Topic: Government and Politics

Libertarian Choices in Colorado

Karen Tumulty asks in the Washington Post

what label do you put on the political philosophy of a state that one year would legalize marijuana for recreational use and the next year recall two state senators who voted for stricter gun laws?

Readers of this blog might have an answer. So, it turns out, does Sen. Mark Udall:

“We’re a libertarian state — small ‘l’ — when it comes to privacy issues, issues of reproductive freedom, gun ownership, who you worship, who you spend your life with,” Udall said. “We’re a pro-environment state. We self-identify with environmentalists more than any other state in the nation. But we’re also very pro-business.”

So now those small-l libertarian voters will have to decide whether they prefer a not-so-libertarian Democrat, a not-so-libertarian Republican, or a big-L Libertarian.

Read more on libertarian voters, especially in the Mountain West.

How ObamaCare’s Victories Count Against It In Sissel v. HHS

Randy Barnett has an excellent post at the Volokh Conspiracy about his recent amicus brief requesting the D.C. Circuit grant en banc review of Sissel v. HHS. (Sound familiar?Sissel challenges the constitutionality of ObamaCare’s individual mandate – which the Supreme Court ruled could only be constitutional if imposed under Congress’ taxing power – on the grounds that this, ahem, tax originated in the Senate rather than the House, as the Constitution’s Origination Clause requires.

A three-judge panel of the D.C. Circuit ruled against Sissel. The panel’s rationale was that the Patient Protection and Affordable Care Act was not the sort of “Bill[] for raising revenue” that is subject to the Origination Clause, because the purpose of the PPACA is to expand health insurance coverage, not to raise revenue. Barnett explains why this reasoning is nutty. Under the Sissel panel’s ruling, no bills would ever be considered revenue measures because all revenue measures ultimately serve some other purpose.  The panel’s interpretation would therefore effectively write the Origination Clause out of the Constitution. Barnett argues instead that the courts must recognize the PPACA as a revenue measure subject to the Origination Clause because the Supreme Court held the taxing power is the only way Congress could have constitutionally enacted that law’s individual mandate.

A shorter way to describe Barnett’s argument is that he turns ObamaCare supporters’ own victory against them: “You say the individual mandate is constitutional only as a tax? Fine. Then it’s subject to the Origination Clause.”

Barnett again corners the D.C. Circuit with another sauce-for-the-gander argument on the procedural question of whether that court should grant en banc review of its panel decision in Sissel:

Of course, en banc review is rarely granted by the DC Circuit, but given that it recently granted the government’s motion for en banc review of the statutory interpretation case of Halbig v. Burwell presumably because of the importance of the ACA, the case for correcting a mistaken constitutional interpretation is even more important, especially as the panel’s reasoning has the effect of completely gutting the Origination Clause from the Constitution…

Or, the shorter version: “You guys think Halbig is worthy of en banc review? Fine. If the Sissel panel erred, the downside is even greater.”

We’ll see whether the D.C. Circuit thinks the Constitution is as worthy of its protection as ObamaCare.

(Cross-posted at my comment-friendly blog, Darwin’s Fool.)

Les Miserables in Hong Kong

As the police move in to tear down the barricades built by the protesters in Hong Kong, I am reminded of scenes from the musical “Les Miserables,” and of this song:

Do you hear the people sing?
Singing the song of angry men?
It is the music of the people
Who will not be slaves again!

Will you join in our crusade?
Who will be strong and stand with me?
Beyond the barricade
Is there a world you long to see?

Then join in the fight
That will give you the right to be free!

I hope that the students of Hong Kong will be more successful than the French students were in June 1832. This time, of course, the whole world is watching, and that may make some difference.

Cato Conference: “Pruitt, Halbig, King & Indiana: Is ObamaCare Once Again Headed to the Supreme Court?”

On October 30, the Cato Institute will host a conference featuring leading experts on four legal challenges that critics understandably yet mistakenly describe as “the most significant existential threat to the Affordable Care Act”:

PruittHalbigKing & Indiana: Is ObamaCare Once Again Headed to the Supreme Court?

Thursday, October 30, 2014, 9:00AM – 1:30PM. 

Luncheon to follow.

Featuring: Oklahoma Attorney General Scott Pruitt; Indiana Attorney General Greg ZoellerRobert BarnesThe Washington PostJonathan Adler, Case Western Reserve University School of Law; David Ziff, University of Washington School of Law; Brianne Gorod, Constitutional Accountability Center; James Blumstein, Vanderbilt University; Michael F. Cannon, Cato Institute; Len Nichols, George Mason University; Tom Miller, American Enterprise Institute; and Robert Laszewski, Health Policy and Strategy Associates, LLC.

