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InsiderOnline Blog: February 2011

Wisconsin Law Promotes Labor’s Version of History in the Classroom

When Wisconsin’s high school history teachers aren’t busy protesting proposals to rein in forced unionization for government employees, they are required by state law to teach their students the history of the labor movement. And it’s not exactly an evenhanded history that’s being promoted, reports the Daily Caller.

The state’s Department of Public Instruction Web site directs teachers to an outline and sample presentation drawn up by the Wisconsin Labor History Society. It’s a presentation that lauds the accomplishments of the labor movement, but comes up short on explaining the decline of unionism, blaming President Reagan’s firing of the air traffic controllers in 1981 and right-to-work laws in many states.

In fact, organized labor reached its peak strength in 1945, when 35.5 percent of all non-farm workers were unionized. Teachers who want to offer an accurate lesson on the labor movement should explain to their students that unions succeed in raising wages only in industries that don’t have to compete to offer consumers the best price. And they should explain that the decline in unionism since the 1950s coincides with the American economy becoming more competitive. Right-to-work laws are just a part of that story. Brink Lindsey’s “Paul Krugman’s Nostalgianomics: Economic Policies, Social Norms, and Income Inequality” (The Cato Institute, 2009) provides a good overview of this neglected history.

And if teachers really want to give their students a complete picture, they should explain to them that public-sector unions are not the same as private-sector unions. Unlike private-sector employers, government faces little incentive to bargain effectively with public-sector unions, which has left taxpayers exposed to generous pension liabilities for decades to come. Good sources on this topic include James Sherk’s “Time to Restore Voter Control: End the Government-Union Monopoly,” (The Heritage Foundation, February 25, 2011), and Steven Malanga’s Shakedown: The Continuing Conspiracy Against the American Taxpayer, (Ivan R. Dee, 2010).

Posted on 02/28/11 03:20 PM by Alex Adrianson

Obama DOJ to Judge Vinson: Shucks, Did You Really Mean That?

When a federal judge rules a law unconstitutional, the government is supposed to stop implementing it, right? The Obama administration isn’t quite sure that’s how it works. Late last week, the Department of Justice filed a motion asking Judge Roger Vinson whether he really did mean for his December 31st ruling that Obamacare is unconstitutional to have immediate injunction-like effect. Here’s what the Judge himself said in that opinion:

Injunctive relief is an “extraordinary” and “drastic” remedy. It is even more so when the party to be enjoined is the federal government, for there is a long-standing presumption “that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction.” [Internal citations omitted.]

Seems pretty clear, no? Nevertheless, the DOJ’s accompanying memorandum states:

[D]efendants do not interpret the Court’s order as requiring them to immediately cease operating programs, implementing Medicare reforms, collecting taxes, extending grants, providing tax credits, and enforcing duties created by the ACA with regard to the plaintiff states, National Federation of Independent Business (‘NFIB’) members, and individual plaintiffs pending appeal, and defendants are proceeding on that basis.

The Heritage Foundation’s Todd Gaziano comments:

The Administration’s memorandum filed with the district court is a study in creative writing for a broader political audience. In my humble experience, it is not the kind of legal argument any serious litigator would want to file in court, because it toys with Judge Vinson’s very kind way of putting his prior judgment and effectively taunts him that he couldn’t possibly have understood the enormity of what he was doing or meant that his judgment would be given effect anytime soon. The Memorandum in support of the motion is couched in very polite language (for a more general audience), but its meaning is startling for those who understand that the Rule of Law requires a losing party to abide by a court’s ruling pending appeal unless it actually seeks and obtains a stay of the mandate. [“The President Thumbs His Nose at Judge Vinson’s Obamacare Ruling: DOJ Seems to Concede It Can’t Win in Court,” The Foundry, February 18, 2011.]

Posted on 02/25/11 11:56 AM by Alex Adrianson

Lessons in Fiscal Restraint

U.S. lawmakers grappling with trillion dollar budget deficits can learn from the experiences of Canada, Ireland, Slovakia, and New Zealand. Ireland in the mid-1980s, Canada and New Zealand in the early 1990s, and Slovakia in the early 2000s all reduced their budget deficits by restraining the growth of government spending. Most importantly, all those countries experienced strong economic growth after they got control of spending. Dan Mitchell discusses these experiences in the video below:

Canadian policymakers, by the way, are once again facing the need to address budget deficits. They too can learn from their history, and the Fraser Institute has a new paper on that theme; see “Budget Blueprint How Lessons from Canada’s 1995 Budget Can Be Applied Today,” by Niels Veldhuis, Jason Clemens, and Milagros Palacios.

Posted on 02/25/11 11:06 AM by Alex Adrianson

Should There Be a “Givings Clause” in the Constitution?

We can’t really say whether the argument below by Richard Epstein is on solid constitutional grounds, but it does explain nicely how the collective bargaining rights at the center of the Wisconsin brouhaha are the linchpin of a system of malfeasance:

[A] principled but vigorous court could, and should, knock out these terrible collective bargaining arrangements on constitutional grounds. All officers and directors of a corporation have a duty of loyalty to the firm, a duty that runs afoul of any arrangements whereby management parties engage in self-dealing transactions that loot the corporation of its assets. It is not that every self-dealing transaction is necessarily infirm. But all of them should be examined to see whether the corporation has received “fair value” from its trading partner for the money paid out. The simple point is that it is a discreet form of corporate looting to sell something to an outsider for $500 when it is worth $5,000, or to buy services from that outsider for $5,000 when they are worth only $500.

As a constitutional matter, this intuition is captured in what I like to call the “givings” clause, which is nowhere in the written Constitution, but which is part of the elusive “public trust” doctrine that grew up to prevent government giveaways of state lands and other assets. Theoretically, this imputed provision is the analytical twin to the Takings Clause, which is in the written Constitution. The givings clause reads: “nor shall public property be given to private parties, without just compensation.” A rule that works for corporations should work for governments. Those bloated union pensions and salaries were the product of the illicit gift of collective bargaining rights by legislatures, who by their oath and position are fiduciaries for the public, not the unions. But this case of abject self-dealing should make these contracts “voidable” so that they can be set aside, if needed, by the government, after which these benefit packages could be modified to match comparable packages in the private sector. Once courts realize that they have a duty to stop these government giveaways, there is a good chance that we will be able to put the public treasury in order. [From “The Wisconsin Shoot Out on Public Unions,” Defining Ideas, February 22, 2011.]

