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InsiderOnline Blog: August 2014

Secure the Border, Maybe?

Earlier this week, President Obama committed a wee gaffe, when he responded to a question about consulting with Congress on action against the Islamic State of Iraq and Syria by saying: “We don’t have a strategy yet. I don’t want to put the cart before the horse.” From Judicial Watch, here’s some news that, if true, suggest the President might want to step up the work on getting a strategy:

Islamic terrorist groups are operating in the Mexican border city of Ciudad Juarez and planning to attack the United States with car bombs or other vehicle born improvised explosive devices (VBIED). High-level federal law enforcement, intelligence and other sources have confirmed to Judicial Watch that a warning bulletin for an imminent terrorist attack on the border has been issued.  Agents across a number of Homeland Security, Justice and Defense agencies have all been placed on alert and instructed to aggressively work all possible leads and sources concerning this imminent terrorist threat.

Specifically, Judicial Watch sources reveal that the militant group Islamic State of Iraq and Greater Syria (ISIS) is confirmed to now be operating in Juarez, a famously crime-infested narcotics hotbed situated across from El Paso, Texas. Violent crimes are so rampant in Juarez that the U.S. State Department has issued a number of travel warnings for anyone planning to go there. The last one was issued just a few days ago.

Intelligence officials have picked up radio talk and chatter indicating that the terrorist groups are going to “carry out an attack on the border,” according to one JW source.  “It’s coming very soon,” according to this high-level source, who clearly identified the groups planning the plots as “ISIS and Al Qaeda.” An attack is so imminent that the commanding general at Ft. Bliss, the U.S. Army post in El Paso, is being briefed, another source confirms. [Judicial Watch, August 29]

Posted on 08/29/14 10:34 PM by Alex Adrianson

Taxpayers Are Funding a Ministry of Open Debate

Apparently, people on the Internet are saying stuff that’s wrong, but don’t worry: The federal government is on it! The Week reports that the National Science Foundation has given nearly $1 million to a project known as “Truthy” at Indiana University for building “a database of ‘suspicious memes’ and other ‘false and misleading’ political ideas posted on social media.”

A major focus of the project is determining whether memes are created by professional political activists or regular internet users. Truthy’s “About” page suggests that such content distributed by the “shady machinery of high-profile congressional campaigns” is just one example of “political smears, astroturfing, misinformation, and other social pollution” lurking on social networks. The ultimate goal of the project, as explained in the NSF grant, seems to include suppression of this content: “[Truthy] could mitigate the diffusion of false and misleading ideas, detect hate speech and subversive propaganda, and assist in the preservation of open debate.” [The Week, August 26; h/t Walter Olson]

Making a global warming meme, brb.

Posted on 08/29/14 10:18 PM by Alex Adrianson

The Federal Government Will Have to Defend Its Common Core Push in Court

On Wednesday, Louisiana Gov. Bobby Jindal (R) filed suit against the federal government, charging that the Department of Education is attempting to create a national curriculum and thereby exercise a power it does not possess under the U.S. Constitution. Lindsey Burke and Andrew Kloster explain why the governor might win:

The [Department of Education] granted [Elementary and Secondary Education Act (ESEA)] waivers to states such as Louisiana under the condition that they meet a variety of new requirements concocted by the DOE. And, pursuant to Section 9401 of the law, codified at 20 U.S. Code § 7861, the Secretary of Education is to waive “any statutory or regulatory requirement” of the ESEA (now known as No Child Left Behind) when a state requests a waiver.

The problem is that rather than wait for states to request waivers if they were unable to meet certain requirements, the Obama Administration actively encouraged non-compliance by developing an ESEA Flexibility program, the details of which were announced in September 2011. This program represented what the Congressional Research Service (CRS) described as “a fundamental redesign of key elements of the ESEA.” The program encouraged states to apply for waivers, insulating them from NCLB sanctions for failure to meet achievement benchmarks.

In order to receive a waiver, however, states were required to adopt standards common to a “significant number” of states (as the CRS report says, “presumably the Common Core State Standards”) or college-and-career readiness standards approved by a state’s Institute of Higher Education network. […]

The waiver scheme might violate a number of statutes. The waiver program appears to encourage noncompliance. Furthermore, there are provisions in three federal laws that explicitly prohibit federal direction of curriculum: the General Education Provisions Act, the Department of Education Organization Act, and the Elementary and Secondary Education Act. [Daily Signal, August 28]

As Kloster and Burke note, there is also the question of whether the waiver program constitutes a commandeering of state law that violates the Tenth Amendment’s command that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Posted on 08/29/14 08:56 PM by Alex Adrianson

The Department of Justice Is Shaking Down Banks in Order to Fund Left-Wing Politics

So far, Left wing activist groups have netted $128 billion from so-called mortgage fraud settlements that the Department of Justice is negotiating with the big banks. Investor’s Business Daily reports the details of the racket, including the latest settlement with Bank of America:

Buried in the fine print of the deal, which includes $7 billion in soft-dollar consumer relief, are a raft of political payoffs to Obama constituency groups. In effect, the government has ordered the nation’s largest bank to create a massive slush fund for Democrat special interests.

Besides requiring billions in debt forgiveness payments to delinquent borrowers in Cleveland, Atlanta, Philadelphia, Oakland, Detroit, Chicago and other Democrat strongholds—and up to $500 million to cover personal taxes owed on those checks—the deal requires BofA to make billions in new loans, while also building affordable low-income rental housing in those areas. […]

BofA gets extra credit if it makes at least $100 million in direct donations to IOLTA and housing activist groups approved by HUD.

According to the list provided by Justice, those groups include come of the most radical bank shakedown organizations in the country, including:

• La Raza, which pressures banks to expand their credit box to qualify more low-income Latino immigrants for home loans;

• National Community Reinvestment Coalition, Washington’s most aggressive lobbyist for the disastrous Community Reinvestment Act;

• Neighborhood Assistance Corporation of America, whose director calls himself a “bank terrorist;”

• Operation Hope, a South Central Los Angeles group that’s pressuring banks to make “dignity mortgages” for deadbeats. […]

In effect, lenders are bankrolling the same parasites that bled them for the risky loans that caused the mortgage crisis. With new cash, they can ramp back up their shakedown campaign, repeating the cycle of dangerous political lending that wrecked the economy. [Investor’s Business Daily, August 27]

Meanwhile, the Economist asks: “Who runs the world’s most lucrative shakedown operation?”

The Sicilian mafia? The People’s Liberation Army in China? The kleptocracy in the Kremlin? If you are a big business, all these are less grasping than America’s regulatory system. The formula is simple: find a large company that may (or may not) have done something wrong; threaten its managers with commercial ruin, preferably with criminal charges; force them to use their shareholders’ money to pay an enormous fine to drop the charges in a secret settlement (so nobody can check the details). Then repeat with another large company.

The amounts are mind-boggling. So far this year, Bank of America, JPMorgan Chase, Citigroup, Goldman Sachs and other banks have coughed up close to $50 billion for supposedly misleading investors in mortgage-backed bonds. BNP Paribas is paying $9 billion over breaches of American sanctions against Sudan and Iran. Credit Suisse, UBS, Barclays and others have settled for billions more, over various accusations. And that is just the financial institutions. Add BP’s $13 billion in settlements since the Deepwater Horizon oil spill, Toyota’s $1.2 billion settlement over alleged faults in some cars, and many more.

In many cases, the companies deserved some form of punishment: BNP Paribas disgustingly abetted genocide, American banks fleeced customers with toxic investments and BP despoiled the Gulf of Mexico. But justice should not be based on extortion behind closed doors. The increasing criminalisation of corporate behaviour in America is bad for the rule of law and for capitalism […] . [Economist, August 30]

Posted on 08/29/14 07:58 PM by Alex Adrianson

You Say You Want a Common Core Exit Strategy?

