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Back in December, Senate Democrats, with President Obama’s backing, attempted to prohibit anyone on the federal government’s terrorism watchlist from purchasing a firearm.

At the time, I criticized the proposal for its lack of process and its inevitable inefficacy at reducing gun crime or terrorism.

Yesterday, Senate Democrats launched a filibuster in order to push for the resurrection of the failed “No-Guns List.”

The substance of their plan has not changed, and my earlier criticism still stands:

How does a person prove they are not a terrorist? It’s virtually impossible. A no-flyer doesn’t receive the evidence against them or a hearing before being placed on the list. They are not allowed to confront their accuser. Even getting the government to acknowledge that a person is on the list may require lengthy and expensive litigation. A person on the no-fly list may not even know they are on the list until they’re refused service at the airport. A person on the broader terror watch list has no means of finding out. The system is devoid of anything resembling due process, a flaw The New York Times condemned as being intolerable in a free and democratic society and over which the American Civil Liberties Union is currently suing the Obama administration. The no-fly listing procedure has already been declared unconstitutional by at least one federal judge.

Including too many people on the list is inevitable. Nobody wants to explain, after a terrorist attack, why the attacker wasn’t in the database. And that overly inclusive quality has manifested itself in absurd ways already. Just a few examples of no-fly denials: the late Democratic Massachusetts Sen. Ted Kennedy, congressman and civil rights hero John Lewis, dozens of people named Robert Johnson, members of the U.S. military and federal air marshals.

The potential for false positives and mistaken identities is not just accepted as collateral damage by these no-gun list proposals; it is the entire point. Anyone who has actually been convicted or is currently charged with terrorism-related crimes is already prohibited from purchasing a firearm under federal law. The people adversely affected by this proposal will inevitably be people against whom the government lacks sufficient evidence to charge.

The fact that a person hasn’t been adjudicated as dangerous doesn’t preclude them from committing violence, of course. But just how much discretion should the president have in abolishing constitutional rights without charge or trial?

What has changed is the political climate in the interim.

The No-Guns List appears to have picked up some powerful allies on the right.   Presumptive Republican presidential nominee Donald Trump has expressed support for the idea, and is apparently lobbying the National Rifle Association to come along with him. 

The GOP and the NRA are generally regarded as the two primary bulwarks against misguided gun control proposals.  Adding their weight to this particular gun control proposal would bolster its legislative prospects immensely.

Even if, as some supporters have urged, the law requires hearings before a watchlisted person can be denied the right to bear arms, important questions remain.  What exactly does the state need to prove in order to take someone’s 2nd Amendment rights away?  What is the burden of proof?  Will judges allow the use of secret evidence, citing state secrecy concerns for refusing to disclose it?  Will the individual be entitled to legal representation?  Can he call and cross-examine witnesses? Can he appeal the ruling? Can he publicly discuss his case?

And those are just the legal concerns.  There are also pragmatic issues. What information does the FBI convey to the gun seller when someone on the list is denied?  Is the gun seller told that he’s got a terror suspect standing in his store?  What if the person actually is an aspiring terrorist under government surveillance?  Doesn’t this process inevitably tip him off? Would finding out that he’s on the government’s radar only encourage an aspiring terrorist to act quicker? Would it compromise legitimate surveillance operations?

The Boston bombers didn’t need guns. Nor did Timothy McVeigh or the 9/11 hijackers.  Giving terror suspects a sure-fire way to figure out whether they’re being surveilled seems like a large price to pay for what may be a non-existent benefit.

Omar Mateen passed background checks.  He passed training requirements. He had access to weapons as a security guard.  He wasn’t even on the terrorism watchlist. Nothing in this proposal, and nothing in any of the other gun control proposals this tragedy has spawned, would have kept firearms out of Omar Mateen’s hands.  The only way his rampage could have been prevented was for someone to kill him first. Unfortunately, laws that deny even sober people the right to carry weapons in establishments that serve alcohol meant that the law-abiding victims were sitting ducks.

Knee jerk reactions to horrible tragedies have proven to be a poor basis for good public policy.  We have institutions like due process precisely for times when emotions threaten to overrun safeguards that are just as important for protecting the innocent as the guilty.

It’s hard to imagine a graver violation of the spirit of the 2nd Amendment than a law allowing the President to declare anyone an enemy of the state without so much as a charge and subsequently bar them from exercising their 2nd Amendment rights.  But Republicans, lured from their stalwart support of gun rights by fears of terrorism, and Democrats, lured from their stalwart support of civil rights by their zeal for gun control, combined with an election cycle that has been defined by appeals to fear may be creating a perfect storm and a severe threat to liberty.

P.S. Two tweets this morning from sitting Congressmen highlight the divide.

Democratic Senator and gun control advocate Joe Manchin doesn’t inspire confidence when he says things like “due process is killing us.”

.@Sen_JoeManchin: Due process is what's killing us right now https://t.co/OTf9LnxHXZ

— Morning Joe (@Morning_Joe) June 16, 2016

Luckily, not everyone in Congress agrees.

Amazing that U.S. senators would filibuster in favor of using secret lists, like some authoritarian regime, to deny rights w/o due process.

— Justin Amash (@justinamash) June 16, 2016

This morning, Senator Joe Manchin (D-WV) was on MSNBC’s Morning Joe discussing police responses to the Orlando shooting. Here’s his key thought:

.@Sen_JoeManchin: Due process is what's killing us right now https://t.co/OTf9LnxHXZ

— Morning Joe (@Morning_Joe) June 16, 2016

With all due respect, due process is the essential basis of America. The Constitution was established to “secure the blessings of liberty”—that’s the whole purpose of our government—and that government can’t deny us our life, liberty, or property without due process of law. If the government wants to deny someone’s liberty, it better have an awfully good reason and it better be ready to defend itself in court immediately—akin to what happens when someone is arrested or involuntarily committed. Otherwise, we’d live in a world where perhaps there’s less crime, but also life isn’t worth living.

Senator Manchin may want to live in a police state, but few of us would want to join him there. Count me out of the time machine to East Germany.

When a class action is settled, class members accept the benefits of the settlement while giving up any legal claims they may otherwise have against the defendant. When the class members’ claims are for money-damages, the rule of civil procedure require that prospective class members must be given the opportunity to opt out of the class to pursue their individual claims independently. This opt-out requirement is a barrier to collusion between defendants and class counsel, who could negotiate a low per-member monetary (or coupon) award in exchange for extinguishing the claims of a large number of people.

An exception to this general rule exists, however, when the claim is not for money but rather for declaratory or injunctive relief—in other words, that the defendant do or stop doing something. In that case, individual class members would have no need to pursue a separate claim for personalized relief. Put simply, in a case seeking an injunction, there’s no possibility that a different attorney would be able to get any one class member more stuff—because there’s no money or other goodies to be gotten anyway.

This commonsense reasoning for the exception to the opt-out requirement breaks down, however, when a case involves both injunctive and monetary relief. Denying an opt-out mechanism in these cases is not only illogical, but depriving class members of their money-damages claims without an opportunity to opt out of the class violates the constitutional rights of absent class members. Specifically, the Fifth Amendment’s Due Process Clause protects class members’ rights to remove themselves from the class, pursue separate claims against the defendant, and be represented by their counsel of choice. The Supreme Court has said that “due process requires at a minimum that an absent plaintiff be provided with an opportunity to remove himself from the class by executing and returning an ‘opt out’ or ‘request for exclusion’ form to the court.” Phillips Petroleum Co. v. Shutts (1985).