Posted on 02/24/11 11:35 AM by Alex Adrianson

Would Spending Less Really Hurt?

Spending more money has not translated into improved reading scores for Wisconsin’s children, reports Terrence Jeffrey:

In 1998, according to the U.S. Department of Education, Wisconsin public school eighth graders scored an average of 266 out of 500 on the NAEP [National Assessment of Educational Progress] reading test. In 2009, Wisconsin public school eighth graders once again scored an average of 266 out of 500 on the NAEP reading test. Meanwhile, Wisconsin public schools increased their per pupil expenditures from $4,956 per pupil in 1998 to 10,791 per pupil in 2008. According to the Bureau of Labor Statistics inflation calculator the $4,956 Wisconsin spent per pupil in 1998 dollars equaled $6,546 in 2008 dollars. That means that from 1998 to 2008, Wisconsin public schools increased their per pupil spending by $4,245 in real terms yet did not add a single point to the reading scores of their eighth graders and still could lift only one-third of their eighth graders to at least a “proficient” level in reading. [“Two-Thirds of Wisconsin Public-School 8th Graders Can’t Read Proficiently—Despite Highest Per Pupil Spending in Midwest,” CNS News, February 22, 2011.]  

This reflects the national experience, about which we blogged last week:

Posted on 02/23/11 05:05 PM by Alex Adrianson

The News Is Bad Even When It’s Good

“Although smoking rates have declined steadily for the past 40 years—down 52 percent since 1965—and every kindergartner can recite the evils of tobacco use, the FDA claims that current warnings are ‘ineffective,’” reports Diane Katz (The Foundry, February 22, 2011). “According to the agency, there’s a ‘worldwide consensus’ that tobacco health warnings should feature pictures of dead people.” Of course, to the anti-smoking activists, anything less than the complete eradication of smoking is a failure.

Posted on 02/23/11 04:26 PM by Alex Adrianson

What Does “Unacceptable” Mean?

On Monday, Hillary Clinton called the Libyan government’s attacks on its citizens “unacceptable.” But, as Danielle Pletka documents at The Enterprise blog, there are a lot of things American leaders have said are “unacceptable” that they actually accept, like Russia invading Georgia, North Korea sinking a South Korean ship, and—so far anyway—Iran’s strides toward nuclear weapons. So, take that Libya!

Posted on 02/23/11 04:25 PM by Alex Adrianson

You Can’t Eat Ideas, But …

Many of the things that make your life comfortable probably wouldn’t exist at all without the rule of law. Tom Bell, a professor at Chapman University School of Law, explains in this video from the Institute for Humane Studies:

Posted on 02/23/11 11:55 AM by Alex Adrianson

The Taxpayer-Funded Lobby for Bigger Government

What do public sector unions do with all the dues that its members are forced to pay? They lobby for more government and higher taxes. Last year alone they launched campaigns for higher taxes in Arizona, New Jersey, Oregon, and Washington State. The campaign in Oregon succeeded in raising taxes by about $727 million annually. Steve Malanga, writing in the Orange Country Register, recounts these sundry activities, noting of the Oregon effort: “Led by $2 million from the Oregon Education Association and $1.8 million from the Service Employees International Union (SEIU), unions contributed an estimated 75% of the nearly $7 million raised to promote the tax increases, according to the National Institute on Money in State Politics.” Malanga also notes:

According to the Center for Responsive Politics, the American Federation of State, County and Municipal Employees (Afscme) has been the third-biggest contributor to federal campaigns over the past 20 years, having given $43 million. The National Education Association is number eight with $31 million in contributions, while the SEIU—half of whose 2.2 million members are government workers—is No. 10, with $29 million in campaign donations. Unlike businesses and industry groups that are also big givers but tend to split their donations between the parties, some 95% of government workers’ donations has gone to the Democratic Party, whose members are far more likely to favor raising taxes and boosting spending than are members of the Republican Party. [“Public Unions and Political Power,” Orange Country Register, Feburary 22, 2011.]

Posted on 02/22/11 04:34 PM by Alex Adrianson

Gov. Walker on Public-Sector Unions and Wisconsin’s Budget

Wisconsin Governor Scott Walker explains how collective bargaining for public workers has contributed to Wisconsin’s budget problems:

Posted on 02/22/11 10:57 AM by Alex Adrianson

Yes, Spending Can Be Held in Check

Dan Mitchell finds some lessons from Ronald Reagan:

Posted on 02/18/11 03:25 PM by Alex Adrianson

Budgetarama

President Obama released his FY 2012 budget proposal on Monday. The long and the short of it is that he proposes to spend $3.7 trillion next year, while running a deficit of $1.1 trillion. Overall spending would be about $90 billion less than in 2011, but still about $263 billion above 2010. Here’s a smattering of thoughts, observations, and factoids:

Exploding deficits. Deficits have average 2.1 percent of GDP over the past 50 years. That ratio explodes under President Obama’s budget, as this chart from Keith Hennessey shows:

President Obama’s claims to the contrary earned a “false” rating from Politifact.

A plan for more debt. James Capretta at National Review:Starting with the bottom line, according to the administration’s own numbers, the 2012 budget would push debt (held by the public, not government trust funds) up to nearly $12 trillion at the end of 2012. That’s up from $5.8 trillion at the end of 2008. So the federal government will have borrowed as much during President Obama’s four-year term in office as it had during the previous two-century-plus history since the Republic was founded in 1789. And that’s before the entitlement-spending explosion associated with the Baby Boom retirement hits with full force. Over the coming decade, spending on Social Security, Medicare, Medicaid, and Obamacare’s new entitlements will soar, from $1.6 trillion in 2011 to $3.0 trillion in 2021, according to the Congressional Budget Office. … [B]y their own numbers, the budget would run deficits of $7.2 trillion over the next ten years, pushing the nation’s accumulated debt to an astounding $19 trillion in 2021, or nearly 80 percent of GDP.” [“Obama’s Plainly Unserious Budget,” National Review, February 17, 2011.]

What if interest rates go up? Andrew Stiles: “[I]f the current rate stays at around 3.6 percent for the remainder of 2011, as opposed to the administration’s rosy projection of 3 percent, more than $800 billion will be added to the debt over the next decade. That alone would almost completely undo the $1.1 trillion in deficit reduction projected in the White House budget.” [“Not a Credible Document,” National Review, February 16, 2011.]

