Topic: Cato Publications

Adler on How the IRS Is Rewriting ObamaCare to Tax Employers

Jonathan H. Adler is the Johan Verheij Memorial Professor of Law and director of the Center for Business Law and Regulation at Case Western Reserve University.  In this new Cato Institute video, Adler explains how a recently finalized IRS rule implementing ObamaCare taxes employers without any statutory authority.

For more, see this previous Cato video, “States Should Flatly Reject ObamaCare Exchanges”:

See also our November 2011 op-ed on this IRS rule that appeared in the Wall Street Journal.

Fake ID Foolishness

In this USA Today story, identity-based security mavens sputter about the availability of high-quality fake IDs that include digital holograms, credit-card quality plastics, and specialty inks found in “more secure” drivers’ licenses. Along with adding technical security measures to cards, states that once made driver licensing easier reversed course and discontinued issuing licenses over the counter so they could new-fangle their IDs. All this inconvenience and expense has done nothing but require bad guys (and college students) to order their driver’s licenses at sites like ID Chief.

One could have predicted all this:

The more valuable a driver’s license is for access to work, mobility, goods, and services, the more likely people will seek to acquire this document illegally. Reforms … may “stiffen” state-issued identification card processes, but they leave it brittle.

Meanwhile the expense and inconvenience of restricted access to identification cards will fall on all Americans—including the ones who need drivers’ licenses for the simple purpose of driving. Honest, law-abiding Americans will suffer impingement on their freedom of action, their individual power, and their security from identity-based frauds. The REAL ID Act is full of reforms that do not fix.

Instead of “strengthening” our national identification system, policies that reduce the value of breaking identification systems will improve identification. Jujitsu is needed much more than brawn.

That’s yours truly, writing in the 2006 Cato book, Identity Crisis: How Identification is Overused and Misunderstood.

The Value of Books

At MasterResource, a free-market energy blog, Alex Epstein posts a glowing tribute to the 1996 Cato book Oil, Gas, and Government by Robert L. Bradley, Jr. (who happens to be a co-blogger at MasterResource). Oil, Gas, and Government is surely the longest book Cato ever published, and nobody knows better than I do—well, Rob Bradley does—how much work went into researching, writing, editing, and publishing it.

In these days of blogs and tweets, we’re used to consuming information in very small bites. But one of the fundamental roles of think tanks is to produce long-form research, not just talking points and congressional briefings. And Oil, Gas, and Government is very long form—1,997 pages in two volumes. (We told him nobody wanted to read a 2,000-page book, so he stopped at 1997.) It’s a tremendous and comprehensive achievement, as Epstein explains:

While recently researching energy history for a writing project, I was reminded of how valuable—and underrated—Robert Bradley’s Oil, Gas, and Government: The U.S. Experience is. While there are countless books covering the history of energy from one angle or another, very few, in my experience, can be counted on for precision and accuracy.

The majority of books I read that reference early petroleum history, for example, tell a radically oversimplified narrative of petroleum replacing whale oil. However, if one reads Harold Williamson and Arnold Daum’s definitive two-volume The American Petroleum Industry, one learns about a far more intricate and interesting progress, including the one-time dominance of camphene, a turnpentine-based illuminant that preceded petroleum–or the story of “coal oil,” which was once believed to be the illuminant of the future. (I discuss this history in my essay Energy at the Speed of Thought: The Original Alternative Energy Market.)

What distinguishes Williamson and Daum—and Oil, Gas, and Government—is the systematic use of primary sources. For a researcher, this certainly makes life more difficult as it is far easier to use popular accounts as a jumping off points.

But the researchers who undergo this difficult task give the rest of us an enduring resource. Williamson and Daum present the essential technological and economic history of the industry through the 1950s, with exact quantitative data and contemporaneous images throughout. Bradley’s book gives us the essential political and political-economic history of the oil and gas industry through the 1980s, with painstaking attention to detail.

Bradley’s introduction, incidentally, gives a valuable overview of the merits and shortcomings of various popular histories. Not surprisingly, Williamson and Daum receive high praise and are referenced throughout Oil, Gas & Government.

Bradley’s 2,000-page opus may be daunting for some, but if you ever need historical context on today’s developments, from offshore drilling to natural gas policy, this is the resource to consult.

