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Dalibor Rohac

In an interesting post about the World Bank, Nancy Birdsall of the Center for Global Development expresses two concerns about the future of the organization. First, she fears the effects of the seemingly endless process of internal restructuring – covered here, for example. Second, she fears that the World Bank may lose its ability to be an effective supplier of ‘global public goods’ in the 21st century.

One does not have to agree with her framing of the issue to see that one of the least controversial, most cost-efficient, and public goods-like functions of the World Bank is to produce internationally comparable data that can serve both as input into research and into policy discussions. The Doing Business project is a case in point, as my colleague Marian L. Tupy and I wrote last year:

In publication since 2003, Doing Business was inspired by academic research into the importance of sound legal environments for economic growth. The survey currently synthesizes expert assessments by roughly ten thousand contributors from 185 countries into a picture of the ease of doing business around the world. It serves as a guide to important requisites such as the costs of starting a business, obtaining permits, hiring and firing, and so on. The project thus brings together a large amount of data that either didn’t really exist before or weren’t comparable across different countries and presents them in a way that is easy to understand and use.

Following a controversial review last year, the report is undergoing methodological changes phased over several years. That makes comparisons over time more difficult.

The methodological changes consist, in part, of introducing new measures of “regulatory quality.” For example, in the area of insolvency legislation, those changes will reflect the World Bank’s Principles for Effective Insolvency and Creditor/Debtor Regimes and the UN’s Legislative Guide on Insolvency Law.

I argued earlier this week on Financial TimesBeyond Brics that this is a fundamental shift for a project that was traditionally grounded in simple and transparent measures of different characteristics of legal regimes and their enforcement – such as, how costly or time-consuming certain legal procedures were.

“Regulatory quality,” in contrast, can mean different things to different people. A set of guidelines created by the World Bank or the UN or may not reflect dominant expert opinion, which can itself evolve. That ambiguity creates space for further revisions in the future, thus eroding the comparability of data over time and weakening the usefulness of the project, either for scholarly purposes or for benchmarking of policy.

Although it is far-fetched to argue that the World Bank has either the necessary knowledge or the right incentives to be a producer of ‘global public goods,’ the Doing Business project comes closer to that standard than most other activities of the bank. And if we were to take Ms. Birsdall’s narrative at its face value, the current marginalization of the project, done through the successive methodological changes watering down its main virtues, could be seen as a perfect illustration of what she describes as a “growing gap between what the world needs from the bank and what the bank has the remit to do.”

Ilya Shapiro and Trevor Burrus

Vermont Right to Life Committee, Inc. (VRLC) is a non-profit advocacy group organized as a “social welfare organization” under Section 501(c)(4) of the tax code. It seeks to achieve “universal recognition of the sanctity of human life from conception through natural death.” To accomplish this, VRLC publishes pamphlets, newsletters, brochures, mass e-mails, newspaper articles, and radio ads. The group does not advocate for the election of any candidate or coordinate its actions with any candidate. It simply take donations from supporters and tries to educate people about the sanctity of human life.

Nevertheless, Vermont has required VRLC to register as a political committee because it takes in more than $1000 in donations and seeks to “influence elections.” This means that VRLC has to (1) register with the state, which includes appointing a treasurer and creating a special bank account; (2) keep extensive records about its activities; and (3) regularly give the government extensive reports. All of these requirements add up to a significant burden on VRLC’s educational activities and advocacy while not furthering any real government interest. After all, if VRLC is talking about issues not candidates, then, according to the Supreme Court, there is little or no chance that it will corrupt candidates.

Or, to put it another way, if VRLC has to register and report to the government—and just think for a moment how ridiculous and Orwellian (and Putinesque) that statement is—then who doesn’t have to register with the government to speak about political issues?

The registration and reporting burdens on VRLC are so great, in fact, that the group has said it’s “simply not worth it” to engage in constitutionally protected speech if it has to comply with Vermont’s regulations. VRLC thus brought a First Amendment challenge to many of the state’s convoluted campaign finance laws. The trial court and the U.S. Court of Appeals for the Second Circuit agreed with the state government, however, and held that the burdens on VRLC’s speech were constitutionally acceptable.

VRLC has now petitioned the Supreme Court. Cato, joining the Center for Competitive Politics, has filed a supporting brief.

We argue that the Court should take the case in order to clarify the test for when an organization’s “major purpose” is the “nomination or election of candidates.” The “major purpose test,” which derives from the foundational campaign finance case of Buckley v. Valeo (1976), exists to save issue-advocacy groups from burdensome requirements like Vermont’s. Unfortunately, courts throughout the country misapply this test and place heightened burdens on organizations that simply want to talk about issues of public concern.

We also argue that regulations like Vermont’s place unique and often insurmountable burdens on small organizations. These laws are expensive to comply with, so larger organizations with more resources for accountants and lawyers—overhead that can be better absorbed—have a comparative advantage over smaller players. If the Supreme Court doesn’t take this case, states will continue to find it easy to shut down the political speech—particularly of feisty small idea entrepreneurs—while labeling such censorship as ordinary campaign finance regulations.

The Supreme Court will decide later this year or early next year whether to review Vermont Right to Life Committee v. Sorrell.

Patrick J. Michaels and Craig D. Idso

…the extinction horrors of climate change may be a “fish story”

Perhaps the myth-iest chestnut in the scary global warming meme is that our dear earth’s panoply of species is adapted only to the current climatic regime, and changing that regime means certain death, i.e. extinction.

That’s an easy, simplistic sell, but it denies some of the subtleties of organismal biology. Four decades ago, scientists realized that evolution has preserved a variety of responses to environmental change. It turns out that our enzymes, the basic material that catalyze life as we know it, actually change their shape as climate changes. Whether this is because we have so much information stored in our DNA that has survived countless generations and a variety of climates, or whether the response is simply built into the enzymes is unknown, but it is ubiquitous. It even has a catchy name: “Phenotypic Plasticity.”