Counting on economic growth? Veronique de Rugy and Nick Gillespie: “Higher growth rates allow the president to foresee a reduction in unemployment from its current 9.3 percent to 8.6 percent next year. That means less unemployment benefits to pay out and it explains half of the projected reduction in spending from 2011 to 2012. Yet even if the president’s growth and revenues do materialize, we’re still in deep trouble. We are still left with a $1.1 trillion deficit in 2012 and with a cumulative $7.2 trillion deficit over 10 years. That’s $7.2 trillion that the federal government will have to borrow in the best-case scenario. And that explains why the debt held by the public is set to double in the next 10 years from $9 trillion in 2010 to over $18 trillion in 2020.” [“This Is No Way to Win the Future,” AOL News, February 15, 2011.]

Fannie and Freddie’s Fate? The editors at National Review:Obama’s proposal predicts that the costs of bailing out Fannie Mae and Freddie Mac—the government-sponsored enterprises that contributed mightily to the housing bubble and the subsequent 2008 fiscal crisis—will be cut in half. How precisely that will be accomplished is a mystery, especially given the unlimited line of credit that the two enterprises enjoy courtesy of the U.S. Treasury and the Obama administration’s steadfast refusal to downsize or dismantle these beasts.”

Gimmicks. The Heritage Foundation’s J.D. Foster: “Having pushed discretionary spending up rapidly in the prior two years, the President proposes to reduce 2012 discretionary spending by 5 percent, though he does so only by virtue of three simple and obvious budget gimmicks: 1. Redefining Pell grants as mandatory spending. Stripped of this gimmick, discretionary spending jumps by $14 billion in 2012. 2. Reclassifying $54 billion of surface transportation spending from discretionary spending to mandatory spending. 3. Spending the peace dividend. The budget proposal includes spending for military operations in Iraq and Afghanistan, referred to as “overseas contingency operations,” as discretionary spending and reduces funding for these operations by $38.2 billion in 2012.[Internal citations omitted.] Reversing these budget tricks lifts 2012 discretionary spending by $106.2 billion for an overall $31 billion increase in discretionary spending.” [“President Obama’s 2012 Budget Builds on Failures of the Past,” The Heritage Foundation, February 14, 2011.]

“Cuts” in perspective. Dan Mitchell: “Even with the supposed ‘cuts’ in Obama’s budget, there will be: 112 percent more spending for the Department of Agriculture; 100 percent more spending for the Department of Education; 154 percent more spending for the Department of Energy; 110 percent more spending for the Department of Health and Human Services; 175 percent more spending for the Department of Labor; and 82 percent for the Department of Transportation. And remember that inflation was less than 30 percent during this period.” [“Deconstructing the Revenue Side of Obama’s Budget,” Cato-at-Liberty, February 15, 2011.]

There is no 10-year budget. The most certain thing we can say about Obama’s 2012 budget is that it increases the deficit by $1.1 trillion. What the deficits are in future years will really be determined by the budgets that get passed in those years, Yuval Levin reminds us. [“Year by Year,” National Review, February 15, 2011.] One way of assessing how faithful future budgets will follow this year’s projections is to compare this year’s actual budget to previous year’s projections. Here’s a Mercatus chart making that comparison:

Bad tax policy. Dan Mitchell: “What’s especially disappointing is that the Administration stuck with these bad ideas when the President’s own fiscal commission proposed lower tax rates and base broadening. Those proposals would have increased the overall tax burden, so they definitely were not pure supply-side economics. And the Commission also proposed an increase in the double taxation of saving and investment, which also would be unfortunate. But at least the Commission proposed to do the wrong thing in a good way. Yes, taxes would have increased, but the damage would have been ameliorated by a better tax structure. Obama’s budget, by contrast, does the wrong thing in the worst way – increasing the tax burden while also making the tax system more unfair.” [“Deconstructing the Revenue Side of Obama’s Budget,” Cato-at-Liberty, February 15, 2011.]

More good reads. Conn Carroll’s “Morning Bell: Is This Program Worth Bankrupting My Child?“ (The Heritage Foundation, February 17, 2011) has a rundown of some ineffective programs that continue to be funded. See also: “Obama Budget Offers Inertia, Not Hope and Change,” Michael Barone, Washington Examiner, February 15, 2011; “Morning Bell: Obama Budget Doubles Down on Deficit Spending Failure,” The Heritage Foundation, February 15, 2011; and “The President’s Budget: Whistling Past the Graveyard,” by Keith Hennessey, February 14, 2011.

Posted on 02/18/11 03:09 PM by Alex Adrianson

High Noon in Madison

Madison, Wisconsin, was a quite a scene this week, as thousands of school teachers called in sick so they could rally at the capitol to protest Gov. Scott Walker’s proposals to rein in public employee benefits and collective bargaining rights. The sick-out has forced Madison schools to remain closed for three days running. But the teachers did more than just call in sick. Some brought their students, too, as this clip from the MacIver Institute shows:

Apparently, they’re not sure what they are protesting. Maybe their civics instruction has been lacking.

The Governor wants public employees to pay at least 12.6 percent of their health insurance premiums and contribute roughly half of their pension costs. Currently they contribute very little. But it is the proposals to rein in collective bargaining rights that have generate the most controversy, as The Heritage Foundation’s Morning Bell explains:

On Thursday, the President told a Wisconsin television station, “I haven’t followed exactly whats happening with the Wisconsin budget … some of what I’ve heard coming out of Wisconsin, where you’re just making it harder for public employees to collectively bargain generally seems like more of an assault on unions.”

President Obama is wrong: Denying government unions the power of collective bargaining is not an assault on all unions. Previous Democratic Presidents understood this fact. No less a progressive icon than President Franklin Delano Roosevelt wrote in 1937: “All government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. … The employer is the whole people, who speak by means of laws enacted by their representatives in Congress.” …

If government employees want to voluntarily form associations and lobby the government for higher pay, better benefits, and working conditions, that is their constitutional right. But they have no right to force all employees to join their organization and take money from their paychecks every week. Governor Walker’s bill fixes these problems: It affords government workers the right to quit their union and keep their jobs; it requires unions to demonstrate their support through annual secret-ballot votes; and it stops state and local governments from collecting union dues through their payroll systems. These are common-sense measures that would increase worker freedom, restore power to taxpayers, and make America more competitive internationally. Keep fighting, Governor Walker! The American people can’t afford you to lose. [See “Morning Bell: The American People Can’t Afford to Lose Wisconsin Union Showdown,” February 18, 2011.]

Posted on 02/17/11 03:36 PM by Alex Adrianson

The Portions Are Small, but the Prices Are High!

