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After nearly three months of debate, Congress has agreed to extend federal highway and transit spending for three weeks. Authority to spend federal dollars (mostly from gas taxes) on highways and transit was set to expire tomorrow. The three-week extension means that authority will expire on November 20.

Many members in Congress hope that the three-week delay will allow them to reconcile the House and Senate versions of a six-year bill. Among other things, the Senate version spends about $16.5 billion more than the House bill, $12.0 billion on highways and $4.5 billion on transit. The two bills also use different sources of revenue to cover the difference between gas tax revenues and the amounts many members of Congress want to spend.

To cover this difference, the Senate bill, known as the “Developing a Reliable and Innovative Vision for the Economy Act” or DRIVE Act, provides three years of funding by supplementing gas taxes with new customs, air travel, and mortgage-backed securities guarantee fees. The House bill, called the Surface Transportation Reauthorization and Reform Act, doesn’t offer any source of funds; instead, House Transportation & Infrastructure Committee Chair Bill Shuster merely expressed hope that the House Ways & Means Committee would find a source of funds.

Despite the use of the word “reform,” the House bill doesn’t reform much other than to streamline environmental review, thus making it easier for cities and states to waste money faster. However, the bill does create new competitive grant programs, including a $4.5 billion program for “freight and highway projects” and a return to using competitive grants for buses and bus facilities. The Senate bill, meanwhile, creates a new “competitive grant” program aimed at “funding major projects.”

Competitive grant programs invariably turn into pork barrel programs, with either the most powerful members of Congress or the president designating where the money will be spent, usually to the benefit of the party in power. As revealed by a Cato paper, for example, spending under the New Starts program has strongly favored the districts of Democrats who were on the House Transportation & Infrastructure Committee, while a Reason Foundation paper reached similar conclusions regarding the TIGER grant program.

The 2012 reauthorization bill, MAP-21, converted most competitive grant programs, including the bus & bus facility program, to formula funds so neither Congress nor the president could tinker with how the money was spent to favor their friends. This left many members of Congress frankly disappointed that they could no longer “take credit” for bringing home the bacon. Both the House and Senate bills would remedy this by sliding backwards into pork.

Given the $16.5 billion difference in spending and the lack of funding beyond the first three years, it seems unlikely that the two houses could reach agreement by November 20. However, the November deadline will keep the issue at the forefront of Congressional minds, so even if they have to extend it another four weeks, it is possible that they could reach agreement before the end of the year. Staffers say that, unless they pass a six-year bill this year, the Senate at least won’t want to pass a bill next year because it is an election year.

Until a few years ago, Congress had a pay-as-you-go policy in which highway and transit spending was no more than actual highway revenues. But then Congress decided to increase spending every year whether or not revenues covered those expenses, and since gas tax revenues leveled off in 2007, deficits have averaged about $10 billion a year. Unfortunately, few in Congress are willing to either cut spending or raise gas taxes to make up the difference. Without the discipline that comes from staying within a budget, transportation spending has become a free-for-all.

In a nutshell, the House bill is marginally better than the Senate bill, but both are worse than the current federal law regarding highway and transit spending. Members of Congress should avoid being stampeded into passing a big-spending bill based on false claims of an infrastructure crisis or a supposed economic boost created by such a bill. Instead, they should curb transportation spending to be no more than actual transportation revenues and eliminate, rather than create, pork-barrel programs.

In researching an upcoming study on privatization, I came across an interesting illustration of the advantages of private science over government science. Private science focuses on efficiency and results, but government science maybe not so much.

The study by Jonathan Karpoff in the Journal of Political Economy found:

From 1818 to 1909, 35 government and 57 privately-funded expeditions sought to locate and navigate a Northwest Passage, discover the North Pole, and make other significant discoveries in arctic regions. Most major arctic discoveries were made by private expeditions. Most tragedies were publicly funded. By other measures as well, publicly-funded expeditions performed poorly. … Although public expeditions made some significant discoveries, they did so at substantially higher cost (as measured by crew size or vessel tonnage) than private discoveries.

Historical accounts indicate that, compared to private expeditions, public expeditions: (1) employed leaders that were relatively unmotivated and unprepared for arctic exploration; (2) separated the initiation and implementation functions of executive leadership; and (3) adapted slowly to new information about clothing, diet, shelter, modes of arctic travel, organizational structure, and optimal party size. These shortcomings resulted from, and contributed to, poorly aligned incentives among key contributors.

My upcoming study will look at the advantages of privatizing federal activities such postal services, air traffic control, and passenger rail. But policymakers should also explore the advantages of privatizing federal science activities.

Cato adjunct Terence Kealey has written about the advantages of private over government science, and he will discuss that topic at an upcoming Chicago seminar.

Meanwhile, if you plan to explore the Arctic, it would be best to go on a private rather than government ship. There would be less chance of getting scurvy–at least that’s the way it used to be, according to Karpoff.

On this blog, Chris Edwards shared some hopeful thoughts on the fate of postal privatization - which people of a sound mind should certainly cherish. Mr. Edwards built on the news of the impending sale of a 40 percent stake in Italy’s mail delivery incumbent, Poste Italiane. If even Italians are privatizing, why are the US keeping loyal to the ideal of a government-owned post office? We certainly share Edward’s attitude towards privatization. But we are afraid that this time Italy (which indeed privatized much in the 90s, from the national telecom company to the highways) isn’t an example to imitate.

There was, indeed, a series of successful postal privatizations: Germany, the Netherlands, and the UK have shown the way. But we are afraid Prime Minister Matteo Renzi hasn’t followed their lead.

Poste Italiane is a strange animal. As with all national post services, for years now its traditional core business has been eaten up by the development of the e-mail. And yet the company ostensibly failed to adapt, for example by seizing the opportunities created by e-commerce. In seven years, revenues from mail and parcel delivery declined from 33% of total revenues to a mere 14%. Conversely, Poste Italiane diversified heavily: insurance and banking now rake in the bulk of its yearly income. This is an unhealthy paradox: the Italian government privatized its insurance company, INA, in 1994. The government-owned banks were likewise privatized in the early 90s. Now, with Poste Italiane, the government is back into the insurance business and owns the first Italian insurance companies by premiums collected.

