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At midnight tonight, the gears of crony capitalism will grind to a halt at 811 Vermont Avenue, NW, Washington, D.C. After 81 years of funneling taxpayer dollars to favored companies, projects, and geopolitical outcomes under the guise of advancing some vague conception of the “U.S. economic interest,” the Export-Import Bank of the United States will end its financing operations at midnight tonight. No more subsidies to Fortune 100 businesses. No more siphoning revenues from unwitting U.S. firms and industries. No more loan guarantees to wealthy, autocratic foreign governments. No more crowding out of private lending. No more taxpayer exposure to a Fannie Mae-like fiasco. No more bribery and corruption scandals. No more collaboration and lending to China’s Export-Import Bank – you know, the entity whose support for Chinese companies is alleged to threaten U.S. exporters and jobs, and is the most frequently cited imperative for reauthorizing Ex-Im. No more of any of this…for now.

Champions of small government and market capitalism should savor this rare victory. It was won with solid arguments, including over 20 years of analyses from Cato Institute scholars including Ian Vasquez, Aaron Lukas, Steve Slivinsky, Chris Edwards, Doug Bandow, Sallie James, and – perhaps most comprehensively and tirelessly – Veronique de Rugy. 

It was won because of columnist/scholar Tim Carney’s persistence in focusing the public’s attention on the corruption bred of corporate welfare and because of the analytical contributions of Heritage’s Diane Katz, the Competitive Enterprise Institute’s Ryan Young, and others who continued to make compelling arguments for shuttering the Bank, despite steep odds against that outcome.

It was won because certain libertarian groups and conservative activists made the issue a priority, recognizing that corporate welfare is as great a threat to liberty as is the Welfare State, and that reining it in should be a priority because success there would lend greater credibility to the effort to rein in the Welfare State.

It was won against great odds, including vast political expenditures and arm-twisting by U.S. business interests on Capitol Hill, a mainstream media that is reflexively unsympathetic to any cause associated with “Tea Party Types,” and a general aversion among establishment organizations to any challenges to the status-quo. Radical and reckless, excessive and extreme, ideological and idiotic have been the characterizations assigned by media, politicians, and Boeing lobbyists in their attempts to discredit legitimate efforts to purge “crony” and make “market” the new brand of capitalism.

And it was won because House Financial Services Committee Chairman Jeb Hensarling and Senate Banking Committee Chairman Richard Shelby, knowing the case against Ex-Im reauthorization was more substantive than the New York Times would allow, made good gatekeepers by putting the onus on Ex-Im proponents to answer the critics – a task at which they failed.

So, tonight at midnight, the Export-Import Bank will cease in its capacity to issue new financing. That is something to cheer. It may also be short-lived.  Proponents of the Bank have been regrouping and strategizing to move legislation to reauthorize the Bank at the soonest possible chance. In fact the White House is hosting a conference call this afternoon for the purpose of advancing that outcome. Here’s the text of the email:

Dear Friend,

Please join us for a conference call on Tuesday, June 30th, at 2:35 PM with President Barack Obama, Senior Advisor to the President, Valerie Jarrett, and Director of the National Economic Council, Jeff Zients, to discuss the importance of reauthorizing the Export-Import Bank of the United States. The Export-Import Bank is a critical tool to help U.S. businesses and workers succeed in global markets and grow their exports – it supports high-quality jobs, is a vital tool for small businesses, and doesn’t cost taxpayers a penny.  Its reauthorization is vital to U.S. competitiveness and leveling the playing field for American small business owners and workers.

To participate in this conversation, please find details below:

•            Date: Tuesday, June 30th, 2015

•            Time: 2:35PM EDT

To receive the call-in information, please RSVP here:

For those who wish to access live captioning of our call, please access the link here.

This call is off the record and is not for press purposes nor amplification on social media.

Thank you,

The White House Business Council

The battle may be over but the war continues.  Given the sway that conservatives have had on this issue, it will be interesting to see whether and how Speaker Boehner tries to circumvent Hensarling’s committee to get a reauthorization bill to the floor.  Majority Leader McConnell believes there’s enough support in the Senate for reauthorization, but most of the Republican presidential hopefuls have expressed opposition to reauthorization.  It seems to me that if Ex-Im reauthorization resurfaces in the weeks and months ahead, it will be an issue that provides Republicans with yet another opportunity to demonstrate commitment to limited government, free market principles. Maybe this time they’ll see the value in reclaiming that brand.

Today, the U.S. Supreme Court announced that it would hear Friedrichs v. California Teachers Association, which asks the court to consider whether compulsory public-sector union dues violate the First Amendment right to free speech–which includes the right to be free from compulsory speech. The Cato Institute filed an amicus brief supporting the petitioners’ request that SCOTUS hear the case.

In 26 states, public-sector unions can force non-members to pay dues anyway. As I noted last year: 

The unions contend that these compulsory dues are necessary to overcome the free rider problem (non-union members may benefit from the collectively-bargained wages and benefits without contributing to the union), but plaintiffs in Friedrichs v. California Teachers Association point out that numerous organizations engage in activities (e.g. – lobbying) that benefit members and non-members alike without giving such organizations the right to coerce non-members to pay. That’s especially true when the individuals who supposedly benefit actually disagree with the position of the organization. 

But even if unions could demonstrate that the dues were necessary to prevent freeriding, the U.S. Supreme Court held in Harris v. Quinn last year that “preventing nonmembers from freeriding on the union’s efforts” is a rationale “generally insufficient to overcome First Amendment objections.” Federal law allows dues-payers to opt out of the portion dedicated to express political activities (e.g. - lobbying), but the petitioners argue that public-sector collective bargaining itself is inherently political. As the Cato Institute’s legal eagles explain:

Ever since the 1977 case of Abood v. Detroit Board of Education, it has been unconstitutional for unions to spend nonmembers’ compulsory dues on blatant political activity such as political ads. But unions can still collect so-called “agency fees” from nonmembers in order to fund activities “germane to [the union’s] functions as exclusive bargaining representative” such as the costs of collective bargaining to secure “advantages in wages, hours, and other conditions of employment.” Every year, public-sector unions must separate their political spending from their “agency fees” and give nonmembers an opportunity to opt-out of the political spending.

Yet, when it comes to public-sector unions, it is somewhat bizarre to say that some of the spending is “political” and some isn’t. A teachers union may run political ads advocating for particular public policy positions, but it also collectively bargains in order to fight for similarly “political” gains, such as class size, school year length, and teacher qualifications. In a sense, a teachers union is just another political party that lobbies the government for preferred policies, and, whether it is spending on political ads or collectively bargaining, both are “political.” 

In Harris v. Quinn, the majority appeared to signal that they agree with the petitioners’ assertion and they cast a gimlet eye on Abood:

The Abood Court’s analysis is questionable on several grounds. Some of these were noted or apparent at or before the time of the decision, but several have become more evident and troubling in the years since then. […]

Abood failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector. In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector. 

