Continuing Constitutional Difficulties in Implementing the Voting Rights Act

Sue Evenwel is a citizen of the United States and of the state of Texas. She is a registered voter in Titus County and regularly votes in local and state elections. How is it, then, that Ms. Evenwel’s vote in a Texas state senate race is worth only about half that of certain other voters? The answer lies somewhere at the intersection of bad law and even worse politics that the modern Voting Rights Act has become. 

The VRA, as you may recall, was the heroic civil rights legislation that finally put a stop to the most blatant and invidious forms of racial discrimination impairing the fundamental right of racial minorities to vote. It has been several decades now since this important and proud work but now, sadly, the heroic VRA has lived long enough to see itself become a villain. As Cato has warned before—in our amicus briefs in Perry v. Perez and Shelby County v. Holder—the courts are at a “bloody crossroads” when interpreting what have become the conflicting mandates of the VRA.  To give one example, the courts have found that Section 2 requires race-based redistricting to prevent loss of minority voting power, while at the same time, the Fifteenth Amendment (and the currently inoperable VRA Section 5) prohibits discrimination in voting on the basis of race.

Current Wisdom: Did Human-Caused Climate Change Lead to War in Syria?

The Current Wisdom is a series of monthly articles in which Patrick J. Michaels, director of the Center for the Study of Science, reviews interesting items on global warming in the scientific literature that may not have received the media attention that they deserved, or have been misinterpreted in the popular press.

Did human-caused climate change lead to war in Syria?

Based only on the mainstream press headlines, you almost certainly would think so.

Reading further into the articles where the case is laid out, a few caveats appear, but the chain of events seems strong.

The mechanism? An extreme drought in the Fertile Crescent region—one that a new study finds was made worse by human greenhouse gas emissions—added a spark to the tinderbox of tensions that had been amassing in Syria for a number of years under the Assad regime (including poor water management policies).

It is not until you dig pretty deep into the technical scientific literature, that you find out that the anthropogenic climate change impact on drought conditions in the Fertile Crescent is extremely minimal and tenuous—so much so that it is debatable as to whether it is detectable at all.

This is not to say that a strong and prolonged drought didn’t play some role in the Syria’s pre-war unrest—perhaps it did, perhaps it didn’t (a debate we leave up to folks much more qualified than we are on the topic)—but that the human-influenced climate change impact on the drought conditions was almost certainly too small to have mattered.

U.S. DoJ Won’t Charge Darren Wilson, Excoriates Ferguson In Report

Confirming expectations, the U.S. Department of Justice has announced that it will not file federal civil rights charges against the police officer who shot Michael Brown following a confrontation on the streets of Ferguson, Mo. Contrary to a visual theme repeated before countless news cameras through weeks of protests, “no, Michael Brown’s hands probably were not up” at the time of the shooting. In the end, “Hands Up — Don’t Shoot” 2014’s iconic protest gesture, was founded in the self-serving, oft-repeated eyewitness account of Brown chum/soon-established-robbery-accomplice Dorrian Johnson. And he was credible why?

At the same time, the report released yesterday by the U.S. Department of Justice makes clear that the Ferguson, Mo. police department was up to its hip in bad practices, ranging from the rights-violative (knowingly baseless arrests and stops, arresting persons for recording police actions) to the cynical (“revenue policing” aimed at squeezing money out of the populace over subjective/petty offenses that include “manner of walking.”)

Another Fishy Regulation

All across the globe, people see the United States as a land of opportunity and dream of making their way here to work hard and enjoy the prosperity that our system of laws helps provide. Cindy Vong made that dream a reality by emigrating from Vietnam, becoming a U.S. citizen, and starting her own nail salon in Gilbert, Arizona. Thanks to a state occupational-licensing scheme, however, Ms. Vong may no longer be free to pursue her vision of happiness.

The Arizona Board of Cosmetology—yes, that’s an actual entity—got wind that Ms. Vong’s spa offered a treatment that uses small fish to exfoliate dead skin from the feet. This is a perfectly safe practice popular in East Asia and the Middle East. Learning that the Board intended to apply its exfoliation-instrument sterilization standards to her fish—how does one sterilize a fish?—Ms. Vong volunteered her spa as a test project until the Board was able to revise its existing rules to address this increasingly popular treatment. Without so much as bothering to evaluate whether the fish treatment is unsafe—there is no such evidence anywhere—the Board ignored her request and, summarily concluding the treatment unsafe, shut down Ms. Vong’s business. So much for “Land of the Free.”

Another Petty Dispute Involving U.S. Allies

Alliances tend to entangle America in confrontations that have little or no relevance to the security and liberty of the republic.  A prime example of that problem is the ongoing, bitter dispute between Japan and South Korea over some largely uninhabited rocks and the waters surrounding them.  Tokyo and Seoul cannot even agree on the correct name of the islands or the body of water.  Japanese call the islands Takeshima, while South Koreans insist on the name Dokdo.  For Japanese (and most of the world), the spits of rock are located in the Sea of Japan, but South Koreans hate that name and instead call it the East Sea.