Before your eyes glaze over, a little explanation is in order.

Each one of us has a genotype, which is our DNA, and each of us has an expression of that, our “phenotype.” Obviously not all genes express themselves—if they did, our physiological destiny would be eminently predictable, but it is not. Instead, we all carry strands of DNA that could theoretically cause major disease that generally do not express (or “penetrate” in the lingo of biology), and we also have DNA that could probably defeat many of the aging processes, that similarly do not express.

Instead, organisms display “plastic” responses when their environment changes. And so, species-related concerns over potential CO2-induced global warming may be dramatically overblown. And, though they don’t get much publicity, scientists are continually documenting our amazing adaptability.

Consider one of our most important marine sources of food: the salmon family. What happens when the oceans warm? In the words of Anttila et al. (2014), “a population has the options of either [1] migrating to more suitable environments (if any are available and accessible), [2] acclimating to the new temperature by exploiting its phenotypic plasticity, or [3] adapting through natural selection.” Recognizing these options, Anttila et al. set out to investigate which of these paths Atlantic salmon (Salmo salar) might pursue in response to future increases in temperature.

To achieve their objective, the team of seven researchers gathered specimens of two wild Atlantic salmon populations from the northern (coolest) and southern (warmest) extremes of their European distribution, which range spans a distance of over 3,000 km. Eggs from both groups were hatched in a salmon nursery and thereafter the juveniles were acclimated for three months at temperatures of either 12°C or 20°C. The salmon were then evaluated and tested for cardiac performance, as “cardiac function has been observed to limit the tolerance to high temperatures.” This was accomplished by subjecting the salmon to temperatures well above their acclimated state, whereupon their cardiac performance was evaluated.

In describing their findings, the seven scientists report the salmon populations “differed very little in their acute cardiac response to temperature, but instead showed considerable cardiac plasticity in response to thermal acclimation that surprisingly was largely independent of the latitudinal and climatic origin of the populations.” In other words, regardless of the acclimation temperature, 12°C or 20°C, both salmon populations exhibited a similar stress response as temperatures increased. They also found that acclimation to 20°C consistently raised the temperature at which various measures of acute cardiac stress were observed. For example, they write “although cardiac collapse starts at 21°C-23°C with a maximum heart rate of ~150 beats per minute (bpm) for 12°C-acclimated fish, acclimation to 20°C considerably raises this temperature (27.5°C) and maximum heart rate (~200 bpm).”

The results of the Anttila et al.’s analysis indicate that the response of Atlantic salmon to temperature stress–-as evaluated by cardiac performance-–is “largely dependent on individual thermal history and largely independent of local adaptation,” as offspring of both populations displayed phenotypic plasticity in adapting to the two acclimation temperatures. Such findings are encouraging, as the researchers state they “emphasize that acclimation remains a feasible possibility for survival in a warmer future, with physiological plasticity replacing the immediate need for local adaptation,” adding that “this plasticity might aid northern Atlantic salmon populations to compensate for a warmer future.”

Although this response represents only one of the three options by which to face the challenge of potential future global warming, it appears to be more than sufficient to overcome the worst possible scenarios. In addition, Anttila et al. optimistically add “natural selection has the potential to improve thermal tolerance in Atlantic salmon beyond the demonstrated benefits of high thermal plasticity,” particularly through transgenerational changes in temperature tolerance in which the heritability of thermal tolerance is passed down from parents to offspring.

All in all, therefore, the future looks bright for Atlantic salmon!

Reference: Anttila, K., Couturier, C.S., Overli, O., Johnsen, A., Marthinsen, G., Nilsson, G.E. and Farrell, A.P. 2014. Atlantic salmon show capability for cardiac acclimation to warm temperatures. Nature Communications 5: 10.1038/ncomms5252.

Michael F. Cannon

From my latest at Darwin’s Fool:

Republicans won an impressive number of victories last night, including a larger and more conservative House majority and enough wins to give the GOP at least a 52-seat majority in the Senate. As Jeffrey Anderson and Robert Laszewski have noted, Republicans made ObamaCare a major issue in the election  (the New York Times’ denials notwithstanding). Senate Republicans will fall several seats short of the 60-vote super-majority needed to overcome a Democratic filibuster of an ObamaCare-repeal bill, though. ObamaCare opponents are therefore debating whether and how Republicans could repeal some or all of the law via the Senate’s “budget reconciliation” process, which allows certain legislation to pass the Senate with only 51 votes. Some opponents have proposed getting around these difficulties by getting rid of the filibuster entirely. I think there’s a more prudent, targeted way Republicans could put ObamaCare repeal on the president’s desk, give Democrats a taste of their own majoritarian medicine, and convince Senate Democrats of the virtues of restoring the filibuster on legislation and judicial nominations.

It goes like this…

Read the whole thing.

Ilya Shapiro

#1: Justice Ruth Bader Ginsburg may be reconsidering her decision not to retire. President Obama or a future President Hillary Clinton will have much less leeway with replacing her in a Republican-controlled Senate.

#2: There will be very few lower court judicial confirmations. Those that get through will be completely uncontroversial. Forget the nuclear option that removed judicial filibusters. At this point, with no political capital, President Obama will only get a small number of milquetoast nominees through the Senate.

#3: Expect even more litigation regarding executive actions. With no chance of getting his expansive regulatory project through Congress, President Obama will increasingly use the executive branch–particularly the EPA, the IRS, and HHS–to advance his policy agenda. That is good news only for litigators.

Mark A. Calabria

With Republicans taking the majority (but far short of control at 60) in the Senate and increasing their majority in the House, the regulation of our financial markets may see renewed attention, with particular focus on reforming Dodd-Frank. My former employer Senator Richard Shelby takes the Chair on the Senate Banking Committee, while Congressman Jeb Hensarling retains his leadership role on House Financial Services.

