Tag: ilya shapiro

Citizens United at Two

The Supreme Court decided Citizens United two years ago this week. The complaints about the ruling that have emerged since are often bizarre and misrepresent much of the landmark ruling’s import. Here’s what the case was about.

Almost nowhere in the complaints about the Citizens United ruling will you hear that the case decided that certain books or Pay-per-View broadcasts could no longer be banned by the Federal Election Commission.

Former FEC commissioner Bradley A. Smith further detailed the breathtaking arguments made by the government during the initial oral argument.

(And here’s more from attorney James Bopp, Jr. on the ultimate ruling.)

Since Citizens United, complaints from Common Cause and occupiers of various parks across the United States tend to focus on corporate personhood, the scourge of SuperPACs and at least one group’s troubling idea to amend the Constitution so that—once and for all—“campaign spending is not a form of speech protected under the First Amendment.”

Militarizing the Border

President Obama is sending 1,200 National Guard troops to the border with Mexico. This should not be viewed as an innovative solution; Bush sent 1,600 troops to the border under parallel circumstances in 2002. As Ilya Shapiro recently wrote, sending some Guardsmen is no substitute for substantive immigration policy reform.

The National Guard, and the military generally, should not be seen as the go-to solution for domestic problems. Certainly the role they will play on the border will not be as offensive as policing the streets of an Alabama town after a mass shooting (which the Department of Defense found was a violation of the Posse Comitatus Act, but declined to pursue charges) or using a city in Iowa as a rehearsal site for cordon-and-search operations looking for weapons, but politicians from both major parties have at one point or another suggested using the military for domestic operations that range from the absurd to the frightening.

Transportation Secretary Norman Mineta wanted to put Delta Force commandos on airliners after the attacks on September 11, 2001. Air marshals and armed pilots can handle airline counterterrorism; tracking down Al Qaeda organizers in Afghanistan is a better use of Delta’s unique skill-set. Marines conducting counter-drug surveillance near the border shot and killed goat herder Esequiel Hernandez. Something to keep in mind when politicians call for an expanded the role of the military in border security.

Gene Healy’s excellent policy analysis Deployed in the U.S.A.: The Creeping Militarization of the Home Front provides more detail on sensible limits for domestic use of the military. Read the whole thing.

School Vouchers vs. Tax Credits

NRO editor Robert VerBruggen has weighed in a couple of times this week on the relative merits of school vouchers and education tax credits, raising interesting and important issues.

In response to my earlier post today about an education tax credit case now before the U.S. Supreme Court, VerBruggen writes:

If the Supreme Court buys this logic — which I suppose is sound on its face — it could lead to some very interesting programs. Any time it’s illegal for a government to fund something directly, it could simply make a dollar-for-dollar “tax credit” program for it, allowing sympathetic taxpayers to technically “donate” — but actually just redirect the taxes they’d otherwise have to pay — to the cause.

This is actually an argument presented by critics of the program in their brief asking the Supreme Court not to hear the appeal that it… just decided to hear. The fact that this argument is fallacious is no doubt one reason that the Supreme Court decided to reject critics’ request. Here’s where it goes wrong:

Under a constitutional tax credit program such as Arizona’s, the state has no power to pressure/encourage taxpayers to do anything that the state could not do directly. Taxpayers can choose to give no money to religious charities, or to give all their money to them. The state is unable to affect their decisions in any way.

As Ilya Shapiro and I pointed out in Cato’s amicus brief in this case, this is identical to the law pertaining to federal charitable tax deductions. Religious charities get more tax deductible donations than any other kind of entity, and the Supreme Court has repeatedly upheld their constitutionality because the decisions regarding such donations are left entirely to the unfettered choices of private citizens.

While it would be unconstitutional for a tax credit program to only allow donations to religious charities, it is perfectly consistent with the U.S. Constitution and Supreme Court precedent for a tax credit program to be religiously neutral, leaving the donating decisions to private citizens.

But there’s much more to it than this. Credits are not just constitutional, they offer an important advantage over vouchers. Under voucher programs, all taxpayers must support every kind of schooling, which can be a source of social conflict in a diverse society. [Think liberals being forced to fund religious-conservative-capitalist schooling; or conservatives being forced to fund schools supporting homosexuality as natural and without any inherent moral implications]. While this doesn’t violate the U.S. constitution (see Zelman v. Simmons Harris), it’s still a less-than-ideal outcome, as was observed in all three dissents in the Zelman case.

Tax credits, as I explained in the last section of our amicus brief (p. 21), avoid this source of social conflict. Not just families but taxpayers enjoy the benefits of free choice and voluntary association. Tax credits are thus a way to ensure universal access to a free educational marketplace without putting citizens into conflict with one another on matters of conscience. For this and many other reasons, they are the best realistic policy for advancing educational freedom yet devised.

Kagan Nomination: Around the Web

  • Confirmation hearings are a “vapid and hollow charade”, or at least that’s what Elena Kagan wrote fifteen years ago. National Review Online invited me to contribute to a symposium on how Republican senators can keep the coming hearings from becoming such a charade, with results that can be found here.
  • The First Amendment has been among Kagan’s leading scholarly interests, and yesterday in this space Ilya Shapiro raised interesting questions of whether she will make an strong guardian of free speech values. Eugene Volokh looks at her record and guesses that she might wind up adopting a middling position similar to that of Justice Ginsburg. As Radley Balko and Jacob Sullum have noted, the departing John Paul Stevens ran up at best a mixed record on First Amendment issues, so the overall impact on the Court is far from clear.
  • Kagan’s other main scholarly topic has been administrative and regulatory law, and Nate Oman at Concurring Opinions warns that everything in her career “suggests that she is intellectually geared to look at the regulatory process from the government’s point of view.” Oman took an advanced seminar she taught, and brings back this cautionary report:

    It was an interesting class, mainly focused on the competition between bureaucrats and political appointees. In our discussions businesses were always conceptualized as either passive objects of regulation or pernicious rent-seekers. Absent was a vision of private businesses as agents pursuing economic goals orthogonal to political considerations. We were certainly not invited to think about the regulatory process from the point of view of a private business for whom political and regulatory agendas represent a dead-weight cost.

  • I’m not the only one who finds Kagan’s exclusion of military recruiters at Harvard wrongheaded, even while agreeing with her in opposing the gay ban. Peter Beinart made that argument in a widely noted post at The Daily Beast last month and now has a followup. Former Harvard law dean Robert Clark is in the Wall Street Journal today (sub-only) with an argument that Kagan’s policy was a continuation of his own and represented the sense of the law faculty as a whole. Emily Bazelon points out that the recruitment bar was overwhelmingly popular at top law schools at the time, an argument that as Ramesh Ponnuru points out may raise more questions than it answers. And Ilya Somin cautions against assuming that the wrongheadedness reflects any specifically anti-military bias.
  • One of John Miller’s readers recalls John Hasnas’s wise words on “empathy” in judging. David Brooks at the Times runs with the “Revenge of the Grinds” theme. SCOTUSblog rounds up some other reactions (with thanks for the link). And Brad Smith, writing at Politico, advises us to be ready should Citizens United come up at the hearing.