Archives: 01/2015

Did Supreme Court Telegraph Its Ultimate Ruling on Gay Marriage?

That’s the question I pose in my latest Forbes piece. Here’s a taste:

As any good lawyer knows, framing the question you ask a court is just as important — often more important — than providing a well-argued answer that helps your client. Well, when the Supreme Court, as expected, decided to take up gay marriage, it unexpectedly reframed the “questions presented” in the four cases it took up and consolidated for argument. Instead of accepting any of the formulations presented in the four petitions for review, it asked the parties to brief these two questions:

  1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
  2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

This was unusual; typically the justices simply decide whether to take a case based on the petitioners’ articulation. That’s why first-year legal-writing classes spend so much time working on those “questions presented.”

So what does this mean? UC-Irvine law professor Rick Hasen found the first question “odd” because it focused on state powers and obligations rather than individual rights, which ”perhaps keeps the court from getting into questions about heightened scrutiny for sexual orientation discrimination.” Harvard law professor Larry Tribe suggested that the reframed questions “technically leave open a middle path along which the court would prevent states from discriminating against same-sex couples lawfully married in their home states without requiring any state to take the affirmative step of issuing its own marriage licenses to same-sex couples.” (In my initial reaction to the cert grant, I speculated on the same compromise possibility but ultimately concluded that this was less likely than a clean win for the challengers on both questions.)

Read the whole thing. And I also recorded a podcast reacting to the Court’s decision to take up these cases.

Dividing the Loot in Maryland

Anticipating the inauguration of a rare Republican governor in Maryland, the state’s big Democratic jurisdictions are getting worried about their access to the state treasury:

Montgomery and Prince George’s officials are trying to make sure their counties are not forgotten by Gov.-elect Larry Hogan.

The Anne Arundel County Republican, who will be sworn in Wednesday, has pledged to pay more attention to rural Maryland, which he says was neglected during the administration of outgoing Gov. Martin O’Malley (D). Those rural counties also voted for Hogan by overwhelming margins….

“The uncertainty of the new administration creates more of an impetus . . . for larger jurisdictions to come together,” said Prince George’s County Council Chair Mel Franklin (D-Upper Marlboro), who wants to form a “large-county caucus” to lobby in Annapolis.

They have nothing to worry about, right? Surely a governor wouldn’t direct taxpayer dollars on the basis of political favoritism? As it happens, I’ve been watching Maryland politics for many years, and this story reminded of one that appeared in the Washington Post 20 years ago this week, when Parris Glendening became governor:

In his first major act as Maryland governor, Parris N. Glendening unveiled a no-new-taxes budget today that unabashedly steers the biggest share of spending to the three areas that voted most strongly for him: Montgomery and Prince George’s counties and Baltimore.

Glendening proposed cuts in welfare and other state programs so he can build more schools, fight crime and create jobs, particularly in those three urban areas, the only ones where Glendening (D) won a majority of votes Nov. 8.

I thought that was such a perfect encapsulation of politics at its finest that I’ve quoted it numerous times, including in my forthcoming book The Libertarian Mind. I also like to quote this charming and honest description of politics in a letter written by Lord Bolingbroke, an English Tory leader in the eighteenth century:

I am afraid that we came to Court in the same dispositions as all parties have done; that the principal spring of our actions was to have the government of the state in our hands; that our principal views were the conservation of this power, great employments to ourselves, and great opportunities of rewarding those who had helped to raise us and of hurting those who stood in opposition to us.

I recall reading that Charlie Peters, the legendary editor of the Washington Monthly, used to say that state legislatures are just committees for dividing up the loot, though I can’t find it online. If he didn’t, he should have.

You Ought to Have a Look: Record Global Temperatures

You Ought to Have a Look is a feature from the Center for the Study of Science posted by Patrick J. Michaels and Paul C. (“Chip”) Knappenberger. While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic. Here we post a few of the best in recent days, along with our color commentary.

A lot of buzz around the web was generated late this week with the announcement from the U.S. National Oceanic and Atmospheric Administration that 2014 topped their list as the warmest year since their records began in the late 1800s.

While most of the mainstream media coverage focused on the record-setting temperatures and breathlessly spoke of how this was further indication that humans are warming the climate, the blogosphere was full of articles throwing cold water on this overheated rhetoric by pointing out that despite the past year’s warm temperatures, 1) global warming continues to occur at only a snail’s pace, and 2) this pace is far beneath that projected by the world’s collection of climate models—models developed for the specific purpose of projecting  future climate changes. With each passing year, their performance becomes worse and worse. That is the big story about 2014’s temperatures.

