Tag: New York

Blame It On the Constitution

The New York Times treats us today to an op-ed by Prof. Sanford Levinson entitled “Our Imbecilic Constitution,” with the remedy recommended for such imbecility taking us well beyond reforming the document’s amendment provisions. The problem, you see, is that our government has become “dysfunctional” owing to “gridlock.” Like all good Progressives, Levinson is a government man: he sees problems for which no less than the federal government is the ready solution, but that’s unlikely under the strictures our “imbecilic” Constitution imposes on it.

Not surprisingly, therefore, he starts with a complaint about federalism: in the Senate, small states have power equal to that of large ones, which in turn implicates the Electoral College. The remedy for the problems Levinson believes can be traced to those checks on power is to unleash popular will through a more direct democracy. Thus he lauds Theodore Roosevelt and Woodrow Wilson, Progressives who “seriously questioned the adequacy of the Constitution.”

Theodore Roosevelt would have allowed Congress to override Supreme Court decisions invalidating federal laws, while Woodrow Wilson basically supported a parliamentary system and, as president, tried to act more as a prime minister than as an agent of Congress. The next few years saw the enactment of amendments establishing the legitimacy of the federal income tax, direct election of senators, Prohibition and women’s right to vote.

Never mind the merits of those accomplishments, Levinson next offers various state constitutions as models for what might be, starting with New York’s, its fifth such document. One hopes the Knickbockers get it right before too many more years pass, because if dysfunction be the touchstone of failure, the Empire State has come close to it.

Then again, Levinson offers this idea for fixing congressional gridlock:

We could permit each newly elected president to appoint 50 members of the House and 10 members of the Senate, all to serve four-year terms until the next presidential election. Presidents would be judged on actual programs, instead of hollow rhetoric.

“Programs:” We need to get things done. Isn’t that what government is for?

To be sure, there are problems today that cry out for solutions, yet most are not inherent in the human condition but rather are the result of government “programs.” After all, it’s entitlements, individual and corporate, that have given us our massive deficits and debt, to take only the largest and most conspicuous examples. That is the one thing that Levinson does not seem to appreciate.

As compared to the rest of the world, our Constitution has stood the test of time fairly well. The problems we now have did not arise from abiding by its limitations but just the opposite. The Progressives ignored those limits. It’s that behavior, on which the New Deal and the Great Society doubled down, that has brought us to this impasse, with the country immersed today in the politics of a zero-sum game. We don’t need a new Constitution. We need to return to the one we have.

The NYT’s Weak Defense of Homeland Security Grants

Last week, the House passed a homeland security appropriations bill slashing funding for grants to states and localities. The New York Times has now noticed and unleashed an indignant editorial:

House Republicans talk tough on terrorism. So we can find no explanation — other than irresponsibility — for their vote to slash financing for eight antiterrorist programs. Unless the Senate repairs the damage, New York City and other high-risk localities will find it far harder to protect mass transit, ports and other potential targets.

The programs received $2.5 billion last year in separate allocations. The House has cut that back to a single block grant of $752 million, an extraordinary two-thirds reduction. The results for high-risk areas would be so damaging — with port and mass transit security financing likely cut by more than half — that the chairman of the House Homeland Security Committee, Peter King of New York, voted against the bill as “an invitation to an attack.”

Only a few months ago, Times editorials accused King of trying to “hype” and “stoke” fear of homegrown Muslim terrorism. It’s sort of touching to see them get behind his fearmongering when the beneficiaries are local firefighters, police, and other local interests.

But the editorial has trouble worse than hypocrisy. For starters, it’s light on facts. Its accounting seems to omit over $320 million in funds for local firefighters that a floor amendment put in the bill. It also fails to mention that the bill eliminates a formula that ensures that homeland security funds are distributed to every state. Because it means that counterterrorism spending is highest per-capita in rural areas where the threat from terrorism is lowest, homeland security watchers have long attacked that minimum funding provision. So while this bill would indeed cut homeland security funds going to New York, it would also mean that New York gets more of the remaining funds.

More importantly, the Times evidently did not try too hard to find an explanation for the cuts once they settled on irresponsibility, given that Republican appropriators readily offered one: the funds are wasteful. Rather than explain why they think the money is well spent (my definition of responsibility), the editorial conflates spending on security with security itself. It says the cuts will be “damaging,” but it cites only damage to the budgets of recipient agencies, not their purpose.

