Archives: June, 2011

‘Marsupial Justice’ Is a Natural Product of Federal Overreach

Earlier this month I blogged about the U.S. Department of Education’s recent push to eliminate free speech and due process on campus.  More and more people are starting to notice this attempt by the department’s Office of Civil Rights to force colleges — by threatening an investigation and loss of federal funds — to redefine sexual harrassment to include unwelcome flirting and sex jokes and then lower the burden of proof they use when determining whether students or staff are guilty of violating the new code of behavior.

And now we have a characteristically astute article by the Washington Examiner’s Michael Barone.  Money quote:

Education Secretary Arne Duncan has shown an admirable openness to argument and intellectual debate. Perhaps someone will ask him whether he wants his department to be encouraging kangaroo courts and marsupial justice on campuses across the country.

Unfortunately, this sort of thing doesn’t just take care of itself.  Greg Lukianoff and his team at the Foundation for Individual Rights in Education have been doing a workmanlike job protecting student and academic freedoms, but at base this policy exposes the sorts of pathologies that emerge from a federal government that has too many tentacles in too many places. 

What is the Department of Education doing setting any sort of standards for speech, conduct, and adjudication of campus disputes — good or bad, strict or lax?  Why do we even have a federal Department of Education in the first place?

Mr. President, This Is the Moment

Today’s Politico Arena question is about what President Obama should say in his speech tonight about Afghanistan. My response:

If the president indeed withdraws 30,000 troops by the end of 2012, then we will still have about 70,000 troops in Afghanistan more than 11 years after the war began, and twice as many as President Bush deployed. If we can’t do whatever we want to do in 10 years, when will we achieve our purposes? U.S. troops have overthrown the Taliban and dispatched Osama bin Laden, and it’s time to end this war.

Tonight, on June 22, the president should pick up some language from another June speech and tell the nation, “Generations from now, we will be able to look back and tell our children that this was the moment when we ended a war.”

NOTE: See graphic here of the “incredible expanding Afghan war.”

Michele Bachmann Asks the Obama Administration for Pork — Literally

Five years ago this week I noted that Sen. Hillary Rodham Clinton, in a tip of the hat to Frederic Bastiat, had literally endorsed a candlemakers’ petition to the federal government to protect them against overseas competition.

I was reminded of that today when I read that Rep. Michele Bachmann literally thanked the federal government for its purchase of pork from Minnesota farmers:

On Oct. 5, 2009, Bachmann wrote Agriculture Secretary Tom Vilsack praising him for injecting money into the pork industry through the form of direct government purchases. She went on to request additional assistance.

“Your efforts to stabilize prices through direct government purchasing of pork and dairy products are very much welcomed by the producers in Minnesota, and I would encourage you to take any additional steps necessary to prevent further deterioration of these critical industries, such as making additional commodity purchases and working to expand trade outlets for these and other agricultural goods,” Bachmann wrote.

The letter was in October, so I guess by then she had forgotten her beach reading of Mises.

Obamacare’s Platonic Guardians

As followers of this blog recognize, Obamacare has more constitutional defects than just the individual mandate or even the coercive use of Medicaid funds.  One issue that is getting increasing attention (see the Weekly Standard, National Review, and George Will) is this weird new entity called the Independent Payment Advisory Board.

IPAB, which Sarah Palin famously labeled a “death panel,” will exercise virtually unchecked power to set Medicare reimbursement rates—without political or legal oversight by any branch of government.  It’s reminiscent of the Public Company Accounting Oversight Board, the part of the Sarbanes-Oxley financial regulation law that the Supreme Court found partially unconstitutional last year.  Except it has the power of life and death and is insulated even from repeal!

That is, IPAB creates “recommendations” for cutting Medicare spending, which then acquire the force of law.  Congress is specifically barred from reversing or modifying these “recommendations”; the only thing it can do is add further cuts.  It can also abolish IPAB, but only by passing a curious “resolution” that must be introduced between Jan. 3 and Feb. 1. 2017, and must be passed by 3/5 of all members of both houses by Aug. 15 of that same year.  Otherwise, Congress loses even its power to add further Medicare cuts and IPAB becomes a permanent fixture of of our health care world.

