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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.

Some say that today’s decision maintains business as usual for Obamacare, taxpayers and consumers. The Supreme Court upheld the subsidies (also known as the Premium Tax Credit) to consumers in the 34 states that rely on the federal exchange. Proponents of these subsidies argue they help keep health insurance affordable.

The subsidies lower the out-of-pocket cost to consumers who get them, but at what cost? Consider a 64-year-old consumer in Hialeah, Florida (one of the largest areas impacted by King v. Burwell) who is receiving the maximum subsidy of $7,488 per year. Of the 87 plans offered in the marketplace, 16 entail zero cost to the consumer. Premiums for these “free” plans range from $6,300 to $7,200. There is no incentive for the consumer to shop prudently from these 16 plans. The consumer does not get to keep any unused subsidy, creating incentives to choose health plans with additional features of only marginal value. The taxpayer – not the consumer – picks up the cost of the imprudent choices.

In addition to discouraging shopping based on plan value, the premium tax credit offers a set of perverse incentives, especially on the decision to earn more than 400% of the poverty line and on reporting your income for the upcoming year.

Today’s decision may very well mean business as usual, but there are serious economic issues with how the subsidy is set up.

Stop calling it fair housing law. If it was ever a matter of fairness, it isn’t now.

Under today’s 5-4 Supreme Court holding in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, you can be held liable for housing discrimination whether or not you or anyone in your organization intended to discriminate. Instead – to quote Justice Anthony Kennedy, who joined with the Court’s four liberals in a 5-4 majority – you might have been influenced by “unconscious prejudice” or “stereotyping” when you lent money or rented apartments or carried on appraisal or brokerage or planning functions. What you did had “disparate impact” on some race or other legally protected group, and now you’re caught up in potentially ruinous litigation in which it’s up to you to show that you had a good reason for what you did and could not have arranged your actions in some other way that had less disparate impact.   

The decision is quite broad in its implications. For example, in employment discrimination law, where disparate impact has long been legally established, it is increasingly legally dangerous to ask job applicants about criminal records, or carry out criminal background checks on them before a job offer, for fear of disparate impact. Is it still safe to ask such questions of prospective tenants in your apartment building? Better ask your lawyer.  

The case hinged on statutory interpretation, and as Justice Alito’s dissent makes clear, King v. Burwell wasn’t the only case decided today in which a majority mangled the clear meaning of a law’s text to get the result it wanted. As Justice Ginsburg was frank enough to note at oral argument, “”If we’re going to be realistic about it…in 1968, when the Fair Housing Act passed, nobody knew anything about disparate impact.” On the contrary, the law’s text specified that it was banning decisions taken “because of” race, and to find a loophole the majority was obliged to fall back on an incidental clause banning the making “unavailable” of a “dwelling,” which we are meant to believe snuck in a huge new area of liability. As the majority stresses, many appeals courts did go along with a liberal interpretation. But the Executive Branch did not – in 1988 it took the position before the Court that the law did not permit disparate impact claims – while Congress hedged the issue in later enactments so as to keep all sides on board a compromise. 

Despite ridiculous claims (like that in a Vox headline) that the Court today “saved” the Fair Housing Act or that a contrary decision would have “gutted” it, the great majority of litigation under the Act has been on disparate-treatment complaints (which, as Alito notes, can already use disparate impact as evidence of pretext.) But the Obama administration, as I’ve documented elsewhere, has launched a huge effort to turn disparate-impact law into an engine of revolutionary changes in local government and housing practice, introducing, for example, such concepts as a local government obligation to pursue subsidized federal housing grants and to enact laws forcing private landlords to accept Section 8 tenants. 

As the four dissenters make clear, a compliance and litigation nightmare now looms for many in real estate, finance, and local government as they try to dodge liability. “No matter what [Texas] decides” in the case at hand on locating low-income housing, for example, one or another group “will be able to bring a disparate-impact case” based either on the theory that projects should be put in poorer areas (which enables building more of them) or in affluent areas (which will benefit some future residents). 

If you have time to read only one bit of today’s opinion, read Justice Clarence Thomas’s separate dissent. Thomas brilliantly recounts the EEOC’s successful subversion of its own founding statute, culminating in the Court’s profoundly mistaken opinion in Griggs v. Duke Power, the employment case that founded disparate impact theory. “We should drop the pretense that Griggs’ interpretation of Title VII was legitimate,” he writes. It’s a tour de force – and already being denounced vehemently on the Left. 