At the same time, Poste Italiane started looking at new ventures, like mobile telecoms and retail, eventually turning its post offices into small convenience stores.

If we look at the bottom line, such a strategy payed out: the company’s financials are now in much better shape, as more profitable businesses began making up for the losses of its postal unit. But if we look at the government involvement in those industries in which Poste Italiane plays a role, the picture gets murkier. Not only the government got back into banking and insurance. It did so in a rather untransparent way, shielded under the brand of his postal company.

Diversification loosened the public oversight over the company’s mission and allowed for cross subsidies and other distortions, which in turn enabled the company to leverage its postal monopoly in multiple markets.

For instance, Poste Italiane’s bank unit benefits from a huge network of 14,000 offices. There should be a post office even in the smallest of the Italian towns in the Appenini, as the public postal service shouldn’t leave anybody behind. But certainly no private-sector banking competitor could ever match such an extensive web of branches.

At the same time, even though the market for mail services in the European Union was fully liberalized in 2011, Poste Italiane’s mail unit still enjoys a monopoly right over the serving of judicial documents and it has been exclusively entrusted with the provision of the so-called universal service, a task which the government generously subsidize.

None of these concerns was addressed before the IPO. In fact, what happened was exactly the opposite. Universal service obligations were eased, the monopoly right over judicial notifications (due to expire shortly) was prolonged; the sale of single units (as opposed to shares of the group as a whole) was ruled out. In short, the appetite of investors was stimulated by reinforcing a legal monopoly.

It ain’t necessarily so. In Germany, Deutsche Post, Deutsche Postbank and Deutsche Telekom were unmerged and ultimately went their separate ways. If the same method was applied in Italy, it might well be that the IPO of the insurance or the bank branch of Poste Italiane may have been even more successful: they are indeed thriving businesses.

Not only does the privatization fail to sort out any of the remaining competitive issues, but it will hardly curb government interventions in the market. With a 60 percent stake left and no plans for further divesture, the Italian government will still be in charge of the company’s strategy. Just a couple weeks ago, the UK government sold its entire remaining stake in Royal Mail, two years after the original flotation. When is the same thing to happen with Poste Italiane? The Italian government has said nothing that may allow us to speculate that that days is going to come any soon.

It might well be that the privatization of Poste Italiane will produce some benefits. Partial privatization of companies like Eni (the Italian oil and gas giant) and Enel (the electricity utility) helped in modernizing their governance: investors disciplined the management to some extent and the government’s influence somehow weakened. And yet, the government still controls some 30% of both.

Indeed, the government is the only party which unequivocally stands to benefit from the privatization of Poste Italiane: it gets to pocket € 3,4 billion, but won’t have to relinquish control over the company.

Enav (which provides air traffic services and other air navigation services in Italy) and Ferrovie dello Stato (the railways company) are bound to the same fate. The government set to retain a majority stake in both entities, using the capital markets as supplier of much needed oxygen for public finances, but keeping a tight rein on the companies. Plus ça change, plus c’est la même chose.

Massimiliano Trovato is  a Research Fellow with Istituto Bruno Leoni, Italy’s free market think tank ( Alberto Mingardi is Director General of Istituto Bruno Leoni and an Adjunct Scholar at the Cato Institute.

During the 1980 presidential campaign, Ronald Reagan famously said “there you go again” when responding to one of Jimmy Carter’s attacks.

Well, the Gipper’s ghost is probably looking down from Heaven at the new budget deal between congressional leaders and the Obama Administration and saying “there they go again.”

That’s because we basically have a repeat of the distasteful 2013 budget deal.

The new agreement, like the 2013 deal, busts the budget caps. In this case, the politicians in DC have approved $50 billion of additional spending for the 2016 fiscal year (which started on October 1) and $30 billion of additional spending in the 2017 fiscal year (starting October 1, 2016).

Which means that the President gets to further undo his biggest fiscal defeat.

And what do Republicans get in exchange?

Many of them want higher defense spending, of course, and some of them doubtlessly are happy to have more domestic spending as well. Those politicians are presumably happy, at least behind closed doors.

So let’s rephrase the question: What do advocates of fiscal restraint get in exchange?

Well, if you peruse the agreement, it’s apparent they don’t get anything. Sure, there are some promises of future restraint. But if the 2013 deal and the current agreement are any indication, those promises don’t mean much.

The deal has a handful of back-door revenue increases, including an assumption that the IRS will be more aggressive in squeezing money out of taxpayers. And there are some budget gimmicks, along with some tinkering with entitlement programs, especially the fraud-riddled disability program, that ostensibly will lead to some modest savings.

The net result is that we have a pact that leads to guaranteed spending increases over the nest few years, combined with some nickel-and-dime proposals that will probably offset each other in the future.

So the bad news - assuming the goal is enforceable spending restraint - is that policy has moved in the wrong direction.

In other words, I was right to worry that Republicans would fumble away a guaranteed victory.

And this deal probably sets the stage for another bad deal two years in the future since more spending in 2016 and 2017 will make it harder to meet the spending caps for 2018 and beyond.

Now for the good news…

Ooops, there isn’t any good news.

About the only positive thing to say is that this new agreement is not a huge defeat. There will still be budget caps, which is better than no spending caps.

And the new spending, while wasteful and counterproductive, is relatively small in the context of an $18 trillion economy.

Moreover, the deal only partially unwinds the fiscal discipline that already has been achieved thanks to the spending caps.

Last but not least, nothing in this deal precludes a better and more comprehensive spending cap, perhaps modeled after Switzerland’s very successful debt brake, once Obama is out of the White House.

P.S. This new deal also increases the debt limit. Some view this as a defeat, but it more properly should be viewed as a missed opportunity to get some much-needed reforms.

That being said, I can’t resist commenting on the deliberately dishonest scare tactics from our statist friends. They routinely claim that the United States government would have to default on its debt and cause a global crisis unless there is approval for more borrowing.