While the right to opt out of the class alone is insufficient to prevent self-dealing by—and collusion between—class counsel and defendants, it gives class members the final word on whether a settlement sufficiently compensates them for surrendering their legal claims. Despite all this, the Richmond-based U.S. Court of Appeals for the Fourth Circuit recently upheld a settlement certification without opt-out in a case that originally made claims only for monetary relief, Schulman v. LexisNexis.

The statute under which the class sought relief, the Fair Credit Reporting Act, provides for money-damages remedies only, not for injunctive relief. Nevertheless, the settlement reached by class counsel and defendants would extinguish class members’ money-damages claims while awarding them merely the defendants’ agreement forever to cease harmful actions. Moreover, the court certified the settlement without requiring that class members receive notice and opportunity to opt out precisely because the settlement provides for no monetary relief. If allowed to stand, this precedent will be a wink and a nod to class counsel and defendants everywhere that, if sufficient care is taken in crafting a settlement, they need not worry about the rights and interests of those pesky class members.

Cato has filed an amicus brief urging the Supreme Court to review Schulman and ensure that the due process rights of class members are protected nationwide.

A new report from the Government Accountability Office finds that virtually every one of the 1.2 million employees in their study received a rating at or above “fully successful,” compared to only 0.1 percent who were deemed “unacceptable,” which might be surprising given the scandals that have rocked multiple agencies in recent years and the fact that these employees are people, prone to making mistakes or every day struggles like everyone else. Milton Friedman once asked “where in the world you find these angels who are going to organize society for us?” If these performance ratings are to be believed, they’re already in the federal workforce, which might surprise anyone who has followed the developments at the VA or TSA. The extremely skewed distribution of ratings highlighted in the report highlight the shortcomings of the current evaluation system, which makes it harder to actually address any real problems with the performance of federal employees.

Distribution of Performance Ratings, 2013

 

Source: GAO

Note: Ratings for permanent, non-senior executive service employees.

The authors of the report used data from the Office of Personnel Management to analyze performance ratings for permanent, non-Senior Executive Service employees who received a rating for fiscal year 2014. While there are some exclusions, like the U.S. Postal Service and intelligence agencies, the 24 agencies included “are generally the largest federal agencies and account for more than 98 percent of the federal workforce.” According to the ratings, not only are there virtually no underperforming employees, but many of them go above and beyond the call of duty: 27.4 percent were rated as “exceeds fully successful” and a remarkable 33.1 percent received the highest rating of “outstanding.” While agencies use ratings systems with different numbers of levels, the pattern remains the same: almost every employee rates as “fully successful” or above, with roughly 0.1 percent rating as “unacceptable.”

Things are even rosier when breaking the ratings down by occupational category. The clerical group, which accounts for 4.2 percent of these workers, is the only one of six occupational categories where more than one percent of workers received either an “unacceptable” or “minimally successful” rating. According to the feedback from the ratings systems, coming across a less than stellar federal worker in the administrative, professional, or technical fields is like finding a needle in a haystack. These federal workers are people, fallible like anyone else, so a distribution so heavily skewed towards positive ratings makes the system less credible.

Distribution of Performance Ratings by Occupational Category, 2013

Source: GAO

Note: Ratings for permanent, non-senior executive service employees.

The performance feedback is even more skewed towards stellar when the authors look at workers in higher grades of the General Schedule. Roughly 78 percent of workers in the highest group received one of the top two ratings, compared to 0.4 percent who received anything less than “fully successful.” 

Distribution of Performance Ratings by GS Group, 2013

Source: GAO

Note: Ratings for permanent, non-senior executive service employees.

The authors delve into some of the difficulties in trying to normalize the ratings system from a situation where nearly everyone is a top performer: “[a] cultural shift might be needed among agencies and employees to acknowledge that a rating of ‘fully successful’ is already a high bar and should be valued and regarded and that ‘outstanding’ is a difficult level to achieve.” When more than a third of the covered federal employees, and roughly 46 percent of higher level GS employees received this “outstanding” rating, the system loses much of its value. At this point, the ratings have more in common with the participation trophies found in little league than a meaningful feedback system to address shortcomings and improve performance. In one sense, taxpayers aren’t the only ones done a disservice by this poorly functioning system, as more competent federal workers are indistinguishable from their less able peers, and promotions cease to be based on things related to actual job performance. Having a functional evaluations system is even more important outside of the private sector, where market forces convey valuable information about which methods and employees are successful through profits and losses. As my colleague Chris Edwards has explained, the absence of these market mechanisms one of the reasons for the failures in federal bureaucracy.

As this report notes, the “transparency and credibility of the performance management process is enhanced when meaningful performance distinctions are made.” Given the government’s problems with transparency and credibility in so many other spheres, is it any surprise that the performance evaluation system struggles with the same issues? Until these agencies are able to address this “long-standing challenge,” it seems we’ll just have to take their word for it that virtually every one of these federal employees is above average, and hundreds of thousands are “outstanding.”

 

In Federalist 10, James Madison warned of “a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens or to the permanent and aggregate interests of the community.” These groups—“factions” in Madison’s terms—come together to seek concentrated benefits from favorable legislation and regulation rather than competing in the marketplace, while spreading the costs throughout society.

While Madison conceded that such interests could not be stopped completely, he acknowledged that certain steps could be taken to mitigate the “effects” of these groups, and the damage that they can do to the public interest. The First Amendment is one such protection. The New York legislature, however, ignored the First Amendment rights of both merchants and consumers when—at the behest of the credit-card lobby—it passed a law restricting how retailers can convey pricing schemes, as well as the public’s right to know about them. 

New York’s no-surcharge law—like those in 10 other states—insulate credit-card companies from consumer knowledge about who is actually causing the higher prices on goods when they use their credit card (“swipe fees”). The law does this not by restricting the merchants’ ability to charge different prices as between cash and credit payments—that’s legal everywhere—but by regulating the communications regarding the different prices.

To put it simply: the law allows merchants to offer “discounts” to cash-paying customers, but makes it a crime to impose economically equivalent “surcharges” on those who use plastic. By mandating how these merchants convey their pricing structure, New York is restricting speech on the basis of its content, which would seem to be an obvious First Amendment violation.

A federal district court agreed—as have two other federal courts, including the U.S. Court of Appeals for the Eleventh Circuit when it struck down a similar Florida law. The district court held that the law “plainly regulates speech”—not conduct—by drawing a line between prohibited “surcharges” and permissible “discounts” based solely on words and labels. The Second Circuit disagreed, however, holding that the law regulates “merely prices,” not speech.

Cato has now filed an amicus brief urging the Supreme Court to take up this important case and rule that collusion between business interests and state government can’t be used to circumvent constitutional rights. Indeed, the Framers sought to protect speech from the type of crony capitalism New York’s no-surcharge law manifests. We also argue that the Court should clarify that the First Amendment covers speech even if it involves commercial matters. When legislatures abridge these protections, judges should apply the highest form of scrutiny to these laws rather than limply deferring to majoritarian will. 

