The EU’s Anti-Austerity Hypocrites

Wed, 07/30/2014 - 12:19

Steve H. Hanke

The European Union (EU) is still in the midst of an economic slump. Many members of the political class in Brussels claim that fiscal austerity is to blame. But, this diagnosis is wrong. The EU’s problem is one of monetary, not fiscal, austerity. Money matters. Just look at the accompanying chart. Private credit in the Eurozone has been shrinking since March 2012.

Never mind. The EU fiscal austerity bandwagon keeps rolling on with Matteo Renzi, Italian Prime Minister and current President of the EU, holding the reigns. Indeed, Renzi recently went so far as to form an anti-austerity coalition with France and Spain. According to the coalition, its members simply cannot impose further spending cuts. They assert that their budgets have been cut to the bone. This claim is ludicrous. 

There is nothing to cut in Italy? Get real. Senior civil servants are being paid over 12 times the national average salary. As for France and Spain, their civil servants are “well paid,” too. It’s time for the public to stop listening to the EU’s anti-austerity hypocrites and start looking at the numbers.

Categories: Policy Institutes

Raising Big Money to Fight Big Money?

Wed, 07/30/2014 - 11:25

David Boaz

In the latest of many enthusiastic National Public Radio reports on Professor Lawrence Lessig and his efforts to remove money from politics, Lessig outlines big plans:

In 2016, we want to raise a substantially larger amount of money - could be 200 million, could be 800 million - so that we can win a Congress committed to fundamental reform in the way campaigns are funded.

Well, if spending $800 million in billionaires’ contributions to “win a Congress” won’t knock out big money, what will?

But even if he does raise this kind of money, Lessig might find himself disappointed. You can’t always get what you want, even if you’ve got a lot of money to throw around. From John Connally’s “$13 million delegate” in 1980 to Ross Perot’s $65 million campaign in 1992 to Meg Whitman, Linda McMahon, and Jeff Greene in 2010, the candidates with the most money sometimes fail badly. Or take the billion dollars that Republican groups planned to spend in 2012 to take back the Senate and the White House. 

Given the consistently low priority Americans have placed on “campaign finance reform” for decades and up to the present – the lowest priority in this 2012 Pew poll, save for global warming – even $800 million may not be enough to sway the voters.

John Samples has raised many questions about the advisability of campaign spending restrictions in articles such as this one.

Categories: Policy Institutes

Second Verse, Same as the First

Wed, 07/30/2014 - 10:13

Jim Harper

Twitter fight!

Yesterday morning, a line in a New York Times article by Nick Confessore offered me the opportunity for mirthful needling that turned into a full-blown, impossibly brief exchange of views on Twitter.

The article was on Harvard Law Professor Lawrence Lessig’s plan to elect candidates who are committed to his version of campaign finance reform. It quoted Lessig saying, “Inside-the-Beltway people don’t think this issue matters, they don’t think voters vote on the basis of this issue, and they advise their politicians not to talk about it.”

So I tweeted: “I don’t think this issue matters.” Then I tweeted: “Voters don’t vote on the basis of this issue.” (I didn’t bother with the rest because I don’t advise politicians.)

I’m inside the beltway! I’m a people! How could I not?!

Responding to another NYT reporter’s question, I touted my own work as “speech-friendly reform,” linking to our upcoming event on congressional Wikipedia editing. Just think of the prospects if legislative staff—some of the foremost experts about the bills in Congress—contributed information about notable bills to Wikipedia for the public to peruse ahead of congressional debates.

Professor Lessig took the crumb of bait, asking me “how is more speech not speech friendly #Escapethe1990s.” (I still don’t know what the hashtag means.) Assuming he was still working on public/taxpayer funded campaigns—I’m not a follower of Lessig’s in the Twitter sense or any other—I tweeted about the wrong of forcing people to pay to money to support speech with which they disagree.

Lessig’s plan is not detailed on the website of his “Mayday PAC,” which only offers gauzy promises of “fundamental reform.” After some back and forth, I learned that Lessig’s reform plan is not direct public funding, in which taxpayer money goes from the Treasury to campaigns, but indirect. He would rebate $50 in taxes in the form of a “democracy voucher.” The taxpayer could give the voucher to any candidate who pledges only to take such vouchers, it could go to the political party of the taxpayer, or “if an independent, back to this public funding system.”

It seems clear from the description to which Lessig pointed me that if your preferred candidate is none of the above, your money will be used to fund political candidates that you don’t support. This is the evil of direct taxpayer funding of campaigns—taking money from a person to support speech of which he or she disapproves. But even when used, the voucher is thinly disguised taxpayer funding of campaigns.

With the federal government financing much of its activity through debt, a tax foregone, such as through this proposed voucher program, results directly in greater debt. That debt is a liability of all taxpayers, which must be financed and repaid by all, including the ones who prefer to support no candidate.

