Topic: General

Reckless Justice: The Marriage Protection Amendment

Here’s a new topic for Chairman Sensenbrenner’s suddenly awake Judiciary Committee: “RECKLESS JUSTICE: Does the Marriage Protection Amendment Trample the Constitution?” Of course, the case seems open and shut. In the landmark Lopez case a decade ago, Chief Justice Rehnquist opened with the basics: “We start with first principles. The Constitution establishes a government of enumerated powers.”

Marriage law has always been reserved to the states in our federal system. Law professor Dale Carpenter calls the Marriage Protection Amendment, which the Senate will debate and vote on next week, “a radical intrusion on the nation’s founding commitment to federalism in an area traditionally reserved for state regulation” in his Cato study released today.

Conservatives claim to believe in federalism, until the states do things they don’t like. Then they turn into New Deal liberals, believing that the federal government should correct the errors of the 50 states. The proposed Marriage Protection Amendment would not just protect states from being forced to recognize same-sex marriages made in other states, as some proponents claim. It would forbid any of the several states from deciding – through court decision, legislative action, or even popular initiative – to extend marriage to gay couples. Depending on the interpretation of its language, it may even ban civil unions and domestic partnerships.

Of course, it’s not good lawmaking to propose an amendment to the Constitution whose language is so unclear, even to its supporters. But then, this really isn’t lawmaking. Majority Leader Bill Frist knows the amendment won’t pass the Senate next week. It failed in 2004 and is likely to get only a handful more votes this time. A majority leader usually doesn’t bring legislation to the floor that he knows will fail. Frist must have some other purpose in mind in bring this amendment up for a futile vote.

Crisis of Abundance Watch

Joe Kristan is reading Crisis of Abundance and blogging the experience. He writes

Crisis of Abundance says

“An important characteristic of premium medicine is that many procedures have a low probability of affecting the outcome. In fact, often the procedures do not even affect the treatment plan.”

Digital mammography seems an apt illustration of this point. It is more effective for only a minority of patients, and the treatment for a cancer discovered digitally doesn’t differ from that discovered on film. Yet as it is the latest technology, and in short supply, the digital technology will cost more. It’s an illustration of “premium medicine” that could have come right out of C of A. And, as C of A notes, spending on imaging services is growing twice as fast as health spending as a whole.

He is referring to an article in the Wall Street Journal on digital mammography.

Mike Tanner says it’s fine that Americans spend a lot on health care. I would agree if it were an income effect. The problem is that with 85 percent of our health care services paid for by third parties (a stat which I got from the Tanner-Cannon book), I think it’s largely a substitution effect, based on an implicit price to the consumer of zero.

If you want to comment on this issue, go to the Amazon page for Crisis of Abundance. Scroll down for the discussion forum.

Next Week at Cato Unbound: The Future of Work

Join us next week for the June issue of Cato Unbound devoted to glimpsing the future of work in America.

Richard Florida, author of the bestselling Rise of the Creative Class, will lead off with an essay this coming Monday. Replying to Florida over the following week and a half will be: George Mason economist and futurist Robin Hanson, an expert on robot economics [pdf]; UCLA economist Edward Leamer, author of a much-circulated review [pdf] of Thomas Friedman’s The World Is Flat; and MIT economist Frank Levy, co-author of The New Division of Labor: How Computers are Creating the New Job Market.

Here’s what they’ll be talking about:

The economists tell us that technology is a substitute for some forms of human capital and a complement to others. As the pace of technological advance continues to quicken, the “information age” evolves into something new, and the world economy becomes ever more integrated, the most economically valued set of human skills and capabilities continues to shift rapidly. Tens of millions of Americans used to make, and many still do make, a good living in low- and medium-skilled assembly line jobs. However, many of these jobs can now be done at less expense by machines, or by lower-paid workers in poorer countries like China and India. At the same time, the return on investment in education continues to rise, widening the gap in pay between workers with college degrees and workers without them. What do these trends mean for the future of work in America? Are there any jobs safe from mechanization and outsourcing? If part of rising inequality a function of the match between technology and human capital, what can be done to ensure that more people develop the right kind of capital? In a changing global economy, what is America’s comparative advantage? If you had a child tomorrow, and wanted her to get ahead, what would you want her to pick as her college major eighteen years from now?

Join us next week for a provocative look at the future of work in our high-tech, globalized world.

Give Us Liberty… or Send Your Kids to Public School

Back in January, the Florida Supreme Court struck down that state’s “Opportunity Scholarships” school voucher program. I discussed their bizarre léger-de-loi here, and called for a state constitutional amendment to correct it here.

After the amendment effort failed in the State Senate, some Floridians have decided to take matters into their own hands, circulating a petition to guarantee universal school vouchers.

While their exact policy prescription differs from what I’d suggest, it has a delightful little catch: “If the Amendment is not passed, all elected officials and schoolteachers must send their children to public schools.”

That would run afoul of the U.S. Supreme Court’s 1925 Pierce v. Society of Sisters ruling guaranteeing parents the right to private schooling (assuming they can afford it), but rhetorically, it’s a pretty good point. Today, the only folks who have school choice are the wealthy, who can either choose a different school district by moving, or choose an independent school by paying tuition.