In fact, the threat of terrorism is so low in the United States and the efficacy of the funds in mitigating it so uncertain that the right amount of homeland security spending in most parts of the United States is none. That is especially true now that we are roughly a decade removed from the September 11 attacks, which spawned a massive increase in homeland security grant-making. That splurge was meant to bolster our ability to defend against what has proved a massively inflated threat of catastrophic terrorism; it was not meant to be a permanent subsidy to state and local governments.

New York City is uniquely threatened, but that does not mean that federal taxpayers should foot the bill. The federal government should collect intelligence on terrorists and hunt them down. Local and state officials should use that information to determine the right amount of local security spending. They have to ask whether normal policing funds, school spending, or slightly lower taxes are worth sacrificing for a new camera or chemical clean-up suit. Federal grants, because they are buried in a massive budget and partially deficit-funded, dilute our ability to perceive those tradeoffs. They also heighten fear of terrorism by encouraging state and local interests to overstate their peril to win the grants, as the editorial demonstrates.

It ends by instructing the Senate to “stand up for security over politics” and restore funding to past levels. But these decisions should be made politically. We give power over security policy to politicians — rather than leaving it exclusively to unelected bureaucrats — because these decisions are important. That is a product of design, not an accident. The notion that security is too important for politics is backwards.

Luckily, the attempt to divorce security policy from electoral politics is a pretense. The Times is engaging in politics by asking for funds. They aim to politically punish those that oppose their preferred policies. If the Senate restores most of the grant funds, as it likely will, it will do so for sound political reasons.

Cross-posted from The National Interest.

Eminent Domain Shenanigans

Five years ago, in the landmark property rights case of Kelo v. New London, the Supreme Court upheld the forced transfer of land from various homeowners by finding that “economic development” qualifies as a public purpose for purposes of satisfying the Fifth Amendment’s Takings Clause.  In doing so, however, the Court reaffirmed that the government may not “take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.”

State and federal courts have since applied that pretext standard in widely differing ways while identifying four factors as indicators of pretext: evidence of pretextual intent, benefits that flow predominantly to a private party, haphazard planning, and a readily identifiable beneficiary.  Moreover, since Kelo, 43 states have passed eminent domain reform laws that constrain or forbid “economic development” condemnations.

While many of these laws are strong enough to curtail abuse, in at least 19 states the restrictions are undercut by nearly unlimited definitions of “blight.”  The state of New York has seen perhaps the most egregious examples of eminent-domain abuse in the post-Kelo era, and now provides the example of Columbia University’s collusion with several government agencies to have large swaths of Manhattan declared blighted and literally pave the way for the university’s expansion project.  In this brazen example of eminent-domain abuse, the New York Court of Appeals (the highest state court) reversed a decision of the New York Appellate Division that relied extensively on Kelo’s pretext analysis and thus favored the small business owners challenging the Columbia-driven condemnations.  The Court of Appeals failed even to cite Kelo and ignored all four pretext considerations, instead defining pretext so narrowly that even the most abusive forms of favoritism will escape judicial scrutiny.

Cato joined the Institute for Justice and the Becket Fund for Religious Liberty in a brief supporting the condemnees’ request that the Supreme Court review the case and address the widespread confusion about Kelo’s meaning in the context of pretextual takings.  Our brief highlights the need for the Court to establish and enforce safeguards to protect citizens from takings effected for private purposes.  We argue that this case is an excellent vehicle for the Court to define what qualifies a taking as “pretextual” and consider the weight to be accorded to each of the four criteria developed by the lower and state courts.

The Supreme Court will decide whether to hear the case later this fall. The name of the case is Tuck-It-Away, Inc. v. New York State Urban Development Corp and you can read the full brief here (pdf).  You can read more from Cato on property rights here.

Take Off the Blinders: Diversity Demands Educational Freedom

Yesterday, FoxNews.com posted a story on what appears to be a growing problem for public school systems across the country: accommodating Muslim holidays. Unfortunately, the report didn’t contain the solution to the problem. It did, though, contain a very succinct discussion of the root of the problem; an example of the good intent that causes people to ignore the problem; and the kind of “solution” that is ultimately at odds with the most basic of American values.

A quote from New York City mayor Michael Bloomberg captured the essence of the problem:

One of the problems you have with a diverse city is that if you close the schools for every single holiday, there won’t be any school.

There you have the basic conundrum in a nutshell: Whenever you have a diverse population – whether in a hamlet, city, state, or nation – and everyone has to support a single system of government schools, you cannot possibly treat all people – or even most of them – equally. Either there are winners and losers, or nobody gets anything.