Progressives refer to this kind of thing as a “tax expenditure” because it’s so like spending. (I don’t use the term because it’s premised on the idea that all of society’s wealth is the property of the government, which, in failing to collect it, spends it.) The “democracy voucher” is a tax break that subsidizes political speech, something about which the Constitution says Congress shall make no law.

(It’s different from school vouchers. There is no First Amendment objection to funding of schooling like there is to government funding of political campaigning. Voucher-funding of religious schools that might offend the establishment clause can be sufficiently attenuated from government action by private choice.)

I know and work with a lot of good people who prioritize campaign finance reform of various stripes. Campaign finance transparency is a valid political demand, of course, because voters are entitled to draw negative inferences from opacity and from campaign funding that comes from sources they don’t like. But Lessig’s proposal is old wine in new bottles, barely masking the fact that it puts the government in the business of promoting political speech. There is just no role—no role—for the government in managing the terms of debate over who shall be elected. A thumb under one scale is no different from a thumb atop the other.

Why is this one process reform—campaign finance—so fascinating to such a large community? The funding of campaigns certainly does influence the experience, perceptions, and priorities of elected officials. But it is far from the only influence or even the most important one, and there is a limited foundation for the idea that campaign finance reform actually matters. I attended a dinner last night hosted by a member of Congress, at which his staffer—surely no high-dollar contributor—goaded the room into talk of war with China using bogus dollar-figures for U.S. intellectual property losses.

Rather than one input to policymaking—how representatives are elected—why not focus on improving the public’s access to information about outputs? At Cato, we’re producing data that reflects the content of bills.  It seems to me—and I lack validating research as well—that a public made aware of what is happening in Congress would be more inclined to get involved and take some position on legislation. People might even intervene with their legislators during their terms of office to seek the policies they want. Election day is not the one time the public gets to oversee the government.

Professor Lessig has advocated against transparency, though, because it might “push any faith in our political system over the cliff.” That’s rigging the game. Faith in our political system is not a legitimate goal. It might be produced by a political system that serves the American people better, of course. Is Lessig working to give the people what they want or to give the people what Lessig wants? Top-down rules aimed at controlling which “voices” have more and less power in electoral politics are highly suspect.

Professor Lessig’s pitch for “democracy vouchers” cites Cato Institute estimates on corporate welfare. But agreement on the ills of corporate welfare should be no sign that Cato or its scholars align with the campaign for government management of political speech. Professor Lessig has sought to portray Cato as an ally before. Others can speak for themselves, but I think that government transparency is far preferable to government participation in any part of electioneering.

Categories: Policy Institutes

Tonight, "Penn & Teller: Fool Us"

Wed, 07/30/2014 - 09:20

David Boaz

Cato Mencken Fellows Penn Jillette and Teller launch a new hour-long show, “Penn & Teller: Fool Us,” tonight at 8 p.m. on the CW television network. Here’s an enthusiastic review from Slashfilm:

Magician duo Penn & Teller are finally set to bring one of my favorite UK TV series, Penn & Teller: Fool Us, to broadcast in the States….

One of my favorite UK television television series was a show called Penn & Teller: Fool Us. It was basically a competition series where the world’s best magicians would perform in hopes of fooling Penn & Teller. After the performance, the magic duo would try to vaguely explain how the trick was done (without fully exposing the magic). If they were fooled, the magicians would get a gig as their starting act in Vegas.

Each show would also have Penn & Teller do a trick or two for the television audience. I’m a magic geek and this is probably one of my favorite magic series to ever air. I’ve shown it to a lot of non-magic geek friends, and they all ended up loving it. 

Until 8 p.m., you can listen to Cato’s podcast with Penn Jillette recorded in 2011.

Categories: Policy Institutes

Are Public Schools Safer Than Private Schools?

Wed, 07/30/2014 - 09:01

Jason Bedrick

There is no clearer sign that foes of educational choice have lost the battle of ideas than the Daytona Beach News-Journal’s desperate attempt to smear Florida’s choice law.

Annie Martin’s front-page story in the Sunday edition of the News-Journal contains numerous inaccuracies about Florida’s scholarship tax credit law, which helps tens of thousands of low-income kids attend the school that’s best for them. For example, Martin claims in the second paragraph that the scholarship law “diverted $1.3 billion from state coffers,” which is irresponsibly misleading given that the Florida legislature’s nonpartisan Office of Program Policy Analysis and Government Accountability found that the law saves $1.44 for every $1 in reduced tax revenue. She also repeatedly refers to “publicly-funded” scholarships, though the U.S. Supreme Court ruled that the scholarships consist private funding.

But Martin’s most shameful attack on the educational choice law is her insinuation that children at Florida’s private schools are less safe than children at government-run schools, based solely on a recent case of a private school teacher caught with child pornography:

Yet, the South Daytona school isn’t subject to the same public records laws as the public schools. Although the FBI said fifth-grade teacher Matthew Graziotti had thousands of sexually explicit images of children on his home computer, the school did not have to make his personnel file public.