The Supreme Court will decide later this month, or possibly this fall, whether to take up Expressions Hair Design v. Scheniderman.

Thanks to former Cato legal intern Frank Garrison, who’ll be starting as a legal associate later this summer, for help with this brief.

The United States Court of Appeals for the District of Columbia upheld on Tuesday June 14, 2016 so called “net neutrality” rules issues by the Federal Communications Commission in February 2015.  Two previous attempts by the FCC to regulate the internet under different sections of the Telecommunications Act were overturned by the same court in 2010 and 2014 reflecting the traditional policy distinction between heavily regulated traditional telephone landline service and so-called information services involving computers that were not regulated.

The rule issued by the FCC in 2015 reclassified internet services as falling under the same legal regime as traditional telephone service.  Yesterday’s Appeal Court decision accepts that reclassification and the legal authority that goes with it.

Regulation has published four articles in the last two years year criticizing traditional public utility regulation of the internet.  Christopher Yoo from the University of Pennsylvania argues that traditional telephone regulation envisions a monopoly service and government oversight ostensibly intended to limit prices and expand service provision. But the expansion of wireless high-speed Internet has allowed multiple competitive providers to provide service to a large majority of American consumers while restraining capital costs.  “What Hath the FCC Wrought”, by former FCC chief economist Gerald Faulhaber, argues that service quality will suffer to the extent that internet access providers can’t charge more for streams that impose greater costs on the system. Kansas State professor Dennis Weisman argues that internet regulation will likely protect competitors from competition rather than serve consumer interests just like the old telephone regulatory scheme. And Larry Downes from the Georgetown Center for Business and Public Policy argues that the movement to re-regulate telecom is propelled by some firms’ quest for rents under new regulation, and by Federal Communications Commission attempt to regain political power and the benefits that come with it. 

On the fields of Runnymede, 801 years ago today, English nobles and clergy met to wrest from King John many of the rights we Americans now enjoy. There followed, however unevenly, the rule of law.

Thus was the nascent common law reduced to a document, Magna Carta, the world’s oldest, still honored “constitution.” Its lesson, that political power needs to be restrained by the rule of law, is as important to remember today as it was eight centuries ago. 

Click on the links above to see why.

That is the title of a chapter in a new book by Jennifer Grayson, Unlatched: The Evolution of Breastfeeding and the Making of a Controversy. Grayson is a Los Angeles writer, and her book includes endorsements from film stars Anne Hathaway and Alyssa Milano.

Jennifer is a breastfeeding advocate, and she explores the science, history, and cultural practices surrounding breastfeeding. While breastfeeding is now known to be superior for child development than infant formula, apparently too few moms follow through with it for the recommended period of time. Jennifer is a champion of “Breast is Best.”   

Jennifer contacted me when she was writing her book because she had come across my essay criticizing the federal government’s $6 billion Women, Infants, and Children (WIC) program. I found that while WIC administrators are supposed to encourage moms to breastfeed, the program actually incentivizes moms to use formula because WIC provides it to them for free. WIC accounts for half of all infant formula used in the nation. About 90 percent of WIC infants use some formula, and the share of moms on WIC who breastfeed is substantially less than the share of moms not on WIC who breastfeed.

WIC makes no sense. American pediatricians universally recommend breastfeeding, as do government health officials. Yet the U.S. Department of Agriculture (USDA) runs a $6 billion subsidy program that induces mothers to use manufactured baby formula.

Jennifer explores this conundrum in Unlatched. She and I appear to hold different political views, but we come to similar conclusions about the harmful effects of this federal program. WIC administrators across the nation essentially tell millions of new moms, “Breastfeeding is the best for your baby, but here’s a bunch of coupons for free cans of formula.” Jennifer reports that low-income, often immigrant, moms covet formula and perceive it to be valuable because it is expensive on store shelves. Also, the government is handing it out, so they figure that it must be the best thing for their babies.

Jennifer quotes me noting that the perverse aspects of WIC are “akin to how the government tells people to eat healthy, but the eighty-billion-dollar food stamp program subsidizes untold billions in junk food spending.” I hate government hypocrisy.

I also hate the lack of accountability for the harm caused by government programs, as Jennifer found with WIC. No health official in the “most transparent administration in history” would speak to her about her findings: “I contacted the USDA for feedback. No one was available to speak with me.” Ditto with the Centers for Disease Control and the Department of Health and Human Services. Ditto for the California agency that runs the WIC program in that state.

Last word to Jennifer: “The government can promote breastfeeding all it wants, but as long as it continues to hand out free formula, mothers will assume that formula is endorsed by the government.”

For a few years now, the town of Croydon, NH (population 651) has been fighting with the governor and state board of education over their school choice policy. The town isn’t large enough to sustain its own K-12 district school, so it contracts with a neighboring town to educate most of its residents’ children starting in 5th grade. But when its contract was approaching expiration a few years ago, the town decided to give local parents the option of sending their children to private schools as well, and the town would cover tuition up to the amount that it was spending per pupil at the neighboring district school (about $12,000).

That’s when the governor and state education bureaucrats got involved. They objected to the town’s use of tax revenue at non-government schools, though they had difficulty pointing to exactly which law or statute the town was violating. They’re currently embroiled in a lawsuit to sort out whether Croydon has the authority to decide how to spend its local tax dollars, but meanwhile the state legislature passed a bill clarifying that Croydon and similar towns have the authority to enact their own school choice policies. 

Last week, NH Gov. Maggie Hassan vetoed that bill citing two arguments I had already refuted in a Union Leader op-ed earlier in the week. In her veto message, Gov. Hassan wrote:

House Bill 1637 diverts taxpayer money to private and religious schools with no accountability or oversight, a clear violation of the New Hampshire Constitution, which states, ‘… no money raised by taxation shall ever be granted or applied for the use of the schools of institutions of any religious sect or denomination.’ Not only is the bill unconstitutional, it also has no mechanism to ensure a student’s constitutional right to the opportunity to receive an adequate education and would undermine the state’s efforts to ensure a strong and robust public education system for all New Hampshire students.

“Under current New Hampshire law, public schools are required to provide the opportunity for an adequate education, as defined by the Legislature, and are held accountable through laws and rules that require monitoring and review by the Department of Education. Additionally, as required by statute and as a result of Supreme Court decisions requiring a statewide education accountability system, New Hampshire schools are required to participate in the Statewide Educational Improvement and Assessment Program. If House Bill 1637 is enacted, public funds would be used to send students to private schools – which are only approved by the Department of Education for attendance and not curriculum, without the same accountability standards as the public schools – violating the requirements of state law and the state Constitution.

These are red herrings. As I noted in my prebuttal last week:

During the debate over the bill, opponents raised two main objections related to accountability and constitutionality. Neither withstands scrutiny.

One legislator claimed that there are “no safeguards for quality assurance” because private schools are not subject to all the same rules and regulations as district schools. However, this has it exactly backward.

District schools are primarily accountable to school boards and the state department of education, which promise an “adequate education” in principle but don’t always deliver in practice. Private schools are subject to even greater accountability because they’re held directly accountable to parents.

If a private school isn’t working out for a child, the parents can take their child (and their money) somewhere else. Knowing this, private schools have a strong incentive to be responsive to the needs of students and their parents.