There are three reasons states that have not yet exited Common Core educational standards should do so now, says Jim Stergios:

1. The feds can no longer hold out the possibility of punishing states that received [Race to the Top] funding for the Core. The states long ago spent the stimulus money.

2. Second, the states have been saddled with a significant unfunded mandate. States and localities fund 90% of educational services, so if there are costs that go beyond the original sum received through the [Race to the Top] for Common Core, then states and localities will be on the hook for them.

3. The future costs of staying with Common Core are unpredictable – and therefore at this point it is more prudent from a budgetary perspective to transition from the Core and the Core-aligned tests.

But here is a problem:

In about 25 states, it is not enough for state officials and activists to say no to Common Core. Those states had poor quality standards before the Core and getting rid of it will not lead to higher achievement by their students. Instead, they need to have an exit strategy that says no to the Core and yes to world-class standards.

Ohio, says Stergios, has found a solution that may work for other states:

Learning from Indiana’s disastrous effort and the good efforts in Oklahoma and South Carolina, Ohio’s HB597 is a huge step forward in that it not only rejects Common Core’s mediocre offerings, but it provides on an interim basis Massachusetts’ nation-leading standards as the new foundation to draft off of in developing new Ohio standards. The Massachusetts’ standards go into place for two years as Ohio educators, businesses, scholars and parents put their heads together in a truly public process—and develop, we hope, even better standards than what Massachusetts had.

The advantages of the Ohio plan are several, notes Stergios, including: Two years gives enough time to build public support and teacher buy-in for new state standards; the Massachusetts standards do not require costly retraining of teachers to implement faddish teaching methods; and the Massachusetts standards can also serve as a framework for the development of a state’s own standards. [Pioneer Institute for Public Policy, August 27]

Posted on 08/29/14 06:15 PM by Alex Adrianson

Left-Wing Historians Want to Hijack the Teaching of American History

The College Board has released a new “Framework” for its Advanced Placement U.S. History Exam. Stanley Kurtz writes that the product is the work of a “conclave of historians with a left-wing foreign policy agenda, a third of them from foreign countries.” He explains that this movement, led by NYU historian Thomas Bender, wants to replace the teaching of American history as we know it with a transnational narrative. Ultimately, this group wants to “produce a generation of Americans more amendable to working through the United Nations and various left-leaning ‘non-governmental organizations’ (NGOs) on issues like the environment and nuclear proliferation.” [National Review, August 25]

Some will applaud that emphasis in teaching U.S. history while others will abhor it, which perfectly illustrates why nationalizing high school curriculum has always been a bad idea: It will inevitably introduce insoluble social and political conflicts into the schools. A decentralized education system minimizes those problems. School choice is an even better fix because it lets individual families choose whatever schools cater best to their lifestyle/intellectual/ideological commitments without forcing anybody else to endure them.

Kurtz concludes:

The brief five-page conceptual guideline the Framework replaced allowed sufficient flexibility for teachers to approach U.S. History from a wide variety of perspectives. Liberals, conservatives, and anyone in-between could teach U.S. history their way, and still see their students do well on the AP Test. The College Board’s new and vastly more detailed guidelines can only be interpreted as an attempt to hijack the teaching of U.S. history on behalf of a leftist political and ideological perspective. The College Board has drastically eroded the freedom of states, school districts, teachers, and parents to choose the history they teach their children. That is why this change must not stand. [National Review, August 25]

Posted on 08/28/14 06:18 PM by Alex Adrianson

Which Kind of Inequality Really Matters?

The distributions of life-expectancy, health, and education have never been more equal, reports Nicholas Eberstadt. On life-expectancy:

The risk of dying in infancy in Sweden today is about 100 times lower than in 1751—and the risk of dying in early childhood is more than 100-fold lower. Today 90% of Swedes can expect to survive to age 65, and more contemporary Swedes live to 86 than to any other particular age. The estimated Gini index for Sweden’s inequality in age at death has plummeted to 0.08. Lifespans have never been so long—or so equally distributed—as they are now.

The trend in Sweden holds for the rest of the world. In the early 1870s Italy’s life expectancy was under 30 years and the odds of death before age 5 nearly 45%. The estimated Gini index for age at death was 0.56. Today (2009) Italy’s life expectancy at birth is about 82 years, and the Gini index for the distribution of national lifespans is as low as Sweden’s.

And the U.S.? Life expectancy rose from about 61 years in 1933 to about 79 in 2010. Over those same decades the Gini index for lifespan inequality was cut in half—from 0.22 to 0.11. Despite the ethnic, income and other differences that characterize our society, Americans of all backgrounds have never enjoyed such equality in length of life as we know today.

And on education:

[T]hree Moroccan economists (Benaabdelaali Wail, Hanchane Said and Kamal Abdelhak) have reckoned that the Gini index for adult mean years of schooling world-wide was cut roughly in half between 1950 and 2010, from 0.64 to 0.34. Every region has evidently witnessed progressive reductions in such inequality. For the world’s males and females 15-24 years of age, years of schooling are now more evenly distributed than is income in any country. [Wall Street Journal, August 26]

Posted on 08/27/14 05:17 PM by Alex Adrianson

Only the United Arab Emirates and Chad Have Higher Corporate Tax Rates than the United States

Says the Tax Foundation:

[Tax Foundation, August 20]

Posted on 08/22/14 08:37 PM by Alex Adrianson

In Politics, When People Talk about Change, They Always Mean Change by the Other Guy

And here is a brilliant reminder of that fact in Don Boudreaux’s response to an emailer who wrote that he “can’t conceive it possible [that] businesses can’t spare some amount of their profit to pay underpaid workers living wages.”

I disagree. Firms that employ large numbers of low-skilled workers generally operate in highly competitive industries. This competition ensures that there are no pools of excess profits lying about to be given gratis to workers. If you dispute my empirical claim, you should stop reading this letter now and rush out to start your own firm in an industry that you believe enjoys a consistent stream of excess profits. If you’re correct, you’ll profit handsomely even as you pay your low-skilled workers above-market wages. (That you’ll not in fact put your money where your mouth is tells me that you can indeed conceive it possible that businesses have no such excess profits.)

Of course, you might mean instead that firm owners and investors should settle for below-market profit rates in order to pay their workers higher wages. Perhaps. Economics says nothing about how people should spend their money. But before you criticize owners of businesses and other investors for what effectively amounts to their not giving some of their earnings as charity to low-skilled workers in their firms, you should start to give some of your earnings as charity to low-skilled workers in your community. Nothing will stop you from doing so. Nothing prevents you from practicing what you preach so passionately to business owners and investors. [Café Hayek, August 22]

Posted on 08/22/14 08:31 PM by Alex Adrianson

Obama HHS Still Wants Employer Plans to Cover Contraception

This week the Obama administration released yet another set of regulations (its eight attempt) that it claims accommodates religious liberty while also requiring employer health plans to cover contraception and abortion-inducing drugs. Sarah Torre explains what’s wrong with this set of regulations:

Under current regulations, a religious non-profit can sign what amounts to a “permission slip” directing their insurance company or administrator to cover the objectionable drugs and devices – a scheme most organizations believe still makes them complicit in a gravely immoral act. Under today’s revision, objecting religious non-profits would instead send a letter to HHS. HHS would then direct the organizations’ health plans to include the objectionable drugs and services.