But is it reasonable to expect private organizations to make their employee files public, even if they receive public funding? Mark Tress, the superintendent of the private school where Graziotti had worked, argues that it is not:

The public records law no more applies to private schools than it does to The News-Journal itself. Hundreds, perhaps thousands, of private businesses receive money from the state and from school districts for services rendered and are not subject to the law. In this case, we are gratefully cooperating with law enforcement officials and have handed over, among numerous school records, the teacher’s personnel file. It sheds no new light.

After briefly noting that private school teachers must go through the same background checks as goverment school teachers, Matin ominously quotes a professor from the University of North Florida:

Aside from the initial background check for private school teachers, parents generally must trust their private school is exercising due diligence when deciding who to hire, said Luke Cornelius, an associate professor of higher education administration at the University of North Florida.

“Unfortunately, it does create a situation of ‘buyer beware,’” said Cornelius, who also is an attorney. “I think a lot of parents assume private schools, especially a religious one, is an inherently safe place.”

But because they’re not required to be as transparent as the public schools, parents at private schools are “going on faith,” he added. 

Martin’s article contains no rebuttal to the professor’s absurd allegation, leaving readers with the impression that private schools are riskier than government schools. Yet the sad fact is that these sorts of crimes are not exclusive to any one type of school. The difference is that whereas the private school employing Graziotti promptly fired him, it is much more difficult to fire teachers from Florida’s government schools. Private schools are directly accountable to parents, which provides a strong incentive for private schools to take swift action when teachers engage in misconduct. By contrast, government schools are not directly accountable to parents, and misbehaving teachers can often count on multiple layers of bureaucratic red tape to protect them.

Indeed, had Martin spent just a few minutes on Google, she would’ve learned about numerous incidences of teacher misconduct in Florida’s government schools that went unaddressed for years or resulted in mere slaps on the wrist or even reinstatement.  

For example, it took 15 years of documented problems before a Florida school board took the “first steps” to fire a high school teacher:

He is described as a nightmare teacher, one who called his students idiots and morons, made racially insensitive remarks, and locked them out of class.

And school administrators knew about it. Even though problems involving Broward math teacher Steven Yerks surfaced more than a decade ago, he was allowed to remain a teacher.

After his first unsatisfactory evaluation at Cooper City High in 2000, administrators let him transfer to Boyd Anderson in Lauderhill, where he had one troublesome incident after another, including:

•Yelling at a student to shut up before grabbing her and causing an injury;

•Allowing students to sleep in class;

•Making hostile remarks to coaches in front of students;

•Being accused by students of throwing some of them out of class for asking questions. 

“Nowhere you work can you misbehave for 15 years and keep your job,” said School Board member Rosalind Osgood. ‘I try to be fair, and I know people need income, but some things are egregious, and he had gotten away with it so long.”

The School Board finally voted in June take the first steps to fire Yerks, whose salary is $75,000.

One Florida teacher’s reign of terror lasted more than three decades, even though so many parents complained about her misconduct that more than 80 of 130 students transferred out of her class in a single year:

In 33 years as a Pinellas County teacher, her performance has been repeatedly scrutinized and admonished. School officials terminated Whipple from her first teaching contract in 1978; nudged her out of an elementary school in 1984; pushed her out of a high school in 1997. In October, they began investigating her for undisclosed reasons.

Yet until she went on medical leave on Jan. 24, she was still teaching (at $60,798 a year) and, at least through last fall, still drawing a barrage of complaints.

It took another Florida school more than a year to fire a middle school teacher who ordered students to physically attack a 7th grader:

Dehart is accused of encouraging six students to fight with Williams after the boy allegedly threatened her. The male students, ranging from ages 11 to 15, were arrested for “hitting” and “kicking” Williams, WPBF-Tv reported at the time.

Radravious claims that after he told his teacher that he “wished he could curse out teachers someday,” Dehart encouraged the attack, even telling the group to “teach him a lesson.”

“They picked him up, carried him, holding him by the neck, took him down to her classroom and forcibly made him apologize to her,” Latasha Darrisaw, Williams’ mother, told the station after the attack. “And [Dehart’s] remarks to him were, ‘I’ve got my eighth-grade boys on you; you’re not so tough now.”

Last December, a Florida judge reinstated a special needs teacher who had been fired for force-feeding hot-sauce laced crayons and Play-doh to an autistic child. The teacher claims that she only used the hot sauce “to deter the student from eating art supplies,” but the National Autism Society of America says that’s no excuse:

“There are also hundreds of school teachers and professionals across the country who can handle challenging behaviors such as pica [eating inedible objects] in a sensitive, human manner that upholds the dignity of each child,” said the Autism Society’s spokeswoman Ashley Parker. “A behavior like eating crayons in a child with autism should not automatically be viewed as a delinquent behavior.”