In other words, at least five justices appear inclined to hold that public sector collective bargaining is inherently political and that forcing someone to contribute toward it would violate the First Amendment right to be free from compulsory speech. If so, it would be a major blow to the teachers unions–significantly reducing their revenue and their political clout–and therefore a major victory for education reform. 

The New York Times has some wonderful Room for Debate pieces debating whether the American electorate is getting more liberal.  From Molly Worthen bemoaning the rise of secular libertarianism to Robert Reich repeating the mantra of the New Deal to Kay Hymowitz arguing that Millennials are not so liberal, all are worth reading. 

If the U.S. government does adopt more liberal economic policies over the next few decade, immigrants and their descendants will not be to blame.  There are four pieces of research that lend support to this view.

First, according to a working paper authored by Zac Gochenour at Western Carolina University and myself, the number of immigrants and their descendants has not affected the size of welfare benefits or spending on the state level from 1970 to 2010.  States have the power to set the benefit levels for numerous means-tested welfare programs and also have radically different flows of immigrants into or out of their borders - producing an ideal environment to test how immigrants and growing ethnic diversity affect the size of welfare benefits.  Although immigrants don’t shrink the welfare state, they don’t grow it either.  For every state like California and New York with many immigrants and a large welfare state, there is a state like Texas or Florida with many immigrants and a small welfare state.   

Second, according to an academic paper I co-authored with economists J.R. Clark, Robert Lawson, Benjamin Powell, and Ryan Murphy, increasing levels of immigration in the past predict more economic freedom in the future – both in the United States and internationally.  The story is slightly negative when looking at American states but the negative effect there is more than counter-balanced by the positive shift on the national level.  Although we can’t say that immigration caused that improvement in policy, we can say that immigration didn’t cause the economy to become less free.

Third, throughout American history the size of the federal government grows most rapidly when immigration is closed off.  The federal government grows much more slowly when the borders are more open, prior to 1930 and after 1970, than when they are closed during the 1930 to 1970 period.  What happened from 1930 to 1970?  Besides immigration being closed off, the New Deal, the Great Society, and a whole panoply of expensive government programs were initiated that were only possible because immigration was closed off.  Don’t believe that closing the borders was politically necessary to gain broad public support for those programs?  Paul Krugman and Vernon M. Briggs Jr. of the anti-immigration Center for Immigration Studies disagree with you (pg. 81-82).

Fourth, immigrants and their children have political opinions very similar to native-born Americans going back several generations.  In order to change public policy, immigrants and their descendants must first have significant differences of opinion with natives over these policies.  As Sam Wilson of George Mason University and myself found when we examined the General Social Survey data, immigrants have political and ideological opinions virtually indistinguishable from those of Americans.  Where small differences exist, they are entirely gone by the second-generation.  If immigrants and their children don’t differ from Americans very much, they won’t change public policy either.

One political party may gain more than another because of immigration but that doesn’t mean that national policy will shift.  Policy, not the partisan identity of politicians, is what interests us.  American public opinion on economic and other policy matter might change in the near future but that change won’t come from the differing opinions of immigrants or their children - unless something big changes.    

Relations between the United States and Russia continue to deteriorate, with the U.S.-led NATO alliance planning to station troops and heavy weaponry on Russia’s border.  At the same time that U.S.-Russian relations are reaching frosty levels not seen since the days of the Cold War, ties between China and Russia are growing noticeably closer.  Symbolizing that trend was a powerful visual seen on television sets around the world in early May.  Chinese president Xi Jinping not only attended the celebration in Moscow marking the 70th anniversary of the end of World War II, he occupied the position of honor at the side of Russian president Vladimir Putin.  The image was especially powerful because the United States and several other major Western powers pointedly refused to attend the gathering to show their continuing displeasure with Russia’s annexation of Crimea and aid to rebel forces in eastern Ukraine. 

As I point out in a recent article in Aspenia Online, the events in Moscow were only one signal of a Russian-Chinese rapprochement that seems  motivated by a joint desire to curb America’s global dominance.  Bilateral economic agreements between Moscow and Beijing are on the rise, including a May 2015 $400 billion deal to sell Russian natural gas to the voracious Chinese economy.  In addition, Russia has now replaced Saudi Arabia as China’s principal source of oil.

The prevailing assumption in the West that Russia and China would become geopolitical competitors, if not outright adversaries, in Central Asia also apparently needs to be reassessed.  Following the May 8 Putin-Xi summit in Moscow, the two leaders signed a new declaration announcing the coordinated development of the so-called Silk Road Economic Belt in Central Asia.  Although Russian and Chinese ambitions in that region are still in conflict over the long run, it appears that both governments have declared a truce in their rivalry.

Significant bilateral arms sales agreements are creating yet another dimension to the relationship.  That point is apparent with Moscow’s recent commitment to sell the sophisticated S-400 air defense system to China.  Talks between leaders of the two militaries are also on the rise.

These diverse developments have one feature in common.  Moscow and Beijing now seem to worry more about Washington than they do about each other, and that shared apprehension is driving them to cooperate against the United States and its allies.  That trend should greatly concern U.S. policymakers.   Secretary of State Henry Kissinger once argued that it should be an important objective of the United States to make certain that its relations with both Russia and China are closer than their relations are to each other. 

That remains wise counsel.  The last thing that American officials should want is to drive two major powers that are natural adversaries into an alliance of convenience directed against the United States.  Yet Washington’s uncompromising policy regarding the Ukraine issue and the increasingly transparent U.S. containment policy directed against China are creating the possibility of such a nightmare.  A reassessment of the Obama administration’s strategy on both fronts is badly needed.

Give Rand Paul points for trying: His opinion piece about marriage policy in the wake of Obergefell did better than many other Republicans have done. He did not call for resurrecting the dead – and politically toxic – Federal Marriage Amendment. He would appear to be actually considering the issues at stake, which is a good start.

But contrary to the promise of the headline (which he probably didn’t write anyway), the measures that Senator Paul recommends would not get government “out of the marriage business altogether.” Judging by what he actually wrote, local government would still control entry and exit from civil marriage, and civil marriage itself would apparently still continue to exist. Many federal consequences, like Social Security survivorship and the ability to sponsor an immigrant spouse, would presumably continue to flow from marital status - and they’d still be unavailable in any other way.

This isn’t such a terrible thing, necessarily. Marriage policy is really, really complicated. As long as we have a government, and as long as it’s making important decisions about our families and property, at least some parts of civil marriage may actually be worth saving. Marriage can serve as a protection against the state, one that (among lots of other things) keeps families together and makes the Social Security system run marginally more justly: If anyone deserves to recoup some of what the government takes by way of the payroll tax, it’s the widow of the worker who “contributed.” And if anyone is competent to sponsor a new citizen, it must be that new citizen’s spouse.

