Archives: 03/2014

Congress Likes at Least One Type of Fast Track

Seasoned observers of U.S. trade policy have been chagrined with the reluctance of Congress to pass fast-track negotiating authority. However, a small glimmer of hope appeared on March 25. That day, a statue honoring Dr. Norman E. Borlaug, recipient of the 1970 Nobel Peace Prize, was installed in Statuary Hall of the U.S. Capitol. His work in developing high-yielding grains is credited with enabling billions of people to eat better and to achieve higher living standards, objectives strongly supported by Cato. (See this 2009 post by Cato Executive Vice President David Boaz honoring the life of Dr. Borlaug.)

Capitol visitors who were fortunate to be associated with the state in which he was born (Iowa), the school where he studied (University of Minnesota), or where he spent the final years of his career (Texas A&M), were able to receive special tickets to enter Statuary Hall. These tickets were designated “Fast-Track Viewing,” which enabled the holders to bypass the long lines normally associated with a visit to the Capitol’s interior. It is gratifying to learn that Congress is willing to utilize fast-track procedures in some circumstances. Let’s hope they soon decide to apply the concept more broadly.

 

Or, is the incurable optimist in me wanting to ignore another possible interpretation? After all, a “viewing” is sometimes associated with paying respects to the deceased. Is it possible that “fast-track viewing” means that Congress thinks the concept is dead and that those who wish to pursue trade reform should do so through other means? Might be best not to overanalyze this issue.

Is Religious Liberty an “Exception” to Government Rule?

In a free society, employers would be at liberty to offer their employees group health insurance, if they wished, and to offer whatever coverage they wished to offer. In the Supreme Court today, however, so basic a premise barely surfaced during oral argument in Sebelius v. Hobby Lobby, the Obamacare “contraceptive mandate” case. Rather, Justices Sotomayor, Kagan, and Ginsburg, clearly supporting the mandate, pressed Hobby Lobby’s attorney Paul Clement as to whether an “exception” should be provided for religious employers who are otherwise required by regulation to offer contraceptive coverage, and whether such an exception could be limited or instead would have no principled bounds. By contrast, Chief Justice Roberts, Justice Kennedy, and even Justice Breyer were at pains to show how such a religious “accommodation” could in fact be limited.

Thus have we come to a point at which religious liberty is recognized, if it is, as an exception to the general rule that government may require us to act as it dictates—and we have to be careful not to extend that accommodation too far lest it gobble up the rule.

That’s a remarkable inversion of First Principles: government first, liberty second, as a limited exception. True, we don’t allow the religious, in the name of religious liberty, to proselytize by the sword. And we don’t because that “exception” is perfectly consistent with a general rule in favor of liberty and against forced association—as in murder. Here, however, religious employers are asking simply to be free from a rule that would otherwise restrict their liberty or require forced association, a rule that would force them to choose between not offering their employees insurance, and paying the Obamacare penalty for so choosing, and offering their employees coverage that offends the employers’ religious beliefs. And it’s no answer to say that, absent the mandate, the employees’ liberty is restricted. They’re at perfect liberty to obtain contraceptives, but not free to force their employer to provide them.

In other words, if you start with freedom of association, then it’s association that must be justified, by mutual consent, not individual liberty. But if “we’re all in this together”—as President Obama so often says and as Obamacare so clearly manifests—then liberty has to be treated as an “exception,” an “accommodation,” carved out from that general rule. For more on this see here and here.

Dumping the Core? Washington Still Owns the Hoosiers

From an immediate political perspective, it’s great news: Yesterday, Gov. Mike Pence (R) signed legislation making Indiana the first state to officially drop the Common Core. (Four states never adopted it.) Now other states don’t have to be the first to say “sayonara, Core,” and anti-Core forces appear to have real political potency. But the change may well be superficial: While the new law officially dumps the standards called “Common Core,” Hoosiers are still taking curricular orders – and quite possibly the Core by another name – from the federal government.

Here is the operative part of the legislation:

Before July 1, 2014, the state board shall adopt Indiana college and career readiness educational standards, voiding the previously adopted set of educational standards. The educational standards must do the following:(1)Meet national and international benchmarks for college and career readiness standards and be aligned with postsecondary educational expectations.(2) Use the highest standards in the United States.(3) Comply with federal standards to receive a flexibility waiver under 20 U.S.C. 7861, as in effect on January 1, 2014

Unless I’m totally bleary eyed, there are two giant red flags billowing in the wind here.