In my nearly twenty years following financial services, we have not had two chairmen more skeptical of government oversight of our financial markets. While neither could be called “libertarian,” both are suspicious of big government as well as big finance.  Both agree that “Too Big To Fail” is a real issue and one created by the actions of government, not the market.

Sen. Shelby, for instance, has repeatedly said “no one is too big to fail” - what he means here is that no company should be getting a bailout.  It was for that reason he led the charge in the Senate against the TARP, and also for that reason he voted against the Chrysler Bailout in 1979.  Shelby also led the efforts to reform Fannie Mae and Freddie Mac, warning years before their failure of the various flaws inherent in a mortgage model of privatized gains and socialized losses.  Shelby also tried to bring more competition to the credit rating agencies, passing legislation in 2006 to reduce barriers to entry in that market.

The above, however, should not be read to overstate the case.  Both Rep. Hensarling (who apparently had a subscription to the Cato Journal in college) and Sen. Shelby would like to see the federal safety net behind our financial markets reduced, allowing a greater role for market discipline.  Perhaps even more rare in D.C., they both believe their chairmanships come not just with privilege but great responsibility.  If it were simply up to these two to agree, I have confidence that our system of financial regulation would be greatly improved, reducing bailouts and increasing stability.  

But it isn’t up to these two. There are numerous protectors of the status quo in both major political parties.  Both would also have to reach agreement with the Obama Administration, which seems quite comfortable with bailouts and regulatory discretion.  Ultimately, the many obstacles our Founding Fathers wisely put in place for legislation will prove too high for Shelby and Hensarling to implement all but modest reform.  

But at least financial regulation is unlikely to get any worse.

Jeffrey Miron

In yesterday’s election, Alaska (52-48%), Oregon (54-46%), and the District of Columbia (69-31%) all passed ballot initiatives that legalize marijuana under state (district) law.  This comes on top of the 2012 legalizations in Colorado and Washington.

Florida’s medical marijuana law failed, but only because it was a constitutional amendment and therefore needed 60 percent support to pass; 58 percent of voters endorsed the measure.

Two big tests remain for marijuana legalization. In 2016, another 5-10 states will consider legalization (plausibly Arizona, California, Delaware, Hawaii, Maine, Maryland, Massachusetts, Montana, Nevada, New York, Rhode Island, and Vermont).  If legalization is successful in most of these states, the pressure for federal legalization will ramp up.

In January 2017, the country will have a new president. That person could order the Attorney General to enforce federal prohibition regardless of state law. That seems unlikely if more states legalize and public support expands.

But until federal law explicitly legalizes marijuana, the risk of interference continues.

Doug Bandow

Washington again is at war in the Middle East. Unfortunately, pressure for military intervention will grow with Republican control of the Senate.

The likely result of any new conflicts will be similar to America’s past interventions. The United States will be intervening again in a few years to try to clean up the mess it is creating today.

The United States is not bombing the Islamic State out of necessity. Rather, Washington is acting in response to past mistakes. ISIL exists only because the Bush administration invaded Iraq.

The Obama administration’s decision to attack the Islamic State makes no policy sense. So far, ISIL has focused on creating a quasi-government in the Middle East and has not targeted America.

Of course, the Islamic State killed two U.S. citizens who fell into its hands in truly monstrous behavior. But these murders are no different than similar barbarities committed by others around the globe. Such personal tragedies are no reason to go to war.

If successful in creating a viable “caliphate,” ISIL’s leaders might turn towards terrorism, but doing so would risk their quasi-state by bringing America’s wrath down upon it. Moreover, Iraq demonstrated the foolishness of launching preventive wars based on fantasies disguised as forecasts. The United States is more likely to turn the Islamic State to terrorism now by making war on it, encouraging it to retaliate.

Perhaps the worst aspect of Washington’s policy is absolving nearby states of their responsibility to destroy ISIL. These countries will not act if the United States bails them out.

More fundamental is the fact that American policymakers have so often gotten the Middle East wrong, intervening arrogantly and maladroitly, creating more problems than they solved. Already the attack on the Islamic State has caused al-Qaeda affiliates such as the al-Nusra Front to support ISIL.

The United States is in the middle of a sectarian war in Iraq, with atrocities committed against Sunni civilians by Shia militias backing the Baghdad government. Washington’s limited bombing has made little progress in defeating the Islamic State. Aiding the “moderate” insurgents in Syria risks further undermining the Assad government, the single force best positioned to block further ISIL gains.

But blowback is to be expected. In 1953, Washington helped oust Iran’s democratically elected prime minister. Eventually the authoritarian Shah was overthrown, with radical Islamists targeting America.

The Reagan administration inserted the U.S. military into the middle of Lebanon’s bloody civil war. Attacks on the U.S. embassy and Marine Corps barracks followed.

Fear of Iranian domination of the Persian Gulf caused Washington to back Saddam Hussein in his aggressive war against Tehran. That helped persuade Hussein that the United States would not block his conquest of Kuwait.

The first Bush administration expelled Hussein’s forces without overthrowing his regime. But the Bush and Clinton administrations launched regular air strikes, while U.S-led sanctions harmed Iraqi civilians. American forces garrisoned Saudi Arabia, providing one of Osama bin-Laden’s grievances against America.

The immediate result of the second Bush administration’s invasion of Iraq was sectarian war, mass civilian casualties, destabilization of surrounding nations, and strengthened Iranian influence, along with high American human and financial costs. The Islamic State turned out to be a longer-term consequence.

The Obama administration joined with Europe to intervene in Libya’s civil war, leaving violent chaos. The United States blundered into the Syrian imbroglio, originally declaring President Bashar al-Assad to be a reformer, then insisting that Assad resign, discouraging any negotiated settlement. The administration now simultaneously criticizes the government, backs supposedly moderate insurgents, and bombs radical regime opponents.

Washington has reentered the Iraqi conflict. As I warn on Forbes online:  “Experience suggests that U.S. authorities lack the knowledge, judgment, and competence to carry out almost any policy there without making the situation worse.”