Last year, another judge reinstated a Florida teacher who had been fired for “ignoring an episode of oral sex in her kindergarten classroom.”

Earlier this month, a Florida middle school teacher was merely suspended after being “accused of drinking alcohol, twerking with students and receiving a lap dance from a student” at a soccer team party, even though the lap dance was caught on video.  

Though subject to laws supposedly granting greater transparency and accountability, Florida’s government schools nevertheless failed to protect students from their teachers’ misconduct. Even worse, once the misconduct was discovered, the schools too often also failed to take swift enough action to protect additional students. Yet Annie Martin and the News-Journal not only failed to provide this context, but they also misleadingly depicted such misconduct as a problem exclusive to the private sector—a charge that is completely unsubstantiated by any evidence.

Such “journalism” is reckless at best.

[Hat tip to Ron Matus of RedefinEDonline.org and Matthew Frendewey.]

Categories: Policy Institutes

DACA Did Not Cause the Surge in Unaccompanied Children

Tue, 07/29/2014 - 15:41

Alex Nowrasteh

In June, 2012 the Obama Administration announced that it had authored a memo deferring the deportation of unauthorized immigrant childhood arrivals in the United States, a program known as deferred action for childhood arrivals (DACA).  The memo directed then Secretary of the Department of Homeland Security to practice prosecutorial discretion toward a small number of unauthorized immigrants who fulfilled a specific set of characteristics.  In essence, some unauthorized immigrants who had come to the United States as children were able to legally stay and work–at least temporarily. 

Did DACA Cause the UAC Surge?

Some politicians contend that DACA is primarily responsible for the surge in unaccompanied child (UAC) migrants across the border in recent years.  A recent House Appropriations Committee one-pager stated that, “The dire situation on our Southern border has been exacerbated by the President’s current immigration policies.”  Proponents of this theory argue that DACA sent a message to Central Americans that if they came as children then the U.S. government would legalize them, thus giving a large incentive for them to come in the first place.  Few facts of the unaccompanied children (UAC) surge are consistent with the theory that DACA caused the surge.

First, the surge in UAC began long before the June 15, 2012 announcement of DACA.  It is true that DACA had been discussed in late May 2012 but the surge was underway by that time.  From October 2011 through March 2012, there was a 93 percent increase in UAC apprehensions over the same period in Fiscal Year 2011.  Texas Governor Rick Perry warned President Obama about the rapid increase in UAC at the border in early May 2012 – more than a full month before DACA was announced.  In early June 2012, Mexico was detaining twice as many Central American children as in 2011.  The surge in unaccompanied children (UAC) began before DACA was announced.

Second, the children coming now are not legally able to apply for DACA.  A recipient of DACA has to have resided in the United States continuously from June 15, 2007 to June 15, 2012, a requirement that excludes the unaccompanied children coming now.   

Third, if DACA was such an incentive for UAC to come from Central America, why are so few Nicaraguan children coming?  They would benefit in the same way as unaccompanied children from El Salvdaor, Honduras, and Guatemala.  The lack of Nicaraguans points to other causes of the surge.

The timing, legal exclusion of the UAC from DACA, and lack of Nicaraguans indicate that DACA was not a primary cause of the surge.  Of the 404 UAC interviewed by the United Nations High Commissioner for Refugees since 2011, only 9 mentioned that U.S. laws influenced their decision to come to the United States.  Other American laws could have influenced the unaccompanied children to come but DACA is not the main culprit.           

Details on DACA

The DACA beneficiaries, at the time of the memo, would have to fulfill all of these requirements to have their deportations deferred:

  • Under the age of 31,
  • Arrived to the United States before reaching their 16th birthday,
  • Entered the United States without inspection or overstayed a visa prior to June 15, 2012,
  • Continuously resided in the United States from June 15, 2007 to the time of the memo,
  • Physically present in the United States on June 15, 2012, as well as at the time of requesting deferred action from United States Citizenship and Immigration Services (USCIS),
  • Been in school at the time of application, or have already graduated or obtained a certificate of completion from high school, or have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces
  • Not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Beneficiaries of DACA were also allowed to apply for employment authorization according to the Code of Federal Regulations.  There is a debate amongst legal scholars over whether the administration’s grant of deferred action was legal.  Those who argue that DACA was illegal contend that the President overstepped his constitutional authority to defer the deportation of some unauthorized immigrants.  Those who argue that DACA was legal point to the general power of the Secretary of the Department of Homeland Security to defer enforcement action.  They argue that the Supreme Court has ruled that decisions to initiate or terminate enforcement proceedings fall within the authority of the Executive – an enforcement power used since the early 1970s.  Here is more of their argument.  This disagreement has not been settled.     

By the end of September, 2013, 580,000 requests for DACA were accepted by the U.S. government and 514,800, or 89 percent, were approved.  Seventy-six percent of the requests came from Mexicans.  Twenty-nine percent of the requests were filed from California, 16 percent from Texas, and 6 percent from Illinois.

