Archives: December, 2010

Obamacare Reaches Its First Appellate Court

The legal battle against Obamacare has hit the appellate court level.  In October, a district court in Detroit granted the government’s motion to dismiss a lawsuit brought by the Thomas More Law Center and four individuals.  The judge there endorsed the government’s theory that federal power under the Commerce Clause could reach the decision not to buy health insurance because that decision had a substantial effect on interstate commerce.  The plaintiffs have appealed that ruling to the U.S. Court of Appeals for the Sixth Circuit, and Cato, joined by Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a brief supporting that appeal.

We argue that the outermost bounds of existing Commerce Clause jurisprudence – the “substantial effects doctrine” – prevent Congress from reaching intrastate non-economic activity regardless of whether it substantially affects interstate commerce. Nor under existing law can Congress reach inactivity even if it purports to act pursuant to a broader regulatory scheme. Even the district court recognized that “in every Commerce Clause case presented thus far, there has been some sort of activity. In this regard, the Health Care Reform Act arguably presents an issue of first impression.” What Congress is attempting to do here is quite literally unprecedented. “The government has never required people to buy any good or service as a condition of lawful residence in the United States.” Cong. Budget Office, The Budgetary Treatment of an Individual Mandate to Buy Health Insurance 1 (1994).

Nor has it ever said that people face civil penalties for declining to participate in the marketplace. Even in the seminal New Deal case of Wickard v. Filburn, the federal government claimed “merely” the power to regulate what farmers grew, not to mandate that people become farmers, much less to force people to purchase farm products. Finally, even if not purchasing health insurance is considered an “economic activity” – which of course would mean that every aspect of human life is economic activity – there is no legal basis for Congress to require individuals to enter the marketplace to buy a particular good or service. It is no more “proper” under the Necessary and Proper Clause for the federal government to “commandeer” individuals than to “commandeer” state officials.

Just consider our brief an early Christmas present to liberty.

Independent Agencies Test Tea Party Mettle

Is there something special about December? Perhaps it’s the spirit of giving that had the Federal Communications Commission voting yesterday to regulate Internet service. At the beginning of the month—December 1st—the Federal Trade Commission issued a report signaling its willingness to regulate online businesses.

No, it’s not the fact that it’s December. It’s the fact that it’s after November.

November—that’s the month when we had the mid-term election. The FCC and FTC appear to have held off coming out with their regulatory proposals ahead of the elections because the Obama administration couldn’t afford any more evidence that it heavily favors government control of the economy and society.

There was already plenty of evidence out there, of course, but the election is past now, and the administration has taken its lumps. It’s an open question whether there will be a second Obama term, so the heads of the FCC and FTC are swinging into action. They’ll get done what they can now, during the period between elections when the public pays less attention.

And that is a challenge to the Tea Party movement, which would be acting predictably if it lost interest in politics and public policy during the long year or more before the next election cycle gets into full swing. Politicians know—and the heads of independent agencies are no less political than anyone else—that the public loses focus after elections. That’s the time for agencies to quietly move the agenda—during the week before Christmas, for example.

So it’s not the spirit of giving—it’s the spirit of hiding—that has these independent agencies moving forward right now. It’s up to the public, if it cares about liberty and constitutionally limited government, to muster energy and outrage at the latest moves to put the society under the yoke of the ruling class. Both the FCC and the FTC lack the power to do what they want to do, but Congress will only rein them in if Congress senses that these are important issues to their active and aware constituents.

FCC Votes to Preserve the Internet … in Amber

Larry Downes has depth of knowledge and a way with words, both of which he puts to good use in this C|Net opinion piece on the FCC’s vote today moving forward with public-utility-style regulation of Internet service.

If you’re interested in learning detail about the issues, it’s a good read. My favorite part is the conclusion:

The misplaced nostalgia for an Internet that has long since evolved to something much different and much more useful has led to the adoption today of rules that may have a similar effect. The FCC’s embrace of open-Internet rules may indeed preserve the Internet—but preserve it in the same way amber preserves the bodies of prehistoric insects. That gloomy outcome isn’t certain, of course. Internet technology has a wonderful habit of routing around inefficiency and unnecessary obstacles. As between Moore’s Law and FCC law, I’m betting on the technology to prove the ultimate regulator—and the sensible one, at that.

UConn’s Streak and Title IX

Last night, the University of Connecticut women’s basketball team broke the college hoops consecutive win record of 88 games set by UCLA’s men in the early 1970s. In anticipation of this, UConn coach Geno Auriemma caused a bit of a stir by accusing some male sports fans of being upset because a women’s team was threatening a record set by men.

This does not compute. Somewhere there might be a man upset by this – though I haven’t heard one – but I don’t see why: The UCLA men beat men’s teams, the UConn women have beaten women’s teams. It says nothing bad about men that a women’s team has a longer win streak.

Where there might be en element of gender conflict at play is in how UConn got to this point. According to CBSSports.com columnist Gregg Doyel, UConn hasn’t just beaten other teams during its streak, it’s crushed numerous squads that at least by ranking ought to have been competitive with UConn. (It clobbered 22nd-ranked Florida State by 31 points for win number 89.) The talent pool in women’s basketball, Doyel argues, just isn’t deep enough to produce several teams of UConn’s calibre.

Assuming Doyel is correct, why isn’t there the same depth of talent in women’s hoops as has existed in men’s college basketball since at least the end of UCLA’s streak?