Numerous federal courts — including the Supreme Court – have seen through the current gimmick and granted temporary protection from the coercive mandate for religious non-profits in 31 cases. Just adding another step to an already broken and unacceptable process doesn’t protect religious freedom. As the Supreme Court has noted, there are plenty of other ways for the government to provide abortion-inducing drugs and contraception to those who want them without hijacking employers health plans. [Daily Signal, August 22]

Posted on 08/22/14 08:13 PM by Alex Adrianson

Criminalizing Governors’ Vetoes Is Probably Unconstitutional

Applying a law against coercion by public officials to a governor’s use of his constitutionally granted veto power, as Texas prosecutors are attempting to do against Gov. Rick Perry, has to be an unconstitutional encroachment of the legislature on the executive power, argues Eugene Volokh:

The veto power is a power of the governor, but it is more than that: It is a check on the power of the legislature. If Texas legislators want to prohibit some conduct, or appropriate money, or levy a tax, or enact any other law, they have to get a majority vote in both houses and the consent of the governor (unless they can get a 2/3 supermajority vote in both houses).

It follows, then, that the legislature generally cannot criminalize gubernatorial vetoes, because any such restraint on the governor’s power would be an increase in the legislature’s own power — an increase imposed by a mere statute that cuts back on the constraints on the legislature imposed by the constitution. To give the most obvious example, say the legislature enacts a law saying, “The Governor may not veto any bill that protects gun rights, and it shall be a felony for him to do so.” That would be an unconstitutional attempt to allow the legislature to enact gun rights laws without fear of gubernatorial veto. Even if such a law can pass at some point, either because the legislature has a 2/3 majority in each house for the law, or because the governor at the time wants to constrain his successors, it would be unconstitutional to enforce such a law against a future governor.

The same, I think, would be true even if the legislature has a wonderfully public-spirited good-government avoiding-conflict-of-interest motivation for the law. If, for instance, the legislature enacts a law saying, “The Governor may not veto appropriations for a prosecutor’s office that is investigating the Governor’s appointees,” that has to be unconstitutional, given that the constitution provides the governor with a veto power unlimited as to subject matter. There are no laws that the legislature is entitled to enact without the possibility of gubernatorial veto, including really great laws that help keep the governor in check. It thus follows that the legislature can’t outlaw the exercise of the governor’s power to impose such a veto. [Volokh Conspiracy, August 21]

Volokh further contends that criminalizing a threat of a veto is an unconstitutional violation of a governor’s First Amendment right of free speech. [Volokh Conspiracy, August 20]

Posted on 08/22/14 07:40 PM by Alex Adrianson

Gov. Perry Makes the Case for a More Assertive Response to ISIS

Gov. Rick Perry (R-Texas) spoke at a National Review/Heritage Foundation event on the border situation in his state. In the course of his remarks, Gov. Perry addressed a variety of topics beyond immigration and border security, including his recent indictment by the Travis County District Attorney for exercising his veto authority, the Obama administration’s unconstitutional power grabs, and the administration’s policy failures in the Middle East. (Perry’s remarks begin at about 56:50.)

Posted on 08/22/14 05:41 PM by Alex Adrianson

To Do: Take Your Activism to the Next Level

Learn how you can help defend the American Dream at Americans for Prosperity’s 8th Annual Defending the American Dream Summit.  You’ll get world class training in activism and social media, and hear speakers such as Gov. Rick Perry (R-Texas), Sen. Rand Paul (R-Ky.), Sen. Ted Cruz (R-Texas), Kyle Petty, Carly Fiorina, and Arthur Brooks. The two-day conference will begin on August 29 at the Omni Dallas Hotel.

Discover what’s really happening at the Texas border. The Texas Public Policy Foundation will host a special briefing on security at the Texas border. The briefing will begin at 11:30 a.m. on August 27 at the Legislative Conference Center of the Texas State Capitol in Austin, Texas.

Assess just how much of the world can be ordered by anarchy. The Mercatus Center will host Peter Leeson talking about his new book, Anarchy Unbound: Why Self-Governance Works Better Than You Think. Leeson’s talk will begin at 2 p.m. on August 28 at the Johnson Cinema Center at George Mason University.

Find out what should be done about American companies who merge with foreign corporations in order to avoid the high U.S. corporate taxes. The Cato Institute will host a panel discussion featuring Cato’s Dan Mitchell, The Heritage Foundation’s David Burton, and the George W. Bush Institute’s Ike Brannon. The event will begin at noon on August 26.

Examine whether “de-risking” capital markets is really a good idea. The Georgia Public Policy Foundation will host Peter Wallison of The American Enterprise Institute and Paul Atkins of Patomak Global Partners, who will discuss how the Dodd-Frank act is affecting financial services markets. The discussion will begin at noon on August 28.

Assess the prospects for liberal reform in Asia. That will be the focus of the next Mont Pelerin Society meeting, August 31 at the Kowloon Shangri-La Hong Kong Hotel.

• Save the dates: The State Policy Network’s Annual Meeting, on the theme “Dare to Disrupt,” will be held in Denver on September 23 – 26. The Media Research Center’s Gala ’14 will begin at 6 p.m. on September 25 at the National Building Museum in Washington, D.C.

Posted on 08/22/14 04:38 PM by Alex Adrianson

In Some Cities, the Thieves Wear Uniforms

Civil forfeiture laws allow the police to seize property on a mere suspicion that the property has been used in a crime. And unless the property owner proves otherwise, the police get to keep the property or sell it and pocket the proceeds. Philadelphia provides a prime example of how this racket abuses citizens:

Posted on 08/22/14 11:34 AM by Alex Adrianson

Wind Power Needs 725 Times More Land to Produce the Same Energy as Shale Oil

A solar park, meanwhile, requires 461 times more land than a fracking site. These figures come from David MacKay, a professor of engineering at Cambridge, who has compared the footprints of wind, solar, and shale energy:

When you consider all the impacts, it’s not clear why some energy sources should be considered green energy and other sources dirty. As McKay concludes: “[T]here is no silver bullet ­– no energy source with all-round small environmental impact. If society wants to use energy, it must get its energy from somewhere, and all sources have their costs and risks.” [Sustainable Energy – Without the Hot Air, August 12; H/t: Mark Perry at AEIdeas, August 15]

Posted on 08/19/14 12:23 PM by Alex Adrianson

Another Federal Agency Loses Key Documents

This time it’s the Department of Health and Human Services. Sharyl Attkisson explains:

From the moment Health and Human Services falsely denied it was tracking enrollment numbers in the early disastrous days of, to HHS keeping secret the details of the security risks it discovered prior to—and after—the website’s launch, to HHS excluding journalists from viewing–but inviting favored private interests to view—the repair operations in progress, I’ve been seeking much of this undeniably public information.

I began filing simple Freedom of Information requests regarding in October of 2013. Under the law, with few exceptions, such requests are to be filled within just a few weeks. In my experience, they never are. They languish for months and years until the story for which documents are sought is long over. Even if one files a lawsuit to force the government to follow the law, the court cases can be time-consuming and so the government’s stall tactics are still effective. That’s one reason why journalists often don’t bother to sue. […]

With the help of Judicial Watch’s experts, I have filed suit against HHS for the documents that belong to the public. The day I filed suit, HHS informed Congress that it had apparently deleted some documents Congress and I are seeking. If federal officials have irrevocably destroyed key emails, even a court cannot order them materialized out of thin air. But perhaps a court can help get to the bottom of what occurred. [, August 12]

Posted on 08/15/14 09:35 PM by Alex Adrianson

When You Give Workers Choices, Unions Have to Serve the Workers

And government workers in Wisconsin are letting the unions know they are dissatisfied, reports Sean Higgins:

Thousands of Wisconsin public sector workers have dropped their union membership since Gov. Scott Walker‘s reforms have taken effect.