Categories: Policy Institutes

Budget Smackdown: Krugman vs. Portman and Epstein

Tue, 07/29/2014 - 15:17

Chris Edwards

In a recent column, Paul Krugman dismissed concerns about the federal debt as a “false alarm,” a “disaster that wasn’t,” and an “imaginary budget and debt crisis.”

Krugman thinks that new CBO projections don’t look too bad. He says, “debt in 2039 — a quarter-century from now! — is projected to be no higher, as a percentage of G.D.P., than the debt America had at the end of World War II.” He concludes that “we don’t have a debt crisis, and never did.”

Gene Epstein of Barron’s looked at CBO’s numbers and Krugman’s claims. He noted that Krugman only looked at CBO’s “baseline” projection, which shows federal debt held by the public rising from 74 percent of GDP today to 106 percent by 2039. Unlike Krugman, I find that increase alarming, especially because there is little political will right now to reverse course and bring down the debt—unlike after World War II.

Also, as I charted here, World War II debt was stunningly high, so I don’t know why Krugman would take comfort in the government becoming that indebted once again. The chart shows that aside from WWII, federal debt has never been anywhere near as high as it is now.

There is more to the story. Budget wonks know that—unless we have major reforms—CBO’s baseline is a very optimistic projection. Krugman surely knows that to, but he decided not to tell his readers. CBO’s “alternative” projection is more politically realistic because, for example, it assumes that a slew of “temporary” tax breaks and the “doc fix” continue to be extended, as they have been in the past.

Under the CBO alternative, federal debt will rise to 163 percent of GDP by 2039. But it is even worse than that because CBO does not take into account the negative feedback effects of rising spending and debt on its basic long-range projections. With such feedbacks, the debt rises to 183 percent by 2039, according to the CBO (data for Figure 6.3).

All of the CBO projections are optimistic for reasons I mention in my USA Today op-ed and in this recent testimony. CBO projections, for example, do not include the budget effects of possible wars or deep recessions in the future. I’m not saying that they should, but users of the projections should be aware that unplanned contingencies could push the government into a financial crisis much faster than the decades-long projections show.

In a recent op-ed [$] in the Wall Street Journal, Senator Rob Portman examined the more realistic CBO alternative. But determined to undermine anyone who suggests that debt is a serious problem, Krugman decided to take a whack at Portman: “One thing you need to know is that none of Portman’s numbers refer to the CBO‘s baseline scenario; instead they refer to a much more pessimistic alternate scenario. That’s something he should have shared with readers.”

So Portman “should have shared with readers” the unrealistic scenario, but it’s OK for Krugman not to tell his readers that the one he is using is artificially sunny. Wow, that’s ironic, as Epstein notes.

Categories: Policy Institutes

D.C. Circuit Rules that Obamacare Is a “Tax” but Not a “Bill for Raising Revenue”

Tue, 07/29/2014 - 14:16

Timothy Sandefur

The D.C. Circuit Court of Appeals today tossed out the latest constitutional challenge to Obamacare, which argues that if the individual mandate is a “tax,” as the Supreme Court said it is, it’s still unconstitutional because it did not originate in the House of Representatives, as the Constitution requires. I argued the case on behalf of entrepreneur Matt Sissel in May.

Today’s decision, written by Judge Judith Rogers and joined by Judges Cornelia Pillard and Robert Wilkins, holds that while the mandate may be a “tax,” it isn’t a “bill for raising revenue,” and is therefore exempt from the Origination Clause.

What’s the difference between a tax and a bill for raising revenue? Some court decisions have held that there are things that may appear to be taxes but are actually only penalties designed to enforce other kinds of laws. For example, in a 1943 case called Rodgers v. United States, the court of appeals said that a tax that was imposed on people for growing more wheat than the government allowed (that’s the same wheat law that was at issue in the infamous Wickard v. Filburn) wasn’t really a tax, but just an enforcement penalty or a fine. Such penalties aren’t “bills for raising revenue,” so they don’t have to start in the House.

The problem with that line of argument is that in NFIB v. Sebelius, the Supreme Court said that the individual mandate, whatever else it might be, is not a penalty or a fine. That’s just why Chief Justice Roberts concluded that it was a tax! And that means that no such exemption should apply.

Today’s D.C. Circuit decision acknowledges this, but holds that there is another variety of tax that isn’t a “bill for raising revenue.” And that is, taxes whose “main object or aim” is something other than generating income for the government. According to this “purposive approach,” the court says, the court should look to “the primary aim” of the bill to decide whether the Origination Clause applies—without regard for whether it will “generate substantial revenues.”