Suffice it to say, Congress cannot delegate its legislative authority to any such independent, everlasting institution.  One Congress can’t even bind its successors!

Pacific Legal Foundation principal attorney and Cato adjunct scholar Timothy Sandefur unearthed this great nugget by someone defending Obamacare:

Amazingly, Timothy Jost, one of Obamacare’s most vocal advocates, has proudly proclaimed that IPAB will act like:

A board of “Platonic Guardians” to govern the health care system or some aspects of it. The cost of health care is spinning dangerously out of control…. [O]ur traditional political institutions—Congress and the executive administrative agencies—are too driven by special interest politics and too limited in their expertise and vision to control costs. Enter the Platonic guardians…an impartial, independent board of experts who could make evidence-based policy determinations based purely on the basis of effectiveness and perhaps efficiency.

Think about that for a second. Plato’s “Guardians” (also known as philosopher kings) were a group of “godlike” officials (that’s Plato’s word) who would wield undemocratic power to form the perfect utopian state without oversight. According to The Republic, the Guardians would, among their other things, enforce:

by law…such an art of medicine…[which] will care for the bodies and souls of such of your citizens as are truly wellborn, but those who are not, such as are defective in body, they will suffer to die, and those who are evil-natured and incurable in soul they will themselves put to death. This certainly…has been shown to be the best thing for the sufferers themselves and for the state.

America’s constitutional democracy was created in direct contradiction to such authoritarian ideas.

Luckily, our friends at the Goldwater Institute have a lawsuit pending against IPAB, Coons v. Geithner (here’s the case page).  You’ll be hearing a lot more about this case regardless of the final result of the individual mandate lawsuits.  Here’s PLF’s amicus brief on the important “non-delegation doctrine” issue at its heart.

Oberstar Comes to the EDA’s Defense

When Rep. Jim Oberstar (D-MN) lost his bid for reelection in November, it brought to an end a congressional career that spanned nearly a half century. As a former chairman of the House Transportation Committee, Oberstar’s faith in the ability of the federal government to turn taxpayer water into wine was typical for a politician ensconced in the Washington Beltway bubble.

Oberstar reemerged this week to voice his support for legislation reauthorizing the Economic Development Administration, which is still being debated on the Senate floor. In an op-ed written for The Hill, Oberstar says that “It is disheartening to see that the agency I helped create more than 45 years ago which has had constant bipartisan support is now under unwarranted partisan attack in an economic environment when the kinds of jobs this agency helps create are needed more than ever.”

Oberstar says that it is “particularly troubling” that the EDA is receiving scrutiny after being unanimously reauthorized only three years ago. And without specifically naming him, Oberstar takes a shot at Sen. Jim DeMint (R-SC) for turning against the agency after having previously “supported and praised EDA investments in his home state.” Considering how rare it is for a member of Congress to admit to having made a mistake, I’d say that DeMint’s recent admission in the Wall Street Journal that he was wrong to have supported the EDA is refreshing.

DeMint correctly noted that the mistaken rationale behind the EDA’s creation during the Great Society is the same as the Democrat’s $814 billion stimulus bill: government programs can solve economic problems. Indeed, the longer the economic recovery remains sluggish and uncertain, the more the American people are questioning the ability of the federal government to simply turn on the money spigot and make the pain go away. For people like Jim Oberstar, that’s an unsettling development.

Many Americans are starting to understand what my colleagues and I have been repeatedly pointing out: there’s no free lunch when it comes to government programs. As a Cato essay on the Economic Development Administration explains, claims of the benefits from spending only look at half of the equation:

The EDA does create government jobs, and perhaps some private sector jobs, but that is only the visible effect. What is invisible, or ignored by policymakers, are the jobs never created because of the taxes that were raised to pay for EDA programs. Every dollar that the government extracts from the economy to pay for programs destroys more than a dollar of private sector economic activity. Taxation reduces the resources available for private sector job creation, and it also distorts the economy by altering price signals for working, saving, and other productive activities.