Recent Labor Department filings show just how drastic this decline has been for organized labor.

American Federation of State, County and Municipal Employees Leadership Council 40, based in Madison, reported it had just under 32,000 members as recently as 2011, when Walker introduced his reforms. In a May filing, membership had dwindled to a little more than 13,000, a loss of about 18,000 members in four years.

Earlier this year, Milwaukee-based AFSCME Leadership Council 48 reported that its membership was 3,400, down from the 9,000 it had in 2011.

The unions have taken financial hits as well. Council 40 reported taking in $5.5 million in annual membership dues in the May report, down from the almost $10 million it reported in 2011. Council 48 reported taking in $730,000, down from $2 million in 2011.

Walker’s 2011 reforms ended the state’s practice of automatically deducting membership dues from public sector workers on behalf of their union. It also allowed those workers to opt out of being union members, required the unions to submit to annual recertification votes and limited collective bargaining to just wages. [Washington Examiner, August 12]

Posted on 08/15/14 09:19 PM by Alex Adrianson

Workers Have Rights; Do They Know It?

When you think about it, it’s kind of strange that we need laws saying workers don’t have to join somebody else’s club in order to have a job. But under the collective bargaining set-up we have, workers who refuse to join a union cannot work in a union shop—unless the state has a right-to-work law. Here’s a discussion about efforts to inform union members of their rights to leave their unions without losing their jobs. It’s a part of the National Employee Freedom Week created by the Nevada Policy Research Institute:

Posted on 08/15/14 09:08 PM by Alex Adrianson

More Access to Experimental Treatments, Please

This week the National Institutes for Health offered an experimental treatment (i.e., one not approved by the Food and Drug Administration) to two American doctors who had contracted the Ebola virus in Liberia. We need a little more of that kind of bureaucratic flexibility, explains Lindsay Boyd:

Imagine if your parent, child, or sibling was diagnosed with a terminal disease—yet there was a drug in Phase II or III of the FDA approval process with demonstrated, positive results in experimental trials for treating your loved one’s condition. With no options left for a cure within the current medical environment, would you not want the right to try this drug with the hope that it may prove effective?

This is the logic behind the “Right-to-Try” bill—a new piece of legislation signed into law in Colorado in May, and making its way through state legislatures in Arizona, Missouri, and Louisiana—giving terminally ill patients in these states the right to try experimental medication. As Brantley and Whitebol’s cases illustrate, there are circumstances in which the FDA mandates can legally prevent the most vulnerable and afflicted from receiving potentially life-saving treatments. Arthur Caplan, of New York University Langone Medical Center, asserts that the FDA process can take years—and many terminally ill patients do not have years to wait. Right-to-Try laws could allow such patients to circumvent the FDA mandates.

The Goldwater Institute in Arizona was instrumental in crafting this legislation and has documented several cases in which terminally ill patients have received life-changing treatments through experimental drugs. Lorraine Heidke-McCartin was diagnosed with Stage IV breast cancer in 2006, and after tireless efforts over a three-year period, had exhausted all of her medical options. In 2009, she was able to make regular visits to a trial center in Virginia from her home in Boston to participate in clinical testing for a potentially life-saving drug. Lorraine has been cancer-free since 2011. [Forbes, August 12]

Posted on 08/15/14 05:24 PM by Alex Adrianson

To Do: Learn What Wikipedia Could Do for Government Transparency

Learn how “Wikipedia could deliver government transparency on a grand scale,” if congressional staffers can figure out “how to navigate [Wikipedia’s] rules around notability, neutrality, and conflicts of interest.” The Cato Institute will host a Capitol Hill briefing on how congressional staff can use Wikipedia while avoiding editing controversies. The briefing will begin at noon on August 18 at B-354 Rayburn House Office Building.

Hear Ben Carson’s thoughts on “What We Can All Do to Save America’s Future.” Carson will speak at the John M. Ashbrook Memorial Dinner. The dinner will be held at the Myers Convocation Center at Ashland University at 7 p.m. on August 21.

Students, consider interning for The Heritage Foundation. Start working on your spring applications now. The deadline is October 1.

Grad students, get help with your dissertation. The Institute for Humane Studies will host an online dissertation workshop on October 8. The workshop is open to students enrolled in PhD programs who are working on liberty-advancing themes. Apply for the session by September 26.

Explore the concept of philanthropy in defense. A panel at The Heritage Foundation will discuss the history of philanthropy in spurring military innovation, and how such philanthropy may again be needed in the current environment of fiscal constraint.

• Save the dates: Americans for Prosperity’s 8th Annual Defending the American Dream Summit will take place on August 29 at the Omni Dallas Hotel. The Mont Pelerin Society will meet August 31 at the Kowloon Shangri-La Hong Kong Hotel to discuss the future prospects for liberal reform in Asia.

Posted on 08/15/14 05:07 PM by Alex Adrianson

Happy Birthday, Phyllis Schlafly!

The first lady of American conservatism, Phyllis Schlafly, turned 90 Friday. Richard Viguerie calls her the most important conservative who never held public office:

To some of us, it seems like only yesterday that “A Choice Not An Echo” was published and Phyllis Schafly was launched onto the national stage as one of a new generation of conservative truth tellers dedicated to wresting control of the Republican Party from the inheritors of Teddy Roosevelt and the progressive establishment led at that time by Governors Nelson Rockefeller and George Romney.

The jacket of “A Choice Not An Echo” said the book was “a clear, concise statement of the issues of the 1964 presidential campaign, including the hidden issues within the Republican Party” and that it would answer such questions as:

Who really picks your presidential candidates?
How are political conventions stolen?
Who are the secret kingmakers?
How do “hidden persuaders” and propaganda gimmicks influence politics?

“A Choice Not An Echo” did all of that and more, and in some sense you cannot understand the development of the modern conservative movement, the rise of the Tea Party movement and the “civil war” within today’s Republican Party without reading “A Choice Not An Echo.” [Richard Vigurie’s Conservative HQ, August 15]

Since A Choice Not an Echo was published in 1964, Schlafly has written twenty-some other books. She also led the fight to defeat the Equal Rights Amendment. Here she is from three years ago, at an event about her book The Flip Side of Feminism, in which she explains how the victim mentality of the modern feminist movement has hurt women:

Posted on 08/15/14 03:56 PM by Alex Adrianson

Toolkit: Extremism in the Pursuit of Optimization Is a Vice

Thinking about Search Engine Optimization when you write web content is a way of producing bad content, which the search engines will notice, explains Nicholas Whitmore:

Search engine algorithms have come a long, long way. That’s good because search engine results are more relevant than ever – and writing search engine optimized content is easier than ever too. […]

My secret for writing for SEO is simple – I don’t write for SEO. I just write about a topic or keyword as I would normally – because by doing that I’ll invariably end up using similar words and related phrases. I don’t just rattle out 500 words of content using ten keywords – I meticulously research and shape my content so it’s as concise as possible, whilst offering as much value to my readers as possible.

Free-flowing, interesting content attracts links and social interaction. Boring, keyword stuffed content doesn’t. And the chances are search engines can tell your content is stuffed with keywords – and they won’t bother ranking it anyway. […]

Whilst it’s clear that I’m not a big fan of keyword stuffing or shoe-horning keywords into content, I do appreciate the fact you’ll want to perfect your on-page optimization. That could be through the use of header tags (h1, h2, h3, etc.) or even the inclusion of relevant, outbound links. Remember however that there’s such a thing as an “over optimization penalty“ – so don’t go too crazy, otherwise your efforts could end up inhibiting your ability to rank your site properly. [SearchEnginePeople, January 2]

Posted on 08/15/14 11:32 AM by Alex Adrianson

More “Inversions,” Please

President Obama says it’s unpatriotic for U.S. companies to merge with foreign corporations in order to avoid U.S. taxes. But actually the practice, known as an “inversion,” is good for the American economy, explains Diana Furchtgott-Roth:

Take a U.S.-based multinational that wants to bring back overseas earnings to expand its factory in Detroit, or build a new factory. Under the current system of taxation, that multinational would have to pay a tax of 35% on the amount it brings back into the country. If it returned $100 million, it would have to pay a tax of $35 million and only $65 million would be available for investment.

