Archives: 06/2010

What Would Reagan Do on Immigration?

Former Reagan speechwriter Peter Robinson tries to answer that very good question in an op-ed in today’s Wall Street Journal. It’s a question my conservative Republican friends should ask themselves as the party tries, once again, to turn public opposition to illegal immigration into political success at the polls.

Robinson correctly observes that Reagan would have had nothing to do with the anger and inflamed rhetoric that so often marks the immigration debate today. “Ronald Reagan was no kind of nativist,” he concludes, noting that Reagan was always reaching out to voters beyond the traditional Republican base, including the fast-growing Hispanic population.

It’s worth remembering that Reagan signed the 1986 Immigration Reform and Control Act (IRCA), which opened the door to citizenship for nearly 3 million people who had been living in the country illegally. Robinson is confident Reagan would have supported the kind of comprehensive immigration reform championed by President George W. Bush and approved by the Senate in 2006.

For the record, I made similar observations and included a few of the same Reagan quotes in an op-ed I wrote soon after Reagan’s passing in June 2004

My only quibble with Robinson is his assertion that Reagan would have insisted that we successfully enforce the current immigration law first before contemplating any changes. It’s true that the 1986 IRCA contained new enforcement measures and launched an exponential rise in spending on border enforcement. But by all accounts the 1986 law failed to stem the inflow of illegal immigration.

My hunch is that President Reagan would not have simply favored spending more money on an approach that has so clearly failed to deliver. Although he embraced the conservative label, Reagan was always ready to challenge the status quo and change the law to further his vision of a free society and limited government.

I wish more of the Gipper’s admirers today shared his benevolent attitude toward immigration.

Overcriminalization in the Financial Reform Legislation

The Heritage Foundation and National Association of Criminal Defense Lawyers (NACDL) made a stir by announcing their joint report, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law. The report highlights the growth of federal criminal provisions in the 109th Congress. Many criminal statutes are drafted without the traditional requirement of criminal intent. When there is no requirement that the government prove you “willfully” or “knowingly” broke the law, mistakes are treated the same as intentional criminality. Some laws are written so broadly that it is impossible for anyone to know what conduct is illegal. Criminal provisions are included in statutes that are never reviewed by the judiciary committees of either chamber of Congress.

The NACDL has a follow-up analysis of the financial regulatory reform currently being considered by Congress. The Restoring American Financial Stability Act of 2010 has passed both houses and is heading into committee.

This 1600-page bill does everything that the Without Intent report warned against. The “reckless disregard” intent requirement is imported from tort law in several provisions and many others have no mental state requirement at all. New bribery and mail/wire fraud provisions are included where none are necessary. Bribery and fraud are already illegal.

Read the whole thing (direct .pdf link here).

Minimum Wage Hikes Deserve Share of Blame for High Unemployment

Even though the Obama Administration claimed that squandering $800 billion on so-called stimulus would  keep the joblessness rate below 8 percent, the unemployment rate today is almost 10 percent. There are many reasons for the economy’s tepid performance, including a larger burden of government spending and the dampening effect of future tax rate increases (tax rates will jump significantly on January 1, 2011, when the 2003 tax cuts expire).

A closer look at the unemployment data, though , suggests that minimum wage laws also deserve a big share of the blame. In this Center for Freedom and Prosperity video, a former intern of mine (continuing a great tradition) explains that politicians destroyed jobs when they increased the minimum wage by more than 40 percent over a three-year period.

Mr. Divounguy is correct when he says businesses are not charities and that they only create jobs when they think a worker will generate net revenue. Higher minimum wages, needless to say, are especially destructive for people with poor work skills and limited work experience. This is why young people and minorities tend to suffer most - which is exactly what we see in the government data, with the teenage unemployment rates now at an astounding (and depressing) 26 percent level and blacks suffering from a joblessness rate of more than 15 percent.