But the Supreme Court has never endorsed this vague “purposive approach,” and for good reason. Laws often have many “objects or aims”—particularly in an era of massive omnibus bills. The ACA is over 2,000 pages long, with provisions on all sorts of different subjects. Which one is its “main” object? What is the “main” object of a “stimulus package” or a general appropriations bill? What about a tax imposed to support the military? Is its “main object” to raise money—or to support the military? If judges are free to decide what the “main object or aim” of a bill is, and to apply the Constitution or not accordingly, then they should at least have some objective criteria for making that call…and the court can point to none. That’s because the Constitution makes no distinction, and the constitutional analysis does not hinge on what the “main object or aim” of a bill is. Instead, the question is whether the bill levies a tax, and puts that money into the general treasury for Congress to spend at will—which Obamacare’s individual mandate tax does.

Worse, the vague “purposive approach” creates a loophole that the Senate can easily walk through to originate revenue-raising bills. All it needs to do is originate a tax by saying that its main purpose is some other thing. One reason we know that isn’t what the Constitution says is that the Framers rejected a proposed draft of the Origination Clause that would have applied only to “[b]ills for raising money for the purpose of revenue.” The reason is obvious: because the vague “purpose” test would allow Congress to evade constitutional limits too easily.

There’s remarkably little Supreme Court precedent interpreting the Origination Clause. It seems likely that the Sissel case will change that eventually.

Categories: Policy Institutes

Core Supporters: We’ve Just Been Too Darned Principled!

Tue, 07/29/2014 - 12:43

Neal McCluskey

According to Politico, supporters of the Common Core have come to a realization: they are losing the public relations war. And what do they think the problem has been? They’ve just been too darned factual:

“The Common Core message so far has been a head message. We’ve done a good job talking about facts and figures. But we need to move 18 inches south and start talking about a heart message,” said Wes Farno, executive director of the Higher State Standards Partnership, a coalition supported by the U.S. Chamber of Commerce and the Business Roundtable.

Um, no.

The argument for the Core – to the extent one has even been given – has mainly been a simple one of “build high standards and success will come.” See, for instance, this recent op-ed from former Tennessee Representative Harold Ford (D), or these superficial videos from the U.S. Chamber of Commerce Foundation. For the most part, they simply assert that the Common Core represents high standards, and that’s what we need to vault near top place in the world educational and economic competition. This ignores the major empirical evidence I and many others have brought against the Core, and national standards generally, showing that standards – much less the Core itself – have demonstrated no such power. But Core supporters have very rarely engaged that crucial evidence, including before Washington did their bidding and coerced lightning-quick state adoption of the Core.

Of course, most of the pro-Core strategy has not been to rigorously defend the Core or nationalization generally, but to denigrate opponents. And perhaps there is some good news in that regard: some Core advocates are rebuking that strategy. This could simply be because the effort has not worked – indeed, much of the repentance in the Politico article seems to be a back-handed compliment about how principled and high-brow Core advocates have been – but if nothing else, at least dropping the cheap shots will make the debate a bit less acrimonious.

Reducing unpleasantness, however, is not what the Common Core debate should ultimately be about. It should be about the logic, evidence, and facts behind national standards. And neither the past work of Core proponents, nor their impending pivot, appears designed to meaningfully deal in those essential things.

Categories: Policy Institutes

Iraq: No Military Redo a Decade Later

Tue, 07/29/2014 - 11:20

Doug Bandow

Little more than a decade ago the U.S. invaded Iraq.  The promised cakewalk turned out far different than expected.  Today the government—and entire state—created by Washington are in crisis.  Yet the same voices again are being raised calling for military intervention.  With the promise that this time everything will turn out well.

Social engineers never seem to learn.  It is hard enough to redesign and remake individuals, families, and communities in America.  It is far harder to do so overseas.

As I point out in my latest Freeman column:  “Nation-building requires surmounting often vast differences in tradition, culture, history, religion, ethnicity, ideology, geography, and more.  Doing so also requires suppressing the natural desire of people to govern themselves.”

Yet these days Washington continues to try to fix the world’s problems.  However, reentering Iraq would be unique, an attempted redo barely a decade after the first go. 

The original Iraq operation was supposed to be a quick, bloodless war that destroyed dangerous weapons of mass destruction and “drained the swamp,” eliminating terrorism.  The U.S. would guarantee a friendly, compliant government by imposing as president an exile who hadn’t lived in the country for decades.  The new Iraq would implement democracy, eschew sectarian division, protect women’s rights, and even recognize Israel, while providing America bases for use in attacking neighboring states, including Iran.

This wonderful wish list was pure fantasy. 

The conflict killed thousands and wounded tens of thousands of Americans, and killed hundreds of thousands and displaced millions of Iraqis.  The ancient Christian community was destroyed. 

The ultimate financial cost, including the expense of caring for those who sustained debilitating wounds, to America likely will run $3 trillion or more.  America’s reputation was stained, Iran was empowered, and terrorists were trained.  Finally, Baghdad’s sectarian misrule wrecked national institutions and fostered the rise of an ugly Islamic totalitarianism. 