Meanwhile, leaving the entry conditions of marriage to the states would have been neither crazy nor unprecedented. It’s what has very often happened throughout our country’s history, and if the Supreme Court had gone that route, we’d likely have had ubiquitous gay marriage soon enough anyway. Historically speaking, states have commonly set very diverse requirements to enter into a marriage. These state-level requirements have included blood tests, waiting periods, and varying limits on consanguinity and age, to name just the big ones. (Also, notoriously, some states formerly set racial requirements, which I obviously deplore.)

Although the Supreme Court has repeatedly called marriage a fundamental right – including in Obergefell – the Court has also historically left the entry conditions of civil marriage to the states. It has intervened only seldom in this area. Interventions have included permitting interracial marriage, forbidding polygamy, allowing convicts to marry, and now permitting same-sex marriage, a decision I certainly approve of. If the state is to extend civil marriage, it ought to do so without respect to gender.

Not that I approve of everything that the civil aspect of marriage does. Far from it.

Contrary to what Senator Paul seems to claim, I am not aware that government has ever taxed marriage per se. The reality is a lot more complicated than that. There’s a marriage penalty to the income tax, but there’s also a marriage bonus. Which one you get depends on your income, your spouse’s income, and the distribution between them, as this baffling chart from the Tax Foundation shows.

As if the perverse incentives of the above chart were not enough, there’s a deeper problem: The weird income tax effects of marriage can’t be eliminated until we either scrap the graduated income tax or cease to levy it on anything other than an individual basis. (Neither of those would be a bad idea, necessarily, though the latter would leave households of equal incomes taxed unequally if their income distributions were unequal. I’m not sure why we’d want to do that, but when you make the tax rates progressive, that’s what you’re stuck with. It’s that or a marriage penalty and/or bonus. Mathematically, it just can’t be any other way.) Ultimately the tax effects of marriage are one of those areas where marriage policy would better off if we hit the reset button - on the tax system.

A good deal of the confusion about the meaning of marriage could also be remedied by admitting that there are in fact two kinds of marriage in the United States, private and civil. They usually happen at the same time, but they are quite distinct, legally. Private marriages can and should be recognized (or not) by individuals, churches, and families, freely and on a case-by-case basis. This is a matter of religious and associational liberty, and as such it should remain fully protected by the First Amendment. “Marriage” in this sense is not a government matter at all.

This private sort of marriage is a fundamental and negative right; it doesn’t need the government’s help to come into being. On this Rand Paul is absolutely correct, and I share his concern that churches and religiously observant businesses will be compelled to celebrate marriages that they find unconscionable. This they should not be forced to accept. (It hardly matters that these are scruples that have only lately appeared: Same-sex marriage itself has only lately appeared.)

The supporters of same-sex civil marriage, myself included, need to be magnanimous in victory, and we should now strive to protect those who are not inclined to celebrate our civil marriages in their private associations. We gays and lesbians in particular have felt the sting that can come from being in a politically powerless minority, and we ought not to inflict it on others.

So much for the private aspects of marriage, which are matters of natural (and negative) right. Civil marriage, meanwhile, is a civil right, like the right to vote, or the right to a trial by jury. Civil rights wouldn’t exist in the state of nature, but in a governed state they can, and many of them clearly should. Our current implementation of civil marriage is tied up with welfare and tax policy in ways that libertarians correctly find troubling, as discussed above. But civil marriage also helps to clean up a lot of otherwise serious disputes in property and child custody law, and in matters of medical care and legal representation. Having marriage settles many questions and closes off many avenues by which the government might otherwise make itself troublesome.

All of this is to say that civil marriage is a bundle, and not all of it in my opinion is bad. Some of it can make our family lives more orderly and more predictable, more stable and actually less governed by judges and lawyers (and nosy relatives) – and more governed by ourselves, in exactly the ways that we see fit.

That’s a thing that libertarians perhaps should want after all: If the government ever got out of the marriage business, we might suddenly find it much more in all of our family lives.

To avoid clock drift, the world’s computer clocks will gain an extra second at midnight Greenwich Mean Time, as June turns to July. This adjustment is necessary so that computer clocks can remain synchronized to Universal Time and to the time it takes the earth to rotate around the sun. Don’t worry, you probably won’t notice anything. But, since it takes milliseconds to make a flash trade, the one-second adjustment allows for enough time for problems to arise.

And speaking of time, let’s go beyond the leap second adjustments, and consider meaningful time reform. Since January 2012, my Johns Hopkins colleague Prof. Richard Conn Henry and I have advocated abolition of all time zones, as well as of daylight saving time, and the adoption of atomic time — in particular, Greenwich Mean Time, or Universal Time (UTC), as it is called today. The embrace of UTC would be beneficial.

For example, the adoption of UTC would give new flexibility to economic management in the vast east-west expanse of Russia, for example: everyone would know exactly what time it is everywhere, at every moment. Opening and closing times of businesses could be specified for every class of business and activity. If thought desirable, banks and financial institutions throughout the country could be required to open and to close each day at the same hour by the UTC. This would mean that bank employees in the far east of Russia would start work with the sun well up in the sky, while bank employees in the far west of Russia would be at their desks before the sun has risen. But, across the country, they could conduct business with one another, all the working day. This would have a second benefit: at least in the far east and far west, the banks would be open either early, or late, convenient for those who are working “sunlight hours,” such as farmers.

With UTC, agricultural workers, critically dependent on the position of the sun, could rise with the sun, without producing any impact on other aspects of cultural and economic life. The readings on the clocks would be the same for all. But, times of work would be attuned with precision to Russia’s local and national needs. China already has adopted a single time zone for the same purposes. And all aircraft pilots, worldwide, use UTC exclusively, for exactly the same reason that we are advocating its broad adoption, as well as for obvious safety reasons.

Earlier today, the Colorado Supreme Court ruled that Douglas County’s school voucher program violates the state constitution. 

The Douglas County Board of Education unanimously voted to enact the Choice Scholarship Pilot (CSP) Program in 2011, making it the first district-level school voucher program in the nation. The program granted 500 school vouchers worth up to 75 percent of the district schools’ per-pupil revenue, which was approximately $6,100 in the last academic year. Students could use the $4,575 vouchers at the private school of their choice and the district retained the remaining 25 percent of the funding ($1,525 per voucher student).

However, the ACLU, Americans United for Separation of Church and State, and several local organizations that wanted to protect district schools from competition filed a legal challenge almost immediately. Although they won an injunction from a trial court, it was later overturned on appeal in 2013. Plaintiffs then appealed to the state supreme court.