In a free society, there should be no minimum wage law. From a philosophical perspective, such requirements interfere with the freedom of contract. In the imperfect world of politics, thought, the best we can hope for is that politicians occasionally do the right thing. Sadly, the recent minimum wage increases that have done so much damage were signed into law by President Bush. It’s worth noting that President Obama’s hands also are dirty on this issue, since he supported the job-killing measure when it passed the Senate in 2007. When the stupid party and the evil party both agree on a certain policy, that’s known as bipartisanship. In the real world, however, it’s called unemployment.

Recusal Rules Impact Environmental (and Other) Litigation

Two weeks ago I blogged about the dismissal of the Katrina-related global warming case because half the judges on the Fifth Circuit were recused for having financial interests in the energy companies and utilities (which the plaintiffs chose specifically to gain recusals but mis-timed their strategy).  Well, now it seems that many judges on the Gulf Coast are recusing themselves from the nascent (and future) oil spill suits, again because they own shares of BP, Transocean, and the other companies involved.  Indeed, over half the federal district judges in the affected states – Texas, Louisiana, Mississippi, Alabama, and Florida – will not be participating in these cases, leading to calls to appoint judges from elsewhere in the country to handle them.

That’s ridiculous!  Owning a few hundred or thousand dollars worth of shares of stock is not enough to change the way a judge will behave, particularly when the public knows which judge owns which stock.  If we cannot agree that such purported “conflicts” don’t really show an appearance of impropriety – if we really doubt the integrity of our judiciary to such an extent – then we might as well throw out the ethics rules, throw up our hands, and declare the country ungovernable.  (I’m reminded of the Carrie Underwood song, “Jesus Take the Wheel.”)

Moreover, the financial conflict rules are murky.  As this AP story discusses, ”a judge does not have to step aside if the investments are part of a mutual fund over which they have no management control. Mere ties to companies or entities in the same industry, no matter how extensive, also don’t require disqualification.”  So here we’re valuing form over substance.

Look, maybe this is just a pet peeve of mine – it’s not an ideological issue one way or the other – but I think you just have to apply the “reasonable skeptic” standard.  Every judge is human and has his various biases.  It’s one thing to recuse if counsel for one of the parties is the judge’s spouse or child, or if half the judge’s wealth is invested in one of the parties.  But dinky little “abundance of caution” recusals cost the justice system more in administrative hassle, sunk attorney fees, and other wastes of time and money than they benefit it in increased integrity.

As for the oil spill litigation, the U.S. Judicial Panel on Multidistrict Litigation – which looks at complex cases on similar issues brought in disparate venues – meets July 29 in Boise, Idaho (of all places), to hear arguments on consolidation.  In light of the aforementioned recusals, the Louisiana cases may well be sent to Alabama, Mississippi, or South Florida – or a federal courthouse near you!

Another Government Employee Bailout

President Obama is proposing giving the states another $50 billion. However, this would amount to another bailout for state and local government employees and their unions. The president claims that more deficit spending is necessary to sustain the nascent economic recovery. But the only thing the money would sustain is the excessive wages and benefits government employees enjoy at the expense of the private sector.

According to the Bureau of Labor Statistics, the average state and local government employee receives 45 percent more in total compensation per hour worked than the average private-sector employee. Perhaps we should cut generous government wages and benefits rather than putting the federal government further into debt?

Total compensation for state and local workers is more than $1.1 trillion a years. So loosely speaking we could simply cut compensation by less than five percent for state and local governments to save the $50 billion they are in need of.

Of more fundamental concern is the continued relegation of the states to being administrative outposts of the federal government. The employment of firefighters, teachers, and police officers is an issue for the states to be concerned with. However, so long as the federal government continues to overstep its constitutional bounds, the states will have little incentive to tackle issues like excessive employee compensation. State and local policymakers can avoid the hassle of taking on the government employee unions by cashing Uncle Sam’s checks instead.

As the following chart shows, federal aid to state and local governments has almost doubled in real terms over the past decade:

It’s not a coincidence that the states find themselves in a fiscal bind. The increasing dependency on the federal government has contributed to the states’ dereliction of duty when it comes to keeping their fiscal houses in order. As this essay argues, reviving fiscal federalism is critical to getting governments at all levels in the United States to clean up their fiscal messes.