It is impossible to predict the exact outcome of Washington’s newest military intervention in the Middle East. But experience suggests that new problems created will generate pressure for new interventions in coming years.

Now more than ever Washington should implement the “humble” foreign policy originally advocated by presidential candidate George W. Bush.

Roger Pilon

How sweet it is. Less than a year ago—on November 21st, to be exact—Harry Reid went nuclear. As he’d threatened, in order to get a few of President Obama’s D.C. Circuit Court nominees past a Republican filibuster—staged because that court for years had had more judges than its workload required—Reid unleashed what had come to be called “the nuclear option.” He ended the availability of the filibuster for most executive branch nominations, not by the two-thirds vote that Senate rules had long required but by a simple majority. With yesterday’s mid-term election results now in, it looks like Reid will have enjoyed his win for less than a year. As I wrote at the time, here, here, and here, stating the obvious, what goes around comes around.

Not that he didn’t get some substantive results over that short period, mind you: After a D.C. Circuit panel struck a major blow against Obamacare in July, for example, followed only hours later by a Fourth Circuit decision going the other way, thus setting up a circuit split suited for Supreme Court resolution, the full DC Circuit, on which Obama’s new appointees were now sitting, vacated the panel’s decision just six weeks later, thus removing the circuit split. The Supreme Court is likely to take up the issue in time in any event, as other circuits weigh in on it. But timing is important on a matter like this. We’ll see.

The larger issue, however, is that there will be other nominations over the next two years, and not only for life-time appointments on our federal courts. There is, for example, a looming vacancy at the Department of Justice: Attorney General Eric Holder has said he will stay on until his successor is confirmed. Among those under serious consideration for that post is one Thomas Perez, whose stints as the current secretary of labor and, before that, as assistant attorney general for civil rights have raised enough concerns to keep the new Republican Senate Judiciary Committee’s staff occupied for some time.

And where will those remaining Democratic senators who voted for Harry Reid’s nuclear option be sitting? Why on the minority side, watching Republicans enjoy their newly acquired power to block controversial Democratic nominees by the vote of a mere majority—all because of Harry’s hubris. But it wasn’t Harry’s alone. As the Wall Street Journal editorializes this morning, after his victory speech following his 2012 re-election, President Obama walked off the stage and made separate calls to Nancy Pelosi and House Democratic campaign chairman Steve Israel, telling them “he would spend the next two years helping Democrats retake the House in 2014.” In politics as in life, hubris has its price. We will now have a proper vetting of the president’s nominees, and that is good.

Ilya Shapiro and Trevor Burrus

While California endures its worst drought in a century, a small, finger-sized fish with no known redeemable qualities, the delta smelt, has become the centerpiece of extensive litigation. The U.S. Fish and Wildlife Service (FWS) classifies the delta smelt as “threatened,” and since 2008 it has said that large amounts of water should not be pumped out of the delta smelt’s habitat—the wetlands north of San Francisco—and into the state’s drought-stricken central and southern regions.

That “imported” water from northern California has become vital to the state’s important agricultural business, and the FWS’s decision has substantially harmed California’s farms, farm-laborers, and millions of others dependent on the water supply. In short, in order to protect the 3-inch fish, the state has pumped billions of gallons of water straight into the ocean rather than using it to help California’s struggling farmers.

The farmers, represented by the Pacific Legal Foundation, filed a lawsuit in response to these draconian measures to save the irrelevant fish. The farmers argued that the FWS should not have ignored the harsh financial and human costs of the FWS’s “reasonable and prudent alternatives” to pumping water out of the northern wetlands. The U.S. Court of Appeals for the Ninth Circuit disagreed, holding that the FWS’s decisions deserve deference and that the “FWS is not responsible for balancing the life of the delta smelt against the impact of restrictions” on water pumping. Congress, wrote the court, has already decided that the FWS should protect endangered species “whatever the cost.”

In an attempt to get the Supreme Court to review their case, the farmers argue that the circuit court misread the history of the Endangered Species Act (ESA) and should not have ignored the economic impact of so-called “reasonable and prudent alternatives.” Cato, joining the National Federation of Independent Business, filed a brief in support of their petition. We argue that the ESA has changed since the Supreme Court ruled, in 1978, that species must be protected “whatever the cost.”

The ESA has been amended many times and now commands the FWS to take “into consideration the economic impact” of its proposals. Moreover, the 1978 case that required species to be protected “whatever the cost” has been limited by subsequent decisions.

Finally, we argue that the Ninth Circuit’s decision is in conflict with the Fourth Circuit, which in 2013, vacated an FWS determination because it failed to take into account the economic impact of the reasonable and prudent alternative. This conflict between circuits should be rectified by the Supreme Court, and the ESA should be rightly interpreted as requiring the FWS to take into account the economic impacts of its decisions.

No offense to the delta smelt, but we prefer human beings.

The Supreme Court will decide whether to take the case of Stewart & Jasper Orchards v. Jewell later this year or early in 2015.

Patrick J. Michaels and Paul C. "Chip" Knappenberger

Global Science Report is a feature from the Center for the Study of Science, where we highlight one or two important new items in the scientific literature or the popular media. For broader and more technical perspectives, consult our monthly “Current Wisdom.”

The just-released “synthesis” report from the U.N.’s Intergovernmental Panel on Climate Change (IPCC) could be the last gasp of this clumsy dinosaur. 

Containing no new science, the new IPCC offering is just a rehash of its series of Fifth Assessment Reports that have been released over the past year or so.

When the IPCC’s “science” portion of the Assessment was released last fall, it was immediately faulted for being based upon climate models which have greatly overpredicted the amount of climate change that has been occurring largely because they completely missed the slowdown of the rate of global warming that has taken place over the past two decades. The IPCC tried a few band-aid-type solutions to keep its cold blood, but they were too little, too late. With its dismal track record exposed, no one should possibly take the IPCC future projections seriously, including the folks down at 1600 Pennsylvania Avenue.