In a narrow 4-3 decision*, the Colorado Supreme Court held that the voucher law ran afoul of the state constitution’s historically anti-Catholic Blaine Amendment, which says:

Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever…

The court held that “aiding religious schools is exactly what the CSP does.” Even though “CSP does not explicitly funnel money directly religious schools, instead providing financial aid to student,” the court ruled that the Blaine Amendment’s prohibitions “are not limited to direct funding.”

The dissenting justices argued that the majority’s “interpretation barring indirect funding is so broad that it would invalidate the use of public funds to build roads, bridges, and sidewalks adjacent to such schools.” Rather, the dissent favored following state precedent that tracked with the U.S. Supreme Court’s decision in Zelman v. Simmons-Harris (2002), which held that a voucher program that was neutral with respect to religion and funded students directly was constitutional regardless of whether “the funds indirectly or incidentally benefit church or sectarian schools.”

The Douglas County Board of Education has vowed to appeal the decision to the U.S. Supreme Court:

While we are disappointed in the court’s decision today, we are not surprised,” said Douglas County Board of Education president Kevin Larsen. ” We have always believed that the ultimate legality of our Choice Scholarship Program would be decided by the federal courts under the United States Constitution. This could very well be simply a case of delayed gratification.”

Although a state supreme court has the final word on how to interpret its state constitution, the U.S. Supreme Court could rule that a provision of a state constitution (or a state court’s interpretation of that provision) is itself unconstitutional under the U.S. Constitution. In this case, defenders of the program believe the Blaine Amendment entails unconstitutional discrimination against religious schools. Though the Colorado Supreme Court held that “pervasively sectarian” schools must be excluded from public funding, the Institute for Justice points out that the U.S. Supreme Court has not only ruled that “pervasively sectarian” options may be included in an otherwise neutral student aid program, but it also “strongly suggest[ed] that excluding such options would itself be unconstitutional” in Mitchell v. Helms (1999):

[A] focus on whether a school is pervasively sectarian is not only unnecessary but also offensive… . [T]he application of the ‘pervasively sectarian’ factor collides with our decisions that have prohibited governments from discriminating in the distribution of public benefits based upon religious status or sincerity. 

In addition, the dissenting justices in Colorado argued that the majority made “a more serious error” in refusing to consider whether the Blaine Amendment “is unenforceable due to possible anti-Catholic bias.” While the majority held that it was sufficient that the “plain language” of the provision is not biased, the dissenters note that they “the U.S. Supreme Court has made it clear that allegations of such animus must be considered, even where the ‘plain language’ does not invoke religion.” 

It is likely that litigation over the DougCo voucher law will continue for quite some time. For now, the Douglas County Board of Education should consider an alternative means to expand educational choice that rests on much firmer constitutional ground: a scholarship tax credit law.

To learn more about why scholarship tax credit laws withstand constitutional scrutiny, watch this short film by the Cato Institute:

Live Free and Learn: Scholarship Tax Credits in New Hampshire

* Technically, the decision was a 3-1-3 split, with six justices holding that the plaintiffs lacked standing to challenge the law on statutory grounds, and three justices holding that the voucher law was unconstitutional on the merits, and one justice holding that the plaintiffs had standing to challenge the law on statutory grounds and that the voucher law violated the statute in question. Throughout this post I’ve referred to “the majority” with regard to the merits, though only a plurality actually held that the law was unconstitutional.

This morning I was on the steps of the Supreme Court, as I have been each of the decision days starting last Monday. It’s a real spectacle, with protestors and counter-protestors, interns running from the Court’s press office to give their media principals slip opinions, and phalanxes of TV cameras, bright lights, screens, and assorted technical accoutrements. For someone whose job includes digesting and commenting on legal opinions, this last week of the high court’s term is pretty much the Super Bowl.

Except today didn’t feel that way. After Obamacare on Thursday and same-sex marriage on Friday, today was the most anticlimactic “last day of school” since I’ve begun doing this.

That’s not to say that the three cases decided today were unimportant, either legally or politically. Indeed, until the Court took up King v. Burwell and Obergefell v. Hodges, each of them would’ve been considered among the “big ones” for what was, to that point, a low-key term. After all, we’re talking about the death penalty, redistricting, and major environmental regulations. (And also the Court announced that it will again take up Fisher v. UT-Austin, the racial-preferences case that is set to become one of next term’s blockbusters.)

Let’s take the cases in the order they came:

  1. In Glossip v. Gross, the Court rejected a challenge to one of the drugs used by Oklahoma in administering lethal injections, arguing that its use violated the Eighth Amendment’s prohibition on “cruel and unusual punishment.” Justice Alito wrote a fairly technical opinion for the 5-justice majority based on two grounds: (1) the death-row inmates failed to identify an alternative method of execution that entails a lesser risk of pain; and (2) the district court didn’t clearly err in finding that they hadn’t established that the challenged drug was ineffective in rendering the executee unable to feel pain. Standard stuff, with which the four liberal justices – acting in lockstep as they always do in big cases – disagreed. But then Justice Breyer, joined by Justice Ginsburg alone, took issue with the constitutionality of the death penalty altogether, to which Justices Scalia and Thomas each wrote rejoinders. “Welcome to Groundhog Day,” Scalia begins before stating that Breyer’s opinion is “full of internal contradictions and (it must be said) gobbledy-gook” and concluding that Breyer “does not just reject the death penalty, he rejects the Enlightenment.” Suffice it to say, read the whole thing.
  2. Next, in Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court rejected a challenge to an Arizona voter initiative that, to combat political gerrymandering, took the redistricting process out of the state legislature and gave it to a new (and supposedly independent) commission. The lawsuit claimed that this independent commission violated the U.S. Constitution’s Elections Clause, which gives authority to regulate the times, places, and manner, of congressional elections to the “Legislature” of each state. Justice Ginsburg, again for a 5-justice majority, found that the law-making power was shared by the people and the legislature. Chief Justice Roberts authored the principal dissent and noted on its first page that the majority’s position “has no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this Court.” Well, then: tell us what you really think! Justices Scalia and Thomas then each dissent (and join each other’s opinions) to take issue with the legislature’s standing to bring this case in the first – a pair of opinions that will be studied thoroughly given the increasing inter-branch lawsuits being brought at both the state and federal levels.
  3. Finally, in Michigan v. EPA, Justice Scalia gets to write a majority opinion (as he did on Friday, it must be said – in the Armed Career Criminal Act case that was eclipsed by Obergefell). Put simply, the EPA cannot impose billions of dollars of regulatory costs on energy production without considering those costs at all in deciding whether to promulgate the challenged rule. This ruling stops the Obama climate-change regulatory agenda in its tracks, as my colleague Andrew Grossman describes more fully in a just-posted statement. The four liberals, through the witty pen of Justice Kagan, dissent. More interestingly, Justice Thomas writes a separate concurring opinion to question the wisdom of Chevron deference – deferring to agency interpretations of statutes – which dovetails with the one small silver lining of Chief Justice Roberts’s King opinion.