This chart is from testimony by Cato scholar Andrew Coulson before the House Committee on Education & the Workforce, February 10, 2011.

Posted on 02/16/11 03:34 PM by Alex Adrianson

Obamacare Makes the IRS Bigger

Remember that 10 percent excise tax on sun tanning salons that was part of funding Obamacare? The Internal Revenue Service says it will need 81 new employees devoted just to collecting that tax, and those workers will cost taxpayers $11.5 million. But that’s just part of the $65.6 million the IRS is requesting to enhance compliance with the tax law changes made by Obamacare. In addition, the IRS says it will need $213.5 million to manage the new tax credits created by Obamacare, $57.7 million to administer the new reporting requirements on employers and health insurers, and $62.4 million to implement the individual health insurance mandate.

These are just the costs of additional bureaucracy at the IRS; they don’t reflect the dollar value of any benefits delivered under the program. Government programs are leaky buckets.

Posted on 02/16/11 01:10 PM by Alex Adrianson

Amtrak’s History

Taxpayer billions for high-speed rail? First, what happened with low-speed rail? Here’s Robert Samuelson:

In 1970, when Congress created Amtrak to preserve intercity passenger trains, the idea was that the system would become profitable and self-sustaining after an initial infusion of federal money. This never happened. Amtrak has already swallowed $35 billion in subsidies, and they're increasing by more than $1 billion annually.

Despite the subsidies, Amtrak does not provide low-cost transportation. Longtime critic Randal O'Toole of the Cato Institute recently planned a trip from Washington to New York. Noting that fares on Amtrak's high-speed Acela start at $139 one-way, he decided to take a private bus service. The roundtrip fare: $21.50. Nor does Amtrak do much to relieve congestion, cut oil use, reduce pollution or eliminate greenhouse gases. Its traffic volumes are simply too small to matter.

Consider. In 2010, Amtrak carried 29.1 million passengers for the entire year. That's about one-twenty-fifth of annual air travel (2010 estimate: 725 million passengers). It's also roughly a quarter of daily automobile commuters (124 million in 2008). Measured by passenger-miles traveled, Amtrak represents one-tenth of 1 percent of the national total. … Even if ridership increased fifteen-fold over Amtrak levels, the effects on congestion, national fuel consumption and emissions would still be trivial.

(See “The Enemies of Good Government,” Real Clear Politics, February 14, 2011.)

Posted on 02/15/11 12:58 PM by Alex Adrianson

How Crony Is Our Capitalism?

“What if there were some way to invest in companies that have a close relationship to the Obama administration?” asks Ira Stoll. He continues:

Suppose one began this strategy at the beginning of the Obama administration, buying one share of each publicly traded company with an executive appointed by the president on February 6, 2009 to the President's Economic Recovery Advisory Board. That would be UBS, GE, CAT, and ORCL. In the nearly two years since then (using the Monday February 7 closing prices, and using Yahoo! Finance historical price data that adjusts for splits and dividends), the gain would have been 145% — far outperforming the 52% return of the S&P 500 Index over the same period.

Suppose that later that year, you decided to buy one share of each American publicly traded company that had a top executive attend President Obama's first state dinner at the White House, in honor of Prime Minister Singh of India. GE and CAT are on the list again, along with Honeywell, Pepsi (CEO Indra Nooyi) and Ethan Allen (ETH) CEO Farooq Kathwari.The return through day's end February 7, 2011 would have been 46%, versus a 19% gain for the S&P 500 over the same period.

Or suppose you wanted to invest in the publicly traded companies whose executives President Obama appointed on July 7, 2010 to the President's Export Council. Buying UPS, Boeing, Met Life, Disney, Pfizer, Dow Chemical, Ford, Verizon, United Airlines, ADM, and Xerox would have earned a 30% return over a period in which the S&P 500 gained 24%.

Stoll goes on to note an exception: Morgan Stanley, Bank of America, UBS have together underperformed the S&P 500 by about 7 percentage points since their executives attended the May 19, 2010 state dinner for the president of Mexico. Still, the results are promising enough that Stoll plans to continue tracking companies whose executives are invited to Obama state dinners or are members of various boards that advise the President on economic policy. “And if they continue to outperform, perhaps we'll consider licensing the FutureOfCapitalism Crony Capitalist Index methodology ...” (See “Introducing the Crony Capitalist Index,” FutureofCapitalism.com February 8, 2011.)

Posted on 02/14/11 01:53 PM by Alex Adrianson

Where the Taxes Are

Tennessee, California, and Arizona, in that order, have the highest combined state and local tax rates. To find out where your state ranks, see the Tax Foundation’s recent, “Ranking State and Local Sales Taxes,” February 3, 2011.

Posted on 02/11/11 01:43 PM by Alex Adrianson

Is an Article V Convention the Answer?

The number of federal aid-to-state programs now stands at an all-time high: 1,122, according to an analysis released this week by Chris Edwards of the Cato Institute. Many of these programs are a Faustian bargain for the states; in order to get the aid, the states have to spend their money, too. This set-up is one of the major reasons that states now find themselves in such dire fiscal straights, and it’s an open question whether the United States Congress can ever step back from its mandating, bailout-giving posture toward the states.

Could a constitutional convention proposed by the states, as provided for under Article V of the United States Constitution, provide a way of reining in federal overreach? The Heritage Foundation’s Matthew Spalding says this option should not be considered lightly:

There have been hundreds of applications for an amending convention over the years from virtually every state. Because no amending convention has ever occurred, an important question is whether such a convention can be limited in scope, either to a particular proposal or within a particular subject. While most calls for amending conventions in the nineteenth century were general, the modern trend is to call (and thus count applications) for conventions limited to considering a single, specific amendment. Some scholars maintain that such attempts violate the very mechanism created by Article V: the text says that upon application of the states Congress “shall call a Convention for proposing Amendments,” not for confirming a particular amendment already written, approved, and proposed by state legislatures (which would effectively turn the convention for proposing amendments into a ratifying convention). Indeed, it is not at all clear as a matter of constitutional construction (and doubtful in principle) that the power of two-thirds of the states to issue applications for a convention restricts, supersedes, or overrides the power of all the states assembled in that convention to propose amendments to the Constitution. Other questions include the many practical aspects of how an amending convention would operate and whether any aspects of such a convention (including going beyond its instructions) would be subject to judicial review. …

Serious scholars will undoubtedly continue to debate the historical record and speculate about the possibility of an amendments convention under Article V. Nevertheless, the lack of precedent, extensive unknowns, and considerable risks of an Article V amendments convention should bring sober pause to advocates of legitimate constitutional reform contemplating this avenue.