The poor, by contrast, are generally condemned to the public school to which they are assigned by the stroke of a bureaucrat’s pen. How is this supposedly uniform system of public schooling working out for them?

America has the largest achievement gap between wealthy and poor students of any industrialized country in the world.

The only way that will change is if we extend choice to all families, regardless of income.

On Second Thought, Let’s Not Go Dutch

Heritage Foundation education analyst Dan Lips has a piece out today arguing for a federal school voucher program.

It does a great job documenting the dire educational situation facing millions of disadvantaged American kids, and wisely recommends giving them and their families unfettered choice of government and independent schools.

That said, it’s both dangerous and unconstitutional to have the federal government handing out school vouchers. I explain the problems (and the “going Dutch” reference) here, along with suggesting a safer, state-level alternative.

Selective Outrage

Here’s the webpage for Rep. Sensenbrenner’s breathlessly titled hearing on the FBI search of Rep. Jefferson’s office: “RECKLESS JUSTICE: Did the Saturday Night Raid of Congress Trample the Constitution?” It’s a stacked deck–four scholars who share Sensenbrenner’s outrage over the raid.

Perhaps the testimony of Jonathan Turley or Bruce Fein, both of whom have been on the right side of important separation of powers issues in the last few years, will change my mind. But right now the congressional reaction to the search reminds me of President Clinton piously invoking the Constitution in defense of the God-given, natural right to fool around with the help and lie about it in court. As Clinton put it at a news conference in 2000: “on the impeachment, let me tell you, I am proud of what we did there, because I think we saved the Constitution of the United States.”

If you’re going to defend the Constitution, you could pick clearer grounds than a narrow interpretation of “high crimes and misdemeanors,” and it would also be nice if you’d demonstrated the slightest interest in defending it before Ken Starr came knocking. Similarly, if you’re going to complain about “Trampling the Constitution,” it’s a little unseemly to start with penumbras and emanations from the Speech or Debate Clause, when you have a president who claims inherent authority to break any law that Congress passes if he believes it constrains his freedom of action in the war on terror. Marty Lederman puts it well:

if this were part of a concerted congressional effort to fight back against the tide of Executive aggrandizement, the outrage might be understandable. But Congress has been almost completely indifferent, for two years running now, with respect to very serious separation-of-powers challenges – an Executive branch that has repeatedly asserted a constitutional power to ignore statutes regulating the conduct of war; that has kept virtually all of its dubious activities secret from the legislature and public; that has resisted any serious oversight; that has engaged in widespread surveillance of U.S. citizens without warrant or probable cause of wrongdoing (or that the U.S. persons are agents of al Qaeda); etc. And Congress has simply sat back and done nothing. If Denny Hastert, et al., had been fighting tooth and nail on torture, and oversight of Iraq, and the manipulation of intelligence, and the use of signing statements to signal noncompliance with scores of statutes, and violations by NSA of FISA and other statutes, etc., then perhaps this latest incident would rightly be seen as a straw that broke the camel’s back. But… Congress has instead allowed its own core constitutional powers – such as the enactment of laws – to be swept aside with impunity by an Administration with a strikingly aggressive view of Executive prerogatives. That legislators care much more about the sanctity of the contents of their offices than about the enforcement of the laws they have written is, perhaps, predictable, but nevertheless unfortunate.

Sloan’s Cash Cow

Columnists often have cash cows–storylines that they milk over and over. Allan Sloan writes the “Deals” column in the Washington Post, and his cash cow is outrage over corporate mergers and acquisitions that avoid taxes.

In dozens of columns, Sloan has complained about corporations that (legally) minimize their taxes when doing M&As. Typically, he implies that we would be better off if every M&A on Wall Street got hit with a hefty tax of 30 percent or so. In today’s column, Sloan complains that a proposed transfer of the Atlanta Braves from Time Warner to Liberty Media would avoid $700 million in taxes, and that average taxpayers would be ”shut out.”

Here are some issues that I’ve never seen Sloan address:

1) Does it make sense to tax M&As at all? Why should Uncle Sam get a pound of flesh every time American businesses do some restructuring? M&As often have capital-gains-tax implications. But capital gains taxes can represent a double-taxation on business earnings. Under a more efficient tax system, capital gains would not be taxed at all.

2) Two items that make the tax effects of M&As complex are capital gains and depreciation. These items are unique to income taxes. Under a consumption-based tax system, such as the Steve Forbes Flat Tax, they would be eliminated and M&As vastly simplified. Why not focus on tax reform as a systematic fix to the problems of M&As, rather than complaining about each individual deal?

3) Better yet, why not eliminate the corporate income tax altogether, as many eminent conservative and liberal economists have advocated over the decades? Corporate taxes are ultimately paid for by workers, consumers, and individual shareholders. The former group probably bears most of the burden in the modern globalized economy. If $700 million of taxes were avoided on the Atlanta Braves’ deal, the biggest winners are likely to be American workers.

Whining about the particular effects of our complex tax code is easy. I’d rather see columnists like Sloan tell us how to simplify the code so that corporations aren’t encouraged to pursue the fancy tax sheltering that he chronicles in the first place.