Archives: 05/2015

When Are You Going to Get Married?

The Wall Street Journal today reports a policy shift that I had predicted and recommended 20 years ago. Rachel Emma Silverman writes:

Amid a push that has made same-sex marriage legal in 37 states and the District of Columbia, some employers are telling gay workers they must wed in order to maintain health-care coverage for their partners. About a third of public- and private-sector employees in the U.S. have access to benefits for unmarried gay partners, according to a federal tally, but employment lawyers say the fast-changing legal outlook is spurring some employers to rethink that coverage.

“If the Supreme Court rules that suddenly there is marriage equality in 50 states, the landscape totally changes,” says Todd Solomon, a law partner in the employee-benefits practice group at McDermott Will & Emery in Chicago, who has been tracking domestic partnership benefits for nearly two decades.

Such a decision will likely result in more employers dropping same-sex partner benefits in favor of spousal benefits, according to Mr. Solomon.

Over the past decade, a growing share of companies has offered coverage for gay employees and their partners as a way to provide equal benefits for couples who couldn’t legally wed. Others companies offer coverage more broadly to unmarried domestic partners, regardless of sexual orientation. 

Now, some employers who offer benefits targeting same-sex partners say it is only fair to require those couples to marry where legal, just as their straight co-workers must do to extend coverage.

I anticipated that eventuality in a January 4, 1995, op-ed in the New York Times, as the movement for marriage equality, civil unions, and domestic partnership was just beginning:

Instead of the Fed

That, some of you may recall, was the name of a November 1, 2013 conference put on by the Mercatus Center. (The full name was actually “Instead of the Fed: Past and Present Alternatives to the Federal Reserve System”). The proceedings of that conference–or most of them, at any rate–are now available in a special issue of the Journal of Financial Stability, edited by yours truly.

Although online access to the articles is by subscription only, individual contributors have temporary, open links to their own articles. Here is mine on “Synthetic Commodity Money.”

Peculiar Politics in the USA

The controversy over the upcoming military exercise called “Jade Helm 15” is unfortunate.  It is unfortunate because there really are some alarming trends underway here in the United States, but instead of finding common ground, the Right and the Left too often talk past each other.  Some examples:

Recall the militaristic raid to snatch Elian Gonzales?

The Right said, “That’s outrageous!”

The Left’s reply was, “What are you talking about?  That’s just law enforcement.”

Recall the militaristic police response in Ferguson last summer?

The Left said, “That’s outrageous!”

The Right’s reply was, “What do you mean?  That’s just law enforcement.”

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Let’s take a step back from specific incidents and look at some of the broader trends that have been underway.  First, the line between the police and the military has become badly blurred.  The military itself is more involved in policing and the civilian police are now more militarized.  This is worrisome because the military does not typically concern itself with rights of persons on the other side of the battlefield.  Second, the National Security Agency’s powers used to be directed outward, but we now know those powers are directed inward, on the communications of Americans.  Third, presidents (red & blue) claim the power to take our country to war, and that when we are at war, presidential power trumps constitutional rights.  High-ranking officials tell us that America–from Seattle to Miami (and all the tiny towns in between)–is a “battlefield.”  That’s a bold and disturbing claim since there are no rights on the battlefield, only raw power.

As the next presidential contest gets underway, let us hope these important matters get the attention they deserve. 

Rand Paul’s “No” on Trade Promotion Authority Gets It Backwards

Not entirely unsurprisingly, the Senate failed to reach cloture on Tuesday, falling eight votes shy of the 60 needed to start the timer on debate over Trade Promotion Authority (TPA), which will be needed to conclude the Trans-Pacific Partnership (TPP) negotiations and bring it to a timely vote in Congress.  The cloture vote concerned two of four pieces of trade legislation voted out of the Finance Committee two weeks ago (TPA and Trade Adjustment Assistance).  Senate Majority Leader Mitch McConnell excluded the other two bills, which contain language that would attract Democratic support. So, while I wouldn’t bet the ranch on TPA’s passage, there’s still room for horse trading.

In more surprising (and disappointing) news, one senator who will say “no” if TPA makes it to the floor for a vote is Rand Paul, who explained his reasoning on a New Hampshire television news broadcast:

We give up so much power from Congress to the presidency, and with them being so secretive on the treaty, it just concerns me what’s in the treaty.

Let me take Paul’s issues with power, secrecy, and content in order.