“If we give the phrase ‘the State that established the Exchange’ its most natural meaning, there would be no ‘qualified individuals’ on Federal Exchanges.” You’d think that I pulled that phrase from Justice Scalia’s dissenting opinion in today’s big Obamacare ruling—it makes clear that Congress said what it meant in the ACA, giving states the incentive to create exchanges by making their citizens eligible for tax credits if they do—but you’d be wrong.

It comes from the pen of Chief Justice Roberts, who admits, as he did three years ago in the individual-mandate case, that those challenging the administration are correct on the law. Nevertheless, again as he did before, Roberts contorts himself to eviscerate that “natural meaning” and rewrite Congress’s inartfully concocted scheme, this time such that “exchange established by the state” means “any old exchange.” Scalia rightly calls this novel interpretation “absurd.”

Of course, Roberts explains his transmogrification by finding it “implausible that Congress meant the Act to operate in this manner,” to deny subsidies to millions of people as part of legislation intended to expanded coverage. But it’s hardly implausible to think that legislation that still says that states “shall” set up exchanges—the drafters forgot to fix this bit after lawyers pointed out that Congress can’t command states to do anything—would effectively give states an offer nobody thought they’d refuse. It was supposed to be a win-win: states rather than the federal government would run health care exchanges (yay federalism!) and all those who need subsidies to afford Obamacare policies would get them (yay universal healthcare!).

But a funny thing happened on the way to utopia, and only 14 states (plus D.C.) took that too-tempting offer, perhaps having been burned too many times before by the regulations that accompany any pots of “free” federal money. And that’s why we ended up with King v. Burwell: Obamacare the reality doesn’t accomplish Obamacare the dream. That may not be the absolutely, 100-percent correct reading of the Affordable Care Act. But it’s nothing if not plausible.

That should’ve been the end of the story: the clear text of the statute produces a plausible result, so courts should enforce that “natural meaning.” Alas, as Justice Scalia put it, “normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”

The best that can be said about today’s ruling is that it explicitly disclaimed any reliance on so-called Chevron deference, the idea that courts should almost always defer to executive-agency interpretations of statutes—including on questions of their own authority. That pernicious bit of 1984 jurisprudence has enabled the administrative state to explode in the last three decades and, had Roberts relied on it, would really have allowed the executive branch to legislate without any real limit. Instead, again like three years ago, we have a horrendous bit of word play that violates all applicable canons of statutory interpretation to preserve the operation of a unpopular program that has done untold damage to the economy and health care system.

No, instead of allowing agencies to rewrite the law, the Supreme Court today gave itself that power. We might as well call the law at issue RobertsCare.

A few additional broader thoughts on the Court’s King v. Burwell ruling today. First, technically, this is an administrative law ruling. That is, the Court did not apply so-called Chevron deference and uphold the IRS’s reading of the provision of the Affordable Care Act that provides tax credits to eligible individuals who buy insurance on exchanges “established by the State”—even though, as a practical matter, the Court agreed with the IRS’s interpretation of that provision as allowing tax credits for those who buy on exchanges established by the federal government.

Rather, this is a statutory ruling—as if the IRS has never interpreted that provision and the Court were doing so as a matter of first impression. And the tangled web the Court weaves in reading “established by the State” as meaning “established by the State or by the federal government” is reduced to shreds by Justice Scalia’s devastating dissent. It is a tour de force that must be read.

Toward the end of his dissent, however, Scalia waxes more broadly, on the proper roles of Congress and the Court. “Our task,” he writes, “is to apply the text, not to improve upon it.” “Rather than rewriting the law under the pretense of interpreting it, the Court should have left it to Congress to decide what to do about the Act’s limitation of tax credits to state Exchanges.” “The Court’s insistence on making a choice that should be made by Congress both aggrandizes judicial power and encourages congressional lassitude.” And he concludes this important section of his dissent with Hamilton in Federalist No. 78: “What a parody today’s decision makes of Hamilton’s assurances [that the Court has] ‘neither FORCE nor WILL but merely judgment.’”

With Chief Justice Roberts’s opinion for the Court, therefore, we have a perverse blend of the opposing positions of the judicial restraint and activist schools that reigned a few decades ago. To a fault, the Court today is deferential to the political branches, much as conservatives in the mold of Alexander Bickel and Robert Bork argued against the activism of the Warren and Burger Courts. But its deference manifests itself in the liberal activism of a Justice Brennan, rewriting the law to save Congress from itself. As Scalia writes, “the Court forgets that ours is a government of laws and not of men.”