Oberstar offers anecdotal evidence of the EDA’s successes and trots out the familiar job creation and private sector leveraging claims often made by the agency’s proponents. For instance, he touts the EDA’s “exclusive mission of creating and retaining American jobs by leveraging private investment in the nation’s economically distressed communities and every dollar that the agency invests leverages another $6.90 in private/public investment to create the economic environment for small business to grow and prosper.”

One of the examples Oberstar cites as an example of an EDA success is support for “Washington State’s growing wine industry which currently employs more than 14,000 people and generates more than $3 billion to the state’s economy.” That’s an odd choice after touting the EDA’s assistance to the “nation’s economically distressed communities.” Besides, why should federal tax-paying winemakers in states other than Washington have to effectively subsidize their competition? And as the Cato essay notes, if the EDA is “generating real returns” as Oberstar states, then “surely local entrepreneurs and venture capitalists would be interested in funding such projects without government help.”

Finally, Oberstar singles out Cato for citing “three decade old GAO reports” in our criticism of the EDA. Actually, Cato’s essay on the EDA cites reports going back three decades.

ObamaCare’s Latest ‘Glitch’: Medicaid for Millions of Middle-Class Retirees

Remember how ObamaCare inadvertently kicked members of Congress out of their health insurance plans?  (Just kidding!  The Obama administration ignored that part of the law!)

Well, today we learned that ObamaCare also inadvertently gives free health care to millions of middle-class Social Security recipients:

President Barack Obama’s health care law would let several million middle-class people get nearly free insurance meant for the poor, a twist government number crunchers say they discovered only after the complex bill was signed.

The change would affect early retirees: A married couple could have an annual income of about $64,000 and still get Medicaid, said officials who make long-range cost estimates for the Health and Human Services department.

Up to 3 million people could qualify for Medicaid in 2014 as a result of the anomaly. That’s because, in a major change from today, most of their Social Security benefits would no longer be counted as income for determining eligibility.

Medicare chief actuary Richard Foster says the situation keeps him up at night.

“I don’t generally comment on the pros or cons of policy, but that just doesn’t make sense,” Foster said during a question-and-answer session at a recent professional society meeting. It’s almost like allowing middle-class people to qualify for food stamps, he suggested.

What other surprises lurk in ObamaCare’s 2,000-plus pages?

Kudos to Rick Foster and the Associated Press’s Ricardo Alonzo-Zaldivar.

Robert Nozick and the Value of Liberty

Stephen Metcalf’s prolix takedown of Robert Nozick demands response, not because Metcalf has advanced a novel and Rawls-esque so-interesting-and-powerful-it-must-be-addressed argument, but because he precisely has not. Nozick is, justifiably, a hero of libertarianism (and liberty), and his terrific book, Anarchy, State, and Utopia, as well as libertarianism in general, deserve better than Metcalf’s excoriation.

My colleague Jason Kuznicki started things off admirably. At the risk of beating what ought to be a dead horse, I’d like to add a word or two of my own. I’ll avoid what Jason’s already covered.

Let’s start with Metcalf’s very odd characterization of Nozick’s view of liberty as the primary value. He writes, “Nozick is arguing that liberty is the sole value, and to put forward any other value is to submit individuals to coercion.” Metcalf adds that, according to Nozick and modern libertarians, “Every other value, meanwhile, represents someone else’s deranged will-to-power.”

This claim evinces a common confusion about libertarianism, one that continues throughout the remainder of Metcalf’s article: libertarians don’t believe that liberty is the primary value, we believe that liberty is the primary political value. Like so many critics of libertarianism, Metcalf does not understand the scope of the libertarian argument.