For instance, exuding an air of faux hysteria, one writer for the Washington Post asserted that, “Failure to raise the debt ceiling would unleash hell on the U.S. economy.” Another Washington Post columnist fanned the flames of fake despair, writing, “The chaos…is about to have some very serious effects on the entire country.” And a third Washington Post reporter falsely fretted that not raising the debt limit by November 3rd, “could plunge the United States into default, an outcome that…could lead to economic catastrophe.”

Oh, please, we’ve heard this song and dance before. But it’s utter nonsense.

Here’s some of what I said as part of my testimony to the Joint Economic Committee in 2013.

…there is zero chance of default. Why? Because…annual interest payments are about $230 billion and annual tax collections are approaching $3 trillion. …there’s no risk of default – unless the Obama Administration deliberately wants that to happen. But that’s simply not a realistic possibility.

But some folks may wonder whether my analysis is accurate. After all, maybe I’m some sort of nihilistic libertarian who fantasizes about laying waste to Washington.

And other than the nihilistic part, that’s actually a good description of my long-run goals.

But that doesn’t mean I’m wrong. So for backup, let’s look at some identical analysis from an ultra-establishment source, as reported in The Hill.

Moody’s Investors Service announced Monday that, despite dire warnings from the Treasury Department, the government would find a way to pay money owed on its debt, regardless of whether lawmakers agree to raise the $18.1 trillion borrowing cap. …”Even if the debt limit is not raised, …the government will order its payment priorities to allow the Treasury to continue servicing its debt obligations,” says Moody’s Senior Vice President Steven Hess.

Gee, maybe all the partisans at the Washington Post are the ones who are wrong. Along with the partisan and status-quo voices from the political establishment.

Don Boudreaux recently despaired that only 26 percent of economists surveyed agreed that

If the federal minimum wage is raised gradually to $15-per-hour by 2020, the employment rate for low-wage US workers will be substantially lower than it would be under the status quo.

In the University of Chicago Booth School of Business’s regular survey of distinguished policy economists chosen for ideological diversity, 24 percent disagreed with the statement, and 38 percent said they were uncertain.

Some said that employment effects were likely, but they might not be “substantial.” That’s an empirical question, of course, and knowing the direction of a change doesn’t necessarily tell us its magnitude. In addition, each person’s definition of “substantial” might be different. Boudreaux doesn’t think there should be much uncertainty:

Would 74 percent of my fellow economists either disagree that, be “uncertain” that, or have no opinion on the question of whether a forced 107 percent increase in the price of the likes of 737, 777, and 787 jetliners would cause airlines to cut back substantially on the number of new jetliners they buy from Boeing?  Or what if the question were about the prices of fast-food?  Would 74 percent of these economists either disagree that, be “uncertain” that, or have no opinion on the question of whether a forced 107 percent increase in the prices of the likes of Big Macs, Baconators, and buckets of KFC fried chicken would cause consumers to cut back substantially on the amount of food they purchase at fast-food restaurants?

But who am I to jump into this battle of economists? Just a lowly newspaper reader, that’s all. And as it happens, Boudreaux posted his critique on Sunday, and on Monday I read an interview in the Wall Street Journal with Sally Smith, CEO of Buffalo Wild Wings. She runs a chain of more than 1,000 sports bars, and she’s trying to expand. Here’s part of her interview:

WSJ: How are minimum-wage increases affecting the way you make business decisions?

MS. SMITH: You look at where you can afford to open restaurants. We have one restaurant in Seattle, and we probably won’t be expanding there. That’s true of San Francisco and Los Angeles, too. One of the unintended consequences of rising minimum wages is youth unemployment. Almost 40% of our team members are under age 21. When you start paying $15 an hour, are you going to take a chance on a 17-year-old who’s never had a job before when you can find someone with more experience?

WSJ: Are you turning to automation to reduce labor costs?

MS. SMITH: We are testing server hand-held devices for order-taking in 30 restaurants now, and we’ll roll them out to another 30 in the next month and another 30 by the end of the year. Servers like it because they can take on more tables and earn more tips. Eventually we’ll have tablets where guests can place their own order from the table and pay for it.

Ms. Smith is no economist. (She has a BSBA in accounting and finance, and served as CFO of Buffalo Wild Wings and other companies for about 10 years before becoming CEO in 1996.) She’s just a CEO trying to make revenues come out ahead of costs. And when she thinks about a substantial increase in the minimum wage, her thoughts turn to not expanding, hiring more experienced workers, and using technology so fewer servers can serve more customers.

She doesn’t seem as uncertain about the effects on employment as the academic economists do.  

It has been just over a decade since the Supreme Court decided in Kelo v. New London that local governments can take private property by eminent domain under a very broad reading of “public use”.  Cato held an event earlier this year to examine the legal impact of Kelo, featuring remarks from George Mason Law Professor Ilya Somin based upon his recent book, The Grasping Hand.  Not only has Kelo spawned widespread public backlash, but its also given birth to renewed interest by legal scholars.  As an economist, I am a little more interested in the direct impact on families.

Unfortunately, I have had no luck finding a database of all U.S. takings.  The American Housing Survey (AHS), conducted by the Census Bureau every two years, does, however, offer some estimates.  For survey respondents who moved within the previous year, the AHS asks respondents the “main reason” for leaving their previous unit.  One option offered is “government displacement”. For the survey years since Kelo, the average has been 109,000 households who state that government action displaced them from their previous home.  If that average holds for non-survey years, then a good estimate is that just over a million households have been displaced by government action since Kelo

The AHS also confirms some suspicions as to who the victims of eminent domain are.  Since Kelo, about 29% of households displaced by government action have been African-American, about twice that of the general population.  As concerning is that about 32% are households in poverty, again about twice the rate of the overall population.  If you’re poor or African-American, you are twice as likely as households overall to be displaced by government action.  Also concerning is that the annual average for families displaced by government action in the decade prior to Kelo is about half that witnessed after Kelo.  So despite the public backlash, takings are up not down.