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.

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This week, we feature three analyses of the top climate stories of recent weeks—the papal encyclical, the carbon tax, and the EPA’s Clean Power Plan. Each of these analyses provides uncommon insight.

The first is an article penned by the always insightful Roger Pielke Jr. appearing in the typically non-insightful U.K.’s The Guardian.  Roger’s piece is titled “Is science policy a theological matter?” and is a reminder that Pope Francis’ encyclical, Laudato Si’ is “just the latest intervention in a debate over technologies that has been going on for centuries.”

Roger reviews some of the historic highlights of this debate and the philosophical roots of Pope Francis’ way of thinking—basically that “human roots of the ecological crisis” are grounded in a “technocratic paradigm.” In other words, technology (spurred by capitalism) is leading to the downfall of humanity through ecological deterioration. Not everyone agrees with the pope on this. But even for those who do, Roger points out they are often inconsistent when it comes to embracing (or disavowing) the fruits of technology. Roger provides this example:

But for many, embracing an overt religious framing for existential debates over technology can quickly become problematic, or at least deeply inconsistent. Consider technologies of family planning. Consistent with Catholic history, Pope Francis largely dismisses concern about global population as a contributor to environmental problems, “To blame population growth instead of extreme and selective consumerism on the part of some, is one way of refusing to face the issues.”

…Our views on whether certain technologies are good or bad are a reflection of what kind of world we collectively want.

And this is where politics comes in. Roger continues:

Nuclear power? GMOs? Birth control pills? Fracking? Human germline editing? Solar thermal stations? Vaccinations? Coal power? Good luck finding someone, anyone, with a consistently pro- or anti- technology position across just this small set of innovations. People around the world show a remarkable degree of inconsistency when applying religious principles to technological innovation. Of course, one person’s inconsistency is another’s pragmatism, and the pragmatic way to settle conflicts in through the difficult and frustrating process of politics.

Which leads back to the articles title “Is science policy a theological matter?”

The whole 1300-word piece is well-worth a read both for its historical reflections as well as questions that it provokes.  Roger concludes:

With his encyclical Pope Francis has done the world a service by helping us to see that our choices about technology and economic growth are part of a deeper set of questions focused on what kind of world we wish to live in together. Answering such questions collectively through action will be messy, inconsistent and deeply political. If history is any guide, religious teachings will inform these answers but not determine them. That will mean disappointment for fundamentalists of all stripes.

The next piece that you ought to have a look at is a well-argued, critical look at the arguments forwarded for a carbon tax—supposedly a grand bargain for Republicans and Democrats to come together  and “do something” about climate change. But the Manhattan Institute’s Oren Cass doesn’t see it that way at all. His article, “The Carbon Tax Shell Game” in the summer issue of National Affairs is perhaps the most complete and thorough take down of the myriad excuses as to why it’s okay for conservatives (libertarians, even) to support a carbon tax.  Oren leads:

Support for a carbon tax has become the height of fashion among some on the right, and an express pass to “strange new respect” from the left. It even earned former congressman Bob Inglis (a Republican from South Carolina) the 2015 JFK Profile in Courage Award[1]. Supposedly, the tax is at once a free-market economist’s efficient approach to combatting climate change, a savvy fiscal reform for promoting economic growth, and a statesman-like grand bargain poised to break through the political gridlock. But as with most fads, it makes little sense when scrutinized closely.

He shows why the popular pro-carbon tax memes such as “US should be a global leader,” “we must be concerned with the negative externalities,” “we need to take out an insurance policy for catastrophic events,” “let’s swap a carbon tax for other forms of taxation,” etc. all fall flat.

Oren concludes, astutely:

The almost total lack of support for a price on carbon by elected representatives across the political spectrum, including by President Obama in his re-election campaign, is perhaps the best evidence for the true level of public support and likelihood of an attractive deal. As White House press secretary Jay Carney explained, days after the President had secured a second term, “We would never propose a carbon tax.”

A good policy does not repeatedly hide in the alternative. When the carbon-tax shells finally stop moving, one turns them over to find a sharply regressive tax likely to harm the economy while failing to meaningfully reduce emissions or insure against catastrophe, poorly suited to the important goals of spurring innovation and protecting public health, and deeply unpopular and inconsistent with basic principles of policymaking. Supporters inevitably commit themselves to the project of costly and superficial climate action while achieving no concessions in return. And this is before Congress gets involved.