Opponents also claim the bill would violate the state constitution’s “Blaine Amendment” provision, which states that “no money raised by taxation shall be granted or applied for the use of the schools or institutions of any religious sect or denomination.”

However, in a 1955 Opinion of the Justices sanctioning the use of publicly funded vouchers at a religiously affiliated nursing school, the New Hampshire Supreme Court held this constitutional provision only forbade the state from supporting “a particular sect or denomination,” but that did not mean “that members of a denomination should be deprived of public benefits because of their beliefs.”

In other words, the state constitution permits students to use public funds at a religious school so long as they could use the funds at a variety of other secular or religious schools. The state constitution demands religious neutrality, not discrimination against religious groups or institutions.

In short, state regulations are no guarantee of quality (nor does their absence imply a lack of quality) and the New Hampshire state constitution does not mandate religious discrimination. If only someone had told the governor…

Since the passing of Muhammad Ali, the establishment has been working in overdrive to convince us that the great boxer was a member of their club. In doing so, the wisdom and wit of Ali has been on display.

Muhammad Ali’s lessons on economics, however, have been absent. Economics? Yes. The lessons were developed in a most edifying book by Donald Sull, The Upside of Turbulence: Seizing Opportunity in an Uncertain World. New York: Harper Collins, 2009 – a book that Mohamed El-Erian recommended to me.

The economic lessons are summarized in “The Boxer Matrix.” A boxer’s fate is determined by a combination of his absorption capacity (read: can he take a punch?) and agility (read: can he avoid a punch?). In the Boxer Matrix, the ideal position to be in is the Northeast quadrant: where Ali and Joe Louis boxed. But, while Ali always had terrific agility, he had to train and think his way to an above average absorption capacity. This capacity was on display in his “Rumble in the Jungle” bout with George Foreman. It was then that Ali’s “rope-a-dope” tactic was executed to perfection.

This brings us to Ali’s message on economics, with particular reference to countries that are heavily dependent on the production of oil. In turbulent times (read: oil price plunges), countries like Saudi Arabia, Venezuela, and Nigeria experience a great deal of pain because their oil-dependent economies aren’t diversified. In short, they lack agility. This is reflected in their position in the lower half of the Boxer Matrix.

Saudi Arabia is able to use its huge stash of foreign reserves (high absorption capacity) to countervail its lack of agility. But, reserves can only go so far. What the Saudis need is more agility. The Vision 2030 project is intended to do just that. Whether the Saudis can endure the “training” required to achieve Vision 2030 is another matter.

As for Venezuela and Nigeria, they are – and are likely to remain – in the loser’s Southwest quadrant: the one that dooms boxers and economies alike.

America’s relationship with Islam is fraught with tension. No one wins if America ends up fighting an endless war with 1.6 billion people worldwide.

Rather, Washington should encourage responsible Islamic voices. One is the Organization of Islamic Cooperation. According the group diplomatic status would give Americans greater opportunity to influence an important forum for Islamic activism.

The OIC was founded in 1969 and is made up of 57 states, most with majority Islamic populations. Past relations have been difficult.

In 1990 the group adopted the Cairo Declaration on Human Rights in Islam which emphasized the role of Sharia Law. At the UN the OIC routinely attacked Israel.

For years the OIC sought UN support to target the so-called “defamation” of religion, which would have threatened religious liberty. The group also struggled with the issue of terrorism.

However, the OIC has filled a more responsible international role of late. Criticism of Israel continues, but the group has become more willing to challenge its own members.

In 2008 the OIC amended its charter to emphasize human rights and liberty. It also established the Independent Permanent Human Rights Commission, an advisory body to monitor human rights within member states.

Perhaps most dramatic, in 2011 the OIC abandoned its campaign on religious defamation and backed a resolution more friendly to religious liberty. Although differences remain over how to define “incitement to violence,” the OIC appears to have moved significantly toward Western standards. Last year’s Fez declaration, adopted at a UN forum backed by the OIC, emphasized the role of religious leaders in countering religious hatred, not government in imposing legislative solutions.

Finally, the group acknowledged the problem of terrorists claiming Islam as a justification for murder and mayhem. Moreover, the OIC-backed Marrakesh Declaration concluded that “It is unconscionable to employ religion for the purpose of aggressing upon the rights of religious minorities in Muslim countries.”

Last year the group’s executive committee developed a program to confront violent extremism and partner with organizations involved in counterterrorism. The OIC plans to review language and messaging, as well as reform education to reduce support for violent extremism.

In 2007 the Bush administration sent an envoy to the OIC. But the Obama administration effectively downgraded America’s representation, withholding ambassador status from the U.S. delegate. Moreover, the group continues to lack diplomatic status, unlike the Organization of American States and even the Vatican.

The Senate Relations Committee currently is moving legislation to grant diplomatic status to the six-member Gulf Cooperation Council, but not the OIC, as recommended by the administration. Yet addressing the OIC allows Washington to address 57 countries around the globe with substantial Muslim populations. Bush’s OIC envoy Sada Cumber complained that “The United States has ignored one of its most capable and effective partners in countering the rise of violence extremism around the world.”

As I wrote in Forbes online: “Obviously, engaging the organization offers no panacea for the West’s problems with Islam. Nevertheless, the OIC offers a useful venue for communicating with scores of Muslim nations. And the group provides engagement opportunities for journalists and NGOs.”

No doubt, the OIC will continue to frustrate the U.S. on many issues. However, the organization also appears open to debate. One American who worked with the OIC argued that in many areas the group is at odds with its members.

Thus, ongoing engagement with OIC staff and representatives of member states—involving them in discussions with American advocates of human rights and religious liberty—could prove useful over time. While this is possible today, diplomatic status would ease OIC administration, encourage enhanced operations, and smooth U.S. relations.

Washington would lose little in granting recognition. Among the benefits is the official oversight that comes with diplomatic status.

The latest terror attack in Orlando reminds us of America’s challenge in confronting Islam. One positive step would be to more effectively engage the OIC.

The most stinging rebuke, as well as the  most public one, I ever received over the course of my academic career, was delivered to me in the pages of The Economic Journal.  It consisted of a  footnote to an article celebrating James Tobin’s contributions to economics.  The footnote offered a paper of mine, also published in the EJ, as a “striking example” of the “comeback” of models relying upon “ad-hoc, backward-looking, mechanical expectation formation models of the early 1960s…in the guise of adaptive learning rules.”

What made my example especially egregious, in my chastiser’s  view, was the fact that, though I referred to “adaptive learning,” my argument was mainly couched in terms of static expectations — an especially naive sort.  To make matters worse, in defending my method, I referred to some other works that seemed to me to supply a rationale for such “naive” thinking in certain contexts.  By so doing, it seems, I was treating “appeal to higher authority (Marx, Keynes, Lucas etc.) [as] an acceptable substitute for empirical evidence or logical argument starting from reasonable primitive assumptions,” thereby supplying “evidence of the immaturity of economics as a science.”  Ouch!