I value liberty, yes, but I also value my health, my daughter’s happiness, and films staring William Powell and Myrna Loy. In fact, libertarians, progressives, and even Robert Nozick value quite a lot of things. The libertarian argument is simply that a state that attempts to directly maximize any value besides liberty—by, say, coercively taxing in order to pay for more Thin Man films—violates individual rights. What’s more, if the state does remain limited to protecting only liberty, we’ll get more health, happiness, and great movies.

According to Nozick and most other libertarians, it is for the protection of liberty that we organize a state—and a state that violates its citizens’ liberty (beyond, arguably, certain “night watchman” duties) commits a moral wrong. Metcalf gets that much right. But this is not because liberty is the only value. Rather, it is because liberty is the only value the state should concern itself with. All the other values—of which there are a great many, not all shared equally by all individuals—are the exclusive concern of civil society.

Nozick argues that it’s wrong for all of us to look in moral horror at Wilt Chamberlain’s earnings, band together into a government, and send in armed tax collectors because we think Wilt’s money could be more valuably used somewhere other than Wilt’s pockets. Nozick’s parable is about the morality of politics while saying nothing about what Wilt ought to voluntarily do with his money. He might choose to spend it all on caviar and rare basketball cards, in which case the rest of us might even be justified in looking down our noses at such “wasteful” behavior. But Wilt might also give a portion of his money to fund homeless shelters, free medical clinics, and scholarships for poor children (as many people in his position in fact do). Or he might use it to launch a new business, employing many of his fellow citizens at decent wages to teach his basketball skills to willing consumers.

Liberty is not the only value. It is the only value within the scope of politics. Liberty is also the value that allows all the other actually-held values to flourish.

Which brings me to this odd bit of Metcalf’s reasoning: “Even in 1975,” he writes, “it took a pretty narrow view of history to think all capital is human capital, and that philosophy professors, even the especially bright ones, would thrive in the free market.” Doesn’t Nozick recognize, he asks, that the very university system he took advantage of to pay his bills while writing his defense of free markets was made possible only by massive government transfer payments? Without a hugely interventionist state, Nozick wouldn’t even be able to pay his rent with his philosophy knowledge, let alone revitalize an intellectual movement.

In effect, Metcalf is saying that Nozick is dumb to support markets because markets wouldn’t support Nozick. If liberty is the only value (of the state), then the talent of philosophy wouldn’t be sufficiently valued (by the market) to allow a fellow like Robert Nozick to do philosophy.

And Metcalf may be right. But if he is, it’s unclear why we shouldn’t also extend his argument to all other talents. A great many mystery novelists, for instance, would love to have academic appointments while they pen new adventures for their detectives. But instead they have to compete in the free market, hoping an audience will value their work enough to pay for it. Last I checked, even in this unforgiving environment, there are a great many mystery novels on shelves.

The fact of the matter is that not all talents are valued, which is why Nozick chose a basketball player to build his case around instead of, say, a teenager who can name every Pokémon from memory. If we are going to create a world in which everything valuable (to Metcalf) is given financial support, we need to organize it such that people are not free to choose their own values. The beauty of the free market is not that it specifically supports basketball playing or philosophy writing, but that it rewards those who have talents that are actually and voluntarily valued by the rest of us. Arriving at an array of values this way seems a good deal better than the alternative, at least. For if we aren’t to leave “value” to the market, we have to leave it to someone. Which means substituting that person’s (or committee’s) particular, uniform conception of value for the variegated bramble that is a free society.

The beauty of liberty is that it allows each of us to pursue our own ends and strive for whatever we value. The curse of liberty is that our striving takes place among a great many fellow strivers, many of who are headed in directions we find elitist or prole, dangerous or dull, distasteful or uninspired. The difference between Nozick’s vision and Metcalf’s is that Nozick embraces that wonderful chaos, provided it happens within a framework of respected rights. Metcalf would strike down choice and replace it with state-endorsed value. He would force all of us or none of us to watch Wilt play, placing the decision to be a spectator or an abstainer not with free individuals but with Stephen Metcalf.