The obvious—indeed, only—policy for Americans is to run, not walk, away from the mess.  Yet many of the architects of the original disaster are back, advocating a second shot.

The administration is putting in Special Forces.  Many others advocate drone and air strikes.  A few forthrightly call for boots on the ground. 

There’s no doubt that ISIL is a malignant force.  But the U.S. should make clear to Prime Minister Nouri al-Maliki that Americans will not bail him out after his policies led to the ongoing catastrophe.  Without political reform it is hard to see how Iraq can be saved.

Baghdad must engage Sunni tribes and former Baathists who allied with ISIL to oust the national government from Sunni areas of Iraq.  In any case, Washington should drop its insistence that Iraq stay together.  Extensive federalism/partition may be the only way to prevent endless killing.

The U.S. also needs to stop supporting Syria’s opposition.  Instead, the priority should be stopping ISIL.  President Bashar al-Assad is odious, but his dictatorship is not dedicated to destabilizing the entire region. 

Finally, American officials should invite allies, friends, and even adversaries to cooperate to contain ISIL.  Numerous nations have good reason to isolate, sanction, and even strike ISIL.

Turkey and Jordan have capable militaries. Iran, though no friend, shares Washington’s antipathy toward ISIL.  Lebanon is vulnerable. 

The Gulf States, including Kuwait, the emirates, Bahrain, and Saudi Arabia also are targeted for subversion.  Israel does not want to see a radical Islamist state, especially one which wrecks Jordan next door.  These nations have different capabilities and interests, but all could help contain and ultimately roll back ISIL’s gains.

The revival of civil war and veritable collapse of Iraq’s central state are tragedies, but not ones affecting vital American interests.  The lesson from 2003 is clear:  war truly should be a last resort, never just another policy tool to be used when convenient.  The Iraqi imbroglio beckons the usual policy suspects, but the right response is to say no, the Americans aren’t coming.

Categories: Policy Institutes

Biden: "I Should Have Had One Republican Kid To Go Out And Make Money"

Tue, 07/29/2014 - 10:03

Walter Olson

The Washington Free Beacon reports that Vice President Joseph Biden made his audience “burst into laughter” at the Urban League gathering in Cincinnati when he cracked “I should have had one Republican kid to go out and make money,” noting that instead he has a daughter who went into social work. 

And well should they have burst into laughter. It was a joke, folks! In real life, Biden’s son Beau has worked as an asbestos plaintiff’s lawyer, which is much more of a moneymaking venture than most “Republican kids” ever get near. Both he and another Biden son have been closely associated with one of the biggest such law firms in the nation. This fits a pattern noted by David Boaz a few weeks back, in which reporters keep acting surprised when Democratic politicians are found to be pals with zillionaires and attending fundraisers at mansions. 

Although Vice President Biden has not always been entirely forthcoming about his family’s longstanding ties to plaintiff’s law work, especially considering his own role as a guardian of trial lawyer causes while in the Senate, you might have seen them mentioned in places like the L.A. Times and USA Today a few years back. The L.A. Times story begins: 

When Joe Biden’s brother and son wanted to buy a hedge fund company two years ago, they turned for financing to a law firm that had lobbied the Delaware senator’s office on an important piece of business in Congress – and in fact had recently benefited from his vote. The firm promised James and Hunter Biden that it would invest $2 million, and quickly delivered half of it.

They wanted to buy a hedge fund? At least it presumably wasn’t a Republican hedge fund. 

 

 

 

 

Categories: Policy Institutes

Gray Lady Calls on Feds to Repeal Marijuana Prohibition

Mon, 07/28/2014 - 16:11

Tim Lynch

Yesterday, the New York Times ran a lengthy editorial, entitled “Let States Decide on Marijuana.”  Here is an excerpt:

Allowing states to make their own decisions on marijuana — just as they did with alcohol after the end of Prohibition in 1933 — requires unambiguous federal action. The most comprehensive plan to do so is a bill introduced last year by Representative Jared Polis, Democrat of Colorado, known as the Ending Federal Marijuana Prohibition Act. It would eliminate marijuana from the Controlled Substances Act, require a federal permit for growing and distributing it, and have it regulated (just as alcohol is now) by the Food and Drug Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives. An alternative bill, which would not be as effective, was introduced by Representative Dana Rohrabacher, Republican of California, as the Respect State Marijuana Laws Act. It would not remove marijuana from Schedule I but would eliminate enforcement of the Controlled Substances Act against anyone acting in compliance with a state marijuana law….

Congress is clearly not ready to pass either bill, but there are signs that sentiments are changing. A promising alliance is growing on the subject between liberal Democrats and libertarian Republicans. In a surprise move in May, the House voted 219 to 189 to prohibit the Drug Enforcement Administration from prosecuting people who use medical marijuana, if a state has made it legal. It was the first time the House had voted to liberalize a marijuana law; similar measures had repeatedly failed in previous years. The measure’s fate is uncertain in the Senate….