In my defense, my topic was the transition from barter to fiat money, and despite the upbraiding I received I still think it perfectly reasonable to assume that, when some new technology is about to make its appearance, and especially when the first stages of its development are for the most part imperceptible (and money surely qualifies as such a technology), its development is likely to be quite unexpected.  And I didn’t assume static expectations for the heck of it, or because I didn’t realize that doing so was passé.  I assumed them in order to draw attention to their instrumental value and, hence, their possible relevance.  When static expectations or any of their somewhat more sophisticated counterparts, including adaptive learning, were assumed to operate in a monetary search framework, that framework yielded predictions much more consistent with historically-observed patterns of monetary development than it did if expectations were instead assumed to be forward-looking and, in that sense, “rational.”

But my main reason for bringing that whole business up isn’t so that I can defend my poor old article.  It’s to draw attention to the fellow who dressed me down for it.  For that fellow was Willem Buiter who, if you ask me (though admitting it only adds to my chagrin), is one of the best monetary economists around these days, and one whose writings deserve an even wider audience than the considerable one they already command.

As his unsparing (but mercifully brief) assault upon my article illustrates, Buiter doesn’t go in for kid gloves, or for gloves of any sort: spotting what he believes to be a bad argument, he goes after it with bare knuckles, and more often than not lands a knockout punch.  Consider his trenchant critique of the fiscal theory of the price level.  Or have a look at his 2004 Hahn Lecture, in which he puts his dukes up against half-a-dozen “ghosts, eccentricities, mirages, and mythos” of contemporary monetary economics.  No, Sir: this is one monetary economist you don’t want to mess around with.

Buiter is, on the other hand, a monetary economist whose work repays careful reading, and repays it at a decidedly positive real rate of interest.  I was reminded of this recently when, in the course of expanding upon my Congressional Testimony on Interest on Reserves, I came across a 2009 working paper by Buiter that I hadn’t read before.  The question addressed by that paper — What obstacles stand in the way of central banks shrinking their swollen balance sheets and otherwise returning to conventional monetary policy? — makes it even more pertinent today than when it first appeared.  Yet because the paper was published as part of a somewhat obscure volume edited by the European Money and Finance Forum, it hasn’t gotten much attention (Google scholar lists 13 citations, all to the working paper version).  That’s a shame, for the paper is another good example of Buiter’s ability to muster painstaking analysis in the service of blistering rhetoric, with devastating effect.

The gist of Buiter’s argument is that, despite what monetary authorities in the U.S. and elsewhere may claim, “unwinding or reversing unconventional monetary policies,” so as to reduce the relative size of central banks’ balance sheets to pre-crisis levels, “is technically easy.”  The real obstacles to such unwinding are, Buiter insists, political.  They consist, first, of a potential conflict between central bankers and fiscal authorities concerning “the role of seigniorage in closing the government’s solvency gap,” and, second, of the fact that any unwinding procedure “is likely to reveal the true extent of the central bank’s quasi-fiscal activities during the crisis and its aftermath.”

The conflict that constitutes the first of these obstacles arises because “the portfolio reshuffling that is the logical, unavoidable counterpart” to central banks’ large-scale asset sales is likely to “create serious funding problems,” especially for national treasuries.  In particular, to the extent that the sales reduce the central banks net interest income and financial surpluses, they must force associated governments to reduce their own deficits as well.  Unless such a program of deficit reduction is consistent with those treasuries own objectives, unwinding “could be delayed for years.”

The extent of the delay will, of course, depend on central banks’ ability to resist pressure from treasury authorities.  How great is that ability?  Not very, according to Buiter.  In the U.K., a Treasury unhappy with the Bank of England’s aggressive pursuit of normalization might take control of monetary policy by invoking the Reserve Powers clause (section 19) of the 1998 Bank of England Act, allowing it to dictate policy provided that doing so is “required by the public interest and by extreme economic circumstances.”  According to Buiter, its much-vaunted (if mostly mythical) independence notwithstanding, the Fed’s constitution makes it even less immune to pressure from fiscal authorities than the Bank of England.

The second reason governments have for forestalling the unwinding of their central banks’ unconventional policies — their desire to keep a cloak on those banks’ quasi-fiscal activities — is so far as Buiter is concerned all the more reason for the general public to oppose any unnecessary delay:

The large-scale ex-ante and ex-post quasi-fiscal subsidies handed out by the Fed and to a lesser extent by the other leading central banks, and the sheer magnitude of the redistribution of wealth and income among private agents that the central banks have engaged in could (and in my view should) cause a political storm.

That the Fed and other central banks made the crisis an excuse for becoming quasi-fiscal agents in the first place was, in Buiter’s opinion, inexcusable.  Like Bagehot (and Bernanke himself, to judge by the former Fed Chairman’s utterances rather than his actions), Buiter believes that central banks have no business doing anything other than providing liquidity to illiquid but solvent financial institutions, “at a cost covering [their] opportunity cost of non-monetary financing”:

Any action beyond that, such as the recapitalisation of insolvent banks through quasi-fiscal subsidies, ought to be funded by the Treasury.  The central bank should be involved only as an agent of the Treasury — an expert assistant.  It should not put its own conventional or comprehensive balance sheet at risk.

And why shouldn’t a central bank take on quasi-fiscal functions?  Generally speaking, it shouldn’t because doing so can impair its “ability to fulfill its macroeconomic stability mandate,” and also because it may obscure responsibility and accountability “for what are in substance fiscal transfers.”  In the U.S. case, Buiter notes, there is still another reason, and one that ought not to be dismissed lightly.  It is, simply, that the Fed’s quasi-fiscal actions “subvert the Constitution, which clearly states in Section 8, Clause 1, that the power to tax and spend rests with the Congress.”

That the Fed should have gotten away, not only with having allowed itself “to be used as an off-budget and off-balance-sheet special purpose vehicle for the Treasury,” but also (until Bloomberg forced its hand after Buiter’s article appeared) with refusing to divulge the details of its crisis-related fiscal transfers, seems almost incredible to the Dutch-born Buiter, who surrendered his Dutch citizenship in order to become a dual U.S.-U.K. citizen:

It is surprising that a country whose creation folklore attributes considerable significance to the principle of “no taxation without representation” would have condoned without much outcry such a blatant violation of the equally important principle of “no use of public funds without accountability.”  This indeed amounts to a quiet coup by the central bank.

Would that more U.S.-born economists, including those who fell-over each other in their rush to defend the Fed against any prospect of routine GAO “audits,” took the Constitution’s plain language as seriously.

[Cross-posted from Alt-M.org]

Marketplace Radio takes a look at the challenge of filming movies and television shows in Cuba, focusing specifically on Showtime’s “House of Lies” starring Don Cheadle. The episode is titled “No es facil” – “It’s not easy.” The title appears to be a description of doing business in Cuba, and also of filming a show about doing business in Cuba. As Marketplace’s Adrienne Hill and show creator Matthew Carnahan explain:

Camera equipment was shipped from Germany because it couldn’t be sent directly from the U.S. Even basic supplies – “there’s not hammers and toilet paper, and things that people need.” 

Journalists have stopped reporting on the privations of socialism in Cuba. But Hugo Chavez was a great admirer of Fidel Castro and the society he built, and he wanted to give Venezuelans the same thing. And of course he did:

Venezuela’s product shortages have become so severe that some hotels in that country are asking guests to bring their own toilet paper and soap, a local tourism industry spokesman said on Wednesday….