More and more, people are calling for the United Nations to render the IPCC dinosaur to the strata of history, reaching a crescendo with this “new” report.

The Synthesis Report was shaped by the climate alarmists who were enraged that the IPCC even feebly admitted that its future projections were likely on the high side of things. Instead, they demanded a strong statement from the IPCC that could be used to force fossil fuel restrictions on the unwilling (which partially explains the ham-handed  release two days before pivotal U.S. elections). So despite no new science and another year—making now 16 out of the past 16 years—in which the global average temperature has fallen beneath IPCC projections, the IPCC released what has been called its “starkest” and “most important” report yet

From The (predictable) Guardian:

“Science has spoken. There is no ambiguity in the message,” said the UN secretary general, Ban Ki-moon, attending what he described as the “historic” report launch. “Leaders must act. Time is not on our side.” He said that quick, decisive action would build a better and sustainable future, while inaction would be costly.

Ban added a message to investors, such as pension fund managers: “Please reduce your investments in the coal- and fossil fuel-based economy and [move] to renewable energy.”

Hopefully, such talk from the U.N. will spark the rest of us to get what we deserve, that is, an end to this government-funded U.N. charade claiming to represent the “consensus of scientists.”  With luck, the extinction this dinosaur will herald the extinction of all the government-funded climate change “assessments,” ushering in the rise of Homo sapiens.

Ilya Shapiro and Trevor Burrus

David and Susan Kentner own residential lots along San Carlos Bay in Sanibel, Florida. Because their property is along the high-tide line, the Kentners enjoy an age-old common-law right to build docks over the water abutting their property, subject to reasonable regulation. But Sanibel passed an ordinance forbidding the Kentners and others from taking advantage of this common-law right. The city claimed that the ordinance was necessary to protect seagrass, which it called an “invaluable natural resource.”

Whether or not seagrass is invaluable, the city passed the ordinance without considering whether seagrass was actually present in the areas subject to the ordinance and whether modern technology could effectively be used to avoid harming the seagrass. Moreover, there is evidence that the city passed the ordinance in order to satisfy the aesthetic preferences of certain interest groups and to enhance the property values of other dock-holders. On top of that, in 2006 the city issued itself an exemption to build a dock in San Carlos Bay, explaining that it should be allowed to build a dock because no seagrass was found on the site.

The Kentners, represented by the Pacific Legal Foundation, challenged the ordinance on the ground that it did not substantially advance any legitimate government interest. In other words, the Kentners claimed that the ordinance violated the due-process rights to their property, which is lawyer-speak for laws that don’t have a good-enough justification. Both the trial and appellate judges held that property rights aren’t “fundamental rights” protected by due process, thus ruling that the government didn’t need a good reason to pass these restrictions. In other words, property rights simply don’t enjoy protection against irrational government regulations.

On appeal to the Supreme Court, the Kentners argue that the lower courts were mistaken in treating property rights as no-class—not even second-class—rights. In support of the Kentners’ petition to have the Supreme Court hear the case, Cato joined the National Federation of Independent Business, Owners Council of America, and Rutherford Institute on a brief arguing that the lower courts were gravely mistaken in classifying property rights as not deserving of due-process protections. The Fourteenth Amendment, after all, explicitly says that no state shall deny “life, liberty, or property” without due process of law.

Further, the Court should review the case to clarify and solidify longstanding precedents that treat property rights as on par with other rights. After all, if the government is allowed to violate property rights with no justification whatsoever, then any ordinance that confiscates, destroys, or restricts property will be simply unassailable, regardless of how unreasonable or shocking it may be. The high court should take this case to reaffirm that property rights are indeed constitutionally protected and cannot be abridged with impunity by opportunistic, corrupt governments.

The Supreme Court will decide later this year or early in 2015 whether to take Kentner v. City of Sanibel.

Nicole Kaeding

Open enrollment for Obamacare’s second year begins next week. In the chaotic launch of HealthCare.gov, the Department of Health and Human Services (HHS) delayed the launch of the sister portal for small businesses. Now, the health insurance exchange for small businesses is expected to open, but it is still plagued with problems.

The Small Business Health Options Program (SHOP) provides an online portal for small businesses with fewer than 50 employees to purchase insurance. The website allows employers to provide a contribution towards an employee’s health insurance purchase.

A new report from the New York Times summarizes the issues discovered during recent testing:

For example, they said, some health insurance plans approved for sale on the exchange did not show up on the website. The site worked well with some web browsers, like Chrome, but not with others, like Internet Explorer and Firefox. Premiums and other charges for some plans were erroneously displayed as percentages rather than dollar amounts — 350 percent rather than $350, for example. For some households, the principal subscriber was listed as a dependent, or vice versa.

HHS is claiming that the website will be functional when open enrollment starts on November 15.

The future success of SHOP is doubtful even if HHS gets the website working. States had the option of creating their own SHOP or relying on the federal exchange. Several states decided to launch their exchanges last year. The results were lackluster:

California signed up 1.4 million people through its individual exchange, but its small-business exchange enrolled only 1,700 companies, with 11,500 employees and dependents. In Minnesota, the small-business exchange signed up 190 employers covering 1,500 people.

The low participation is not surprising since businesses can still purchase insurance outside of an exchange. The primary reason to use a SHOP exchange would be to receive a tax credit. Firms with fewer than 25 workers who purchase via the exchange are eligible for a tax credit to help offset the cost of the employer contribution. Credits can be as large as 50 percent of the employer contribution.

However, the tax credit is unlikely to induce many small businesses to use the exchange. Only a small number of eligible businesses claimed the previous version of the tax credit, which did not require the extra step of a SHOP purchase. According to the Government Accountability Office (GAO), many employers did not claim it due to the complexity in its calculations. Adding another requirement suggests even fewer employers will take advantage of the credit.  Additionally, GAO estimates that very few small firms offer health insurance as benefit to employees because the tax credit is small. Firms are not encouraged to provide the benefit.