That is because U.S.-based multinationals face a federal corporate tax rate of 35% on worldwide income, not just income generated in the United States. State taxes are extra. America is one of only seven Organisation for Economic Cooperation and Development countries that taxes companies on worldwide income, and the others have significantly lower corporate tax rates.

The United States, in fact, charges the highest tax rate in the developed world. The average of OECD countries is 24%. Some countries, such as Ireland, have corporate tax rates that are closer to half that.

If a foreign-based multinational had headquarters in Ireland, and wanted to bring back $100 million to invest in its plant in Detroit, then all the $100 million would be invested. None would go to the Treasury. Residents of Detroit would be better off, and the shareholders of the company would be better off. America would grow because companies generally spend money more effectively than does the government. [MarketWatch, August 8]

Posted on 08/14/14 05:22 PM by Alex Adrianson

A Libel Lawsuit Threatens to Chill Speech about Public Policy

The Cato Institute, the Reason Foundation, the Individual Rights Foundation, and the Goldwater Institute are taking a stand against using libel to shut down debates about public policy issues. The four think tanks have filed an amicus brief in Michael Mann’s lawsuit against the Competitive Enterprise Institute and National Review. Mann’s suit says the think tank and current events magazine have libeled Mann by accusing him of scientific fraud. But as Cato & Co. explain, that’s really just a way of smuggling a scientific debate into the courtroom. And scientific debates should be settled by the back-and-forth, trial-and-error process of scientific inquiry, not courts of law:

[C]ourts should not be coming up with new terms like “scientific fraud” to squeeze debate over scientific issues impacting government policy into ordinary libel law. Dr. Mann is not like a corner butcher falsely accused of putting his thumb on the scale or mixing horsemeat into the ground beef. He is a vocal leader in a school of scientific thought that has had major impact on government policies. Public figures like Dr. Mann must not be allowed use the courts to muzzle their critics when they face sharp criticism. Instead, as the U.S. Supreme Court has repeatedly taught, the marketplace of ideas resolves the dispute. […]

[T]he Supreme Court’s observation that “[s]cientific conclusions are subject to perpetual revision,” underscores the peril associated with any notion that a judge or jury can dispense justice by determining scientific “truth.” It should be telling in this regard that the previously-routine label of “global warming” has now been nearly expunged from one side of the political (if not scientific) lexicon in favor of the more general term “climate change.”

Everyday experience demonstrates the uncertainty and malleability of scientific conclusions. One palatable example close to home is the ever-changing frontier of nutrition, and the government’s role in prescribing and institutionalizing dietary norms. There is a familiar struggle for the dieter who seeks the best way to shed a few pounds and get healthy. Should I adopt a strict, low-fat diet? Would the Paleo Diet be better? Maybe I need to eat fewer eggs? Or I could give one of Dr. Oz’s miracle products a shot. And if none of that works, there’s always fasting.

Even the USDA’s familiar food pyramid—which was originally a wheel—was retired in 2011, replaced by a plate. And just this summer, butter is making a resurgence: A Time magazine cover story promises to exonerate it after three decades in the wilderness. Judicial humility must be the rule when a court is asked to referee a scientific debate—whether the dispute is over climate change or the efficacy of an all-Twinkie diet. [Internal citations omitted.] [Competitive Enterprise Institute and National Review v. Michael Mann, Amicus Curiae of the Cato Institute, Reason Foundation, Individual Rights Foundation, and Goldwater Institute, August 11, 2014]

Posted on 08/13/14 05:53 PM by Alex Adrianson

Is Judicial Deference Unconstitutional?

There will be tax credits in the federal health insurance exchanges if the Supreme Court ends up reasoning along the lines followed by the Fourth Circuit in King v. Burwell. There the court decided that ObamaCare is ambiguous and deferred to the IRS’s judgment in deciding that the law provides subsidies in all of the exchanges. In Halbig v. Burwell, the majority of the D.C. Circuit ruled that the law unambiguously provides subsidies only for the state exchanges. But even if there is ambiguity in the law, is judicial deference to agency decisions appropriate? Philip Hamburger, author of the new book Is Administrative Law Unlawful?, writes that the whole deference set-up raises two constitutional questions:

The first concerns independent judgment. Under the Constitution, the judges have an office or duty to exercise their own independent judgment about what the law is, and it therefore must be asked how the judges can defer to the interpretation or judgment of executive and other agencies. In respecting or otherwise deferring to the judgment of agencies, the judges are abandoning their duty–indeed, their very office–of independent judgment.

The second question about the judges concerns systematic bias. Under the Fifth Amendment, Americans have a right to the due process of law, and it therefore must be asked whether judicial deference is systematic bias for one party and against others. The judges defer to agencies’ interpretations of statutes, and they thereby typically are favoring the interpretation or legal position of one of the parties in their cases. They thus are engaging in systematic bias in favor of the government and against other parties in violation of the due process of law.

These constitutional questions about the role of the judges should worry all Americans but especially the judges. No amount of statutory authority can put these constitutional questions to rest. [Library of Law and Liberty, August 11]

Posted on 08/11/14 05:33 PM by Alex Adrianson

To Do: Figure Out What Now for ObamaCare

Assess how the legal challenges to ObamaCare’s subsidies and mandates will unfold now that two federal courts have issued contrary rulings. The Cato Institute’s Michael Cannon and Case Western Reserve University’s Jonathan Adler—the guys who noticed that ObamaCare doesn’t allow subsidies in federal exchanges—will discuss the Halbig and King decisions. The discussion will begin at noon on August 12 in Room B-354 of the Rayburn House Office Building in Washington, D.C.

• Experience one young man’s harrowing journey to secure his life and liberty in a repressive future society. The Heritage Foundation will host a private advance screening of The Giver, starring Jeff Bridges and Meryl Streep, at 7:00 p.m. on August 12. To attend, RSVP to

Shoot guns, eat BBQ, and smoke cigars. The second annual Northwest Freedom Shootout is a fun afternoon event where you’ll meet other fans of the Second Amendment. The Shootout will begin at noon on August 16, at the Evergreen Sportsmen’s Club in Littlerock, Wash.

Make your own declaration for Think Freely Media’s Great Communicators Tournament. Shoot a video in which you describe a policy issue using moral arguments to support a free enterprise or limited government. Submit it by August 15. The prize for first place is $10,000!

Get an update on the right-to-work movement. The Heritage Foundation will host a panel featuring two teachers and a home healthcare provider grappling with union power in California, Michigan, and Minnesota. The event will begin at noon on August 12.

• Save the dates: Americans for Prosperity’s 8th Annual Defending the American Dream Summit will take place on August 29 at the Omni Dallas Hotel. The Mont Pelerin Society will meet August 31 at the Kowloon Shangri-La Hong Kong Hotel to discuss the future prospects for liberal reform in Asia.