Earlier this year, for example, I was wondering about the history of eminent domain in the oil industry, and Oil, Gas, and Government covered it comprehensively-–including this memorable passage about how Standard Oil created pipelines without using eminent domain:

Right-of-way was obtained by dollars, not legal force. Pipe was laid deep for permanence, and only the best equipment was used to minimize leakage. Storage records reflected “accuracy and integrity.” Innovative tank design reduced leakage and evaporation to benefit all parties. Fire-preventions reflected “systematic administration.” The pricing strategy was to prevent entry by keeping rates low. While these business successes may not have benefited certain competitors, they benefited customers and consumers of the final products.

The book does not need to be read cover-to-cover, though I have found it immensely rewarding to do so. Any chapter stands on its own, almost as an encyclopedia entry, though one will find references to intriguing concepts or history discussed elsewhere in the book.

Oil, Gas, and Government has an additional benefit: Bradley’s theoretical examination of certain important issues in petroleum policy. Most notable is his discussion of a “homestead” theory of property rights in oil. Under this theory, the individual who creates value by discovering a reservoir is the primary rights-holder, so long as he has made proper arrangements for any given surface access point.

Under traditional theory, every person whose land happens to be above a given reservoir, whether they do anything or not, is a rights-holder with a right to “capture” as much oil as they can once someone else has discovered it. When I first read Bradley’s account many years ago my reaction was “Of course—this is the only way to do it.”

I write all of this because I think the energy community would be served by possessing more copies of this book—along with Williamson and Daum—and, owing to its length and its age (nearly 20 years old) it does not get the attention it deserves. In our age of quick communication, where even medium-sized books seem on the wane, the old-styled treatise has a storied place in our understanding of history to better inform the present and imagine the future.

Copies still available!

Big Government Causes Hyper-Partisanship in the Judicial Appointment Process

Earlier this year, the Georgetown Journal of Law & Public Policy hosted a symposium on “Hyper-Partisanship and the Law.” The journal editors graciously invited me to join an august panel on partisanship in the judiciary that included George Mason University Law School’s Todd Zywicki and the U.S. Chamber of Commerce’s Rachel Brand. (Brand ran the DOJ’s Office of Legal Policy, which is responsible for vetting and advising the president on judicial nominees, from 2005 to 2007.)

The symposium video isn’t available online, but the participants were invited to publish their presentations in this summer’s issue of the GJLPP. Zywicki has already blogged about his paper, “The Senate and Hyper-Partisanship: Would the Constitution Look Different if the Framers Had Known that Senators Would Be Elected in Partisan Elections?”

My (short) article is entitled “Big Government Causes Partisanship in Judicial Nominations.” Here’s an excerpt:

In 1962, Byron White’s hearing lasted 15 minutes and consisted of three questions.  Can you imagine that happening now?  Most district court nominees would take that deal.  Is it because of TV and the media and the instant sound bite and the new media with the Internet and social networking and all the rest of it?  Is it because the issues have gotten more ideologically divisive?  I think the answer isn’t really any of these.  It isn’t that there’s been a corruption of the confirmation process, the nomination process, presidential or senatorial rhetoric, or the use of filibusters.  It’s a relatively new development but one that’s part and parcel of a much larger problem: constitutional corruption.

As government has grown, so have the laws and regulations over which the Court has power.  The Court’s power has grown commensurate with the power of Congress, because all of a sudden it’s declaring what Congress can do with its great powers and what kind of new rights will be recognized.   As we have gone down the wrong jurisprudential track since the New Deal, judges all of a sudden have more power behind them and the opportunity to really change the direction of public policy more than they ever did.

Read the whole thing (not yet in the final format). My presentation largely tracked some of the points Roger Pilon made in his seminal (and now decade-old) paper, “How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees.” You should read that too.

‘How an E-Verify Requirement Can Help’

I know little about a House Judiciary Committee hearing tomorrow on E-Verify, but the title of it has a peculiar odor: “Document Fraud in Employment Authorization: How an E-Verify Requirement Can Help.”

You see, the immigration policies Congress has set are the source of the problem. Document fraud is made more likely by employment authorization requirements meant to enforce them, which are also—let’s remember—intrusive and costly business regulation.

In my Cato Policy Analysis “Electronic Employment Eligibility Verification: Franz Kafka’s Solution to Illegal Immigration,” I wrote about restrictive immigration policies and the intrusive “internal enforcement” programs they have spawned. In a section titled “Counterattacks and Complications,” I examined how workers and employers will collude to avoid and frustrate worker verification. Mandatory E-Verify will increase identity and document fraud because it makes these frauds profitable. Trying to solve this problem, the government will naturally gravitate toward more powerful identity systems, including biometric identity cards and tracking.