The first is that points 1 and 2 call for meeting or beating some kind of national benchmark, and point 1 calls for hitting international benchmarks. To my knowledge, the only standards-producing group claiming to hit international benchmarks is the Common Core, and the Core is the only existing national benchmark. (The National Assessment of Educational Progress, to my knowledge, does not claim to offer “standards.”) At the very least, if the goal isn’t to de facto stick with the Core – as some standards writers claim is happening – these points raise two mammoth questions: Who will determine if new Hoosier standards meet international and national benchmarks, and who will decide if they are “the highest standards in the United States”?

Unfortunately, point 3 likely gives the answer to these questions: the federal government – more specifically, the U.S. Secretary of Education – will decide whether Indiana’s new standards cut the mustard. As NCLB waiver regulations currently stand, Indiana really only has two ways to meet the “college- and career-ready standards” provision: Either adopt the Common Core – or some set of standards the Secretary is willing to say are so close to the Core they are “common to a significant number of States” – or have a state college system declare the state’s standards college- and career-ready. And I don’t see the latter anywhere in the new law.

It is possible I am missing something – legislation, regulation, and unilateral waiver decisions can often be very opaque – but from what the statute seems to say, Indiana may be giving up the Core in name only. And even if it really can distance itself from the Core, Indiana doesn’t at all appear to be telling Washington, “we’ll run our own education system, thank you very much!”

There is one upside to this: It illustrates once again the great power of federal NCLB waivers, a power Core supporters continue to disingenuously pretend does not exist.

Is There No Alternative to Forcing People to Violate Their Religious Beliefs?

On a day full of bluster both in and outside the Supreme Court, Hobby Lobby and its super-lawyer Paul Clement had the better of the argument over Obamacare’s contraceptive mandate. While Solicitor General Don Verrilli gamely pressed the plight of the “third-parties” who would lose out if the challengers get an exemption – employees whose contraceptives wouldn’t be paid by their employer – there didn’t seem to be a majority on the Court who saw it that way. Justice after justice probed such issues as whether the government’s interest here was really that compelling given all the exemptions it had already granted (to small employers, religious nonprofits, and grandfathered plans) and whether there was no other way to achieve the same goal. And those are probably the points on which this case will ultimately turn: (1) the contraceptive mandate was not one of the Obamacare requirements that became mandatory as of January 1 (or whenever the administration stops illegally delaying them), and (2) the government could’ve ensured the provision of the contraceptive mandates a different way (e.g., new tax credits or existing public health programs). Despite the parade of horribles invoked by Justice Sotomayor regarding religious objections to blood transfusions and vaccines, at least five justices seemed to recognize that religious-liberty claims are meant to be adjudicated on a case-by-case basis – maybe six given Justice Breyer’s lukewarm and infrequent interjections.

The government fared even worse on its position that for-profit corporations can’t assert religious-exercise interests in the first place. Even Justice Kagan recognized that under certain circumstances, for-profit enterprises may engage in religious activity. While Cato’s amicus brief argued that this “standing” issue is purely academic anyway – the individual corporate owners feel the mandate/fines regardless of who is exercising religion or bringing lawsuits – I count seven votes for getting past this threshold issue.

As I left the argument, I had a bit of spring in my step, even as the snowstorm that greeted me lacked any spring whatsoever. The Court is likely to stop this callous, arbitrary, and needless bending of the will of a small religious minority to the federal grindstone. But alas that’s just this case; the more that the government expands and takes over areas properly left to civil society, the more clashes of conscience will result. Today it’s religious belief, tomorrow something else, but all these liberty-destroying mandates come with the collectivized territory.

Peter Schuck at Cato Thursday

On Thursday Cato will welcome Peter Schuck, professor emeritus of law at Yale, to discuss his new book “Why Government Fails So Often, And How It Can Do Better,” with Arnold Kling commenting. (I’ll be moderating). Today Peter Berkowitz reviews the book at Real Clear Politics. An excerpt: 

the belief—which public polls show is shared by a majority of Americans—that the federal government wastes great quantities of taxpayer money and frequently fails to fulfill its promises is confirmed by reams of social science research. … Schuck, professor emeritus of law at Yale University, demonstrates that the problem goes to the core of big government. … Combining an exhaustive review of the scholarly literature in political science and law with detailed case studies, Schuck concludes that government’s failures “are not just random, occasional, or partisan; they are large, recurrent, and systemic.”

They derive from what Schuck—following the writings of political scientists John DiIulio and the late James Q. Wilson—characterizes as the replacement of the Old System of American governance by the New System. …The New System abandoned questions of constitutional limits and legitimacy in favor of the assumption that government possesses unlimited power to do what representatives deem beneficial to society….
 
Schuck shows that the structural sources of our sprawling federal government’s endemic policy failures are numerous—and explainable.  

For more, follow the link. You can register for the lunch here, or watch live at cato.org/live.  