While a valid method created and available under the Constitution, “a Convention for proposing Amendments” has never been viewed as just another tool for reform but has become ever more so an ultimate option to be deployed only in extremis for the sake of maintaining the Constitution. Hence, the only time [James] Madison pointed to an amendments convention was during the Nullification Crisis of 1832 as a last-ditch effort to prevent the wholly unacceptable and unconstitutional alternative of nullification and secession that then threatened the continued existence of the United States.

For more, see “Article V: Congress, Conventions, and Constitutional Amendments,” The Heritage Foundation, February 10, 2011.

Posted on 02/11/11 01:16 PM by Alex Adrianson

Social Psychology’s Ideological Blinders

Jonathan Haidt, a social psychologist at the University of Virginia, has challenged his fellow psychologists to recognize how liberal bias has hurt their research. At the Society for Personality and Social Psychology’s January conference, Haidt gave a talk in which he argued that the field had become a hostile climate for researchers who don’t start with liberal assumptions. John Tierney profiles Haidt in the New York Times:

The fields of psychology, sociology and anthropology have long attracted liberals, but they became more exclusive after the 1960s, according to Dr. Haidt. “The fight for civil rights and against racism became the sacred cause unifying the left throughout American society, and within the academy,” he said, arguing that this shared morality both “binds and blinds.”

“If a group circles around sacred values, they will evolve into a tribal-moral community,” he said. “They’ll embrace science whenever it supports their sacred values, but they’ll ditch it or distort it as soon as it threatens a sacred value.” It’s easy for social scientists to observe this process in other communities, like the fundamentalist Christians who embrace “intelligent design” while rejecting Darwinism. But academics can be selective, too, as Daniel Patrick Moynihan found in 1965 when he warned about the rise of unmarried parenthood and welfare dependency among blacks — violating the taboo against criticizing victims of racism.

“Moynihan was shunned by many of his colleagues at Harvard as racist,” Dr. Haidt said. “Open-minded inquiry into the problems of the black family was shut down for decades, precisely the decades in which it was most urgently needed. Only in the last few years have liberal sociologists begun to acknowledge that Moynihan was right all along.” …

To overcome taboos, he advised them to subscribe to National Review and to read Thomas Sowell’s “A Conflict of Visions.”

See “Social Scientist See Bias Within,” New York Times, February 7, 2011.

Posted on 02/11/11 12:29 PM by Alex Adrianson

Obamacare Waivers Mount, Still

Why does anybody need a waiver to a law that’s been ruled unconstitutional? We don’t know; ask the Department of Health and Human Services. On Wednesday, HHS updated its Web site to show that it has now granted 915 waivers to Obamacare’s requirements on benefit limits in health insurance plans. The waivers allow employers to continue offering plans with annual limits on the dollar amount of benefits provided. These so-called mini-med plans are an affordable option for many workers, but they would become unavailable without the waivers.

The waivers are certainly good for the 2.4 million folks who still get to choose an affordable insurance plan, but what about the other 99 percent of Americans with private insurance? If it’s generally acknowledged that this provision makes health insurance more expensive, why not let all consumers have the option of getting mini-med plans?

The answer, of course, is that if everybody could escape from government-designed health insurance, then everybody would. And besides, the HHS Web site explains, “Annual limits waivers are temporary.  In 2014 annual dollar limits will be prohibited and mini-med plans will no longer be necessary.” Viola. Since they’re prohibited, nobody will want them anymore.

At National Review, Philip Hamburger notices that the practice of giving favored constituents waivers to burdensome laws bears a striking resemblance to the granting of dispensations during the Middle Ages. This practice once belonged to popes and kings, but was restricted heavily following the English Revolution of 1688. Further, notes Hamburger, the U.S. Constitution “did nothing to authorize delegation of the suspending power to the executive” which raises the question of whether such waivers are even constitutional.

Of course, Judge Roger Vinson in Florida recently ruled Obamacare unconstitutional over a different provision of the law (the individual mandate), and if that ruling holds up on appeal, then nobody will need a waiver anyway.

Posted on 02/10/11 06:41 PM by Alex Adrianson

Who Watches the Watchers?

On Tuesday, the Government Accountability Office announced that it had concluded an internal review of how a report on for-profit schools got so bungled that a revised version had to be issued. The original report identified examples of waste, fraud, and abuse at a number of for-profit schools. The report gave ammunition to those who don’t like the idea of mixing profit-seeking with teaching. But it turns out that GAO was guilty of selecting the evidence to fit the conclusion that its patrons in Congress wanted to hear. A couple months after the initial report came out, a revised version was issued that included material missing from the original report. That material put the for-profits in a better light.

Of its review, GAO announced: “The results indicate there was no personal bias or conflict of interest by those involved in writing the report, however there were process, supervisory and analytical weaknesses that led to errors and missing context.” The GAO continued: “The report is an internal inspection and will not be publicly released by GAO …”

Where’s the Government Accountability Office Accountability Office when you need it?

(For background on the disputed report, see Neal McCluskey’s posts “GAO Confirms: It Did Nothing Wrong, and It’s None of Your Business,” February 8, 2011, and “Dear Defamed: Trust Us, We’re the Government,” January, 13, 2011, at Cato@Liberty.)

Posted on 02/09/11 05:07 PM by Alex Adrianson

Tight Budgeting

If the federal deficit were shots of whiskey, we’re still getting drunk.

Posted on 02/09/11 02:44 PM by Alex Adrianson

Everything Depends on Cutting Public Libraries—Really, It Does!

Mark Littlewood has a point about public libraries. Officially, Britain’s national debt is somewhere in the neighborhood of £900 billion, but it runs into the trillions when unfunded liabilities are counted. Public libraries, meanwhile, cost UK taxpayers only about £1 billion. So why is Littlewood, who is the Director General of the Institute of Economic Affairs, which is the oldest of world’s free market think tanks, bothering to take on the “save-our-libraries brigade”?

The problem isn’t merely, as Littlewood aptly points out, that libraries are now a very inefficient way of distributing reading material. There’s a point of principle at stake:

Celebrities such as Nicky Wire, bassist of the Manic Street Preachers, see library closures as a ‘direct attack on the soul of the country’. It’s unclear how much of his own personal fortune Mr Wire has pledged to the cause of keeping libraries open, if any at all.