In short, even if the last day of term was overshadowed by its penultimate days, it still produced high drama: each of the three rulings split on 5-4 lines with Justice Kennedy as the swing vote, and each produced memorable concurrences/dissents, particularly by Justice Scalia. 

That also means that Chief Justice Roberts, as he did on marriage and disparate-impact in housing – the “undercard” to King on Thursday – returned to the conservative fold. (Those who think that John Roberts is “liberal” or has “evolved” while on the bench, like Justice David Souter and other Republican appointees, are simply wrong.)

Finally, the ruling in the EPA case clinched a winning record for Cato in briefs we filed in merits cases this term. We went 8-7, which is down from the previous two years but still a heckuva lot better than the government, which went 9.5-12.5 (it won part of one complicated case). In other words, even if the term will be remembered for King v. Burwell – and Obergefell, where the government wasn’t a party – it wasn’t a bad year for liberty.

In a 5-4 decision today, the Supreme Court struck down the Obama Administration EPA’s signature “Mercury and Air Toxic Rule,” which regulates emissions by fossil-fuel-fired power plants. Before regulating, EPA was obligated to decide whether regulation under one the Act’s most burdensome programs was “appropriate and necessary.” EPA interpreted that language to preclude it from considering the costs of regulation—some $10 billion per year, in exchange for $4 million or so in direct benefits. That interpretation, the Court decided, was ludicrous.

The decision may well leave the Obama climate agenda in tatters. Why that is requires a bit of explanation. In the usual case when the Court finds a rule to be unlawful, it vacates the offending action—in other words, deprives it of legal force. But that’s not what the Court did here. Instead, it sent the case back down to the D.C. Circuit for further proceedings, knowing full well that that court will follow its usual practice of “remand without vacatur”—in other words, let the agency fix any flaws in its rule while leaving the rule in place.

This is a very big deal. The centerpiece of the Obama Administration’s climate agenda is EPA’s so-called “Clean Power Plan,” which aims to cut power plants’ carbon-dioxide emissions by around 30 percent and force the phase-out of coal-fired generation. But the statutory authority that EPA claims supports this effort explicitly carves out any regulation of facilities that are already subject to regulations like the Mercury Rule. So if the rule remains in place—as seems likely—then the Clean Power Plan should be dead in the water.

But there’s a more subtle, and perhaps more important, reason to expect trouble ahead for the Clean Power Plan. The Supreme Court’s failure to vacate the Mercury Rule reflects its recognition that the bulk of the rule’s costs—and it was one of the most expensive government regulations ever—has already been borne by industry. So there’s no urgency, at this point, to putting the rule on hold; to the contrary, doing so would be disruptive. But the flip side is that this means utilities and their customers spent tens of billions of dollars complying with a regulation that was always unlawful. One can imagine that the Court won’t be eager for that to happen again. And one can also imagine that the Court’s decision today is a shot across the bow of the D.C. Circuit: when the next billion-dollar rule comes up, and there’s any legal question about EPA’s authority, put the rule on hold so the courts have a chance to do their business. More reading-between-the-lines: if you don’t, we will.

The Clean Power Plan is expected to be finalized in late August, and challengers will ask the D.C. Circuit for a stay just as soon as they can. If that happens, the rule most likely won’t go into effect during the Obama Administration and, depending on the results of the next election, may never go forward.

And that’s why today may be the beginning of the end of the Obama Administration’s climate agenda.

The Cato Institute submitted an amicus brief on behalf of the State of Michigan in their case State of Michigan v. EPA, which was decided today. In the amicus I noted the wanton nature of the EPA’s science. In a brief statement I’ve sent out to press today, I said:

Today’s Supreme Court decision on EPA’s regulation of mercury emissions from power plants is a clear victory for common sense. While the EPA claimed that it did not have to take into account the costs of regulation versus the benefits, they admitted the direct benefits of their regulations were impossibly small to measure, being a “savings” of 0.00209 I.Q. points (the margin for error is ~5000x this value) in a theoretical population of 240,000 people—no doubt this factored into the EPA’s decision to simply say that they didn’t have to consider the costs. The Court held that the Clean Air Act Amendments of 1990 clearly requires EPA to do this, and that any claim that they did not was a totally inappropriate reading of the statute.

We’re very pleased the Supreme Court has ruled in favor of liberty and sound science.

The New York Times reports:

For decades, idealistic twenty-somethings have shunned higher-paying and more permanent jobs for the altruism and adrenaline rush of working to get a candidate to the White House. But the staffers who have signed up for the Clinton campaign face a daunting obstacle: the New York City real estate market….

Mrs. Clinton’s campaign prides itself on living on the cheap and keeping salaries low, which is good for its own bottom line, but difficult for those who need to pay New York City rents….

When the campaign’s finance director, Dennis Cheng, reached out to New York donors [to put up staffers in their apartments], some of them seemed concerned with the prospective maze of campaign finance laws and with how providing upscale housing in New York City might be interpreted.

Here are some words that don’t appear in the article: rent control, regulation, zoning. But those are among the reasons that housing is expensive in New York. As a Manhattan Institute report noted in 2002:

  • New York City and State have instituted policies that severely distort the dynamics of housing supply and demand. Only 30 percent of the city’s rental units, for instance, are subject to market prices. These distortions—coupled with Rube-Goldbergian environmental and zoning regulations—have denied New York the kind of healthy housing market enjoyed by most other major cities.

And a report by Edward Glaeser and Joseph Gyourko for the Federal Reserve Board of New York Economic Policy Review suggests that “homes are expensive in high-cost areas primarily because of government regulation” that imposes “artificial limits on construction.”

As I’ve said in other contexts: This is the business you have chosen. If you want the government to control rents and impose regulatory costs on the building of housing, then you can expect to see less housing and thus more expensive housing. Welcome to your world, Hillary Clinton staffers.

Greece is expected to default on its government debts tomorrow as its bailout package from the European Union (EU) expires. The country will also hold a referendum on Friday on whether to accept the latest round of terms from its EU funders. Greece continues to grab all the headlines, but there is another government closer to home that is in a similar situation: Puerto Rico. Over the weekend, the governor of the island announced that Puerto Rico is unable to repay its $70 billion in debt.

The Washington Post describes the situation:

A U.S. commonwealth with a population of 3.6 million, Puerto Rico carries more debt per capita than any state in the country. The island has been staggering under the increasing weight of those obligations for years as its economy has tanked, triggering an exodus of island residents to the mainland not seen since the 1950s.

Meanwhile, the government has raised taxes, cut government employment and slashed pensions in a futile effort to get its debt burden under control. Those actions have only slowed the acceleration of debt creation, while harming efforts to reignite the economy.