It should be emphasized that the AHS is a sample, not a census.  The 90% confidence interval for my million estimate is +/- 107,000.  Also keep in mind that government could displace a families by means other than eminent domain.  The AHS is also a survey of housing units, so any homeless families would not be included.  Lastly responses are based upon household questionnaires and not verified.  All that said, a million homes taken since Kelo is likely a good approximation and still troubling.

Wage appreciation, or lack thereof, does not tell us everything we need to know about our standard of living. Wages often fail to capture changes that come from competition and technological breakthroughs. 

One—much underutilized—way in which we can get a sense of the improvements in our standard of living is to look at the number of hours an average employee needs to work in order to buy commonly used items. When cost is measured in terms of hours worked, almost everything in 2015 is “on sale” when compared to the same product in 1979. 

Consider two common kitchen appliances: the microwave and the refrigerator.

Those are some impressive discounts! Look at the data for yourself and you will find that the trend of falling prices, when measured in hours of labor, is widespread. The main exceptions when it comes to the cost of living are the highly distorted healthcare, education and housing markets. In contrast, when market competition thrives, it tends to bring down prices and raise living standards for all of us. 

The Wall Street Journal has an editorial today on the prosecutorial abuses surrounding “John Doe” investigations.  By way of background, so-called “John Doe” laws allow prosecutors to bypass the regular search warrant application process and use special subpoenas to demand all sorts of information from various institutions, such as internet service providers.  If the prosecutor demands your email records, you may never know it has even happened.

Excerpt from the editorial:

New evidence shows that John Doe investigators were trawling the files they collected via subpoenas and search warrants for information on national conservatives.

The documents are under seal in a state court case, Eric O’Keefe and Wisconsin Club for Growth v. Wisconsin Government Accountability Board (GAB), but two sources have read them to us. The lawsuit is a complaint against the GAB, the state agency that worked with Milwaukee prosecutors on the John Doe that used campaign-finance laws to trample the First Amendment.

We’ve tried to expose this illegal harassment since the autumn of 2013, when early morning home raids and subpoenas hit conservative groups across the state. From that investigation and a previous John Doe whose documents were transferred into the new investigation, prosecutors and the GAB collected millions of documents, including personal files, emails and bank statements.

Eric O’Keefe recently shared his chilling experiences in Wisconsin in a Cato Daily Podcast.

There is no place for “John Doe” investigations in America.  Period.  “Reforming” John Doe falls short.

Trade economist Hanna C. Norberg writes:

When it comes to the value of real estate, the three most important factors are said to be location, location and location. With regards to the Transatlantic Trade and Investment Partnership, it’s regulation, regulation and regulation. 

In her Cato Online Forum essay, which was published in conjunction with this month’s Cato TTIP conference, Dr. Norberg explains how firms, workers, and consumers in the United States, in the European Union, and crucially (for those concerned about trade diversion and other adverse externalities), in third countries, can share in the benefits of reduced regulatory compliance costs.  Achieving greater economies of scale, reducing the costs of under- or over-estimating market-specific demand, reducing barriers to entry for smaller firms, and creating efficiencies in portions of global value chains that will have ripple effects on other portions are all channels through which TTIP can drive global growth.

The associated cost savings from these efficiences, Norberg argues, “get passed on in the form of lower-prices, higher wages, more research and development, new and better quality products, and more investment.”

Read Hanna’s essay here.

Find the other essays here

Last week, our friends at the Competitive Enterprise Institute won a small but important victory in the effort to bring the Transportation Security Administration under law. It began when the Electronic Privacy Information Center (EPIC) challenged the TSA’s policy of using strip-search machines at airports for primary screening. EPIC’s Fourth Amendment attack failed, but the D.C. Circuit Court of Appeals found that the TSA hadn’t used required administrative procedures to establish the policy, and it ordered the agency to promulgate a rule after taking comments from the public.

That was more than four years ago. The agency has been dragging its feet. And last week the court gave TSA thirty days to submit a schedule for “the expeditious issuance of a final rule within a reasonable time.”

Once the TSA has finalized its rule, it will be subject to challenge under the “arbitrary and capricious” standard in federal administrative law. John Mueller, Mark Stewart, and I filed comments during the rulemaking that will help show that the TSA’s policy is incoherent when it’s before the court.

Yes, it’s taking a long time. Courts often defer to agencies as experts in the fields they regulate, though they’re really expert at gaming the regulatory system and the courts. With persistence, though, the effort to bring the TSA under law and reverse its needlessly invasive and expensive programs will bear fruit.

Or responsibility for air security will be restored to airlines and airports.

Prior restraints—legal prohibitions on disseminating information before publication—are an odious burden on the freedom of expression and come with a “heavy presumption” against their constitutionality. Indeed, they are so disfavored in the law as to be virtually impossible to obtain outside of wartime.

Informal prior restraints—government pressure without formal sanction—are even more unconstitutional than formal ones, as the Supreme Court noted in Bantam Books v. Sullivan (1963). In that case, the Court forbade the Rhode Island Commission to Encourage Morality in Youth from sending threatening letters to book distributors in an attempt to nudge the distributors into not carrying “obscene” material.

But that strong precedent didn’t stop Cook County (Chicago) Sheriff Thomas Dart and his crusade against, an online commerce site similar to Craigslist. Rather than trying to get a formal prior restraint from a court, Dart used his office, letterhead, and title to send letters threatening investigation to Visa and MasterCard (Backpage’s primary financial transaction processors) to pressure them into dropping Backpage as a customer. Dart justifies his actions by asserting that there have been “years of growth in the online sex trade,” “driving demand even higher and increasing the enslavement of prostituted individuals, including children” due to commercial sites like hosting “adult services” classified ads.

It worked: when Backpage sued to stop Sheriff Dart, the district court denied a preliminary injunction, accepting Dart’s claims and ruling that the public interest weighed against the website. appealed to the U.S. Court of Appeals for the Seventh Circuit.

As Cato, Reason Foundation, and DKT Liberty Project point out in our amicus brief before that court, Dart’s claimed “epidemic” of sex trafficking has evaded any sort of empirical verification for over two decades. Indeed, State Department data indicate that the opposite may be true. Nevertheless, Sheriff Dart, along with a new-age Baptist-and-bootleggers coalition matching the religious right and radical feminists, have raised the human-trafficking bugaboo to rally against prostitution—mimicking the drug war and all of its worst legal mechanisms.