Rest well, Comandantes Castro and Chavez, while your people dream of toilet paper. And hammers. And soap.

I sometimes hear it said that today’s lengthy trade agreements are about “managed trade,” and that a true free trade agreement would only have to be one sentence (or perhaps one paragraph.) Well, maybe, but it depends on what that sentence or paragraph says. Here’s a suggestion someone made on a trade policy blog I run:

A true free trade agreement would be one sentence. Any good that can be sold legally in a country can be sold legally by a seller from any other country that is a party to this agreement. The agreements are long because they are negotiating winners and losers. That is crony capitalism.

The problem with this proposed sentence is that it would be under-inclusive: It would not achieve free trade, in several respects.

First, the primary barrier to free trade is still tariffs, which are taxes imposed on imports. Tariffs don’t make trade illegal, they just tax it, and a rule that goods which can legally be sold in a country can also be sold by foreign sellers would not eliminate tariffs. And, by the way, that’s a big reason why trade agreements are so long – they list all traded products and place limits on the tariff level for each product. Many of the pages are taken up by these detailed tariff reduction schedules.

Now, you could have a one sentence trade agreement that said something along the lines of, “All tariffs are hereby abolished.” That would be a pretty good sentence in a trade agreement. So far, we haven’t seen a sentence like that, unfortunately.

In addition, there are some complex protectionist measures out there, not all of which ban the sale of foreign goods.  For example, you could have a tax measure which applies higher taxes to foreign goods than domestic goods. This would mean that foreign goods could still legally be sold in the country, and thus the free trade sentence quoted above would not address such a measure.

Along the same lines, some trade agreements impose constraints on the use of anti-dumping measures.  There might be an ideal sentence here (“anti-dumping measures are hereby abolished”), but that is not politically achievable right now, so we end up with many pages of rules that put limits on anti-dumping measures. It’s not perfect, but it helps.

To sum up, I agree with critics who say there are lots of problems with today’s trade agreements, as various interest groups have lobbied succesfully for specific regulations to be included in them.  We can definitely scale back from the 5,000 or so pages in the Trans Pacific Partnership. In the end, though, any free trade agreement is likely to take quite a few pages to set out all the various constraints on protectionism. 

A timely new blog post from the Tax Foundation points out that, “taxes on the rich are much higher than they’ve been in recent years. Between 2008 and 2012, the top 1 percent of households paid an average tax rate of 28.8 percent. However, in 2013, this figure spiked to 34.0 percent, as a result of tax increases in the “fiscal cliff” deal and the Affordable Care Act”.

“Readers should check out the new CBO report,” the authors suggest, “and reflect for themselves about whether or not high-income Americans are now paying their fair share of taxes.”

The trouble is that the tax rate alone can’t tell us how much the Top 1% paid in taxes: To know how much taxes were paid by the Top 1% requires knowing how much income they reported to the IRS.  The reason this matters is that there is ample evidence that the “elasticity of taxable income” is very high among top taxpayers, which simply means they find ways to report less income if marginal tax rates go up.  This doesn’t require lawyers or loopholes: Avoid capital gains tax by not selling assets and/or shifting into exempt assets (housing up to $500k); avoid the dividend tax by holding tax-exempt bonds; defer personal tax on business income by retaining earnings within a C-corporation; avoid punitive tax rates on second earners by becoming a one-earner household; retire early, etc.

Looking at the same thing from a different angle, the graph shows that average taxes actually paid by the Top 1% grew rapidly after the tax rate on capital gains was cut from 28 percent to 20 percent in 1997. Taxes paid by the Top 1% grew even more rapidly after 2003 when the tax rate on capital gains and dividends was further reduced to 15 percent and the top tax on salaries and unincorporated businesses was cut from 39.6 percent to 35 percent.  If you want the rich to pay more taxes, cut their tax rates.  

As it turns out, 2013 showed that we can’t just assume higher tax rates mean docile taxpayers will simply write bigger checks to the U.S. Treasury. On the contrary, when the average tax rate on the Top 1% increased by 18.4 percent in 2013, the amount of income reported by the Top 1% fell by 15.4 percent – from $1,856,000 in 2012 to $1,571,600. The net effect was almost a wash, in terms of taxes actually paid. According to the CBO, average federal taxes paid by the Top 1% were $530,128 in 2013 –virtually unchanged from $529,056 in 2012. 

Presidential candidates Bernie Sanders and Hillary Clinton propose even more increases in top tax rates on income and capital gains (to 54.2 percent with Sanders, 43.6 percent with Clinton), ostensibly to finance their lavish government spending plans.  But even a relatively small dose of this same poison failed to raise significant revenue from the Top 1% in 2013, partly because of the drag on the overall economy from reduced incomes and incentives. 

In recent weeks, Libertarian presidential candidate Gary Johnson has been gaining media momentum as polls show him garnering about 10 percent of the vote in a race with Trump and Clinton. His candidacy has attracted attention to the libertarian ideas he espouses and the people who embrace the label.

The popular media stereotype of libertarians is disproportionately white and male. But is this accurate? What do the data actually say?

As it turns out, the libertarian label is embraced by a more racially and ethnically diverse group of individuals than some may realize, but tilts male.

Averaging across nine Reason-Rupe surveys I conducted at Reason Foundation/Reason Magazine with Princeton Survey Research Associates between 2012-2014 and a recent survey we conducted here at the Cato Institute with YouGov, here’s what we find: Among those who self-identify as “libertarian”, 71 percent are Caucasian, 14 percent are Latino, 5 percent are African-American, 8 percent identify as another race, and 4 percent chose not to identify. While not an exact reflection, these numbers are similar to the demographic makeup of all respondents averaged across the surveys: 67 percent white, 13 percent Latino, 12 percent African-American , 7 percent identifying as other, and 1 percent not identifying.  

Both the Pew Research Center and YouGov have each respectively found similar results. YouGov found 16 percent of whites, 17 percent of Hispanics, and 10 percent of African-Americans agreed they would describe themselves as libertarian. Pew went a step further to see how many Americans embraced the label and also thought it meant “someone whose political views emphasize individual freedom by limiting the role of government.” Indeed, Latinos (11 percent) were as likely as Caucasians (12 percent) to say the word “libertarian” describes them well and agree the term means limited government. African-Americans were less likely to both self-identify as libertarian and also say the term means limited government (3 percent).

While some surveys may find a higher percentage of white libertarians, the benefit of this analysis is averaging across multiple surveys and thus we’re less reliant on the potential error in one survey.

Millennial Libertarians

Diversity increases further among millennial libertarians, reflecting the racial composition of the entire generation. In a study I conducted of millennials at Reason, we found (see pg. 23) that millennial libertarians reflect the racial/ethnic diversity of the national sample. (YouGov fielded the survey of 2000 18-29 year olds). Among millennials who self-identify as libertarian, 56 percent are white, 21 percent are Latino, 14 percent are African-American, 8 percent are Asian, and 1 percent identify as another race. This is similar to all millennials surveyed: 57 percent white, 15 percent African-American, 15 percent Latino, 7 percent Asian, and 4 percent as another race.