The island has several sources of debt comprising the $70 billion. Its debt-to-GDP ratio is 70 percent. The average U.S. state is closer to 15 percent. Rhode Island, the state with the highest debt-to-GDP ratio, is just under 20 percent. This infographic from the Wall Street Journal shows the magnitude of Puerto Rico’s outstanding debt.

The Washington Post reports that its debt is compromised of several large types:

The island’s web of debt includes general-obligation bonds, which Puerto Rico’s constitution says must be repaid even before government workers receive their pay.

But billions of dollars more in bonds were floated by public corporations that provide critical services on the island, including providing electric power, building roads and running water and sewer authorities. Beyond the bond debt, the island owes some $37 billion in pension obligations to workers and former workers.

The island’s electricity company is expected to miss a payment this week, according to the Wall Street Journal.

A larger challenge for Puerto Rico is that federal bankruptcy code prevents the island (and states) from filing bankruptcy. That gives Puerto Rico two choices. It can continue to work out a deal with creditors to refinance its outstanding debts, or it could push Congress to provide some sort of bailout.

The idea of state bailouts was discussed some in Congress in 2010 and 2011 as state budgets struggled to handle the effects of the Great Recession. The idea is just as bad now as it was then. Providing a bailout would reward Puerto Rican policymakers for their years of irresponsible choices and should be a non-starter in Congress.

Instead, Puerto Rico should continue to limit its spending to help lower its outstanding debt obligations. It will be an incredibly tough road to manage, but that is the cost of years of mismanagement and failing to acknowledge the realities of the island’s fiscal situation.

Banks in Greece will not open their doors Monday morning. Greece has been moving towards this dramatic final act ever since it was allowed to enter the Eurozone with cooked fiscal accounts in January 2001 – two years after the euro was launched. One Greek government after another embraced the idea that it did not have to rein in fiscal expenditures to match revenues because Brussels would cover any shortfalls. That idea appeared to have worked, until other members of the Eurozone realized that the entire European project would fall apart if it became a transfer union.

This realization was brought into sharp focus by the bailout demands of Prime Minister Alexis Tsipras and his left-wing coalition government. Brussels finally realized that if the demands of the Tsipras government (read: Europeans must pay for Athens’ largesse) were met, the Eurozone would morph into a giant moral hazard zone. So, Brussels was forced to throw down the gauntlet: enough is enough.

Where does Athens go from here? Well, to quote former President George W. Bush, as he observed the unfolding financial crisis in 2008: “If money doesn’t loosen up, this sucker could go down.” Well, “W” had a point. Changes in the money supply, broadly determined, cause changes in nominal national income and the price level.

Since October 2008, until the Syriza party took power, the broad measure of the Greek money supply (M3) contracted at an annual rate of just over 6%. And as night follows day, the economy collapsed, shrinking by over 25% since the crisis of 2008.

Since the Tsipras government took the helm, the monetary contraction in Greece has accelerated. This means that a Greek depression of even greater magnitude is already baked in the cake.

And that’s not all. It is going to get worse. The total money supply (M3) can be broken down into its state money and bank money components. State money is the high-powered money (the so-called monetary base) that is produced by central banks. Bank money is produced by commercial banks through deposit creation. Contrary to what most people think, bank money is much more important than state money. In Greece, for example, bank money makes up just over 84% of the total money (M3) supply.

With banks so wounded, Greece is destined to become a financial zombie state.

Yevgeny Primakov, a Soviet apparatchik who made a very successful transition to the post-Soviet era in Russian politics, has died at 85. He served as speaker of the Supreme Soviet, head of the Russian intelligence service, foreign minister, and prime minister. As Andrew Kramer of the New York Times writes, “With hooded eyes and a gravelly voice, Mr. Primakov struck an image of the archetypal Soviet diplomat and intelligence operative.”

I was in Primakov’s presence once, and that’s the way I remember him. In 1990 Cato held a weeklong conference in Moscow titled “Transition to Freedom: The New Soviet Challenge.” The largest gathering of classical-liberal thinkers ever to take place in the Soviet Union, the event included Nobel laureate James Buchanan, Charles Murray, and numerous Russian scholars and members of parliament. “When Cato’s president Edward H. Crane reminded the large audience that ‘the government that governs least governs best’ … hundreds of Russians clapped and cheered wildly,” the Wall Street Journal reported. “Only a handful of die-hard Communists sat glum-faced, arms folded.” As shown in the photo above, Crane presented a bust of F. A. Hayek to Primakov, then the chairman of the Council of the Union of the Supreme Soviet, as more than 1,000 Soviet citizens attended their first open forum.

Fourteen years later, at another Cato conference in Moscow, Crane reminisced about his encounter:

And it’s been pointed out on numerous occasions at this conference that for civil society to thrive, the institutions of the rule of law, constitutionally limited government, a strict respect for private property and the sanctity of contract, as well as a free and open private sector media are essential. Indeed, there are no great secrets to achieving economic prosperity and a free society, a thriving civil society.

When I was in Moscow for Cato’s 1990 conference, I made that point when I had the privilege of presenting a bust of the great economist and social philosopher F.A. Hayek to Yevgeny Primakov, then chairman of the Council of the Union of the Supreme Soviet. I concluded my remarks by saying, “It is, therefore, particularly appropriate, here in this lavish hotel built exclusively for the Communist Party Central Committee, to acknowledge through the presentation of this bust that Hayek was right and Marx was wrong.”

“It is the Cato Institute’s sincere hope that this bust of F.A. Hayek will rest in a prominent place in the Kremlin where it will remind Mr. Gorbachev and other leaders of the Soviet Union that there are answers, readily at hand, to the problems that beset the USSR.”

Mr. Primakov was gracious in accepting the award, under the circumstances, and said that when he next visited the United States he would present me with a bust of Lenin and that I put it where ever I wanted. I think I know what he had in mind.  

A recent report from Violence Policy Center purports to show that private gun possession results in many more criminal firearm homicides than justified killings, a conclusion that was quickly picked up by several media outlets.   But it isn’t so much a report as it is a handful of woefully incomplete data sets thrown together with a few conclusory remarks.   The essential thrust of the report is that, according to FBI homicide reporting figures, there were only 259 justified firearm homicides in 2012 compared with 8,342 criminal homicides by firearm.  Ergo, the authors posit, it’s clear that private gun possession does much more harm than good, and that the claims of self-defense and Second Amendment advocates of thousands of defensive gun uses annually are wildly false.