Posted on 08/08/14 05:23 PM by Alex Adrianson

The Environmental Costs of Delaying Keystone

The delay in the Keystone pipeline costs more than jobs and income. There are also environmental consequences that come from shifting pipeline transport of oil to rail transport. Catrina Rorke extrapolates what the costs may be:

 If the president had approved the Keystone XL pipeline, it would have prevented the release of an additional 2.7 to 7.4 million tons of CO2 to the atmosphere – the equivalent of taking 500,000 to 1.5 million passenger vehicles off the road or shutting down one coal facility. […]

From the State Department report, we know that the rail options emit 28-42 percent more during normal operations as compared to the Keystone XL pipeline. […]

Replacing the capacity of the Keystone XL pipeline with rail transport risks additional oil spills and the release of up to 23,318 additional barrels of oil – nearly a million gallons of useful fuel entering the environment instead of the economy. […]

The delay in building the Keystone XL pipeline risks up to 1,065 additional injuries and 159 additional fatalities.

By virtue of serving urbanized areas, railroads carry a certain risk to the public. A July 2013 train derailment in Lac-Mégantic, Quebec devastated the downtown and caused 47 deaths. Though this tragedy is unique in size, the paths of railways intersect frequently with population centers. The Keystone XL pipeline is designed to minimize this risk, routed to avoid sensitive, sacred, and historic sites, as well as densely populated areas. [American Action Forum, August 6]

Posted on 08/08/14 05:11 PM by Alex Adrianson

Rewarding Work

“One factor that is often overlooked in the debate over causes of income inequality is a shift in the distribution of working hours,” writes Tino Sanandaji: “The rich now work more than the poor.”

Between 1979 and 2006, the share of low-wage earners who worked long hours declined from 22 percent to 13 percent. In the same time period the share of high-wage earners who worked long hours increased from 15 to 27 percent. Results were similar when education rather than income is used to segment the labor market. Most of the change is driven by changes in hours worked per employee, not by changes in employment rates. For men lacking high-school education, one-third of the decline in hours is driven by reduced employment rates, while the rest is driven by decline in hours among the employed. Among college-educated men, the entire increase in the long hours is driven by those with employment working more hours.

And the decline of work among the poor is a tragedy, he writes:

In simple economic models, working less and having more leisure increases well-being. A common but mistaken view of this reversal in work inequality is that it has benefited the low skilled because they can consume as much as before without having to work as hard. This ignores the complexity of human psychology.

Humanist theories of happiness, starting with Aristotle, have long argued that the key to life satisfaction is living a purpose-driven life and aiming for higher goals. Modern psychology similarly emphasizes work and purpose for a full life. Abraham Maslow viewed fulfilling one’s potential or “self-actualization” as the pinnacle level of happiness. Mihaly Csikszentmihalyi argued that people are happiest when they are in a state of “flow,” or a complete absorption in a challenging and intrinsically motivated activity. [The American, August 4]

Posted on 08/08/14 04:19 PM by Alex Adrianson

What Does a Gas Company Have to Do with ObamaCare?

If you’ve been following the debate about whether ObamaCare creates tax credits in just the state exchanges or in both the federal and state exchanges, you may have heard the word “Chevron.” What’s that all about?

“Chevron” refers to Chevron v. Natural Resources Defense Council a Supreme Court decision from 1984. Randolph May, observing the 30th anniversary of the decision, describes Chevron’s central holding this way: “When a statutory provision is ambiguous, if the agency’s interpretation is ‘based on a permissible construction of the statute,’ then the agency’s interpretation is to be given ‘controlling weight.’”

When there is ambiguity, why not defer to the agencies? May explains the problem:

Chevron, by virtue of giving agency interpretations of ambiguous statutory provisions “controlling weight,” has facilitated the steady growth of the regulatory state. This certainly is a likely result because of the natural bureaucratic imperative for agencies, granted leeway to do so, to interpret delegations of authority in a way that expands, rather than contracts, their own authority. […]

To the extent that the Chevron doctrine—the counter-Marbury—in fact facilitates aggrandizement of power by government officials all too eager to expand administrative authority, there is a ready remedy. Congress can choose to legislate in a way that makes its intent unmistakably clear. Remember, absent ambiguity in the statute, a reviewing court never reaches the question of how much deference is due the agency’s own interpretation.

Congress legislating with unmistakable clarity? I understand that in the legislative sausage-making process this is an ideal infrequently realized. In many instances, Congress actually intends, whether or not it says so explicitly, to leave “gap-filling” for the agencies. That way, when an agency’s action rouses the public’s ire, Congress can blame the bureaucrats for overreaching. [The Hill, August 8]

In King v. Burwell, the Fourth Circuit relied on Chevron analysis to find that tax credits were permissible in the federal exchanges; in Halbig v. Burwell, the D.C. Circuit decided that the meaning of “an Exchange established by the State,” was plain enough that there was no gap for the IRS to fill. Thus, there was no Chevron analysis needed.

Posted on 08/08/14 02:50 PM by Alex Adrianson

The Constitution Doesn’t Exist for the Convenience of the Government

For the past century or so, the federal government has been using its spending and regulatory powers to “turn states into mere field offices of the federal government,” write Richard Epstein and Mario Loyola. Their article in The Atlantic explains not only how we got here but why we should care:

A common justification for federal overreach is that it allows for administrative convenience, but the Constitution doesn’t exist for the convenience of the government. Its purpose is to protect the people from government abuse. By leaving most government spending and regulation within the exclusive domain of states, the original Constitution created a dynamic framework of interstate regulatory competition. Citizens and businesses could choose to live in whatever state they wanted, a choice they could make with increasing ease as the nation’s communications and transportation dramatically improved, and states competed to offer an attractive package of services and taxation.

Just like cable-TV providers offer premium channels in pricy packages and basic cable at a cut rate, some states and municipalities offered lots of services and benefits—and higher taxes—while others offered smaller government and a lower tax bill. That larger menu meant more choices.

This interstate regulatory competition could accommodate a wide diversity of approaches, from the progressive safety blanket of Wisconsin to the frontier freedom of Texas. Vigorous interstate competition tended to punish excessive government, leading for example to higher growth rates in states with less restrictive labor laws. It also made it more difficult for special interests to wield government as a tool for extracting benefits from the rest of society in the form of hidden subsidies, cartels, and monopolies. Where special interests reign, market efficiency is lost, leaving everyone worse off.

Even today, states with high taxes, tough zoning laws, and restrictive labor laws tend to lose out to those with a lighter footprint—witness the tens of thousands of people—especially poor people—moving to Texas every  year. The easier it is for people to choose between state options, the weaker the case for federal control of markets.

That leaves heavily regulated and highly taxed states at a disadvantage in the competition for people and businesses. Those states have cleverly solved much of their problem by using the federal government to impose higher taxes and regulation across the states. Burdened by often-costly progressive policies, states such as California, Massachusetts, and New York form coalitions in Congress to neutralize the advantage of states like Wyoming, Texas, and Florida. Protection from competition is the strongest impetus for the integration of federal and state governments under an umbrella of overall federal control.

That process undercuts one of the great advantages of a modern economy: the choice that mobility offers to families and businesses. It hastens the erosion of one of our most essential constitutional protections, the separate domains of federal and state governments, each confined to its proper sphere of authority. [The Atlantic, July 31]

Posted on 08/07/14 07:21 PM by Alex Adrianson

The Courts Aren’t on Board with the Plan for Unrestrained Executive Power—Yet

To hear liberals tell the story, the most important thing to know about Halbig v. Burwell is that the D.C. Circuit Court denied ObamaCare subsidies to millions of people in the 36 states that chose not to establish an exchange. The detail that the law says the subsidies are available “through an Exchange established by the State” gets second billing if it shows up at all. Liberals thus blame the court for striking down that which Congress failed to create. What an odd way of looking at judicial decisions. As Michael Greve notes, the acceptance of the government’s arguments as at all plausible is a signal that administrative law is coming apart at the seams. He writes:

[W]ould we actually be having this overwrought discussion over a perfectly straightforward Administrative Law and statutory interpretation question—and a perfectly conventional judicial resolution—if Halbig were about something other than Obamacare? Hardly.