HHS had an additional year to get its SHOP website development right. Reports suggest that HHS is still not ready, despite the large cost. But even if the website becomes functional, success of the overall SHOP program looks unlikely.

Doug Bandow

The U.S. government has failed to stop the drug trade at home. Washington also has not created a competent, effective, and honest central government in Afghanistan. How effective will Kabul be in limiting opium production when American troops go home?

Not much.

A new report from the Office of the Special Inspector General for Afghanistan Reconstruction reports that opium production last year was the highest ever, 209,000 hectares, up 36 percent from 2012.

Alas, the sky is the limit. SIGAR warned:  “With deteriorating security in many parts of rural Afghanistan and low levels of eradication of poppy fields, further increases in cultivation are likely in 2014.”

Last year the United Nations Office on Drugs and Crime estimated that opium exports accounted for 14 percent of the country’s GDP. Unfortunately, explained SIGAR:  “the narcotics trade poisons the Afghan financial sector and undermines the Afghan state’s legitimacy by stoking corruption, sustaining criminal networks, and providing significant financial support for the Taliban and other insurgent groups.”

The Afghan public is understandably cynical. When I visited the country Afghans called large homes behind high walls lining Kabul streets “poppy palaces.” 

Drug production exploded despite $7.6 billion spent by Washington alone to stop cultivation and distribution. Noted SIGAR, “the recent record-high level of poppy cultivation calls into question the long-term effectiveness and sustainability of those prior efforts.”

The State Department’s response to SIGAR was a marvel of delusion. Production “is only one indicator of counternarcotics progress.”  And “we are making good progress in building the capability of our Afghan partners,” even as cultivation surges.

This is the best case for years of expensive efforts? Even UNODC admitted that the Afghan State is beset by “fragmentation, conflict, patronage, corruption and impunity.” The Pentagon stated that “the failure to reduce poppy cultivation and increase eradication is due to the lack of Afghan government support for the effort.” 

Nevertheless, State said it looked “forward to the new Afghan government assuming a leadership role in this regard.”

Eradication was difficult enough when backed by a strong allied military presence. Wrote Vanda Felbab-Brown of the Brookings Institution, early programs were “manipulated by local Afghan strongmen to eliminate drug competition and ethnic/tribal rivals.”

Moreover, the eradication campaign, turned poppy farmers into Taliban supporters.  Eradication efforts also inflated Taliban revenues. As economist Jeffrey Clemens pointed out, the counter-narcotics campaign both redirected opium production to Taliban-controlled areas and raised poppy prices.

Operating on their own, the Afghan National Army and Afghan National Police will be hard-pressed to fulfill their most important responsibility to sustain the Kabul government against the Taliban. Drug interdiction inevitably will be a secondary objective for security forces which already suffer from corruption.

But no strategy likely would succeed even in the best circumstances. As noted earlier, attempting to suppress drugs could lose the geopolitical war without winning the fight against poppies. Even with greater development few legal opportunities would be better than poppy production.

Another approach is to reduce demand for drugs in Western societies to discourage production in Afghanistan. However, only the most draconian enforcement has much effect on drug use.

The West must set priorities in Afghanistan. Attempting to eradicate poppy production is almost guaranteed to lose the battle for hearts and minds.

Instead, allied policymakers should consider strategies to drain money and profit from the drug trade. Western governments should scale back the drug war.

Afghanistan could be allowed to produce opium for the legal morphine market. Ultimately the entire market should be legalized or at least decriminalized for adults.

Indeed, frustration with years of militarized eradication efforts, some in the midst of insurgencies akin to that in Afghanistan, has caused several Latin American governments to deemphasize enforcement.

As I noted in Forbes online:  “Afghanistan is merely one front in a global drug war. There are no good solutions. But Afghanistan and its Western-backers should recognize reality and abandon the futile and counterproductive campaign against the opium trade.”

Doug Bandow

With President Barack Obama further tarnishing his Nobel Peace Prize by starting yet another Middle Eastern war, exuberant Neoconservatives claim their moment has arrived. And it has: Neocon claims that war-mongering and nation-building serve America’s interests have become obviously ever more absurd.

In 2001 President George W. Bush initiated what was supposed to be The Neocon Moment, projecting a swaggering global presence in which the U.S. would bomb, invade, occupy, and otherwise intervene whenever and for whatever reason it chose. As I wrote for Forbes online:  “Autocrats would flee, candies would be tossed, enemies would be defeated, flowers would bloom, allies would comply, cakewalks would be held, democrats would flourish, and the lion would lie down with the lamb.”

Alas, administration policy wrecked Iraq. Although President Bush never repudiated what he’d done, he appeared to lose his taste for war.

Candidate Obama ran against the Bush presidency, but little changed U.S. foreign policy. No one could mistake the latter as a peacenik libertarian.

Except, apparently, for the Neocons. They now proclaim The Neocon Moment. Explained Matthew Continetti, “monsters [have been] brought forth by American retreat,” and “the threat of those monsters requires unilateral deadly force wherever necessary to kill our enemies and deter our foes.”

Retreat?

In fact, “The Neocon Moment” is distinguished by its failure. As evidence of the need for a return to swaggering interventionism Continetti offers a parade of horrors either created by Washington or well beyond its control.

There’s the Islamic State, which exists only because of the misguided Bush invasion of Iraq. There’s Ukraine, a testament to what happens when one encourages one’s allies to be helpless dependents while facing an adversary with a far greater interest in the outcome of any confrontation.

There are al-Qaeda affiliates in several countries, which arose in response to promiscuous U.S. meddling abroad and persisted in the midst of multiple wars. There’s Iran, in which Islamists overthrew a U.S.-supported dictator who took power in a U.S.-supported coup. There’s the Taliban, which survived more than a dozen years of Washington’s efforts at nation-building.