 

 

Russians And Ukrainians Battle Over Crimea: The Tragic Perils of Nationalism

No good end to the Crimean crisis is likely.  Moscow seized territory historically part of Russia and won’t retreat.  Ukraine won’t accept Moscow’s land grab. 

The West can’t ignore flagrant aggression and is headed toward a “cool war” with Russia.  Crimeans unwilling to shift allegiance will have to leave their homes.  Such are the perils of nationalism, which remains sadly popular today.

Russia has officially absorbed Crimea.  The veneer of legality doesn’t disguise Moscow’s act of war.  A majority of the territory’s people may have wanted to leave, but a referendum framed by Russian advocates and conducted under Russian military occupation was certain to yield the result desired by Vladimir Putin, not Crimea’s citizens. 

Kiev is no more interested in the desires of Crimea’s people.  The West proclaimed itself shocked at Moscow’s move, even though the former routinely intervenes militarily for its own ends. 

While the Russian government deserves to be punished for its bad behavior, there is no chance it will reverse course.  The U.S. and Europeans are heading toward extended confrontation with Russia. 

The biggest losers are Crimeans who prefer Ukraine’s inefficient and corrupt, but still functioning—at least until the violent overthrow of the elected government—democracy to Putin’s wealthier but increasingly authoritarian wannabe empire.  Even some ethnic Russians might have preferred to deal with Moscow from afar. 

There is no right answer to the controversy.  Ukraine only had formal legal title to Crimea because in 1954 Soviet Communist Party General Secretary Nikita Khrushchev, who ran Ukraine before ascending to the summit of power in Moscow, transferred control of the territory from Russia to Ukraine.  At the time, no one imagined the Soviet Union dissolving.

But in 1992 Ukraine fled the collapsing Communist superstate with Crimea in tow.  Last month violent street protests shifted control in Kiev from Russophiles in eastern Ukraine to nationalists in western Ukraine. 

That angered the former and sparked a violent response from the Kremlin.  Putin’s conduct, though deplorable, was understandable.  As Henry Kissinger once said, even paranoids have enemies.

As I pointed out in my new column on Forbes online:

Since the end of the Cold War the West has pursued its version of the notorious Brezhnev Doctrine:  What’s mine is mine and what’s yours is negotiable.  The U.S. and Europe advanced NATO to Russia’s borders, poured money into Ukraine to promote pro-Western candidates, pressed Kiev to choose between Russia and the European Union, and pushed friendly politicians toward power after the ejection of Russia-friendly Yanukovich.

Yet none of this would have mattered if the majority of Crimeans had clearly wanted to switch allegiance and Putin had waited for them to act.  In general, people should be able to freely decide their political destinies.

Cutting the Tie Between Education and Housing

We already have a market in education: the real estate market. Controlling for other factors, houses in districts with higher-performing government schools are more expensive than those in areas with lower-performing schools. In 2012, the Brookings Institution issued a report finding that in “the 100 largest metropolitan areas, housing costs an average of 2.4 times as much, or nearly $11,000 more per year, near a high-scoring public school than near a low-scoring public school.” The report also found that “the average low-income student attends a school that scores at the 42nd percentile on state exams, while the average middle/high-income student attends a school that scores at the 61st percentile on state exams.”

Essentially, access to a quality education depends on one’s parents’ ability to purchase a relatively more expensive house in an area with a good school. That this is a horribly unjust policy for low-income children is obvious and oft-discussed, but what’s often overlooked is that the negative consequences also extend to middle-income families.

With quality education tied to housing, middle-income parents who desire the best for their children must seek out housing in areas with better government schools or scrape together money for private school tuition. Unfortunately, as a new Brookings report reveals, this too-often means purchasing a home that is just barely within a family’s financial means, creating a situation where millions of middle-income families live “hand-to-mouth” with very low levels of liquid savings though they have considerable non-liquid assets. The Atlantic’s Matthew O’Brien explains:

This shouldn’t be too much of a mystery. Imagine a couple that’s getting ready to have kids, and wants to buy a house near good schools. Well, that’s expensive. As Elizabeth Warren and Amelia Tyagi pointed out in The Two Income Trap, buying a house in a school district you can’t really afford is one of the biggest causes of bankruptcies. Couples can only afford the mortgage with both their salaries, so they’ll get in trouble if either of them loses their job. 

But even if everything goes right, they’ll still be cash-poor for a long time. They’ll probably have to use most of their savings on the down payment, and use a big part of their income on the mortgage payments. In other words, the wealthy hand-to-mouth are parents overextending themselves to get their kids into the best schools possible in our de facto private system.

As O’Brien notes, a system of school choice would sever the ties between housing and education, which is a policy that could keep “many people from becoming cash-poor and wealthy—a precarious thing—in the first place.” School choice also provides a passport out of poverty for those students whose parents could not afford an expensive house at all.