The solution for the library campaigners should be pretty clear. If the closures are as unpopular as they suggest, pass the hat round and raise some money. It shouldn’t be that difficult. The entire library budget could be met by each British adult donating £25 a year (or maybe £60 a year from those who actually visit these places on a remotely regular basis). In other words, about the cost of a ticket to a Premier League football match. This might be a sizable sum of money for some people, but not for all that many. And those campaigners who can’t stretch to £60 can be confident that the rich members of the campaign such as Mr Wire and multi-millionaire novelist Philip Pullman will surely be willing to pay their own share several hundred or several thousand times over. This isn’t a flippant challenge; philanthropy has a proud and honourable history of providing just this sort of public service.

The real issue, of course, is that people like a service – such as libraries – but they don’t like paying for it directly. They think people like me – I don’t think I’ve visited a library in fifteen years and I consider them of rapidly diminishing importance – should be made to support their pet projects. The anger, rage and publicity generated by the save our libraries campaign just goes to prove the famous Frederic Bastiat adage that government is the great fiction through which everyone tries to live at the expense of everyone else. If their campaign is successful, we will have embraced that fiction even more tightly. That’s not a fair, free or even sustainable way to develop public policy.

Until more people get Littlewood’s point, trimming bloated government will remain an exceptional challenge—for taxpayers everywhere. See A Simple Way to Keep Every Public Library Open … Institute of Economic Affairs Blog, February 9, 2011.

Posted on 02/09/11 11:26 AM by Alex Adrianson

However You Measure, Federal Workers Are Overpaid

Economists who compare federal and private sector pay have typically found that federal workers earn between 10 percent to 20 percent more in wages. But does that really mean federal workers are overpaid? These studies control for things like age, education, and experience. But it’s possible, write Andrew Biggs and Jason Richwine, that those studies aren’t capturing important differences between the groups such as intelligence, motivation, and specific training. Biggs, of the American Enterprise Institute, and Richwine, of The Heritage Foundation, point out, however, that there are alternative of ways of assessing the question and those methods all lead to the conclusion that federal workers are overpaid.

For example, a number of studies have found that when private sector workers lose their jobs and then join the federal workforce they end up earning more than private sector workers who find another job in the private sector. In 1988, Alan Krueger of Princeton found the advantage for these workers to be 12 percent. A forthcoming Heritage Foundation report that updates Krueger’s analysis finds the federal premium to be 8 percent. Because this method compares the earnings of the same individuals over time, rather than different individuals at one point in time, it naturally controls for the factors that are hard to measure like intelligence and specific skills.

Another piece of evidence that federal workers are overpaid: Federal workers are much less likely to quit their jobs than are private sector workers. This trend has held steady despite the fact that newer federal workers are less likely to experience the job lock of a defined-benefit pension plan. Quit rates for federal workers hired after 1984 (when a defined-contribution element was introduced into federal pensions) are 30 percent lower than for similar workers in 1984.

For more on federal pay, see “Yes, They’re Overpaid,” Weekly Standard, February 14, 2011.

Posted on 02/08/11 04:11 PM by Alex Adrianson

Cutting Spending: Better Start Somewhere

The proposed Spending Reduction Act is important and worthwhile, even if it hardly makes a dent in federal spending, explains Dan Oliver (at American Spectator):

If we cannot eliminate the $167-million subsidy for the National Endowment for the Humanities, we cannot make changes in Social Security. If we cannot eliminate the Department of Energy’s $530-million program of Weatherization Grants to states, we cannot make changes in Medicare.

And if we cannot make changes in Social Security and Medicare, we will go broke.

Posted on 02/07/11 05:53 PM by Alex Adrianson

In Prague They Love the Gipper

Here’s the Google logo from Sunday, which was the 100th birthday of Ronald Reagan:

Of course, you know right away that it’s really a tribute to the leftist Czech playwright Jan Werich. Right? Here’s a slightly less mysterious composition that Google used on January 20, 2011, to commemorate the 50th anniversary of the inauguration of John F. Kennedy.

[Via As John Miller at The Corner.]

Reagan, by the way, is still plenty appreciated in the Czech Republic for his role in bringing down the Iron Curtain.  The Prague Daily Monitor reports that next week the Czech Senate and the Civic Institute will host a conference commemorating Reagan’s contribution to ending Communist rule in Eastern Europe. Prime Minister Petr Necas is expected to give a speech.

Posted on 02/07/11 05:40 PM by Alex Adrianson

Egypt Fail

The circumstances in Egypt are revealing just how valuable certain institutions are.

1. The U.S. Agency for International Development. David Rieff at The New Republic:

[G]o to USAID’s website and find the Egypt page and you will read that, “For three decades, the United States and Egypt have collaborated closely on economic development and regional stability.” You will also read the grotesque claim that “USAID has helped Egypt become a “success story in economic development.” More specifically, the site claims particular success in improving the quality of education, and, grotesquely, in light of recent events, taken the credit for having strengthened “the administration of justice,” improved “access to justice for disadvantaged groups,” and promoted “decentralized governance and more competitive electoral processes.” [“The Failure of U.S. Aid in Egypt,” February 4, 2011.]

2. The United Nations Human Rights Council. James Carafano, et al. at The Heritage Foundation:  The HRC conducted a periodic review of Egypt’s human rights record in 2010, but it has failed to adopt any resolution on the human rights situation in Egypt.” [“Top Five Lessons from the Fight for Freedom in Egypt,” February 1, 2011.]

Posted on 02/04/11 12:27 PM by Alex Adrianson

Who Else Wants More Economic Freedom?

Free market capitalism is held in high esteem by the citizens of two countries that rank relatively low in economic freedom: China and Brazil. According to a recent survey by the French Institute of Public Opinion, 55 percent of United States citizens say capitalism works well and should be maintained, compared to 13 percent who say it works poorly and must be eliminated. That’s a 4-to-1 ratio. But for Brazilians, the ratio in favor of capitalism is 8-to-1, and for the Chinese the ratio is 22-to-1.

Brazil ranks 113th out of 179 nations in the latest edition of the Heritage Foundation/Wall Street Journal Index of Economic Freedom. China, meanwhile, comes in as only the 135th freest economy in the world. The United States, despite slipping in recent years, still ranks 9th. As Bryan Riley observes at The Foundry, “Perhaps freedom, like many things in life, is something best appreciated it by those who don’t yet have it.”

See: “Perceptions Towards Globalization Across 10 Countries,” French Institute of Public Opinion, January 2011.

