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.