Understanding why public schooling  can’t handle diversity – why, simply, one size can’t fit all – is really basic common sense. So why isn’t there more outrage over, or even just recognition of, the utter illogic of our education system? Mohamed Elibiary, President and CEO of the Freedom and Justice Foundation, illustrated the attitude that likely causes lots of Americans to wear blinders:

I’m a little torn. I want Muslims to be getting the same recognition as other Americans, but at the same time I don’t want to see public education systems be a battleground between religious identities, because then we’re missing the point of why we have a public education system to begin with.

No doubt many people truly believe as Elibiary does: that a major purpose of public schooling is to bring diverse people together and, by doing so, unify them. It’s a fine intention, but also a classic case of intent not matching reality. Indeed, the reality is often very much the opposite. Rather than unifying people, public schooling has repeatedly forced religious conflict (as well as conflict over race, ethnicity, political philosophy, curriculum, and on and on).

It started almost on Day One, when Horace Mann, a Unitarian, was locked in conflict with Calvinists over what kind of Protestantism the state’s nascent “common schools” would teach. When Roman Catholics began arriving in America in large numbers, battles – sometimes deadly – erupted over who would get what kind of Christianity in the public schools. When Tennessee outlawed the teaching of evolution, the Scopes “Monkey Trial” fired the first big blast in the war over the teaching of human origins, a fight we are still very much in. In the latter part of the twentieth century, the fighting moved to what, if any, religious expression is permissible in public schools. And now, we’re getting fired up over whose holidays will get the most deference from government schools. It almost seems like war without end.

Finally, the article gropes at – but doesn’t grab – the solution to our education and diversity problem. Says Georgetown University professor Bradley Blakeman:

That’s the beauty of having a school district responsive to the localities as opposed to blanket rules that affect multiple jurisdictions, states or even countries. One size doesn’t fit all when it comes to these kinds of rules and regulations. We’re not a homogeneous nation, which makes us so great.

Blakeman is heading in the right direction (even as federal policy pushes us the opposite way): The closer that control of education gets to individual people, the more easily it can be tailored to unique needs, values, and desires. Unfortunately, Blakeman fails to identify the obvious last step: completely decoupling government funding from provision of education. In other words, instituting universal educational choice. Making matters worse, Blakeman for all intents and purposes concludes that as long as decisions are made at the local level, and the majority gets its way, everything is fine:

A school should reflect the beliefs and practices of the community that they serve. And if school boards are sensitive to their populations, that’s fine, provided the decisions of the board reflect the majority opinion of its community.

It may sound harsh, but one way to describe this is simply ”tyranny of the majority” – whatever the majority wants, it gets, as long as it is the local majority. It’s a solution that completely ignores that ours is not supposed to be a nation of majority rule, but rule of law that protects individual freedom. And, of course, one of the most basic protections is the prohibition on government tipping the scales in favor of one religion, two religions, or no religion at all. 

This solution also fails, by the way, to address the problem at hand: School districts – not states or Washington – having to accommodate diverse populations. In other words, ”local control” is ultimately no solution at all.

Universal choice is, quite simply, the only system of education compatible with the most basic of American values – individual liberty – and the only way to avoid constant, divisive battles over who will get what out of the schools. Hopefully, people will come to realize that before our conflicts get even worse.

Jilted Cavs Fans Should Blame Ohio’s Income Tax

Supporters of the Cleveland Cavaliers, especially the owner of the team, are upset that basketball superstar LeBron James has decided to sign with the Miami Heat. The anger is especially intense because the Cavaliers offered James $4 million more over the next five years. But their anger is misplaced because more money in Cleveland actually translates into about $1 million less disposable income when the burden of state and local income taxes is added to the equation. Rather than condemn James for making a rational choice, local basketball fans should tar and feather Ohio politicians.

This story from CNBC walks through the calculations.

[I]f you match up what James’ salary would be for the first five years in Cleveland and the five years in Miami, you find that the Cavaliers are only offering him $4 million more. That advantage gets erased — and actually gives the Heat the monetary edge over — when you consider the income tax difference. …Playing in Cleveland, LeBron would face a state income tax of 5.925 percent, plus a Cleveland city tax of two percent. Over the first five years of a new contract with Cleveland, James would give back $3,953,060 combined to the state and city for the 41 games each season he’d play at home. But James would have to pay none of that for home games in Miami since Florida doesn’t have an income tax. Athletes have to pay income taxes to states that they play in on the road, so the games he’ll play away from home — whether he played for Cleveland or Miami — are essentially a wash. But there are, on average, 11 away games per season where James would have to pay Ohio and Cleveland taxes. Why? Because he has to pay when he plays in the six areas –– Florida, Texas, Washington D.C., Illinois, Toronto and Tennessee –– that have no jock taxes. That’s another $1,061,128 he’ll have to pay in taxes that he wouldn’t have to pay in Miami.