Quite possibly, because there aren’t nearly as many women who care about competing in sports, including basketball, at the highest levels as there are men. It’s a very real possibility supported not only by UConn’s dominance, but by what appears to be a strong tendency of other top women’s teams to win games by relatively lopsided margins, and, most tellingly, by significant athletics evidence beyond hoops. All of that, however, flies in the face of the implicit rationale of Title IX, the federal statute requiring colleges to offer equal athletic opportunities to men and women. The law assumes that colleges that fail to offer proportionate roster spots are discriminating against girls, but the reality is that women might just not want to play sports as fervently as men.

UConn’s dominance might be just one more bit of evidence that it is time to stop assuming that there is rampant,  sexist ill will when it comes to college sports, and for government to let people freely choose what interests they pursue. At the very least, it would probably make a lot of people happier than they’d be getting destroyed by the UConn women’s basketball team.

The Incredible Expanding Afghan War

This simple chart dramatizes something that I don’t think most Americans realize: the tripling of U.S. troops in Afghanistan by President Obama.

U.S. Troops in Afghanistan

Now it’s true that when candidate Barack Obama vowed, “I will bring this war to an end in 2009,” he was talking about Iraq. In July 2008 he suggested that he would send two more brigades – about 8000 troops – to Afghanistan. He has far exceeded that, and we can only wonder whether the voters who responded to his antiwar message anticipated that he would increase the number of troops in Afghanistan by almost as much as he reduced the number in Iraq.

Eisenhower’s Lament

Spurred on by a new release of documents from the archives, the past few weeks have witnessed a renewed interest in the military-industrial complex (MIC), the term forever associated with Dwight David Eisenhower.

Or, at least, that should be the case. Eisenhower – the West Point graduate, career military officer, and hero of World War II – was one of the first to ever use the phrase, in a televised Farewell Address to the nation on January 17, 1961. Over the years, however, the MIC has become a mantra for progressives and left liberals, usually used in tandem with an assault on private enterprise, writ large, or as part of an elaborate conspiracy theory that equates crony capitalism with market economics. The left’s capture of the term has enabled too many on the right to dismiss it out of hand.

That is unfortunate. Dwight David Eisenhower was no liberal; far from it. And though the neoconservatives have attempted to expunge Ike from our collective memory, it is appropriate that his legacy is enjoying yet another revival. For what it’s worth, I’ll be doing my small part, at a half-day conference next month, and throughout 2011, to offer a perspective on the military-industrial complex that might appeal to devotees of limited, constitutional government.

This work will focus not just on Ike’s farewell address, but also on one of his first public addresses, the Chance for Peace Speech, delivered before the American Society of Newspaper Editors in April 1953. Taken together, the speeches highlight two of Eisenhower’s enduring concerns: opportunity costs, money spent on the military cannot be spent elsewhere; and the political and social costs of the United States becoming a garrison state, the creation of a permanent armaments industry, Ike feared, had already precipitated major changes in the nation’s economy, and threatened to change the nation itself.

Speaking in January 1961, during one of the darkest periods of the Cold War, Eisenhower viewed the MIC as a necessary evil. He viewed the threat posed by the Soviet Union and its sometime communist allies as sufficient justification for maintaining a large standing army, and a vast and technologically advanced Air Force and Navy. He also presided over a dramatic expansion of the nation’s nuclear arsenal, and realized (belatedly) that he had far too little control over those weapons and the men tasked with using them.

But I suspect that the permanence of the MIC would be most disturbing to President Eisenhower, were he with us now. Twenty years after the collapse of the Soviet Union, Americans today spend more on the military than at any time since World War II, and more than twice as much – in inflation-adjusted dollars – than when Ike left office. The general-president clearly failed to convince his fellow Americans of the need to limit the military’s growth. For all practical purposes, the MIC won.

Here’s hoping that many Americans will rediscover Eisenhower, and take heed of his warning, starting in 2011. They could start by supporting efforts to refocus our military on a few core objectives and reduce the Pentagon’s budget.

The FCC Should Not Regulate the Internet

The FCC moves forward with a proposal to regulate Internet service today. It’s a bad idea.

The one thing that pleases me about the ongoing debate over Internet regulation is the durability of Tim Lee’s November, 2008 Cato Policy Analysis, “The Durable Internet: Preserving Network Neutrality without Regulation.” My introduction of it is a good synopsis.

The arguments against government regulation in the name of “net neutrality” have not changed: A good engineering principle is not made better if dogmatized and given to lawyers and bureaucrats to enforce as law. The FCC and its regulatory regime are almost sure to be captured by major ISPs and turned to their benefit, used to suppress competition and blunt innovation.

A premise of net neutrality regulation—and much other regulation—is that consumers can’t be relied on to defend their own interests. Taking that premise, which I don’t, it follows that regulators must step in. But that syllogism skips over an additional premise: that regulators can do a better job.

The Istituto Bruno Leoni (Italy) recently published a terrific paper by Slavisa Tasic (a former Cato intern) that applies the insights of behavioral economics to regulators. Academics have typically used behavioral economics to illustrate the fallibility of market actors, but Tasic turns the tables. The paper is called “Are Regulators Rational?”, and it examines the cognitive biases that are likely to produce flawed decision-making on the part of regulators.

Yes, it’s tit-for-tat to the attack on markets implicit in behavioral economics, but it’s a sound and fair paper that opens new insights onto regulation. This is a good time to do that. Too many take it as an article of faith that the FCC will do better than consumers at protecting consumers’ interests.

This is also a good time to remember that the FCC is our national censor. The U.S. government’s censorious reaction to l’affaire WikiLeaks should serve as counsel to people who would subject Internet service providers to even greater federal regulation. Regulated ISPs will be more compliant with government speech controls.

It’s a point worth emphasizing: Regulated ISPs will be more compliant with government speech controls.

For these reasons, in addition to the ones that have come before, federal regulation of the Internet is a bad idea.