Never mind that only about 11% of ads are in the “adult” section and that many ads there, whatever one may think of dominatrix services, are perfectly legal and entitled to First Amendment protection. Never mind that Backpage has fully cooperated in investigations of actual child exploitation and other noxious activity and one of the foremost experts in trafficking posits that “[s]hutting down Backpage would mean that approximately 400 persons per month would not be identified as suspicious and would thus fall off the radar screen” (because their credit-card tracking information would be lost).

Courts have a responsibility to ensure that government officials, particularly law enforcement, follow constitutional constraints, and this is especially true when the results of extra-constitutional crusades can actually drive illicit behavior underground. Not unlike the recent Operation Choke Point scandal, the use of government power to pressure politically disfavored (yet legal) businesses out of the marketplace is simply un-American.

To paraphrase Lord Coke’s maxim from centuries ago, the government shouldn’t be able to achieve indirectly what it’s not allowed to do directly.

The Seventh Circuit will hear v. Dart the second week of November.

In a private response to my post earlier this afternoon, Ed Whelan has brought to my attention two errors in this paragraph:

The addition of the Bill of Rights, in short, did not reduce the number of rights we enjoy, limiting them to those fairly clearly “in” that document. It simply enumerated some of the rights in that vast sea of previously unenumerated rights—all of which, enumerated and unenumerated alike, were later incorporated against the states through the Fourteenth Amendment, properly read.

He alerts me that in his post last Thursday, to which I responded on Friday, he had written:

These proponents of originalism and judicial restraint aim, in other words, to have judges enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth, and to prevent judges from inventing rights and powers that are not in the Constitution. (emphasis added)

Fair enough. By placing the emphasis on judges limiting power (which they rarely do since the New Deal constitutional revolution), Ed doesn’t have to worry about whether the Constitution “sets forth” unenumerated rights pursuant to the Ninth Amendment, and so I stand corrected—at least in the case of challenges to federal power.

But of course most unenumerated rights questions arise in challenges to state power, which brings me to a misstatement in that passage of mine above. I wrote that all of our rights, “enumerated and unenumerated alike, were later incorporated against the states through the Fourteenth Amendment, properly read,” and that of course is not correct. For just as we give up some of our rights when we constitute ourselves nationally, so too we give up others when we constitute ourselves at the state level. The usual state cases, however, (Griswold, Troxel, etc.) involve rights that we do not give up—all of which, to fully explain, requires a more detailed theory of both state police power and the rights retained pursuant to the Ninth Amendment. I thank Ed for bringing that to my attention.

While I’ve got your attention, however, I might as well take this opportunity to call into question a contention that many conservatives, including Ed, are fond of making, namely, that the Ninth Amendment should be read as a rule of construction. As he writes in this morning’s post, “defenders of the original Constitution argued against a bill of rights on the ground that such a listing might imply that the national government’s powers were far greater than they were.” True, that is one reason they opposed a bill of rights. But he continues:

When the Bill of Rights was added, the Ninth Amendment was crafted to guard against this implication. The text of the Ninth Amendment (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”), which sets forth a mere rule of construction (“shall not be construed”), comports perfectly with this purpose.

True again, the Ninth Amendment does guard against that implication. But that does not mean that the amendment “sets forth a mere rule of construction.” For the object of “construed” is “to deny or disparage other[] [rights] retained by the people.” And that brings us to a different rule of construction: expressio unius est exclusio alterius. An additional fear opponents of a bill of rights had was that the enumeration of some rights in such a bill would be construed as excluding other, unenumerated rights from protection, and that too is why, if a bill of rights were to be added, the Ninth Amendment would be needed to ensure that both enumerated and unenumerated rights were protected. True, the question comes up most often in challenges to state laws, but with the demise of the doctrine of enumerated powers it comes up in federal cases as well.

George Will’s latest column draws attention to Judge Alex Kozinski’s critique of the American criminal justice system.  Here is an excerpt:

The Republican Party, like Sisyphus, is again putting its shoulder to a boulder, hoping to make modest but significant changes in the Electoral College arithmetic by winning perhaps 12 percent of the African American vote. To this end, Republicans need to hone a rhetoric of skepticism about, and an agenda for reform of, the criminal justice system. They can draw on the thinking of a federal appellate judge nominated by Ronald Reagan.

In an article that has stirred considerable discussion since it appeared this past summer in the Georgetown Law Journal, Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit provides facts and judgments that should disturb everyone, but especially African Americans, whose encounters with the criminal justice system are dismayingly frequent and frequently dismaying….

Prosecutions are preceded by police investigations. Police, says Kozinski, have “vast discretion” about, among many other things, which leads to pursue and witnesses to interview. They also have opportunities “to manufacture or destroy evidence, influence witnesses, extract confessions” and otherwise “stack the deck against people they think should be convicted.” A woman spent 23 years on death row because of an oral confession she supposedly made during a 20-minute interrogation by a detective who Kozinski says was later shown “to be a serial liar.” The conviction of a man who spent 39 years in prison was based “entirely” on the eyewitness testimony of a 12-year-old who saw the crime from a distance, failed to identify the man in a lineup and was fed information by the police.

Read the whole thing.

Cato will be hosting a debate between Judge Kozinski and Judge J. Harvey Wilkinson next month.  Related post here.

Rising home prices and apartment rents have been in the news lately, but almost no one is looking at the real causes behind these problems. Instead, they are proposing band-aid solutions that will do little to help most people afford housing but will greatly benefit special interest groups.

According to the news, BostonLos AngelesMiamiNew YorkPortlandSan Francisco-Oakland, San JoseSeattle, and Washington, DC, among other major urban areas, are all suffering from housing crises. Economists who have studied these regions know why their housing is becoming less affordable.

First, urban-growth boundaries and other land-use regulations in most of these regions have limited the amount of land available for new housing. Urban planners say these regulations are needed to control the externalities caused by urban sprawl. However, as New Zealand’s Deputy Prime Minister recently noted in a speech about a similar housing crisis in Auckland, urban planning itself “has become the externality” that is making housing the most expensive.