Neocons have no answer to any of these. They imagine a world of immaculate intervention, in which foreigners welcome being killed and never strike back. Alas, the more Washington attempts to micro-manage the globe, the more likely it is to be attacked.

Neocons also imagine a world in which America automatically deters and only America deters. No one would dare challenge Washington if the president exercised “leadership.”

In fact, countries with the most at stake will risk and spend more than their adversaries, as the U.S. demonstrated during the Cold War in Latin America. Does the U.S. have anything at stake in Ukraine and the Senkakus which warrants the risk of war? The answer is no.

One doesn’t have to look far to see the wreckage left by today’s interventionist consensus. Washington has attempted to fix the Middle East and Central Asia for decades. The result? War, instability, autocracy, brutality, collapse. U.S. officials consistently have demonstrated the reverse Midas touch.

The Balkans has turned out little better, with nationalist divisions still evident two decades after Washington imposed an artificial political settlement. Europe represents the globe’s greatest aggregation of economic power, but is not inclined to defend itself, preferring instead to rely on the U.S.

Only now is Japan finally emerging from hiding behind the “peace constitution” to consider a more active military role. South Korea continues to subsidize the North even as U.S. troops guarantee the former’s security.

It’s true: Americans are not living in the Libertarian Moment. Rather, we are living in The Neocon Moment, a testament to the foolishness and arrogance of those who believe themselves to be engineers of peoples, societies, and nations. Only when the American people insist that politicians make peace, not war, will The Libertarian Moment finally arrive.

David Boaz

The Gallup Poll has a new estimate of the number of libertarians in the American electorate. In their 2014 Gallup Governance Survey they find that 24 percent of respondents can be characterized as libertarians (as compared to 27 percent conservative, 21 percent liberal, and 18 percent populist).

For more than 20 years now, the Gallup Poll has been using two questions to categorize respondents by ideology:

Some people think the government is trying to do too many things that should be left to individuals and businesses. Others think that government should do more to solve our country’s problems. Which comes closer to your own view?

Some people think the government should promote traditional values in our society. Others think the government should not favor any particular set of values. Which comes closer to your own view?

Here’s a graphic depiction of the number of respondents who gave libertarian answers to both questions in the Bush-Obama years: 

Libertarians, who disagree with both Democrats and Republicans on major issues, have not been reliable voters for either party. They generally tend to vote Republican by about a two to one majority. But as David Kirby and I wrote in our 2010 study, “The Libertarian Vote in the Age of Obama”:

In 2004 libertarians swung away from Bush, anticipating the Democratic victories of 2006. In 2008, according to new data in this paper, libertarians voted against Barack Obama. Libertarians seem to be a lead indicator of trends in centrist, independent-minded voters. If libertarians continue to lead the independents away from Obama, Democrats will lose 2010 midterm elections they would otherwise win.

And of course the Democrats did have a bad 2010. If libertarian-leaning voters react against Obamacare, overregulation, endless wars, and the surveillance state, then Democrats are likely to have a bad 2014 as well. But Republican positions on immigration, gay marriage, and marijuana push libertarian voters, especially millennial libertarians away; that might account for the surprisingly weak showing of many Republicans in polls in a year when President Obama is unpopular and the economy remains dismal.

Read more about the libertarian vote in our original study or in our 2012 ebook.

Hat tip to Lydia Saad for the unpublished Gallup data and to Derek Lee and David Dewhurst for the chart.

David Boaz

As we hear the usual frenzied concern about big money in politics, Cecilia Kang and Matea Gold offer an interesting fact in today’s Washington Post:

Total political advertising in 2014 is expected to reach a record $2.4 billion, up $100 million from four years ago, according to estimates by the Kantar Media research firm.

That sounds like a lot of money. But the first thing I notice is that the increase from 2010 is only about half the rate of inflation. Given the increasing scope of government, it might be surprising that the increase has been so minimal. But divided government may have caused some potential donors to see fewer opportunities and/or risks in the next couple of years.

The Institute for Justice offers another timely way to look at the magnitude of political spending:

Patrick J. Michaels and Paul C. "Chip" Knappenberger

You Ought to Have a Look is new a feature from the Center for the Study of Science posted by Patrick J. Michaels and Paul C. (“Chip”) Knappenberger. While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic. Here we post a few of the best articles and essays in recent days, along with our color commentary.

We have a couple of new introductions to make to our You Ought to Have a Look line-up.

We’re big fans of Daniel Botkin. He is an environmental biologist with a panoramic view of nature. He started his career as a forest modeler (that’s someone who predicts the future composition and structure of forests) and was a Government-Issue global warmer. Since then, he has written 16 books on the environment and has become a champion lukewarmer—a person who, like us, synthesizes the climate data and comes to the hypothesis that warming will be modest and readily adapted to. On May 29, he testified before the House Committee on Science, Space, and Technology, on systematic problems with the United Nations’ Intergovernmental Panel on Climate Change. On June 18, he was before a subcommittee of the Senate Environment and Public Works Committee.

Botkin has a thought-provoking piece this week in the National Parks Traveler—a website dedicated to all things National Parks. In his article, he critiques a report issued by the Union of Concerned Scientists (UCS) with the predictably alarming title, “National Landmarks at Risk: How Rising Seas, Floods, and Wildfires Are Threatening the United States’ Most Cherished Historic Sites.”  The paleolithic media were all over the UCS report when it came out six months ago, and it headlined several news shows on the dinosaur networks. For “balance,” we managed a few soundbites.

Botkin’s article is more in-depth than the UCS report, concluding that human-caused global warming gets far more attention than it deserves in the universe of environmental issues, which precludes appropriate attention to real issues.

Botkin writes:

However, global warming has become the sole focus of so much environmental discussion that it risks eclipsing much more pressing and demonstrable environmental problems. The major damage that we as a species are doing here and now to the environment is not getting the attention it deserves.

You ought to have a look at Botkin’s complete article!