If one is looking for a poorly designed consumption tax to pair with a corporate-tax cut in a politically implausible package, a carbon tax might be the answer. But surely no one is looking for that.

And finally, we end with something you don’t see every day—a cost/benefit analysis of greenhouse gas regulations that uses a domestic social cost of carbon (SCC), rather than a global SCC estimate preferred by the Obama Administration.

Recall that the SCC is a wildly gameable estimate of the damages that accrue between now and the year 2300 resulting from each of carbon dioxide emitted from human activates.

In our recent set of Comments on the latest in a series of proposed federal regulations limiting carbon dioxide emissions, we point out the problem of the federal use of the global SCC to justify the costs of the proposed regulations (an increasing frequent practice).

We write:

The [federal task force] only reports the global value of the SCC which the [task force] determines to accrue from continued carbon dioxide emissions in the United States. This is in direct violation of existing OMB [Office of Management and Budget] guidelines.

OMB Circular A-4 (September 17, 2003) regarding Regulatory Analysis explicitly states:

“Your analysis should focus on benefits and costs that accrue to citizens and residents of the United States. Where you choose to evaluate a regulation that is likely to have effects beyond the borders of the United States, these effects should be reported separately.”

In reporting the SCC, the [task force] argues away the need to “focus on benefits and costs that accrue to citizens and residents of the United States” and instead bases its SCC solely on its determinations of “effects beyond the borders of the United States.” Rather than reporting the latter “separately,” as recommended by OMB guidelines, the [task force] only reports the global costs in its tablature and makes no determination of the domestic costs (providing only approximate guidelines). Considering that the majority (if not all) of the federal regulations incorporating the SCC into cost/benefit analysis apply to rules regulating domestic activities, reporting only the global impact—the knowledge (in all areas, i.e., economics, social, environmental, etc.) of which is far less constrained than potential U.S. impacts—imparts a huge degree of uncertainty and is a grossly misleading. Thus, the [task force’s] determination of the SCC is not appropriate for use in federal regulatory analyses such as this one.

During the public comment period associated with new regulations such as this one which incorporate the SCC, a distinction should be made between domestic costs/benefits and foreign cost/benefits—and numerical calculations of each provided (not merely a mention as to how to calculate the domestic costs) in all cost/benefits analyses included in the proposal—such that the public can judge for itself the value of the regulation. As it currently stands, the public likely has little idea as to how large a percentage of the benefits of the proposed EPA regulations on domestic activities are conferred upon foreign nations under the guise of the SCC. This is clearly not a “transparent” situation.

While the Obama Administration remains deaf to these calls, the U.S. Chamber of Commerce has not.

Last week, the Chamber’s Institute for 21st Century Energy released a report whose title pretty much sums up the findings “EIA Analysis Shows EPA’s Carbon Regulations All Economic Pain for No Climate Gain.” In that report, they compared the economic losses from the EPA’s power plant carbon dioxide regulations  with the supposed “benefits” from avoided damages resulting from the lowered CO2 emissions. Using  Administration’s preferred global social cost of carbon, the Chamber found that the costs of the EPA’s Clean Power Plan exceeded the benefits to the tune of some $899 billion over the period 2020-2030. The net loss was even greater when the Chamber used the more relevant domestic SCC value. In that case, the net costs ballooned to a whopping $1.16 trillion.

The Chamber thus concludes:

No matter how one slices and dices the data, EIA‘s analysis leaves little room for doubt that EPA’s Clean Power Plan flops badly as a climate policy, even on the administration’s own terms and using the administration’s own methods, data, and exaggerated SCC.

Maybe creating a huge new bureaucracy to implement carbon dioxide regulations that would highjack well-established state authority, disrupt the entire U.S. electricity sector, jeopardize the reliability of the electric grid, raise electricity costs on struggling families, and yield an estimated net loss in wealth of $899 billion to $1.16 trillion is appealing to EPA. But for the rest of the country, it’s a decidedly bad deal.

[1] We note, that for embracing global warming, Inglis lost his 2010 primary in a heavily Republican South Carolina district by an 70-29 margin, a margin of defeat unprecedented for an incumbent congressman with no scandal.

 

Today the Supreme Court allowed itself to be intimidated. Afraid that ObamaCare as written would throw the sickest patients out of their health plans a second time, the Court rewrote ObamaCare to save it—again. In doing so, the Court has sent a dangerous message to future administrations: If you are going to violate the law, make sure you go big.