Gender

Although libertarians are more racially and ethnically diverse than is usually thought, they do lean more male than female. Averaging across the nine Reason-Rupe surveys and a Cato/YouGov survey between 2012-2015, 63 percent of self-identified libertarians are male and 37 percent are female. We found a similar ratio among millennial libertarians with them being 68 percent male and 32 percent female.

Similarly Pew found that men (15 percent) were about twice as likely as women (7 percent) to self identify as libertarian and say that the term means limited government. YouGov found a similar ratio between men and women with 21 percent of men saying they would describe themselves as libertarian as would 10 percent of women.

In sum, Americans who choose to self-identify as libertarian in surveys tend to reflect the racial and ethnic demography of the United States more than is commonly realized, particularly among younger libertarians. However, self-identified libertarians are more like to be male than female.

 

 

 

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

There are several notable pieces this week that relate to the social cost of carbon (SCC)—the government’s powerful tool to aid in justifying all manner of rules and regulations. The SCC is supposed to represent the negative externalities (i.e., projected economic damages in a projected society resulting from projected climate change) that are associated with the emissions of each ton of carbon dioxide. It was developed as a way to translate carbon dioxide emission reductions into dollars savings and to make the “benefits” of proposed climate actions hit closer to home for more people.

But as you may guess from the number of “projected”s in the above parenthetical, the SCC is so highly malleable that you can pretty much game it to produce any value desired—the perfect characteristic for an all-purpose economic cost/benefit tool wielded by an opportunistic and activist government.

The situation is well-described by American Enterprise Institute’s Benjamin Zycher in his recent post for The HillThe magic of the EPA’s benefit/cost analysis.”

Welcome to the fascinating world of EPA benefit/cost analysis… the administration conducted an “analysis” of the “social cost of carbon” (SCC), in order to generate an estimate of the marginal externality cost of greenhouse gas emissions (GHG). The problems with that analysis are legion, but the central ones are the use of global (rather than national) benefits to drive the benefit/cost comparison; the failure to apply a 7 percent discount rate to the streams of benefits and costs, despite clear direction from the Office of Management and Budget; and — most important — the use of ozone and particulate reductions as “co-benefits” of climate policies. The administration’s estimate is about $36 per ton in 2015 ($31 per ton in 2010).

And that is how a regulation yielding future changes in temperatures and sea levels approaching zero can be claimed to yield net benefits “exceeding $100 billion, making this a highly beneficial rule.” In the EPA’s benefit/cost framework, the actual effects of the policies literally are irrelevant; just compute the assumed reduction in GHG emissions, multiply by $36, and voila!

Zycher takes us through the absurdities of just how small the impact of Obama’s “climate” actions is on the actual climate and how the actions are enormously magnified they become when they are run through the social cost of carbon. He concludes:

It is the delegation of legislative powers to the regulatory agencies that has allowed such game-playing in pursuit of an ideological agenda. The only means with which to restore political accountability to the regulatory process is a requirement that all regulations be approved by Congress.

You can check out his entire article, here.

If you wonder if the government’s SCC of $36/ton of carbon dioxide (as mentioned by Zycher) is scientifically robust: it isn’t.

This embarrassment is shown by some new work from a team led by Heritage Foundation’s Kevin Dayaratna that also included Ross McKitrick and David Kreutzer. These researchers re-ran the models used by the Obama Administration to determine the social cost of carbon with the most recent estimate of the earth’s climate sensitivity (i.e., how much global warming we should expect to result from our carbon dioxide emissions). The estimate they used came from a paper published by Nic Lewis and Judy Curry last year, replacing the climate sensitivity used by the government which was based on the U.N.’s Intergovernmental Panel on Climate Change (IPCC) estimates from 2011.

What did they find?

The resulting Social Cost of Carbon (SCC) estimates are much smaller than those from models based on simulated parameters. In the DICE model the average SCC falls by 30-50% depending on the discount rate, while in the FUND model the average SCC falls by over 80%. The span of estimates across discount rates also shrinks considerably, implying less sensitivity to this parameter choice… Moreover FUND, which takes more explicit account of potential regional benefits from CO2 fertilization and increased agricultural productivity, yields a substantial (about 40 percent or more) probability of a negative SCC through the first half of the 21st century.

Did you catch the end? The model that also includes positive externalities of carbon dioxide emissions (e.g., increased agricultural productivity) produces a decent probability that the social cost of carbon is negative for decades to come. In other words, instead of regulations trying to restrict carbon dioxide emissions, the government ought to be encouraging those emissions.

Given the growing evidence for a low climate sensitivity (see here for our latest on this topic) along with the firmly established evidence that carbon dioxide is a plant fertilizer that increases crop yields (among other benefits), you’d think that science organizations would be pushing the federal government to revise their SCC estimates.

Well, some are, like us. But others, with seemingly more clout (and much more government reliance) are pushing for the opposite.

Take the National Academy of Sciences (NAS), for example. This week they released the results of their examination of ways that the government could improve their SCC determination. Judy Curry has the low down. Notably absent from the NAS’s myriad suggestions was using an updated estimate of the climate sensitivity. Curry writes. “I am gobsmacked that they think the current … values of [equilibrium climate sensitivity] are fine.”

As for us, we are hardly surprised and had this to say in her comment section:

Judy–why are you surprised about not re-examining the ECS distribution? NAS was created to advise the Federal government by Abraham Lincoln and it has not deviated from that mission. The members of this particular committee are pretty much all on the global warming dole, big time. Why would they behave counter to their interests, which would be to admit that the [climate sensitivity] distributions are wrong and that the most likely values are near the low end of the present (AR4) [IPCC] distribution? That would be the end of the dole and an admission that billions were wasted on a minor issue whose solution is best left to private investment rather than public taxation.

Sadly, we can’t foresee the government letting loose its grip on its all-too-powerful social cost of carbon tool so long as we have a ruling Administration that takes an activist’s role in climate change—despite overwhelming evidence that such a role in unjustified. But we’ll keep trying our best to wrest this abusive device from them.

There’s no such thing as a free lunch. Or as the Fifth Amendment puts it, “nor shall private property be taken for public use, without just compensation.” Despite the clarity with which the Takings Clause proclaims that government must respect property rights, state and local governments have long been contriving ways to obtain private property without paying the constitutionally required just compensation.

In 2012, San Juan County, Washington—the islands in the Salish Sea between Seattle and Victoria—enacted a rule that conditions shoreline owners’ proposed land uses on dedicating a portion of their property as on-site conservation areas. This isn’t a new tactic. In Nollan v. California Coastal Commission (1987), for example, the Supreme Court rejected the government’s conditioning of a building permit on the landowners’ granting a public easement across their property to access a beach. The Court acknowledged that conditioning a benefit on the property owners’ giving up their Fifth Amendment right to just compensation is “an out-and-out plan of extortion.” The Court elaborated seven years later in Dolan v. City of Tigard (1994), ruling that courts must apply a high level of scrutiny to conditions attached to land-use permits to prevent government “gimmickry.”

In other words, if the condition by itself would be a taking, then the state cannot impose it unless there is a “nexus” and “rough proportionality” between “the property that the government demands and the social costs of the [landowner’s] proposal.” Koontz v. St. John’s River Water Management District (2013).