By way of illustration, take a look at Sierra Club v. EPA, 536 F.3d 673 (D.C. Cir. 2008), a case over Title V permitting under the Clean Air Act. In defense of a regulation that took some liberty with the language of Title V, the EPA argued that (1) the statutory language (“each” permit) didn’t quite mean what it said, when read in connection with other provisions; (2) the statutory context warranted a more latitudinarian reading; and (3) EPA’s “programmatic” reading would better serve congressional purposes. In substance, that’s the government’s Halbig defense. Sierra Club rejected all three arguments; and you can clip entire paragraphs from the opinion and paste them into Halbig without anyone noticing. (Judge Griffith wrote both opinions.) No, it’s not a conservative cabal: in Sierra Club, the enviros won. And no, it’s not an outlier: some Administrative Law textbooks excerpt Sierra Club as an example of how Chevron (Step I) analysis works.


Why isn’t the supposed error precisely a case for a “we-messed-up-and-here-is-what-we-meant” statutory override, of the sort that Congress has enacted time and again for civil rights laws, Medicaid, Medicare, and any number of other entitlement statutes? In short, why isn’t Halbig obviously right? And why isn’t that answer congenial to liberals who, from the New Deal to infinity and beyond, have extolled statutory and even constitutional litigation as a “dialogue” between the Court and the political branches, especially the Congress?

Because they no longer believe it. Obamacare was no inartful compromise; it was a brutal cramdown. There’s no kicking this back to Congress; the judges’ rulings, Obamacare supporters wail, spell the life or death of the statute. And when in doubt, the liberals say (for once), choose life. [Library of Law and Liberty, August 6]

Posted on 08/06/14 06:24 PM by Alex Adrianson

Economics Is Everywhere, Including Between the Goalposts

The start of football season is less than a month away. From Steve Horwitz and Learn Liberty, here’s a look at how the game’s concussion crisis reveals an important lesson about public policy:

Posted on 08/05/14 03:12 PM by Alex Adrianson

Pulling Back the Curtain on

Remember the fiasco that was the launch of The Government Accountability Office has looked into the matter and the agency recently told Congress that, indeed, there was a fiasco. Peter Suderman reports some of the details of the GAO’s testimony:

One of the big problems was that federal health bureaucrats kept changing their minds during the development process. The Centers for Medicaid and Medicare Services (CMS), which was charged with building the exchange system, “incurred significant cost increases, schedule slips, and delayed system functionality.” These delays were largely due to “changing requirements that were exacerbated by inconsistent oversight.” The dithering cost time, and it also cost money. Between September 2011 and February 2014, development cost estimates blew up, from about $56 million to $209 million for the federal marketplace. Costs for the data hub, another key part of the exchange, went from $30 million to $85 million.

It was a classic bureaucratic circus. No one knew who actually had the authority to tell contractors what to do, so contractors got jerked around and sent on fruitless tasks, or asked to do work that they shouldn’t have been doing. The GAO report says that CMS improperly spent $30 million on bonus features that it didn’t technically have the authority to order.

Delays and costs piled up, with some held off until weeks before launch, and when it came time to flip the switch, no one knew if it would work. “CMS launched without verification that it met performance requirements.”

But don’t think all the problems are in the past:

CMS Deputy Administrator Andy Slavitt said this morning that "there will clearly be bumps" when the exchanges open for all business again in November, according to a report in Politico.

Slavitt also confirmed that the exchange still isn’t built yet, with key backend payment systems that have already been delayed multiple times still incomplete. Slavitt said that the administration doesn’t expect work to be finished on those systems until next year—after the second open enrollment period is over. [Reason, July 31]

Posted on 08/04/14 05:50 PM by Alex Adrianson

To Do: Defend State Sovereignty

Discover how states can maneuver to defend their sovereignty against federal power grabs. The Texas Public Policy Foundation will host a policy primer on the topic: “When the Feds Go Rogue: The States’ Duty to Respond.” The event will begin at 11:30 a.m. on August 7 at the Legislative Conference Center of the Texas State Capitol in Austin.

Coloradans, gain the leadership skills necessary to win battles for liberty. The Leadership Program of the Rockies is accepting applications for its 2014-2015 program until August 31. The program’s nine full-day sessions—held on the second Friday of each month from October to June—will equip you with the skills to be a principled leader for liberty.

Explore the history of libertarianism and the Cato institute at a special networking happy hour. Cato will raffle off special prizes for those who enter via Instagram posts. The happy hour will begin at 6 p.m. on August 6 at the institute’s Ken and Frayda Levy Roof Garden.

Get started in video journalism with Reason TV’s Searle Film Fellowship. Reason is looking for talented individuals interested in advancing the message of free minds and free markets through video journalism. The fellowship is a year-long, full-time position that provides the opportunity to create original content exploring politics and culture through a libertarian lens. Applicants of all levels of experience will be considered.

Posted on 08/01/14 08:44 PM by Alex Adrianson

Legislative History Supports the Halbig Decision Against Subsidies in the Federal Exchanges

Liberals are busy complaining that the D.C. Circuit’s decision in Halbig v. Burwell makes a total mess of ObamaCare by ruling that the law does not provide subsidies in the federal exchanges. It’s a ruling that will affect the residents of the 36 states where there are federal instead of state exchanges. Meanwhile, liberal blogger Greg Sargent has undercut liberals’ arguments on the matter. Writes Sargent: “The first Senate version of the health law to be passed in 2009—by the Health, Education, Labor and Pensions Committee—explicitly stated that subsides would go to people on the federally-established exchange.” Sargent then notes that the language authorizing the subsidies in federal exchanges was replaced when the HELP bill was merged with the bill produced by the Senate Finance committee. That bill contained no federal exchanges and stipulated that the subsidies are available “through an Exchange established by the State.” [Washington Post, July 29]

So first the subsidies were in the bill; then they weren’t. Surely an important detail. The funny thing about Sargent’s column, though, is that he thinks this revelation proves the Senate intended for there to be subsidies in the exchanges. Sargent’s narrative essentially revives the idea of a drafting error that was created in the process of merging the two bills. While that interpretation is plausible, perhaps it is more likely that the Senate dropped the language creating subsidies in the federal exchanges because it wanted to drop the subsidies in the federal exchanges.

As James Taranto points out:

To the extent that legislative history is relevant in adducing legislative intent, the Senate’s having abandoned the language providing for subsidies on the federal exchange is evidence of intent not to enact that language.

“Where Congress includes limiting language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the limitation was not intended,” Justice Harry Blackmun wrote for a unanimous Supreme Court in Russello v. U.S. (1983). In Immigration and Naturalization Service v. Cardoza-Fonseca (1987), Justice John Paul Stevens observed (quoting an earlier opinion from Justice Potter Stewart): “Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.” [Wall Street Journal, July 30]

But here’s an idea: Why don’t we look at the words in the laws that Congress passes to see if we can find a congressional intent? In the case of subsidies for purchasing health care, the Affordable Care Act says the subsidies are available “through an Exchange established by the State.” Peter Suderman writes that interpreting that language as limiting the subsidies to state exchanges is “not just common sense”:

It’s also the conclusion of the Congressional Research Service, which wrote in a July 2012 report that “a strictly textual analysis of the plain meaning of the provision would likely lead to the conclusion that IRS’s authority to issue the premium tax credits is limited only to situations in which the taxpayer is enrolled in a state-established exchange.” Even legal authorities that have ultimately agreed with the administration seem to agree. A separate ruling by the U.S. Court of Appeals for the 4th Circuit last week sided with the administration’s interpretation, but admitted that “a literal reading of the statute undoubtedly accords more closely with [the] position” of the challengers.