Posted on 02/04/11 12:06 PM by Alex Adrianson

Regulation News of the Ridiculous

It’s good to know that the nation will now be prepared for the next great milk spill, thanks to the Environmental Protection Agency.

[T]he EPA has decided,” reports Thomas Sowell, “that since milk contains oil, it has the authority to force farmers to comply with new regulations to file ‘emergency management’ plans to show how they will cope with spilled milk — how farmers will train ‘first responders’ and build ‘containment facilities’ if there is a flood of spilled milk.”

As Sowell notes, it doesn’t matter whether this move actually makes sense. The law, apparently, gives EPA the authority to regulate spills containing oil, and “[t]he bureaucracy has every incentive to stretch the meaning of those words, in order to expand its empire.”

Posted on 02/04/11 11:45 AM by Alex Adrianson

Quantifying Corruption in the Middle East

Most accounts of what’s happening in the Middle East place economics as much as politics at the center of the narrative. The protests that led to the fall of Tunisian dictator Zine El Abidine Ben Ali began when Mohamed Bouazizi set himself on fire in front of a government building to protest the confiscation of his fruit and vegetable cart. Bouazizi, 26, was a university graduate who couldn’t find any work, and the government wouldn’t give him a license to operate his cart. Egypt, meanwhile, was kindling for the spark, with corrupt government officials living lavishly while 40 percent of the people live on less than $2 per day and one-third of young adults are unemployed.

If you want to quantify these problems, look to The Heritage Foundation/Wall Street Journal Index of Economic Freedom. The 2011 edition, just released in January, shows that numerous countries in the Middle East are lacking in economic freedom. Egypt ranked 96th and Tunisia ranked 100th out of 179 countries ranked. Yemen, another Middle East country trying to head off political unrest, ranked 127th. Most troubling is where these countries score on the corruption component of the Index. One-hundred is the highest possible score, but Egypt received only a 28, and Tunisia a 43. But Tunisia is actually a relatively high performer on corruption compared to a number of other Middle Eastern countries. Consider these scores: Algeria, 28; Iran, 18; Lebanon, 25; Libya, 25; Morocco, 33; Syria, 26; and Yemen, 21.

Posted on 02/04/11 11:33 AM by Alex Adrianson

Happy 100th Ronald Reagan

Ronald Reagan’s 100th Birthday is February 6. As the video below from The Heritage Foundation explains, now would be a really good time to remember Reagan’s idea that a free people can find solutions to their problems.

Also, read Lee Edwards, “The Classical Virtues of Ronald Reagan,” which recounts Reagan’s displays of courage, prudence, justice, wisdom. Here’s an example of his courage:

When he was shot on March 30, 1981, President Reagan seemed to spend most of his time reassuring everyone that he was not seriously hurt, although the bullet had stopped only one inch from his heart and the doctors were very concerned about his substantial blood loss. As he was wheeled into the operating room, he noted the long faces of his three top aides—James Baker, Ed Meese, and Michael Deaver—standing in the hall and asked, “Who’s minding the store?” When a distraught Nancy Reagan made her way to him, he lightly said, “Honey, I forgot to duck.”

And for even more on Reagan, read Steven Hayward’s “Reagan Reclaimed,” at National Review, or take in the American Enterprise Institute video below, in which Hayward explains what’s up with liberals now liking Reagan.

Posted on 02/03/11 05:38 PM by Alex Adrianson

Education Reform as Hacking

School choice, says Tom Vander Ark, is a form of hacking, if one defines “hacking” as “re-configuring or re-programming of a system to function in ways not facilitated by the owner, administrator, or designer.” But technology is making it possible to hack the public-school-classroom model in numerous ways, which Vander Ark reviews in his post “10 Ways to Hack Education” (Edreformer blog, January 28, 2011.) Here’s a taste of what’s going on:

“[P]ersonal digital learning holds the potential to personalize learning in ways that increase persistence, motivation, understanding, and achievement. Curve bending learning experiences will include games (e.g., MangaHigh), sims (e.g., Phet), virtual environments (e.g., MuzzyLane), and adaptive content (Dreambox). … [V]irtual charter schools make it possible to learn at home and on the road (speed skater Apolo Ohno was an online learning pioneer). It’s possible for almost anyone to learn anything anywhere for free or cheap. Online learning makes it possible for community-based organizations (CBO) to become schools blending the best of online education and onsite support. … [C]ompetency-based models (e.g, merit badges, portfolios, adaptive assessments, and evidence systems) will slowly replace courses and credits. In some job categories new forms of evidence will displace degrees and certifications. (see iNACOL report on competency-based learning) … [O]pen education resource (OER) developers are hacking the textbook adoption process with free textbooks (CK12, Flatworld), courseware (Curriki, OER Commons), content and software. … [T]he viral adoption of free content and software is a new backdoor to the classroom that avoids the slow bureaucratic district procurement process. Free platforms like Edmodo and Spiral Universe have gained quick global acceptance.” [Via Diana Cieslak at Liberty Live.]

Posted on 02/03/11 02:44 PM by Alex Adrianson

The Cartoonist’s Pen Is Mighty

Our friends at the Center for International Private Enterprise have started an editorial cartoon contest. CIPE does great work promoting democratic and market-oriented reforms in developing countries around the world. The contest aims to highlight the role that images can play in promoting more open and less corrupt government. If you’ve got a cartoon that makes a point about the importance of democracy and free markets in development, check out the contest guidelines.

Posted on 02/03/11 11:39 AM by Alex Adrianson

Obama’s Charm Offensive …

… hasn’t helped in Egypt, reports the Washington Times:  

In June 2009, President Obama launched his much heralded outreach effort to the Muslim people with a speech in Cairo. Now the people of that city are clamoring for reform, but their view of the United States is worse than it was at the height of the George W. Bush administration. According to survey data from the Pew Global Attitudes Project released in June 2010, the United States had a 30 percent approval rating in Egypt in 2006, which at the time was higher than U.S. approval in Spain. This dropped to 22 percent by the end of the Bush years. The burst of enthusiasm that attended Mr. Obama’s outreach effort boosted favorability slightly to 27 percent, but in 2010 disappointment set in and approval dropped 10 points to 17 percent, tying Egypt with Turkey and Pakistan for the most negative view of the United States of any country in the world.

Posted on 02/02/11 05:31 PM by Alex Adrianson

How Does the Bush/Obama Recovery Compare to the Reagan Recovery?