ALJs and the Home Court Advantage

The SEC has come under fire lately for its use – some might say overuse – of internal administrative proceedings.  The SEC’s use of administrative proceedings and administrative law judges (ALJs) is by no means unique within the federal government.  Thirty-four agencies currently have ALJs.  Nor is the SEC the heaviest user of administrative proceedings or ALJs; the Social Security Administration has that distinction, with more than 1,300 ALJs according to the most recent data available.  The SEC, by comparison, has only five ALJ positions, two of which are recent additions. 

The SEC’s ALJs have been in the spotlight due to a provision in Dodd-Frank that expands their ability to impose fines.  In the past, the SEC could impose monetary sanctions only on individuals and entities registered with the Commission – typically brokers, investment advisors, and similar entities and their employees.  By registering with the SEC, it was reasoned, these individuals and organizations had submitted to the SEC’s jurisdiction.  Others could be brought before the SEC’s tribunals for violating federal securities laws, and the ALJs could make findings of fact (that is, decide which side’s version of the facts was correct) and issue cease and desist orders, but could not impose fines.  Instead, the SEC’s lawyers would have to bring a separate case in federal district court.  Under Dodd-Frank, registered and unregistered persons are treated the same.

Administrative proceedings have their advantages.  Like a federal judge, an ALJ can issue subpoenas, hold hearings, and decide cases.  Because an ALJ’s cases deal with a very narrow area of law – only that related directly to the ALJ’s agency – the ALJ’s knowledge of that area tends to be deeper than that of a federal judge who hears a broad range of civil and criminal cases.  The proceedings before ALJs tend to be somewhat truncated, with fewer procedural requirements than federal district court, allowing the case to be decided more quickly. 

Left and Right in China

There’s an ideological divide in China, and it’s basically statist vs. classical liberal, as Tyler Cowen puts it.

Based on 171,830 responses to an online survey, Jennifer Pan and Yiqing Xu “offer the first large scale empirical analysis of ideology in contemporary China.” They “identify one dominant ideological dimension in China.”

Individuals who are politically conservative, who emphasize the supremacy of the state and nationalism, are also likely to be economically conservative, supporting a return to socialism and state-control of the economy, and culturally conservative, supporting traditional, Confucian values. In contrast, political liberals, supportive of constitutional democracy and individual liberty, are also likely to be economic liberals who support market-oriented reform and social liberals who support modern science and values such as sexual freedom.

This is interesting in several ways. First, of course, it means that China is no longer ideologically monolithic, as it was at least officially in the days of Maoism. And a significant number of people seem to support what we would call classical liberal or libertarian values – “constitutional democracy and individual liberty, … market-oriented reform … modern science and values such as sexual freedom.” The online survey isn’t scientific or representative enough to estimate the prevalence of each ideology.

Second, it’s refreshing to see ideological views lined up in a coherent way. Libertarians usually find the standard American ideologies inconsistent. Today’s “liberals” (unlike classical liberals from Locke and Smith and Mill to Hayek) tend to support democracy and at least some forms of personal and civil liberties, but not free markets. Today’s conservatives support free markets but have tended to oppose civil rights, drug decriminalization, and sexual freedom. In China those who support “the supremacy of the state and nationalism” also, quite understandably, support state control of the economy and state support for traditional values. That’s a bad package, but at least it’s coherent. And so is the opposing liberal ideology.

Appealing President Obama’s Executive Action on Immigration

On November 20, 2014, President Obama unveiled DAPA, an executive policy that would defer the deportation of up to four millions illegal aliens and afford them work authorization. One week later, Texas, joined by 25 other states, filed a lawsuit against this unprecedented expansion of executive power.

Cato, joined by law professors Josh Blackman, Jeremy Rabkin, and Peter Margulies, filed an amicus brief supporting the challenge. While we broadly support comprehensive immigration reform, we argued that DAPA violated the president’s constitutional duty to take care that the laws were faithfully executed because this action went far beyond merely setting priorities on who will be pursued and deported given finite enforcement resources. It was highly unusual for Cato to file in a district court—amicus briefs of any kind are rare at this level—but this was a highly unusual situation.

On February 16, 2015, Judge Andrew Hanen blocked DAPA from going into effect, finding that the executive branch did not follow the proper administrative procedures—such as seeking comments from the public—before implementing what is effectively a substantive change in established immigration law.