Readers should first acquaint themselves with Brian Doherty’s excellent work over at Reason surveying the long-running debate regarding how we should conceive of defensive gun uses.  Contrary to the implications of gun control advocates, the positive utility of a firearm for self-defense should not be limited to the bad guy body count: Believe it or not, guns can and do help ensure personal safety or at least provide an insurance policy of sorts toward the time one might want or need to ensure your or your family’s personal safety even if you don’t actually plug some human varmint dead.   Certain anti-gun folk seem to sincerely believe that the only reason Second Amendment advocates want to have a gun, or want other people to have the right to have a gun, is because guns are so great at killing people; that a gun not used to kill someone isn’t really worth having. But it isn’t true.   But we have plenty of reason to believe that Americans use a gun in the service of deterring a crime or potential crime over 2 million times a year. That does not require killing someone with the gun—about three-fourths of the time the gun does not need to be fired much less kill to deter. That should be blindingly obvious to anyone not looking for some new “scientific” excuse to disarm Americans.  Even accepting the scope of the study, there are still problems. First and foremost, the study uses unreliable data.  The FBI’s Supplementary Homicide Reports, from which the number of justified homicides was tabulated by the VPC, are voluntary submissions from state and local law enforcement agencies.  The vast majority of law enforcement agencies do not participate, and the data that does come in is often unreliable. For example, several instances of justified homicides were reported to the FBI as criminal homicides.    For more than a dozen states, the FBI received no data at all on justified firearm homicides by civilians between 2008 and 2012, while only four states (Texas, California, Michigan, and Tennessee) account for nearly half (44%) of the reported justifiable gun deaths. Instead of deciding that the dearth of reliable data should breed hesitation, the authors arrive at a figure that implies there were no justified firearm homicides in non-reporting states during the study period.    A quick glance at Cato’s map of defensive gun uses would have shown the authors several justified firearm homicides in those states.   Lastly, theVPC study makes absolutely no effort to distinguish the legality of the firearm possession that led to the homicide.  Insofar as these figures are being used to advocate for additional gun control regulations, isn’t it pretty important to distinguish the guns that are illegally-owned and thus not subject to regulation in the first place?  The VPC’s own website reports fewer than 200 criminal homicides by licensed firearm carriers over the entire eight year period between 2007 and 2015.  That’s a far cry from 8,234 per year, and yet that data point didn’t make it into the study.   All that said, it’s important not to get lost in a statistics war over a fundamental right.  As Brian Doherty notes: The opposing armies in the [defensive gun use] war are roughly staked out with these dueling positions: 1) “There are a really large number of defensive gun uses, so many that any reasonable person would have to admit that private gun ownership is some kind of social good” and 2) “While there may be a fair number of DGUs, the number is dwarfed by the number of violent crimes committed with guns, so never mind the people who save themselves with guns, we should let politicians concentrate not on speculative and uncertain defensive uses, but on the crimes and loss of life and limb that we can see and count which accompanies gun possession and use.”   Left out of any policy decision based on these sorts of macrostatistics, as always, is how much having a gun mattered to the specific individual person able to defend himself.   However large the number of DGUs, or how small; and however large the number of accidents or tragedies caused by guns, or how small, the right and ability to choose for yourself how to defend yourself and your family—at home or away from it—remains, and that numerical debate should have no particular bearing on it.

My King v. Burwell recap is up at SCOTUSblog. Excerpt:

In King v. Burwell, all nine Supreme Court Justices agreed on one thing. The King challengers claimed the Patient Protection and Affordable Care Act (ACA) authorizes the Internal Revenue Service to issue tax credits and impose the related penalties only “through an Exchange established by the State,” and not through exchanges established by the federal government. “Petitioners’ arguments about the plain meaning of Section 36B are strong,” Chief Justice John Roberts wrote, and their interpretation is “the most natural reading of the pertinent statutory phrase.” Justice Antonin Scalia agreed, finding the meaning of that phrase “so obvious there would hardly be a need for the Supreme Court to hear a case about it.”

There was no dissent about the plain meaning of the phrase “through an Exchange established by the State.” All seven of the other Justices joined one of those two opinions. Nor was there dissent about the fact that that phrase, used repeatedly in the statute, is the only provision of the Act that speaks directly to the question presented. Not a single Justice lent credence to the government’s assertions that this was a meritless case, or one that the Court should never have accepted. Nor was there dissent about the consequences of that provision’s plain meaning in the face of broad state resistance to the ACA. All agreed that withholding tax credits in the thirty-four states with federal exchanges could lead to adverse selection in those states, with premiums climbing higher and higher in a “death spiral.”

Where disagreement emerged was over the question of whether the former should alter the latter – whether the potential for adverse consequences “compels” the Court to disregard the universally acknowledged meaning of the operative text. The Court split six to three in favor of rewriting plain text, and rendering the requirement “established by the State” a nullity…

Roberts managed to conclude that “by the State” could be read to mean “by the federal government,” even though he acknowledged Congress explicitly defined “State” in a way “that does not include the Federal Government.” So perhaps spending more time with the statute would not have helped.

The King ruling is actually much, much worse than this excerpt suggests. Read the whole thing. For a reference guide to King, click here.

Negotiations in Brussels to resolve the Greek fiscal crisis appear deadlocked, with Athens heading toward default. German Chancellor Angela Merkel insisted that Greece make a deal before the markets open Monday. The Eurogroup will meet again tomorrow on the issue.

The European Union was supposed to create a de facto United States of Europe. But after last January’s Greek election it was obvious that the EU does not speak for Greece, or perhaps anyone else other than the Eurocrats, an amalgam of bureaucrats, academics, journalists, businessmen, politicians, and lobbyists who dominate Brussels.

To most EU leaders common people are an impediment. The Eurocrats reflexively intone “more Europe” in answer to every question, but voters increasingly are supporting protest parties, some populist, some worse.

Advocates weren’t shy about their ambitions. In 1992 German Chancellor Helmut Kohl predicted “creation of what the founding fathers of modern Europe dreamed of after the war, the United States of Europe.”

The Euro was one step in the unification process. A more powerful EU was expected.

Alas, the organization has three presidents, who compete for attention and authority. The parliament has only passing connection to the people of Europe. No European would die for Brussels, not even the Belgians, who barely averted the break-up of their badly divided nation.

But the EU carries on, secure in the support of the vast majority of the continent’s elite. The Euro crisis has shaken this political foundation, however.

Until January the popular revolt was contained. But then radical left-wing Syriza won a near majority. The new government rejected the Brussels consensus and default threatens, which most likely would mean a Greek exit from the Eurozone (“Grexit”) and possibly even from the EU.

However the crisis is resolved, the march toward ever greater power in Brussels appears over. Euroskeptic and radical parties are on the rise.

Among the most spectacular Euro villains?

1.      Helmut Kohl. The first chancellor of a united Germany, Kohl agreed to sacrifice the legendary German Mark for the Euro.

2.      The Greek political establishment. Both the dominant parties, Pasok and New Democracy, profited from the sclerotic and venal state they created.