A literal reading of an unambiguous statute ought to be enough to determine what a law means—and to rule that a regulation that goes well beyond the strict text of the statute is out of bounds. [Reason, July 29]

Posted on 08/01/14 06:06 PM by Alex Adrianson

President Obama Could Learn from President Lincoln

Eliot Cohen writes:

By 1864, Lincoln, Grant and Grant’s no-less-grim lieutenants William Tecumseh Sherman and Philip Sheridan had concluded that their conflict had shifted to what historians call “the hard war.” They knew not only that they would have to destroy the armies of the Confederacy but also that they would have to break the will of the people of the South to wage war. […]

The Israelis, having left Gaza only to be showered by rockets and harried by border raiders, have concluded that they are waging that kind of war. In a rare spirit of unity, they seem determined to break Hamas in Gaza. A more sensible U.S. administration would understand that and stand with our tough little ally, rather than attempt to stop its destruction of this Islamist partner of Iran and enemy not only of Israel but of Egypt and Saudi Arabia as well.

The problem is not the reported antipathy between President Obama and Israeli Prime Minister Benjamin Netanyahu. It is that the Obama administration simply cannot accept that war is war. This explains, among other things, the debacle of our Libya policy, in which the administration studiously insisted that its bombing to help overthrow Moammar Gaddafi was not a war and left in its wake chaos that roils to the present day. It explains the administration’s declarations that drone strikes in Pakistan and the assassination of Osama bin Laden had brought al-Qaeda to the edge of strategic defeat — even as the ideology of the group and similar ones has metastasized and Islamist movements have extended their sway in the Middle East and Africa. [Washington Post, July 31]

As Cohen goes on to note, an unwillingness to accept what war is also explains the administration’s policies on Syria and Russia. [More on the theme: “Why the Obama Foreign Policy Has Been a Disaster,” by Mackubin Thomas Owens, The Insider, Spring 2014.]

Posted on 08/01/14 05:11 PM by Alex Adrianson

How Would the Economy Do Under Piketty’s Proposed Taxes?

Thomas Piketty’s much-hailed Capital in the Twenty-First Century proposes much higher taxes on income and capital gains in order to address what he sees as the biggest economic problem: rising inequality. But higher taxes reduce the reward that people receive for working and investing, encouraging them to work and invest less. How would that affect the economy? Here is what the Tax Foundation’s economic model predicts:

If ordinary income were taxed at the top rates of 80 and 55 percent, our model estimates that after the economy adjusts, total output (GDP) would be 3.5 percent lower, wage rates would drop 1.6 percent, the capital stock would be 7.4 percent less, and there would be 2.1 million fewer jobs.

If capital gains and dividends were taxed at the new tax rates along with ordinary income, the economic damage would be much worse. GDP would plunge 18.1 percent (a loss of $3 trillion dollars annually in terms of today’s GDP), the capital stock would be 42.3 percent smaller than otherwise, wages would be 14.6 percent lower, 4.9 million jobs would be lost, and despite the higher tax rates, government revenue would actually fall.

Although Piketty’s proposed income tax increase may appear to target only upper-income taxpayers, all income groups would suffer from the economic fallout.

Our model estimates that the after-tax incomes of the poor and middle class would drop about 3 percent if the higher rates do not apply to capital gains and dividends and about 17 percent if they do. [Tax Foundation, July 28]

And that doesn’t even count the effects of Piketty’s proposed wealth tax, which the Tax Foundation doesn’t model and is pretty unlikely anyway.

Posted on 08/01/14 04:43 PM by Alex Adrianson

Your Property Could Become the Police’s Property—Even If You Do Nothing Illegal

Civil asset forfeiture is a growing national scandal and the Institute for Justice is on it with a new initiative to promote reforms of the laws. Under state and national civil forfeiture laws, police can seize your property if they believe it been used in a crime. When that happens, the only way to get your property back is to prove that the police are wrong. If you can’t do that, they get to keep the property or sell it and use the proceeds to pad their budgets. That’s true even if nobody is convicted of the crime in which the property was supposedly used. This set-up gives police the incentive and the means to steal your property—legally.

The Institute for Justice has been writing about the problem for years. Here is a video overview they have produced:

The group has also produced a number of reports on the topic, including “Policing for Profit: The Abuse of Civil Asset Forfeiture,” (by Marian R. Williams, et al., March 2010). These and other resources on the issue are available IJ’s new website:

Sen. Rand Paul and Rep. Tim Walberg have introduced reform bills in the Senate and the House of Representatives, respectively. Rep. Walberg spoke about the issue at The Heritage Foundation on Wednesday along with IJ’s Scott Bullock, and the Washington Post’s Radley Balko:

Posted on 08/01/14 03:41 PM by Alex Adrianson

ObamaCare “Fixed” Health Care by Expanding the Part that Was Most Broken

Increases in Medicaid enrollment dwarf increases in private health insurance during the first six months of the ObamaCare exchanges, report Edmund Haislmaier and Drew Gonshorowski. Using data from health insurer reports to state regulators, they calculate that enrollment in individual policies increased by 2.2 million people, while enrollment in the employer-based policies declined by 1.7 million for a net gain of about half a million people covered by private health insurance. Medicaid enrollment over the same period increased by nearly 5 million people. Haislmaier and Gonshorowski note that it is possible that 3 million to 4 million people have gained private insurance who have not yet been counted by official reports. At best, however, the gain in private insurance equals the gain in Medicaid coverage. [The Heritage Foundation, July 28]

And Medicaid is a bad deal for those enrolled in the program, as Hadley Heath explains:

Nationally, for every dollar of primary care received by someone with employer-sponsored insurance in 2008, Medicaid only paid 52 cents. That means that doctors received just about half of the payment for treating a Medicaid patient that they did from someone with private insurance.

Not surprisingly, because of this broken payment structure, Health Affairs reports that only 70 percent of physicians accept Medicaid patients. This makes it difficult for Medicaid patients to get appointments with private physicians. The health outcomes for Medicaid patients confirm they are not receiving a high quality of care: A University of Virginia Study shows that surgical patients on Medicaid are 13 percent more likely to die than patients with no insurance at all. They are 97 percent more likely to die than those with private insurance. The poor standard of care for Medicaid patients has resulted in severe harm and in some cases, even death. [“Medicaid: Don’t Expand a Broken System,” Independent Women’s Forum, May 2013]

And Brian Blase notes some other research finding that Medicaid may actually be hazardous to your health:

Rachel Rapaport Kelz and her colleagues found, for example, that after colon cancer surgery, Medicaid patients had a 22 percent greater chance of complications and a 57 percent greater chance of dying in the hospital than the privately insured. The risk for uninsured individuals was in the middle—less than the risk for Medicaid recipients and greater than the risk for individuals with private coverage. Kathleen McDavid and her colleagues found lower cancer survival rates for Medicaid enrollees. The risk of mortality for individuals with Medicaid was higher than the risk for the privately insured by 56 percent for colorectal cancer, 14 percent for lung cancer, 66 percent for female breast cancer, and 149 percent for prostate cancer. Of three of the four measures, Medicaid recipients had a higher risk of mortality than the uninsured. [Internal citations omitted.] [“Medicaid Provides Poor Quality Care: What the Research Shows,” The Heritage Foundation, May 5, 2011]

[See also: How Medicaid Fails the Poor, by Avik Roy, Encounter Books, November 2013]

Posted on 08/01/14 03:10 PM by Alex Adrianson

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