As I discuss in a recent National Interest Online article, outsiders might be tempted to snicker at such a parochial feud, but it has significant policy implications.  U.S. officials are seeking to strengthen Washington’s alliances with both Japan and South Korea to counter China’s growing power in East Asia.  A key component of that strategy is to encourage closer bilateral military cooperation between Tokyo and Seoul.  The Takeshima/Dokdo dispute is a major impediment to such cooperation.  Beijing has been quick to take advantage of the animosity by actively courting South Korea.  

Japanese and South Korean leaders also pressure Washington to take sides in the controversy.  Such efforts should be rebuffed firmly.  Which country has sovereignty over the islands and the surrounding fishing waters should be a matter of profound indifference to all Americans.

There is a larger lesson in this petty territorial dispute.  As my colleague Doug Bandow has correctly observed, Washington collects allies with less thought and discrimination than most people collect Facebook friends.  In doing so, we also collect all of the disputes and feuds that those “friends” wage with other parties.  That is an unnecessary and unwise policy for a superpower.

Audit the Fed: What Would Milton Friedman Say?

Senator Rand Paul (R-KY) introduced a bill (S.264) which is popularly known as “Audit the Fed” (ATF). The bill picked up 30 initial co-sponsors. Although the Fed is already extensively audited in the accounting sense of the term, the ATF bill would expand the scope and scale of Fed auditing. Indeed, monetary policy decisions, which have been exempt from any sort of “auditing” since 1978, would see their auditing exemption lifted if the bill becomes law.

There is popular support for the idea that the Fed should be audited. More than three-quarters of registered voters would give the general idea of auditing the Fed a green light. It’s no surprise, then, that there has been bipartisan support for similar proposals in the past. However, none of these have become law because the push-back from Fed officials and other “experts” has been strong. Today is no different, with the Fed and the Obama White House all singing the same tune: “It’s Dangerous.” 

The real issue at stake is whether the Fed should be independent. The opponents of the ATF bill naturally think that the law would imperil the Fed’s autonomy and that this would be objectionable.

What would Milton Friedman say? Well, we don’t know for certain because unfortunately he is unable to read S.264. That said, Friedman weighed in on the issue of central bank independence on several occasions. Indeed, an essay he penned in 1962 was titled “Should there be an Independent Monetary Authority?” (In: In Search of a Monetary Constitution, edited by Leland B. Yeager, Harvard University Press). Friedman concluded that “The case against a fully independent central bank is strong indeed.”

Milton Friedman’s position on this issue was quite clear at the time. There is little doubt as to whether he would see the situation at hand any differently. 

The Court’s Consequential Concerns: King v. Burwell

Among the countless analyses now going on of today’s 84 minutes of oral argument before the Supreme Court in King v. Burwell, perhaps none is more perceptive than that offered by SCOTUSblog’s Lyle Denniston, the dean of Supreme Court reporters. As many of us feared, however, it appears that the focus of several of the justices, perhaps a majority, was less on the law than on the “dire consequences” that would follow if the Court decided that the law was clear and that, accordingly, the government should lose. (See here for background on the case.)

Here’s Denniston:

From the time that the Supreme Court agreed in November to hear the challenge to subsidies on the thirty-four insurance exchanges set up by the federal government instead of by the states, the Obama administration and its supporters have talked darkly about the collapse of the entire ACA if that challenge succeeded. … The uncertain thing, as the hearing approached, was whether that message would get through to the nine members of the Court who would be the deciders.  If there was one dominant theme at the actual hearing, aside from how to read a complex federal statute, it was that a victory for the challengers would come at perhaps a serious loss—perhaps a constitutional loss, but at least a human and social loss in the end of the most ambitious (and audacious) health care plan ever enacted in America.

The point should not be missed. For “the Obama administration and its supporters,” the question was not whether the challengers should succeed on the law—but what will happen if they do. In a court of law, no less, the Obama team wants policy to trump law.

Denniston reports that it looks like the government has the Court’s more liberal members in its pocket, while Justices Scalia, Thomas, and Alito are likely with the challengers. Chief Justice Roberts said relatively little. That leaves Justice Kennedy, not surprisingly, who “sort of leaned toward the idea that the language of the ACA” was clear and thus the government should lose. “But in a broader sense,” Denniston continues, Kennedy was concerned with “a difficult constitutional question”: “that Congress should ordinarily not be allowed to coerce the states into doing something that Congress wants,” which arguably it did when it told the states to create exchanges or their citizens would be ineligible for federal tax credits for their health insurance, which would “send the insurance market into a death spiral.”

But what follows from that “difficult constitutional question,” sounding in federalism? Scalia put his finger on it, asking rhetorically, Denniston writes, “whether, if a correct reading of a law creates a constitutional problem, the Court has the authority to rewrite it.” In other words, is the Court simply one more legislative branch, to which the government turns when Congress has botched its job (“We need to pass the law to find out what’s in it,” the lady said.”)? Or is it a court of law, charged with saying what the law is, even when Congress has made a mess of things and should, by rights, face the music of the people for having done so? If consequences are indeed our concern, let’s focus on the most fundamental of them, starting with those that follow from abandoning the rule of law.

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