Next we bring your attention to Watts Up With That, “the world’s most viewed site of global warming and climate change,” the result of (now retired) broadcast meteorologist Anthony Watts’ blood, sweat, and tears over the past several years. WUWT, as it is known, features a large array of climate-related articles, about four or five per day.  A recent story that caught our eye was one featuring a collection of newsbites highlighting record agricultural output from around the world during the past year. The article “World Food Production at Record Levels” reinforces a point that we like to repeat as often as we can: the world is thriving in the face of, or even because of, climate changes.

Again, we recommend a click on Judith Curry’s Climate Etc. blog. Recently, she featured a guest post by Matt Skaggs, who presents an entirely new (to climate people, anyway) way to isolate (or, perhaps, not find) the signature of carbon dioxide-induced warming. “Root Cause Analysis of the Modern Warming” says that documenting a human fingerprint on global warming is much more uncertain than it is typically made out to be, as it is based upon a faulty line of reasoning. Curry offers this teaser:

The main point of relevance here is that there are different ways to frame and approach the climate change attribution problem, and the one used by the IPCC and mainstream climate scientists isn’t a very good one.

The post is lengthy and technical in spots, but it does make you wonder whether everyone has been trying to solve the attribution issue the wrong way.  

The interwebs also provide a rapid-response platform when one’s scientific work is challenged in the refereed literature, as shown in a recent post at www.drroyspencer.com. Roy Spencer is writing about a recent publication in the journal Climate Dynamics claiming that his satellite-sensed temperatures—which show much less warming than do surface thermometers—are confounded by cloudiness. According to author Fuzhong Weng and colleagues, when the effects of cloudcover are accounted for, the warming trend in the satellite record increases by about 30%, putting it more in line with the surface records.

(Actually, that wouldn’t cut it for at least one obvious reason—Spencer’s satellite record does not have as much of the “pause” in warming since 1997 that appears in the surface temperature history that scientists prefer over others.)

Spencer’s rejoinder is pretty powerful, noting that he and his co-worker John Christy have visited and revisited the cloud issue for decades and find it to be nugatory. Further, Spencer questions why Weng et al. only looked at one of the very many sensing units that have been launched since 1978, and that only covers 13 of the 35 years of the operational data set. There’s no particular reason cited for this, which tends to confirm that the Weng et al. paper is consistent with the paradigm theory of science first put forth by Thomas Kuhn in the 1962 (and many reprints) classic, The Structure of Scientific Revolutions. Kuhn’s thesis is that most scientists spend their careers trying to defend the established order, and when that order is challenged, they resort to some pretty bizarre attempts to demonstrate that everything is hunky-dory with the established paradigm. In this case, that would be that the surface temperature trends shown in the University of East Anglia are more reliable than the satellite data—providing more (but declining) support for the notion that the human influence on climate is large and dangerous.

Observant readers of our ramblings will notice that we specifically ignore the surface temperature history from NASA, initially developed by Sergei Lebedeff and Jim Hansen. Those data have been processed (perhaps “Jimmied” is more appropriate) in ways that flunk Physics 101, and, la-dee-da, Jimmying produces more warming, more consistent with high-end fantasies about climate change that keep Hansen flying in the front of the plane. For a bit on that, see this story from the WUWT archives.

Neal McCluskey

The big higher education news this week is that the Obama administration released its “gainful employment” rules aimed squarely at beleaguered for-profit colleges, which are the schools most likely to offer programs that are explicitly about supplying job skills. This attack does not seem to come because for-profits are objectively worse performers than the rest of the decrepit Ivory Tower, but because it is easy to demonize institutions that—unlike much of higher ed—are honest about trying to make a profit. Oh, and because going after the real culprit—an aid system that gives almost any person almost any amount of money to go to college—would require federal politicians to take on a system they created, and that makes them look ever-so-caring.

Perhaps the only unexpected thing about the regulations is that they do not include cohort default rates—the percentage of an institution’s borrowers defaulting on their loans within two or three years of entering repayment—among the assessments of aid worthiness. Instead, they just use debt-to-earnings ratios. The American Association of Private Sector Colleges and Universities—proprietary colleges’ advocacy arm—suspects this was done because including the default rate was projected to ensnare some community colleges, and the administration wanted this to be all about for-profit institutions.

There is reason to believe this may be true. The administration has lauded community colleges as the Little Schools That Could for a long time, and, indeed, directly compared them to for-profit schools in its press release for the new regulations. “The situation for students at for-profit institutions is particularly troubling,” they wrote. “On average, attending a two-year for-profit institution costs a student four times as much as attending a community college.” What didn’t they mention? According to federal data, completion rates at community colleges are around 20 percent, versus 63 percent at two-year for-profits. The data aren’t perfect—they capture only first-time, full-time students who finish at the institution where they started—but it is a yawning gap that illustrates a crucial point not just about gainful employment, but overall higher education policy: emotions and political concerns, not objective analysis, seem to drive it.

And speaking of objective analysis: We will be hosting what should be a great, diverse panel discussion on Wednesday, November 5, that will look at the changing face of higher education—including, no doubt, gainful employment—as well as offer predictions about what the previous night’s election results might mean for higher education. Hope to see you there!

Patrick J. Michaels

Increasingly, federal monies have been disbursed to the various departments and agencies in support of the Obama administration’s politically strange perseveration on global warming. Specifically, many millions go out each month for “public outreach,” more properly labeled propaganda, on the horrors of climate change.

To show how well-spent this money is, we draw attention to today’s posting from the Department of Energy’s communication director Marissa Newhall, featuring pumpkins with windmills (the correct name for “wind turbine”) and solar panels carved on them. A quote:

Last week, we shared some energy-themed pumpkin carving stencils to help you “energize” your neighborhood—and teach trick-or-treaters about energy—this Halloween. On our own time after work, we put the patterns to the test and carved some energy pumpkins of our own.

We’re wondering: were they also ”on their own time after work” when they came up with the “energy-themed pumpkin carving stencils”?

Energyween Pumpkin Carving

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