The Court today validated President Obama’s massive power grab, allowing him to tax, borrow, and spend $700 billion that no Congress ever authorized. This establishes a precedent that could let any president modify, amend, or suspend any enacted law at his or her whim.

ObamaCare will continue to disrupt coverage for sick Americans until Congress repeals it and replaces it with reforms that make health care better, more affordable, and more secure. Despite today’s ruling, ObamaCare remains unpopular with the American public and the battle to set in place a health care system that works for all Americans is far from over.

Justice Scalia’s final paragraph in his dissent today in King v. Burwell pretty much says it all. Read the opinion and weep.

Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

We’ll have more on the decision in due course.

If you think that the Fed isn’t involved in the Greek mess, you may want to think again. Paul-Martin Foss, our good friend at the Carl Menger Center, wrote a very nice post a few days ago concerning how the Fed may be getting itself tangled-up in an impending Greek default, through its swap lines with the ECB.

According to the Federal Reserve Board of Governors, those swap lines were first established in December 2007 “to improve liquidity conditions in U.S. and foreign financial markets by providing foreign central banks with the capacity to deliver U.S. dollar funding to institutions in their jurisdictions during times of market stress.”

Those original swap facilities, never meant to be permanent, were shut-down in February 2010. But — wouldn’t you know it? — similar facilities were announced in May 2010 in response to “the re-emergence of strains in short term funding markets in Europe.” Those facilities were also supposed to be temporary, but then, in October 2013 — what do you know! — they were made permanent. According to the Fed, that step

further supports financial stability by reducing uncertainties among market participants as to whether and when these arrangements would be renewed. This action results from the ongoing cooperation among these central banks to help maintain financial stability and confidence in global funding markets.

What has all this got to do with Greece? Here is Paul-Martin:

If you want to get a sense of the Fed’s involvement in Europe, watch the swap lines. Swap line data is published every Thursday afternoon on the Fed’s balance sheet, the H.4.1 release. If you look at the St. Louis Fed’s charts and data on swap lines, you’ll see the huge amount of swaps during the financial crisis, and then a smaller but still significant increase in swap lines during the first iteration of the Greek financial crisis back in 2012. While swaps have been relatively non-existent this year, there was a small blip back in April, likely Greek-related, and more importantly, another blip this week. While the amount, $114 million, is a drop in the bucket compared to what it has been in the past, this number needs to be watched. It could very well be an indicator of the Fed getting involved in Europe again. And if the doomsday scenario ends up taking place next week, expect that $114 million figure to skyrocket. The Fed seems to want the conversation to revolve around a possible upcoming interest rate hike, so it’s been relatively silent on the topic of Greece and its involvement in bailing out Europe. But even if the Fed doesn’t say anything about Greece, its money-printing to pump up the swap lines will do plenty of talking.

That was on June 19th. Well, the CMFA’s champion Fed watcher, Walker Todd (who you will be hearing from shortly on these pages) has been keeping a sharp eye on those swap lines. On June 11th — a week before the transaction showed up on the Fed’s own H.4.1 release — Walker reported that “Someone in Europe drew a small amount on a dollar swap with FRBNY”:

ECB website today has details below on a swap line drawing this week against the US dollar swap line with FRBNY. It says that there was one bidder; one wonders whom. Amount is $113 million. There has been no swap line activity for several months now. These numbers should show up on FRBNY next week (due to timing of swap drawings and time zone differences, there usually is a one-week lag between a drawing in Europe and the FRBNY report of the same drawing).

(The $1 million difference between the numbers mentioned by Paul-Martin and Walker reflects a Bank of Japan draw of that amount.)

The day after Paul-Martin’s post came out, Walker alerted us to another transaction that had not yet been reported by the Fed:

It won’t show up until next week in Fed statistics, but ECB statistics show that an unnamed entity (one suspects the same one as last week) borrowed again for a week under the dollar swap line for $115 million. The drawing was $113 million the last time I checked. As a purely hypothetical example, a Greek bank could be borrowing dollars under the swap line. Other than a token $1 million to $2 million that Bank of Japan borrows from time to time to reassure itself, this is the only borrowing outstanding under the Fed’s swap line, according to FRBNY statistics. The notable thing is that it is still there and growing.

Today the swap was rolled over yet again.

Stay tuned…

[Cross-posted from Alt-M.org]

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