For too long, politicians have seen the high cost — in dollars and lives locked behind bars — of their pointless war on marijuana and chosen to do nothing. But many states have had enough, and it’s time for Washington to get out of their way.

Support for marijuana prohibition is collapsing.  And now that the Gray Lady has turned, many more people will conclude that it is now okay to join the cause (or at least stop opposing the cause).

For Cato scholarship on drug policy, go here.

Categories: Policy Institutes

Legalization or Amnesty for Unlawful Immigrants – An American Tradition

Mon, 07/28/2014 - 13:57

Alex Nowrasteh

Legalization of unlawful immigrants, commonly referred to as amnesty, has been hyperbolically described as an affront to U.S. national sovereignty, the rule of law, and even our Constitutional Republic.  However, the U.S. government has a long history of successfully legalizing violators of immigration laws.

In 1929, the year the Immigration Act of 1924 went in effect, Congress passed an amnesty to allow for the voluntary registration of all unlawful immigrants who wished to legalize their unrecorded entry.  Beginning a familiar pattern, Congress combined this 1929 amnesty with severe legal penalties on unauthorized immigrants who entered the United States without inspection after the amnesty was complete.[i]

As part of the reforms of the Bracero Program’s guest worker visa in the late 1940s and early 1950s, many unauthorized Mexican migrants were legalized and granted a visa on the spot.  According to Professor Kitty Calavita, 55,000 unlawful Mexican immigrants were legalized as Bracero workers in 1947 through a process derogatively referred to as “drying out” unlawful migrant workers.[ii] Under the auspices of an increase in immigration enforcement and the expansion of the Bracero guest worker visa, other unlawful Mexican migrants were driven down to the Mexican border and made to take one step across the border and immediately reenter as a legal Bracero worker, a process referred to as “a walk around statute.”[iii]

In 1958, the cutoff date for the 1929 amnesty was advanced to June 28, 1940 – meaning that unlawful immigrants who entered before that later date could legalize.  The Immigration Act of 1965 again advanced the cut off date for the 1929 amnesty to June 30, 1948.[iv]

Year

 Legalizations of Unauthorized Immigrants

1959

4,321

1960

4,773

1961

5,037

1962

3,399

1963

2,680

1964

2,585

1965

2,064

1966

2,595

1967

3,195

1968

2,148

1969

1,565

1970

1,520

1971

1,190

1972

1,653

1973

1,254

1974

875

1975

556

1976

796

1977

546

1978

423

1979

262

1980

428

1981

241

Total

44,106

Source: Vernon M. Briggs Jr., Immigration Policy and the American Labor Force, The Johns Hopkins University Press, Baltimore, 1984, p. 66.

The Immigration Reform and Control (IRCA) Act in 1986 – the so-called Reagan Amnesty – legalized 2.7 million unauthorized immigrants who had been residing in the United States since 1982.  After IRCA, the Section 245(i) legalization passed in 1994 and was then extended again in 1997.  The 1997 Nicaraguan Adjustment and Central American Relief (NACARA) Act also legalized close to one million unlawful immigrants from Central America.  The Haitian Refugee Immigration Fairness (HRIFA) Act legalized around 125,000 unauthorized immigrants from Haiti in 1998.  The Legal Immigration Family Equity (LIFE) Act of 2000 reinstated the rolling 245(i) legalization provision. 

So long as there are immigration restrictions on the movement of peaceful and healthy people, and Americans want to continue to hire and sell products to immigrants, some will always come whether the immigration laws allow it or not.  To address the unlawful immigrant population, Congress periodically passes a legalization or amnesty bill, but the number of unlawful immigrants rises again because lawful immigration has not been sufficiently liberalized – despite vast increases in enforcement.

Past amnesties and legalizations of unauthorized immigrants didn’t destroy U.S. national sovereignty (the United States is still a sovereign country), the rule of law (in tatters for many reasons, including efforts to enforce our arbitrary and capricious immigration laws), or our Constitutional Republic.  It’s hard to see why another one passed by Congress and signed by the President would produce those grave harms.

[i] Vernon M. Briggs Jr., Immigration Policy and the American Labor Force, The Johns Hopkins University Press, Baltimore, 1984, p. 47.

[ii] Deborah Cohen, Braceros: Migrant Citizens and Transnational Subject in the Postwar United States and Mexico, University of North Carolina Press, 2011, p. 209, Kitty Calavita, Inside the State: The Bracero Program, Immigration, and the INS, Quid Pro Books, New Orleans, Louisiana, 2010, pp. 25-26, 34.

[iii] Kitty Calavita, Inside the State: The Bracero Program, Immigration, and the INS, Quid Pro Books, New Orleans, Louisiana, 2010, p. 43.

[iv] Vernon M. Briggs Jr., Immigration Policy and the American Labor Force, The Johns Hopkins University Press, Baltimore, 1984, p. 66.

Categories: Policy Institutes

Pages