The current recovery from recession doesn’t look so good when you compare it to previous recoveries. The Federal Reserve Bank of Minneapolis has produced a pretty nifty online tool that lets you compare recessions and recoveries. At Cato-at-Liberty, Dan Mitchell uses the tool to compare the Reagan recovery with the Bush/Obama recovery. Here is the comparison graphically:

Of course, under Reagan federal spending did not explode the way it has done under Bush/Obama. In 1981, federal spending as a percentage of GDP stood at 22.2 percent and increased to 23.5 percent before declining over the remainder of Ronald Reagan’s term, falling to 21.2 percent in 1989. In 2007, federal spending stood at 19.6 percent of GDP, but rose by nearly 6 percentage points to 25.4 percent by 2010. The Office of Management and Budget projects federal spending will be 25.1 percent in 2011.

Posted on 02/02/11 02:42 PM by Alex Adrianson

Egypt and U.S. Policy

The Egyptian masses want Hosni Mubarak gone, and the question for the West is whether that aspiration will lead to a democratic government that respects human rights or an Islamist government such as was produced by the 1979 Iranian revolution. A number of experts now say that the events in Cairo and in Tunisia show that the United States has been too willing to see Arab autocrats as sources of stability against Islamist movements, and that the Obama administration has continued this mistake by being too timid in expressing support for the Egyptian people.

Eliot Abrams, for instance, writes in the Washington Post:

The regimes of [Tunisia’s] Ben Ali and Egypt’s Hosni Mubarak proffered the same line to Washington: It’s us or the Islamists. For Tunisia, a largely secular nation with a literacy rate of 75 percent and per capita GDP of $9,500, this claim was never defensible. In fact, Ben Ali jailed moderates, human rights advocates, editors – anyone who represented what might be called “hope and change.”

Mubarak took the same tack for three decades. Ruling under an endless emergency law, he has crushed the moderate opposition while the Islamist Muslim Brotherhood has thrived underground and in the mosques. Mubarak in effect created a two-party system – his ruling National Democratic Party and the Brotherhood – and then defended the lack of democracy by saying a free election would bring the Islamists to power.

… regimes that make moderate politics impossible make extremism far more likely. Rule by emergency decree long enough, and you end up creating a genuine emergency. And Egypt has one now.

Abrams, like Marc Thiessen also writing in the Post, says the Obama administration should have been more outspoken in support of the people: Thiessen writes:

While Egyptians marched by the tens of thousands demanding President Hosni Mubarak‘s ouster, Vice President Biden publicly defended Mubarak against the charge that he is a dictator, while Secretary of State Hillary Clinton expressed confidence in the stability of his regime. As these words reached the teeming streets of Cairo, the perception took hold among demonstrators that the United States is siding with Mubarak against the people. The Post reported Sunday that “many protesters are now openly denouncing the United States for supporting President Hosni Mubarak.” One protester complained that U.S. officials “speak about their own interest, not ours.” Another declared: “Tell America that we get to choose our president . . . not them.” Yet another said flatly: “We believe America is against us.”

The administration’s response, says The Heritage Foundation’s Morning Bell, is of a piece with its overall lack of enthusiasm for supporting freedom:

The Obama Administration has been slow to embrace calls for liberty in Egypt is completely consistent with the Obama Doctrine as applied in the Middle East. When the Iranian people rose against the regime in Tehran in the wake of a disputed national election, Obama offered virtually no support for the cries for freedom. He was too committed to his engagement strategy with the Iranian regime, believing his “charm offensive” would be enough to deter them from pursuing nuclear weapons. Those efforts have completely failed. Nevertheless, the “playing nice initiative” with Tehran fell flat. Today, the regime is more aggressive than ever—backing a terrorist takeover of the government in Lebanon, snubbing Western nuclear negotiators, and promoting an Islamist agenda across the region.

Richard Williamson, writing in The American:

As is often the case, America is trying to balance interests and values. But here the distinction is less than many suggest. In Egypt, the people are leading a call for reform, the very sorts of reforms that America has historically called for throughout the world. The longer Mubarak tries to hold on, the longer the protests will continue. And, as we have already seen, as demonstrators are forced to continue their quest for reforms, they are beginning to take on an anti-American flavor absent in the opening days of this crisis.

It is past time for Mubarak to go. He has lost the Egyptian people and he has lost legitimacy. It is in the interests of the United States and the Egyptian people for this to happen sooner, not later.

Malou Innocent, at Cato-at-Liberty:

The Obama administration can extend diplomatic support to a political emancipation movement in Egypt, thereby visibly abandoning its long-time dictatorial client and pushing other U.S.-backed autocrats to end censorship, political repression, and address their people’s demands for economic and political reforms. This change, however belated, can help salvage a decent relationship with a successor government and with the population of the country–similar to moves President Ronal Reagan made during the 1980s toward both South Korea and the Philippines. Although such a stance would likely do little to limit recruitment levels of militant outfits in North Africa, it does have the potential to substantially enhance America’s image in the Muslim world.

Posted on 02/01/11 04:54 PM by Alex Adrianson

Judge Vinson Watches Reason.tv

A Reason.tv video that we posted last August was cited by Judge Roger Vinson in his opinion striking down Obamacare on Monday. Indeed, it was a good video, so we’ll post it again. Here’s the section (from pages 46-47) from the opinion that cites the video:

[T]here are lots of markets – especially if defined broadly enough – that people cannot “opt out” of. For example, everyone must participate in the food market. Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market. Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile – now partially government-owned – because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business.

I pause here to emphasize that the foregoing is not an irrelevant and fanciful “parade of horribles.” Rather, these are some of the serious concerns implicated by the individual mandate that are being discussed and debated by legal scholars. For example, in the course of defending the Constitutionality of the individual mandate, and responding to the same concerns identified above, often-cited law professor and dean of the University of California Irvine School of Law Erwin Chemerinsky has opined that although “what people choose to eat well might be regarded as a personal liberty” (and thus unregulable), “Congress could use its commerce power to require people to buy cars.” See ReasonTV, Wheat, Weed, and Obamacare: How the Commerce Clause Made Congress All-Powerful, August 25, 2010, available at: http://reason.tv/video/show/wheat-weed-and-obamacare-how-t. When I mentioned this to the defendants’ attorney at oral argument, he allowed for the possibility that “maybe Dean Chemerinsky is right.” Therefore, the potential for this assertion of power has received at least some theoretical consideration and has not been ruled out as Constitutionally implausible. [Internal citations omitted.]

Posted on 02/01/11 11:32 AM by Alex Adrianson

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