The Principle behind Campaign Finance Regulation

Democratic House leaders apparently have reached a compromise that may bring the DISCLOSE Act to a vote. The National Rifle Association, a group that enjoys some support from House Democrats, objected to the bill’s disclosure provisions. DISCLOSE’s authors have now agreed to exempt “organizations that have more than 1 million members, have been in existence for more than 10 years, have members in all 50 states, and raise 15 percent or less of their funds from corporations.” The National Rifle Association qualifies for the exemption. But you knew that.

I wonder what principle of campaign finance regulation justifies this exemption? Earlier the authors of DISCLOSE said the American people deserve to know who is trying to influence elections. Now it would seem that voters only need information about relatively small, young, geographically-confined organizations that receive more than 15 percent of their money from corporations.

There is no principle at stake here. The NRA had enough support to stop the DISCLOSE Act. House leaders had to compromise by cutting the NRA a deal, a special exemption from the proposed law. The deal does show, if nothing else, that House Democrats are really worried about new money entering the fall campaign. They are willing to go a long way – even as far as helping the NRA – to make sure other speech funded by businesses and groups is not heard.

Finally, imagine you are a member of a group not exempted from DISCLOSE. You have been treated unequally by Congress.  The courts have said Congress can treat you unequally if they show that this exemption  for the NRA has a rational relationship to an important government purpose.  How does exempting older, bigger, more widespread groups with less than fifteen percent corporate funding help Americans cast an informed vote?  Put another way, if the NRA deserves an exemption, doesn’t everyone?

ObamaCare Regs Will Increase Premiums, Reduce Wages, Force Americans to Change Coverage

Today, the Obama administration issued new health insurance regulations as part of its effort to implement ObamaCare.  According to The New York Times:

the rules appear to fall short of the sweeping commitments President Obama made while trying to reassure the public in the fight over health legislation.

One of those commitments was that people who are satisfied with their health insurance will be able to keep their existing health plans. Of course, there is a tension between that goal and ObamaCare’s goal of requiring every American to purchase a minimum amount of health insurance coverage.

The new regulations explain how the government will interpret ObamaCare’s “grandfather” clause, which allows some health plans to continue as they exist today. If an insurer makes too many changes to its health plan, or if an employer or individual purchaser selects a different health plan, then the consumer loses the protection of ObamaCare’s grandfather clause. The consumer must then purchase the full array of coverage that ObamaCare requires, which can increase premiums significantly.

How many Americans will lose this protection?  Again, The Times:

About half of employer-sponsored health plans will see such changes by the end of 2013, the administration says in an economic analysis of the rules.

What are some of the ways that consumers can lose this protection?

If, for example, an employer is paying 60 percent of the cost of family coverage, it would run afoul of the rules if it cut its share to 50 percent.

An employer would also lose its exempt status if it increased co-payments for doctor’s visits to $45, from $30 — a 50 percent increase — while medical inflation was 8 percent…

An insurer loses its special protection…if, for example, it requires patients to pay 25 percent of the bill for surgery, rather than the 20 percent charged in the past…

If [insurers] want to retain their grandfathered status, they cannot reduce any annual dollar limit that was in place on March 23.

The upshot of these regulations is this:  Health premiums, which were going to keep rising anyway, will rise even higher as a result of ObamaCare.  If employers or consumers try to cope with those rising premiums by paring back the amount of coverage they purchase, they lose their “grandfather” protections, and ObamaCare forces them to purchase even more coverage.  Damned if you do, damned if you don’t.

The requirement that employers sustain their “contribution” to the cost of health benefits, meanwhile, will hide ObamaCare’s effect on health insurance premiums.  Health economists agree, almost universally, that the “employer contribution” is a fiction; employers merely deduct from the employee’s overall compensation package whatever they pay toward health benefits.  In other words, the employee pays for her health benefits, not the employer.  Forcing employers to maintain their current “contribution” essentially requires them to hide much of ObamaCare’s cost in the form of lower wages, which workers are less likely to associate with the law than rising premiums.