New York basketball fans also should be angry. With some of the highest taxes in the nation, many of which target highly productive people as part of a class-warfare policy, New York is bad news for professional athletes. The New York Post, commenting on the probability that James would sign with the Miami Heat, identified the real villains.

[B]lame our dysfunctional lawmakers in Albany, who have saddled top-earning New Yorkers with the highest state and city income taxes in the nation, soon to be 12.85 percent on top of the IRS bite. There is no state income tax in Florida. On a five-year contract worth $96 million – what he’d get from the Knicks or the Heat — LeBron would pay $12.34 million in New York taxes. Quite a penalty for the privilege of working in Midtown.

Now let’s look at the big picture. The calculations that LeBron James made when deciding to sign with the Miami Heat are the same calculations that companies make when deciding whether to build factories and create jobs. So when people wonder why high-tax states such as Ohio, California, and New York are losing jobs to zero–income tax states such as Florida and Texas, part of the answer should be obvious. And if we move to the global level, folks should not be too surprised that companies and investors, all other things equal, are likely to avoid the United States, with its punitive 35 percent corporate tax, and instead create jobs and build wealth in places like Hong Kong, Ireland, and Switzerland.

Ray LaHood as Santa Claus

U.S. News & World Report’s columnist Paul Bedard reports that Transportation secretary Ray LaHood told him that it’s fun playing Santa Claus to states and cities around the nation.

So let’s take a look at some recent examples of DOT gift-giving with federal taxpayers’ money:

  • DOT’s Federal Highway Administration helped restore an old brewery in Petosi, Wisconsin with a $450,000 gift. That should make taxpayers want to drink.
  • Dolgeville, New York intends to use DOT stimulus money to repair sidewalks even though the village acknowledges that the new sidewalks will have to be torn up and replaced again due to impending water and sewage line upgrades. Keynes would be particularly proud of this one. Last year the city received a $1 million gift from DOT for the “installation of period street lights, trees, accent pavers, street furniture and sidewalk improvements” on the city’s Main Street.
  • The Michigan Department of Transportation plans on spending $5 million in federal DOT money on a bunch of projects that are of unquestionable national importance: cobblestone streets in Grand Rapids; exhibits at the Detroit Science Center; rehabilitating the historic Quincy and Torch Lake Railroad Engine House in the Upper Peninsula; a bridge for bicyclists and pedestrians over the Clinton River in Utica and bike racks at several locations in Wayne, Oakland, and Macomb counties.

These projects might be worthwhile, but they should be paid for by the local interests who can best judge their worth.

In his 1932 book, Congress as Santa Claus, constitutional scholar Charles Warren offered a prescient warning on the dangers of federal subsidization of state and local affairs:

The continuance of this practice of shifting to the National Government responsibility for payment for matters which formerly were dealt with by individual initiative, by community cooperation, by voluntary organizations, or by local or State governments – the continuance of this practice of making drafts on the National Treasury to carry out purposes not within the enumerated or implied powers of the National Government will inevitably have two results.

So far as these Government donations consist of direct appropriations for private or local interests, they will deaden and finally destroy the eagerness or willingness of State Governments and local communities to pay for their own needs. So far as they take the shape of the so-called Federal Aid laws for local projects to be matched by local appropriations, they will have ‘a tendency to induce excessive expenditures by State and municipal governments, with top-heavy bond issues and oppressive local taxation.’

I doubt in Warren’s worst nightmares could he have envisioned the examples of DOT spending above, let alone the existence of a $90 billion federal Department of Transportation.

Tuesday Links

  • Gene Healy on today’s election in Massachusetts: “If Republican Scott Brown wins the Massachusetts special election Tuesday, the Bay State will have its first GOP senator since the era when disco was king. And Brown will have the much-derided Tea Party legions to thank.”
  • George W. Obama? “Bush’s successor—who actually taught constitutional law at the University of Chicago—is continuing much of the Bush-Cheney parallel government and, in some cases, is going much further in disregarding our laws and the international treaties we’ve signed.”
  • Podcast: “Our America Initiative” featuring former New Mexico Governor Gary Johnson. Johnson discusses out of control government spending, immigration, the Bush years, the drug war, defense policy and more.