Here are some sites that astutely picked up on that:

Over at Climate Etc., Judy Curry has her say in “‘Warmest year’, ‘pause’, and all that.” Her bottom line?

Berkeley Earth sums it up well with this statement:

That is, of course, an indication that the Earth’s average temperature for the last decade has changed very little.

The key issue remains the growing discrepancy between the climate model projections and the observations: 2014 just made the discrepancy larger.

Speculation about ‘warmest year’ and end of ‘pause’ implies a near term prediction of surface temperatures—that they will be warmer. I’ve made my projection—global surface temperatures will remain mostly flat for at least another decade. However, I’m not willing to place much $$ on that bet, since I suspect that Mother Nature will manage to surprise us. (I will be particularly surprised if the rate of warming in the next decade is at the levels expected by the IPCC.)

Harvard Study of CBO Reports Says Nothing New or Interesting about King v. Burwell

Vox’s Sarah Kliff reports that Harvard University’s Theda Skocpol has produced a study purporting to show Congress intended for the Patient Protection and Affordable Care Act (PPACA) to authorize health-insurance subsidies through exchanges established by the federal government—even though the statute expressly and repeatedly says those subsidies are available only “through an Exchange established by the State.” Whether the PPACA authorizes those subsidies in the 36 states with federal exchanges is the question presented in King v. Burwell. The Supreme Court will hear oral arguments in King on March 4, with a ruling expected by June. Unfortunately for the administration and its supporters, Skocpol offers nothing either new or that supports the notion that Congress intended something other than what it expressly said in the statute.

What evidence does Skocpol claim to have found in support of her counter-textual interpretation of congressional intent? She combs through 68 analyses issued by the Congressional Budget Office during 2009 and 2010. She finds that in none of those reports did the CBO entertain the idea that the PPACA’s exchange subsidies might be available in some states but not others. She interprets this as both “excellent evidence” and “the best objective evidence we have that no one in Congress considered premium subsidies restricted to certain states to be either possible or desirable.”

Yeah, about that.

An alert Vox reader already informed Kliff that the claim that CBO never considered the possibility of exchange subsidies in some states but not others isn’t exactly true. The comprehensive health care bill approved by Democrats on the Senate’s Health, Education, Labor, and Pensions (HELP) Committee in 2009 (S. 1679) would have given states four years to establish exchanges themselves, after which point the federal government would establish an exchange. As my partner-in-crime-fighting Jonathan Adler and I write in an amicus brief filed with the Supreme Court in King:

S. 1679 asked each state to adopt certain health insurance regulations, and either establish an Exchange itself or ask the federal government to establish one “in” the state… S. 1679 withheld Exchange subsidies, as well as many of its insurance regulations, for up to four years until the state complied.

The CBO scored S. 1679 assuming that some states would establish exchanges early and some would not. Thus the agency’s cost projections assumed that exchange subsidies would be available in some states but not in others. So we’ve already got a problem with Skocpol’s analysis.

Supreme Court Decrees That June Is a Good Month for Marriage

As widely expected—and widely requested in myriad legal filings—the Supreme Court has agreed to review state laws that deny marriage licenses to same-sex couples, as well as those that deny recognition of such marriages formed in sister states. While the high court ducked these issues in October, at that time there was not yet a “circuit split”: all federal appellate courts to have ruled on the issue had struck down the state laws. When the Cincinnati-based Sixth Circuit went the other way in November, today’s “decision to decide” was assured.

Moreover, based on the firm briefing schedule that the court has established, it’s clear that the justices intend to hear argument this term—meaning that we can expect a final ruling the last week of June. (This puts paid to my prediction that the Court would grant the case but delay argument till the first week of next term, in October.)

So how will the Court rule? Assuming that Justice Anthony Kennedy is the swing vote—a pretty safe assumption—it’s hard to see him giving full victory to the states. It would be odd indeed if the author of the landmark gay-rights opinions in Romer v. Evans (1996), Lawrence v. Texas (2003), and United States v. Windsor (2013) suddenly shied from taking the final logical step in that direction. At the same time, it’s at least conceivable that a strong federalist like Kennedy, perhaps joined by Roberts, could find himself in the moderate (and therefore legally controlling) position of striking down the non-recognition of out-of-state marriages while not requiring the issuance of marriage licenses themselves. Maybe. The smart money is still on a 5-4 ruling establishing that this Fourth of July everyone throughout the land will be able to marry without regard to sexual orientation.