Second, in many of these regions–specifically, Los Angeles, New York, San Francisco-Oakland, San Jose, and Washington–rent control has only made housing less affordable for everyone not lucky enough to live in a rent-controlled apartment. Even though some of these cities exempt new developments from rent-control rules, developers know that such exemptions could be eliminated at any time and are wary of investing in new housing. Many of these and other cities have also passed “inclusionary zoning ordinances” that force developers to sell or rent 10 to 20 percent of the new housing units they build at below-market rates, which both discourages new development and increases the cost of the market-rate units that are built.

Although these problems are obvious to anyone who understands the rudiments of supply and demand, they are almost completely ignored by politicians, housing officials, and low-income housing advocates. Instead, the almost exclusive focus is on building government-subsidized (or, in the case of inclusionary zoning, developer-subsidized) housing. Yet this does nothing to solve the problem for the vast majority of homebuyers and renters.

California has the nation’s second-least affordable housing (after Hawaii), and probably has some of the most aggressive subsidized housing programs. Yet a recent report from the state legislative analyst’s office found that these programs have produced only about 7,000 subsidized housing units per year, or about 5 percent of new housing. In a state that has nearly 14 million homes and apartments, adding 7,000 subsidized units per year will have no measurable influence on overall prices, especially in the face of growth boundaries and other factors that make housing expensive.

So why is so much emphasis placed on a policy that won’t work while a policy of deregulating land markets is ignored? The answer is that long-standing federal subsidies to housing have created an affordable-housing-industrial complex that thrives on subsidies in unaffordable housing markets and whose reason for existence would be severely diminished if those markets were deregulated.

Take, for example, Enterprise Community Partners (ECP), whose mission (as described on its 2013 IRS Form 990) is “to create opportunities for low and moderate-income people through affordable housing.” ECP is heavily funded by your tax dollars to promote affordable housing, getting much of its tax support through Section 4 of the HUD Demonstration Act of 1993, which specifically designates ECP as a grant recipient.

Enterprise Community Partners has certainly found the business of promoting a few units of affordable housing, as opposed to making all housing more affordable, to be quite lucrative, at least for many of its staff. According to its tax form, only a quarter of the organization’s $58 million annual expenses went to grants aimed at making more affordable housing, while 62 percent went for salaries, benefits, and professional service contracts. (The rest went for things like conferences, travel, rent, and office expenses.)

More than two dozen of its staff members earned more than $200,000 in salaries and benefits in 2013. The United States of America gets along with just one vice president; ECP has sixteen of them, half of whom make more than the $230,700 per year taxpayers pay to Joe Biden.

The organization’s tax form also admits that it spent nearly $600,000 on lobbying in 2013. Thus, groups like Enterprise Community Partners that focus on creating a few units of affordable housing while they ignore the real problem become self-perpetuating. They use taxpayer dollars lobby to continue their tinkering at the edges of affordability while they and the people who listen to them do nothing about the overall affordability problem in regions with strict land-use regulation and rent control.

Over at his “Bench Memos” blog at NRO, Ed Whelan has taken exception to my Cato@Liberty post of Friday last wherein I called into question his critique of George Will’s column of Thursday last, which had defended Randy Barnett’s recent speech at Berkeley, drawn from his 2008 B. Kenneth Simon Lecture at Cato, arguing that the Constitution is libertarian and that judges should actively enforce its protection not only of enumerated but of unenumerated rights as well, pursuant to the Ninth Amendment. Got that? Now let’s get to the substance of the matter.

Whelan’s latest, entitled “More Ninth Amendment Confusion,” is mercifully brief. I had argued, among other things, that conservatives’ long-standing (and often understandable) fear of what they see as “judicial activism” has led them to read the Ninth Amendment (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”) as a mere rule of construction, not as an affirmation of unenumerated rights. Thus they are wary of judges finding rights that are not fairly clearly “in” the Constitution. (There is some wiggle room there: thus, for example, most would allow freedom of speech to entail the right to burn the flag.)

But a core problem with that view, I wrote, is that it implies that “prior to the ratification of the Bill of Rights, two years after the ratification of the Constitution, we enjoyed almost no rights against congressional majorities—save for those few mentioned in the original document.” Whelan responds:

The “rights against congressional majorities” that existed before the Bill of Rights was ratified arose from the Constitution’s limitations on Congress’s powers. In Madison’s words: “If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended.”

Just so! Where there is no power—by virtue of the doctrine of enumerated powers—there is a right. In other words, prior to the ratification of the Bill of Rights we had a vast sea of rights within which there were islands of federal power. But as I noted in an exchange with Randy over the weekend, way back in 1991 I had written:

Indeed, if the Framers intended unenumerated rights to be protected without a bill of rights, how can we imagine that those rights were meant to be any less secure with a bill of rights.

The addition of the Bill of Rights, in short, did not reduce the number of rights we enjoy, limiting them to those fairly clearly “in” that document. It simply enumerated some of the rights in that vast sea of previously unenumerated rights—all of which, enumerated and unenumerated alike, were later incorporated against the states through the Fourteenth Amendment, properly read.

Whether judges discover those unenumerated rights expressly—as when they discover a right to sell and use contraceptives (Griswold v. Connecticut) or a right of fit parents to control access to their children (Troxel v. Granville) or many other such rights—or do so only implicitly by finding no power is not the issue since either method comes to the same thing—as Madison said. The Ninth Amendment simply affirms that we “retain” all the unenumerated rights we held prior to the ratification of the Bill of Rights. In expressly stating that, it can be said to be a font of rights, even though the actual font is the theory of natural rights, which rights we retained when we reconstituted ourselves in 1787.

Ever since two econometric studies (CEPR and Bertelsmann) purporting to estimate the gains from a successful Transatlantic Trade and Investment Partnership agreement were published in 2013 revealing positive – but vastly disparate – outcomes, TTIP opponents have been on the offensive, dismissing economic modelling as a subjective and politically motivated exercise.  The fact that the studies were both commissioned by paying clients (the European Commission and the German government, both presumably interested in obtaining affirmative talking points to promote TTIP) served to reinforce that perspective.