The San Juan County ordinance fails these tests because shoreline property owners are required to set aside “water quality buffers” as a condition of development not based on any harm the proposed land use itself might cause, but based on the county’s general efforts to reduce pollutants and other surface runoff. A local owners’ association called the Common Sense Alliance challenged the ordinance, but Washington state courts held that the nexus and proportionality tests need not even be applied here because it was the legislature that imposed the condition, not an ad hoc permitting process. The alliance has now asked the U.S. Supreme Court to step in, and Cato, joined by Reason Foundation, has filed an amicus brief supporting that petition.

The state courts’ reasoning is deeply flawed: Despite the common belief that individual permitting decisions are more prone to abuse and corruption than general legislative ones because the political process checks the latter, this simplistic notion ignores the lessons of public-choice economics. As the Texas Supreme Court put it, legislatures can “‘gang up’ on particular groups to force exactions that a majority of constituents would not only tolerate but applaud, so long as burdens they would otherwise bear were shifted to others.” Town of Flower Mound v. Stafford Estates Limited Partnership (2004).

This dynamic is particularly evident in today’s climate when in many states and sub-state political units, the majority is anti-development. Legislative conditions also have a much broader reach than do ad hoc permitting schemes. Unfortunately, Washington State is not alone in holding that the “nexus and proportionality” tests need not be applied to legislative decisions. The U.S. Supreme Court should step in and clarify that its (now well-established) Nollan-Dolan precedents extend to takings via legislative actions, not just executive ones.

The case is Common Sense Alliance v. San Juan County.

Perhaps the most pervasive myth about our nation’s education system is the notion that “public schools have to take all children.” Last year, when criticizing charter schools that she claimed, “don’t take the hardest-to-teach kids,” Hillary Clinton quipped, “And so the public schools are often in a no-win situation, because they do, thankfully, take everybody.” 

No, in fact, they do not.

At best, so-called “public” schools have to take all children in a particular geographic area, although they can and do expel children based on their behavior. They are more appropriately termed “district schools” because they serve residents of a particular district, not the public at large. Privately owned shopping malls are more “public” than district schools.

This wouldn’t be a serious problem if every district school offered a quality education, but they do not. Rather, the quality of education that the district schools provide tends to be highly correlated with the income levels of the residents of those districts. As Lindsey Burke of the Heritage Foundation and I noted last year, our housing-based system of allocating education leads to severe inequities:  

There is a strong correlation between these housing prices and school performance. In nearly all D.C. neighborhoods where the median three-bedroom home costs $460,000 or less, the percentage of students at the zoned public school scoring proficient or advanced in reading was less than 45 percent. Children from families that could only afford homes under $300,000 are almost entirely assigned to the worst-performing schools in the District, in which math and reading proficiency rates are in the teens.

Not surprisingly, some parents feel desperate when their kids are trapped in subpar schools because they can’t afford to live in ritzy neighborhoods or pay private school tuition. And some of those desperate parents will provide fake addresses to get their children a better education.

In Florida, the Broward County School Board announced this week that it is hiring private investigators to spy on the addresses the school suspects of being fake. As the Sun-Sentinel reports, the private eyes will “monitor a home and then give school officials photographs, videos and a detailed report.”

Fraudulent registration has long been an issue. Parents, believing their child will get a better education at a school outside their assigned boundary, list a relative or friend’s address, provide a fake address or even rent an empty apartment in the area of a preferred school.

Doing so can in Broward be prosecuted as a third-degree felony, since parents declare their addresses under penalty of perjury.

It’s unlikely that the district will have the funds to hire private eyes to track every student. One wonders, then, what criteria the district schools will use to determine which students should be surveilled… will they start with students who, shall we say, don’t look like most of the other students in that high-income district? 

Broward County is far from unique. Parents nationwide are regularly fined and even imprisoned for stealing a better education for their children. One New Jersey town even offered $100 bounties for information leading to the expulsion of students whose parents lied about their addresses. 

Writing at RedefinED, Nia Nuñez-Brady explained why her parents provided a fake address to get her into a better–and safer–district school: 

One day, while I was using the ladies room, another girl, who was double my size or at least it felt that way at the time, threatened to bash my head on the wall if I didn’t stop hanging out with a guy she liked. Growing up, my dad always told me, “Your face is too pretty to get into a fight.” So, I said to her: “Please don’t hit me. I’ll stay out of your way.”

She laughed. I went back to class, and tried to focus.

The next day, while walking on the hallway at the school, this same girl grabbed another student close to me. She pushed her against the wall and instigated a fight. The difference between myself and this new student: This girl fought back. The bully wasted no time. She grabbed her Snapple bottle, broke it on the wall, and used a piece of glass to slash the student’s face.

I was petrified. That could have been me.

Nia begged her parents to change schools but they couldn’t afford it. They were recent immigrants with little money. But they couldn’t bear to keep their daughter in a school where they feared for her safety. So they lied.

[M]y parents did something thousands of other public-school parents feel forced to do, because they feel they have no other options. They lied about where we lived so I could go to a different school where I would feel safe. […]

Of course, it is understandable residents of districts who have paid taxes into the system would be upset that they are subsidizing the education of children whose parents haven’t paid into the system. And so it’s also understandable that the district schools would seek to exclude students whose parents haven’t paid into the system, just as private schools shouldn’t be expected to educate a child whose parents hadn’t paid tuition. As Nia explains, problem is the system itself:

I understand that perjury is against the law, and that the law should be respected. But from my own experience, I know the parents who lie about their address are often the ones with limited resources, the ones who cannot afford to move to a more affluent neighborhood, the ones who can least afford to pay a fine or fight a felony charge.

I can also understand the families who have been kicked out of a school close to where they live, because the school is overcrowded with students from other neighborhoods. That, too, is unfair.

But that’s the problem. The system is unfair.

Indeed. Getting a decent education should not depend upon the ability of one’s parents to afford an expensive home. It is long past time that we break the link between home prices and school quality. Doing so entails recognizing that there’s no such thing as a “public” school.

Today marks the 20th anniversary of the Supreme Court decision in Whren v. United States. The case clarified the constitutionality of the practice of “pretextual” traffic stops. The Court ruled that so long as an officer can articulate that a driver violated some traffic law, the officer may stop a motorist in order to investigate potential and wholly unrelated criminal activity. The case has effectively become a blueprint for police officers to racially profile drivers without repercussion.

Last fall, I gave a talk at Case Western Reserve Law School in a symposium dedicated to Whren and its legacy. The school’s law review recently published the article that came from that talk. Instead of putting forth an argument to overturn Whren, I argue that police departments ought to curtail or end the use of pretextual stops as a proactive policing measure. The Supreme Court’s ruling that the tactic is constitutional does not make it an ethical or wise tactic to employ.

Simply put, pretextual stops undermine police legitimacy by turning public servants into antagonistic interrogators. In practice, pretextual motor vehicle stops—much like the pedestrian Terry stops used in New York’s infamous Stop-and-Frisk program—ensnare far more innocent people than criminals. And most of the people who are stopped are black or Latino, further eroding police support in those communities. Police departments must establish their legitimacy—through trust and positive interactions—to improve their effectiveness and public safety. Overly aggressive and implicitly discriminatory policing practices undermine that legitimacy.

You can read the whole article here. The rest of this issue of the Case Western Reserve Law Review can be found here.

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