3.      Greece’s creditors. They lent money at near-German interest rates to a nation unlike Germany.

4.      The International Monetary Fund. Originally created to support a system of fixed exchange rates, it has become one of the primary financiers of Greece.

5.      Alexis Tsipris and Syriza. This disparate movement of the left believed in fiscal alchemy—more government spending, taxing, and regulating would turn into a roaring economy.

6.      The European Central Bank. The ECB shifted from economics to politics when it began buying the bonds of deeply indebted European states, most notably Greece, to subsidize the improvident.

7.      The Greek people. Euro-subsidized borrowing allowed them to prosper despite their economy being littered with bloated bureaucracies and privileged cartels, and hamstrung with debilitating regulations and profiteering politics.

8.      The French political elite. France’s people suffer from stultifying state controls and high taxes. The right is as statist as the left.

9.      The European Parliament. More often than not voters use EP contests as an opportunity to protest against unpopular rulers at home.

10.  Angela Merkel. She has spent her years in office doing as little consequential as possible. A Eurocrat to the core, she opined:  “We have a common currency, but no common political and economic union.  And this is exactly what we must change.”

The European story is reaching its climax and no one knows how it is going to end. Greece and the European establishment might yet come to terms and the Euro might stagger along. But this almost certainly is not the Eurozone’s last crisis.

As I point out in Forbes: “It appears that many Europeans have had just about as much Europe as they can stand. In coming months and years the debate is likely to be over how much and how fast they can roll back ‘Europe’.”

Just because today’s opinion was expected by all doesn’t make it any less momentous. A five-justice majority writing through Justice Kennedy finds that there’s a constitutional right for gay and lesbian couples to get marriage licenses – at least so long as everyone else gets them. (We’ll set aside the question of why the government is involved in marriage in the first place for a later time.)

In sometimes-soaring rhetoric Kennedy explains why the Fourteenth Amendment’s guarantee of both substantive liberty and equality means there is no further valid reason to deny this particular institution, the benefit of these particular laws, to gay and lesbian couples.

Not surprisingly, all four conservative justices dissented. Indeed, it’s interesting that each of them wrote his own dissent, each riffing on the same theme. That is, regardless of your views of how to define marriage this is a decision that should be left to the people in their states, not to courts.

Chief Justice John Roberts in particular said that people who benefit from today’s ruling should celebrate it, should celebrate this development in our society. But make no bones about it, this doesn’t relate to the Constitution. (Where was this principled logic yesterday?)

In any event, this will be a case that is studied for generations. There aren’t clear, bright-line rules about levels of scrutiny or any other legalisms – avoiding that artifice is all to the good – and it’s a landmark ruling that shows how far we’ve come.  It was in 2003 that the Court had to invalidate the criminalization of gay sex and a mere 12 years later it commands state officials to issue marriage licenses to same-sex couples.

Good for the Court – and I echo Justice Kennedy’s hope that both sides now respect each other’s liberties and the rule of law.

Justice Anthony Kennedy has been called the most libertarian member of the Supreme Court (though Ilya Shapiro finds his libertarianism “faint-hearted”). So maybe it’s no surprise that in the Lawrence (2003), Windsor (2013), and Obergefell (today!) cases, Kennedy wrote a majority decision finding that gay people had rights to liberty and equal protection of the law.

As I note in The Libertarian Mind and in an article just posted at the venerable gay magazine The Advocate, libertarians and their classical liberal forebears have been ahead of the curve on gay rights for more than two centuries: 

As the Supreme Court prepares for a possibly historic ruling, most of the country now supports gay marriage. Libertarians were there first. Indeed John Podesta, a top adviser to Bill Clinton,  Barack Obama, and Hillary Clinton and founder of the Center for American Progress, noted in 2011 that you probably had to have been a libertarian to have supported gay marriage 15 years earlier.

Just seven years ago, in the 2008 presidential campaign, Barack Obama, Joe Biden, and Hillary Clinton all opposed gay marriage. The Libertarian Party endorsed gay rights with its first platform in 1972 — the same year the Democratic nominee for vice president referred to “queers” in a Chicago speech. In 1976 the Libertarian Party issued a pamphlet calling for an end to antigay laws and endorsing full marriage rights.

That’s no surprise, of course. Libertarians believe in individual rights for all people and equality before the law. Of course they recognized the rights of gay people before socialists, conservatives, or big-government liberals.

In the article, and more so in the book, I talked about some of the history of classical liberal-libertarian thinking on gay rights in earlier centuries, perhaps beginning with the pioneering criminologist and reformer Cesare Beccaria in 1764.

The Declaration of Independence promised life, liberty, and the pursuit of happiness to Americans. Of course, not everybody enjoyed those rights at first. But eventually those ideas took root and led to the abolition of slavery and later to civil rights and women’s rights. It took even longer for people to take seriously the idea of homosexual activity as a matter of personal freedom and to recognize gays and lesbians as a group deserving of rights.

It was the classical liberals, the ancestors of libertarians, who first came to that recognition. From Montesquieu and Adam Smith in the 18th century to the Nobel Prize–winning economist F.A. Hayek in 1960, it was libertarians who insisted that (in Hayek’s words) “private practice among adults, however abhorrent it may be to the majority, is not a proper subject for coercive action for a state whose object is to minimize coercion.”

More in The Libertarian Mind and at the Advocate.

Maryland Governor Larry Hogan announced today that he was cancelling Baltimore’s Red light-rail line while approving suburban Washington’s Purple Line. However, that approval comes with some caveats that could still mean the wasteful transit project will never be built.

The latest cost estimate for the Purple Line is nearly $2.5 billion for a project that, if done with buses, would cost less than 2 percent as much. The Purple Line finance plan calls for the federal government to put up $900 million, the state to immediately add $738 million, and then for the state to borrow another $810 million.

Instead, Governor Hogan says Maryland will contribute only $168 million to the project, and that local governments–meaning, mainly, Montgomery County but also Prince Georges County–will have to come up with the rest. It isn’t clear from press reports whether Hogan is willing to commit Maryland taxpayers to repay $810 million worth of loans, but it is clear that local taxpayers will have to pay at least half a billion dollars more than they were expecting.

Local Purple Line advocates claim that the line will pay for itself by increasing property values along the route and therefore property tax revenues. In fact, this is a zero-sum game: any increases along the route would be matched by decreases in property values elsewhere in the county. But from the rhetoric, it seems likely that they will propose to use tax-increment financing–which takes all of the tax revenues from increased property values–to pay the county share of the Purple Line. But that may not even be enough to cover the cost.

So it is possible that the Purple Line will never get built. That would be a win for Maryland taxpayers; a win for commuters, because the Purple Line is predicted to increase traffic congestion; and a win for transit riders, because the Purple Line is so expensive it will almost certain force Maryland Transit to cut bus service.

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