Although estimating the benefits and costs of a massive trade agreement (for which the terms remain unknown) can hardly be considered an exact science, there is value to the public and to policymakers in understanding the range of possibilities. So, in other words, perhaps the problem is not the production of econometric estimates but, rather, the manner in which those estimates can be misused or misinterpreted that should concern us.

At the Cato TTIP conference earlier this month, there was a whole session devoted to the topic: Understanding the Economic Models and the Estimates They Produce.  That discussion is fleshed out a bit in two Cato Online Forum essays, which I want to bring to your attention.

The first is a critique of the models from University of Manchester economics professor Gabriel Siles-Brugge, who articulates his perception of the problem and suggests some remedies.  The second is a defense and broader explaination of the models from University of Munich professor and director of the Ifo Center for International Economics Gabriel Felbermayr, who is the primary modeller/author of the Bertelsmann study.

Other conference-related essays, including a couple more on econometric models (from Laura Baughman and Dan Pearson), can be found here.

Markets once again are waiting breathlessly for a decision on short-term interest rates by the FOMC, the Federal Reserve’s monetary policy making arm. All signs point to no change in interest rates. More interesting is a possible change in how members of the FOMC are thinking about the economy.

For years, most members of the FOMC have used the Phillips Curve framework in setting monetary policy. This is done against the backdrop of the Fed’s so-called dual mandate to promote maximum employment and low inflation. The Phillips Curve postulates a negative relationship between unemployment and inflation. Thus, a falling unemployment rate foretells higher inflation in the future.

Now two Fed Governors (members of the FOMC) have questioned the relevance of the Phillips Curve in separate speeches recently. The one-two punch was delivered by Lael Brainard and Daniel Tarullo. In Brainard’s words, “I do not view the improvement in the labor market as a sufficient statistic for judging the outlook for inflation.”

At the Kansas City Fed’s annual Jackson Hole conference last August, two former Fed economists questioned the Phillips Curve. They argued the relationship between inflation and unemployment has never been tight.

The Fed Chair, Janet Yellen, who has been largely absent from public view, remains wedded to the Phillips Curve. It is unusual for two Governors to so publicly deviate not only from the Chair’s policy guidance but also from the policymaking framework. Is Janet Yellen losing control of the FOMC?

In reality, labor markets are not so tight and there is just no sign of higher inflation in the near-term. I made those points in an August 24th op-ed in the Wall Street Journal.

Adding to the dilemma facing the FOMC is that markets are signaling that short-term interest rates should be lower not higher. New issues of short-term Treasury bills have been issued with a zero interest rate (though the most recent auction produced mildly positive interest rates). In secondary markets, bills have traded at mildly negative interest rates. Moreover, short-term interest rates are negative in around 20 countries mostly in the European Union (HT: Walker Todd).

In sum, we have a Fed divided and markets signaling a move down not up in interest rates. That makes for enhanced uncertainty in financial markets.

[Cross-posted from]

Earlier this year, the National Committee for Responsive Philanthropy (NCRP) issued a report titled “Philamplify Poll Results: Nonprofits Don’t Criticize Foundations Because of Funding Fears.”

The report seeks to explain a phenomenon whose existence it does not bother to establish. Rather than presenting evidence that that non-profits are in fact intimidated into silence by grantors, the report instead simply assumes that they are. Its first paragraph declares that “Given the power imbalance between foundations and grantees, grantees are often wary of providing foundations with constructive criticism.”

No evidence is presented to substantiate or quantify this claim. How often? How wary? Says who?

Assumption in hand, the NCRP is off to the races, asking its website visitors to speculate on this hypothetical question “What is the top reason why a nonprofit would choose not to openly criticize a foundation?”

Of course those speculations would be of dubious value even if the report had bothered to establish this phenomenon’s existence. The poll answers would not tell us if even one actual non-profit had held its tongue for the reason alleged, merely that some anonymous website visitor(s) thought it plausible.

Even if we grant that it might be difficult to collect hard evidence on cases of non-profits refusing to criticize prospective donors, it does not excuse publishing a “report” devoid of relevant facts.

Consider, too, that it might be comparatively easy to collect data on non-profits that have criticized foundations. An advantage of this flip-side approach to the question is that the critics themselves can be asked why they published their criticisms. I say this as the author of an empirical study whose findings were deeply unflattering to philanthropies seeking to scale-up charter school networks.

Why did I do it? It’s my job. I study comparative education policy, seeking to understand which policies are most effective in delivering the outcomes that families value. A key question within that field is to determine which policies lead most consistently to the “scaling-up” of educational excellence—which is to say the replication and/or imitation of best practices. Since that has long been a goal of donors to charter school networks I felt it important to determine empirically the extent to which their efforts were proving effective. It being an empirical study based on a large dataset (all the charter networks operating in the state of California) there was no way to predict the outcome prior to crunching the numbers. Nor was there any need for such a prediction.

Contrary to the speculations of NCRP’s website visitors, my highest priority as a think tank researcher is not to avoid antagonizing potential donors, it is maintaining my personal integrity and guarding my reputation and that of my employer for producing reliable, useful empirical research. I am certainly not alone in holding these priorities among think tank scholars. With that observation in mind, dear reader, please contact me if you have another example in which a non-profit published work critical of foundations/potential donors. I will relay the results to NCRP in the hope that they may wish to make amends for their earlier baseless, question-begging speculations.

For the past two or more years the question of whether or not (and when) the Fed might “raise interest rates” has been a constant feature in the news. With the FOMC, the Fed’s rate setting body, meeting next week, this is especially true at the moment. But no one seems to understand the nitty-gritty of just how interest rates are raised (or lowered), and very few non-economists have any knowledge of how it happens.

At times, the news reports seem to suggest that somewhere within the bowels of the New York Fed there is an interest-rate-machine, and that the monetary authorities have only to push a button, and, Voila!, interest rates will be raised. No one asks just how much they might be increased, or what happens then, although some accounts suggest that such an action would signal an end to the stagnant economy and better times ahead.