While the Supreme Court isn’t a political institution in the conventional sense, the justices don’t live in a vacuum and so are rarely caught too far ahead or behind popular opinion. As Americans’ views on same-sex marriage have shifted dramatically in the last decade, it quickly became just a matter time before the Court found itself with a case it had to take on an issue that can only be decided one way. This eventual ruling—hopefully on equal-protection grounds rather than some nebulous results-oriented hand-waving—will undoubtedly create not insignificant controversy, but the writing has long been on the wall.

Justice Department Announces Partial Forfeiture Reform

The Washington Post has just reported that Attorney General Eric Holder today announced that, without evidence that a crime occurred, the Justice Department will end its practice of “adopting” civil asset forfeiture cases brought to the department by state and local enforcement agencies. The usual motive for such “equitable sharing” is to help local police departments to circumvent state restrictions aimed at stopping abuses, which arise because once the property is seized, on mere suspicion that it may have “facilitated” a crime, the local police departments keep it.

Such abuses, brought about by those perverse incentives, have led many states to require that any property so seized be turned over to the state’s general treasury. To get around that, state and local police departments ask the Justice Department to “adopt” the case, after which the assets are then split between the Justice Department and the local police department. Without evidence that a crime occurred, that is the practice that will end.

There are deeper problems with American civil asset forfeiture law, however, starting with the very practice of seizing property on the mere suspicion that it may have “facilitated” a crime. A crime does not have to be proven because it is the property that is said to be “guilty” under this bizarre area of our law, its roots in the Middle Ages. Thus, Volusia County, Florida, police stop motorists going south on I-95 and seize any cash they’re carrying in excess of $100 on suspicion that it’s money to buy drugs. New York City police make DUI arrests and then seize drivers’ cars. District of Columbia police seize a grandmother’s home after her grandson comes from next door and makes a call from the home to consummate a drug deal. Officials seize a home used for prostitution and the previous owner, who took back a second mortgage when he sold the home, loses the mortgage. No crime is ever proven. No prosecution is even begun.

In 1995 Cato published the late Rep. Henry J. Hyde’s book about these abuses, which led to partial reforms of federal law in 2000. But the core of the law remained. And abuses continued under state law. Today’s announcement is an important step toward limiting some of those abuses, but more needs to be done. See here and here for more on this subject.

Parents and Taxpayers Want More Educational Choice

Ever since Georgia enacted a scholarship tax credit law in 2008, individual and corporate taxpayers in the Peach State could receive dollar-for-dollar tax credits in return for contributions to nonprofit scholarship organizations—at least until the $58 million cap is reached.

Donors are eligible to receive credits starting on January 1st of each year. In 2012, the last of the credits were claimed in mid-August. The following year, donors hit the cap in May. Last year, they hit it in just three weeks. This year, all the credits were claimed within hours of becoming available on January 1st. In fact, taxpayers applied for more than $95 million in credits, $37 million more than the cap.

Scholarship families are highly satisfied. In a 2013 survey of families receiving scholarships from Georgia GOAL, 98.6% of respondents reported being “very satisfied” or “satisfied” with their chosen school.

Clearly, both the demand for scholarships and the willingness of taxpayers to support scholarship students have grown far beyond what the law currently allows. It’s time to raise the cap. Georgia legislators considering pending legislation to raise the cap to $250 million should be encouraged by two additional facts. First, the best evidence suggests that the tax credit law saves money by reducing expenses by more than it reduces tax revenue. Second, two-thirds of Georgians support the scholarship tax credit law. In other words, it’s good policy and good politics.

In other states that cap the amount of scholarship tax credits available—such as Florida, Pennsylvania, and Rhode Island—donors consistently hit the cap each year. Two recent exceptions—New Hampshire and Alabama—highlight the adverse effects of lawsuits on fundraising. After anti–school choice activists sued to block New Hampshire’s Opportunity Scholarship law, donations dropped off precipitously because of the uncertainty about the law’s future. Fortunately, the state supreme court unanimously rejected the challenge last summer, so we should expect a significant increase in donations this year.

In Alabama, scholarship organizations raised only half as much in 2014 as they did in 2013 because of the uncertainty created by government education establishment’s legal challenge. The lawsuit is likely to meet the same end as similar lawsuits in Arizona and New Hampshire, but the plaintiffs are harming thousands of children while the case is being litigated.