Sure enough, House Judiciary Committee chairman Lamar Smith’s bill, the “Legal Workforce Act,” has a “pilot program” for a biometric national identity card.

When committing fraud is the pathway to productive employment, you know something is out of whack. Among the things out of whack are: too-restrictive immigration policy, internal enforcement, and E-Verify. This is supposed to be a free country where willingness and ability are the keys to employment.

This Month’s Cato Unbound: The Past, Present, and Future of Classical Liberalism

Ideologies grow and develop over time. Those that don’t die out. Where is classical liberalism headed next?

At Cato Unbound this month, Matt Zwolinski and John Tomasi argue that we who favor limited government and strong private property rights can – and should – make our case in terms of social justice: Among its many other excellent traits, liberty is good for the least well-off, and this is a reason to insist upon it.

Does their so-called Bleeding Heart Libertarianism lead to a certain – shall we say – welfare-state squishiness? Not to philosopher Roderick Long. In his response essay, Long emphasizes that Murray Rothbard – Mr. Libertarian himself – argued in a similar vein. A power elite controls the government, Rothbard argued, and they use it to enrich and entrench themselves. Outsiders do poorly by contrast, and this to Rothbard was a reason for rejecting government altogether.

David Friedman dissents, however: On his reading, 19th century and earlier classical liberals weren’t really arguing about the lot of the least well-off as such. Instead, they were arguing about the largest group in their own societies, which also just happened to be unskilled laborers. Adam Smith, then, is more the ancestor of Jeremy Bentham than of John Rawls. And anyway, Rawls’ account of social justice is flawed in several important respects.

Alexander McCobin suggests that ideologies, and notably ours, are mostly tied together by a set of principles; the justifications for these principles can vary, and there is often room for disagreement about specific policy outcomes. Taking any small group of them as essential and rejecting all others as somehow impure would mean, in practice, that we enact fewer libertarian policies of any type at all. On the intellectual side, it might also mean giving up a lot of very productive dialogue: It’s actually a good thing when the contractarianism of a John Locke meets the anti-contractarianism of a Lysander Spooner – resulting, say, in the public reason liberalism of a Gerald Gaus, or the presumption of liberty as championed by Randy Barnett.

There’s clearly a lot here to discuss, which our participants will continue to do through the rest of the month, so be sure to stop by often and/or subscribe to Cato Unbound.

Now Online: The Complete Libertarian Review

Thanks to the good folks at Unz.org, we’ve filled out our archive of the late, great libertarian magazine Libertarian Review. The magazine was published from 1972 to 1981, first as a newsletter of book reviews and then as a glossy monthly magazine edited by Roy A. Childs, Jr. It made quite a splash during those years, and Childs became one of the most visible and controversial libertarian intellectuals. After the magazine folded, as so many intellectual magazines do, he spent almost a decade as editorial director and chief book reviewer for Laissez Faire Books. He had read everything, and he knew everyone in the libertarian movement. He got lots of prominent people — including Murray Rothbard, John Hospers, Thomas Szasz, Roger Lea MacBride, and Charles Koch — to write for the magazine. And he discovered and nurtured plenty of younger writers.

Libertarian Review featured

  • news coverage and analysis of inflation, the energy crisis, economic reform in China, the 1979 Libertarian Party convention and the subsequent Clark for President campaign, the Proposition 13 tax-slashing victory (at right), the rise of the religious right, the emergence of Solidarity, Jerry Brown, Three Mile Island, and the return of draft registration.
  • classic essays like Jeff Riggenbach on “The Politics of Aquarius” and “In Praise of Decadence,” Joan Kennedy Taylor on Betty Friedan, Rothbard on “Carter’s Energy Fascism.”
  • interviews with F. A. Hayek, Howard Jarvis, Paul Gann, Henry Hazlitt, John Holt, and Robert Nozick.
  • and especially Roy Childs: on William Simon’s A Time for Truth, on Irving Kristol, on the rise of Reagan, on drugs and crime, on the hot spots of Iran, Afghanistan, and El Salvador.

As Tom G. Palmer put it in a letter published in The New Republic of August 3, 1992, just after Roy died, “Roy Childs was one of the finer members of a generation of radical thinkers who worked successfully to revive the tradition of classical liberalism — or libertarianism — after its long dormancy, and who dared to launch a frontal challenge to the twentieth-century welfare state. An autodidact who knew more about the subjects on which he wrote than most so-called ‘experts’, his writings exercised a powerful influence on a generation of young classical liberal thinkers.”

Check it out.