The Fed has no interest rate machine. To “hike rates” the Fed Open Market Committee (FOMC) must use its power to diminish the economy’s quantity of spending money through its control over the Monetary Base (MB), which is the accounted sum of the monetary obligations of the 12 Fed Banks. This Base includes two liabilities of the Fed Banks—the stock of hand-to-hand currency and the reserve-deposits of almost all of the commercial banks. To hike rates, the FOMC must decide to SELL government securities in the financial markets from its huge stockpile of security holdings—think ‘national debt.’ Fed Banks have accumulated these securities by previous purchases that lowered rates and increased the economy’s stock of money. Now, however, the call is for a ‘rate hike’ so the FOMC would have to sell off some of the Fed’s securities. It would make the sale through the offices of the Fed Bank of NY, by offering them on the financial market at attractive (low) prices relative to the annual dollar payments the securities promise their holders.

A large fraction of the sales would be to commercial banks thereby reducing their reserves, which would ordinarily force them , in turn, to reduce their lending to business firms. However, the banks at the moment have a huge volume of excess reserves on which they get one-fourth of one percent (0.25%) interest from the Fed Banks. These reserves are “excess” because they are not being utilized to “back” checkbook deposits that all households and businesses count (properly) as money. If the reserves had been used to finance the investments of private business , industry and households, the economy’s accounted stock of money would be perhaps double what it is now. But a large fraction of the Reserves has been “sterilized” by the device of this trivial interest rate paid on them.

With the FOMC buying, however, market rates might rise enough so that commercial banks would use up these sequestered reserves, and the depressing effect of a ‘rate hike’ might be avoided. But no one knows for sure. That’s why the officers in the Fed system are procrastinating.

Another important factor is also in the picture: the huge annual government deficit of more than a trillion dollars that must be funded every year. A ‘rate hike’ would make these annual borrowings much more difficult for the U.S. Treasury to finance. And if the fiscal problem becomes unstable—more deficit to finance than security markets will allow, the Fed will obey its political masters and finance the deficit by a hyper-inflation, or hyper-tax, as a burgeoning inflation simply taxes all fixed dollar wealth—bonds, dollars, life insurance values, etc.—by the rate of price level increase.

Finally, we might ask: ‘Why are rates so pervasively low. And why haven’t previous Fed and Treasury spending policies provided a path back to a healthy economy?’

The answer is that the Fed controls the monetary system, but it does not control the real system — the production of goods, services, and capital. The real system also has an interest rate — the real interest rate. At the moment, the real rate is effectively zero, because its determinants — the real rate of gross private domestic investment, and the real savings to finance those investments — are near zero. Taxes, regulations — the “Ten Thousand Commandments,” litigation, and harassment of venture capital has alienated real investment severely. Consequently, no matter what the Fed does or does not do, real values, including real incomes, are going to remain depressed into the foreseeable future. No amount of money and no monetary policy is going to change the government-imposed real depression.

[Cross-posted from]

As predictable as the sun’s rising in the East is NRO’s Ed Whelan’s rush to the barricades when George Will (or many others, for that matter) is found defending a judiciary “actively” engaged in defending a right not expressly found in the Constitution.

The occasion this time was Will’s piece in yesterday’s Washington Post, “The false promise of ‘judicial restraint’ in America.” In it, Will notes that, given the advanced age of several Supreme Court justices, a supremely important presidential issue is being generally neglected in the presidential debates, namely, the criteria by which a candidate would select judicial nominees. And that is “because Democrats have nothing interesting to say about it and Republicans differ among themselves about it.” Drawing on a speech that Randy Barnett recently gave at UC Berkeley, Will defends what we at Cato have long defended, namely, a judiciary actively engaged in reading and applying the Constitution as written. And that includes accurately reading the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”

It’s on that matter, especially, that Whelan leaps to the defense of “judicial restraint.” When the Constitution’s text “fails to yield a sufficiently clear answer to a constitutional question,” he writes, judges should not be inventing rights “that are not in the Constitution” but instead should defer to the people—to democratic majorities.

But when one reads not only the Ninth Amendment itself but about why it was written—to make it clear that the rights we “retain” when we establish government are far more numerous than could ever be enumerated in a constitution—then it becomes clear that the discovery and protection of those rights cannot be left to the very political majorities against which they are most likely being invoked in a legal action before a court. Indeed, if Whelan were right—that we enjoy only those rights that are expressly stated in the Bill of Rights—then prior to the ratification of the Bill of Rights, two years after the ratification of the Constitution, we enjoyed almost no rights against congressional majorities—save for those few mentioned in the original document.

To make good, then, on the Ninth Amendment’s plain text, to say nothing of the Constitution’s larger promise, judges have to actively discover the rights we retained—enumerated and unenumerated alike—when we created a limited government and later incorporated those limits against the states through the Civil War Amendments. That takes an engaged judiciary, one that is cognizant of the basic theory of the Constitution—a document that secures liberty as our first principle, majoritarian democracy as merely the means for securing that liberty.

I’ll give Whelan this much: He raises a serious practical problem with Will’s proposal:

I confess that I don’t understand what Will expects Republican presidential candidates to do with Barnett’s vocabulary. I don’t think that we’ll see candidates accusing each other of being Hobbesians. And if they try to go deeper into the Lockean propositions, there are lots of traps that await them. Do we want to make it easy for Hillary Clinton, or whoever the Democratic candidate will be, to allege that the Republican candidate will appoint justices who will repeal the New Deal and strike down civil-rights laws?

We’ve reached a point in our public discourse at which constitutional understanding is at the nadir. When so many American’s believe that the purpose of government is to provide them with all manner of goods and services, as demanded by democratic majorities, it’s difficult to explain the proper role of the courts under a Constitution for limited government.  But neither will it help to feed that appetite for public goods by justifying the majoritarian force that satisfies it. Better it would be to appeal to the liberty we all want and the constitutional means for securing it.

Addendum: As I send this to be posted, I note that Whelan has just sent around a new post responding to Barnett’s response to him, none of which I’ve yet read.