In Pruitt v. Burwell and Halbig v. Burwell, federal courts have ruled that the Internal Revenue Service is misinterpreting the Patient Protection and Affordable Care Act, unlawfully paying billions of dollars to private health insurance companies, and unlawfully subjecting more than 50 million individuals and employers to the Act’s individual and employer mandates. In King v. Burwell, another federal court found the IRS’s interpretation is permissible. A fourth lawsuit, Indiana v. IRS, is due a ruling at any time.

While these cases attempt to uphold the ACA by challenging the Obama administration’s interpretation, supporters and critics agree they could have as large an impact on the law as any constitutional challenge. Is the IRS acting within the confines of the law? Is the ACA unworkable as written? Is it inevitable that the Supreme Court will hear one of these cases, or a similar challenge yet to be filed? What is the impact of the IRS’s (mis)interpretation? What impact would a ruling for the plaintiffs have on the health care sector and the ACA? Leading experts, including the attorneys general behind Pruitt v. Burwell and Indiana v. IRS, will discuss these and other dimensions of this litigation.

To register to attend this event, click here and then submit the form on the page that opens, or email events [at] cato [dot] org, or fax (202) 371-0841, or call (202) 789-5229 by 9:00 a.m. on Wednesday, October 29, 2014.

How The Supreme Court Can Stop Consumers From Getting Ripped Off

Today, the Supreme Court hears a case about whether dentists and other professions should be allowed to use state licensing boards to engage in anti-competitive behavior that would be illegal if not done under the auspices of state governments. The case is North Carolina State Board of Dental Examiners v. FTC, and involves actions taken by that state’s dental board to prevent non-dentists from providing teeth-whitening services.

In the University of Pennsylvania Law Review, Cato Institute adjunct scholars David Hyman and Shirley Svorny explain:

A majority of the courts of appeals gives state licensing boards and similar entities considerable latitude to engage in anticompetitive conduct, even when that conduct would be clearly unlawful were it undertaken individually by the licensed providers that typically dominate these licensing boards…

[T]he North Carolina Board of Dental Examiners (N.C. Board) became concerned that non-dentists were providing teeth whitening services. In North Carolina, teeth-whitening was available from dentists, either in-office or in take-home form; as an over-the-counter product; and from non-dentists in salons, malls, and other locations. The version provided by dentists was more powerful and required fewer treatments, but was significantly more expensive and less convenient. In response to complaints by dentists that non-dentists were providing lower-cost teeth-whitening services, the N.C. Board sent dozens of stern letters to non-dentists, asserting that the recipients were engaged in the unlicensed practice of dentistry, ordering them to cease and desist, and, in some of the letters, raising the prospect of criminal sanctions if they did not do so. The N.C. Board also sent letters to mall owners and operators, urging them not to lease space to non-dentist providers of teeth whitening services.

The Supreme Court will decide whether the North Carolina dental board should be able to claim a “state action” exemption to federal laws against anti-competitive conduct. Hyman and Svorny argue they should not, noting that doctors, lawyers, and other professions have used government licensing to stamp out competition, to the detriment of consumers:

Other occupations provide no shortage of similar examples, whether it is states requiring hair braiders to obtain cosmetology licenses (even though the requisite training has absolutely nothing to do with hair braiding), laws prohibiting anyone other than licensed funeral directors from selling coffins, states prohibiting anyone other than veterinarians from “floating” horse teeth, or ethics rules prohibiting client poaching by music teachers. 

“Antitrust has historically focused on private restraints on competition, but publicly imposed limitations can pose greater peril,” they write, “since they are likely to be both more effective and more durable.”

Hyman and Svorny make three further recommendations for the courts:

First, in reviewing the decisions of licensing boards, courts should presume that states were not actively supervising the boards, absent compelling evidence to the contrary. Second, defendant–licensing boards should be required to present persuasive evidence of actual harm that their proposed licensing restrictions or restraints will prevent and should be required to show that private market and non-regulatory forces (including brand names, private certification, credentialing, and liability) are insufficient to ensure that occupations maintain a requisite level of quality. Finally, we argue that legislators should take steps to roll back existing licensing regimes.

Hyman signed onto an amicus brief filed by antitrust scholars. (Here are two more amicus briefs filed by public-choice economists and the Cato Institute.) Svorny argues for the complete repeal of government licensing of medical professionals, and illustrates how the market for medical-malpractice liability insurance does more to promote health care quality than licensing

(Cross-posted at Darwin’s Fool.)

Greg Abbott Tells Fifth Circuit Court That Gay Marriage Won’t Stop Heterosexual Irresponsibility

In a brief filed to the Fifth Circuit Court of Appeals on Friday, Texas attorney general Greg Abbott says that the state’s gay marriage ban may help to reduce out-of-wedlock births:

Texas’s marriage laws are rationally related to the State’s interest in reducing unplanned out-of-wedlock births. By channeling procreative heterosexual intercourse into marriage, Texas’s marriage laws reduce unplanned out-of-wedlock births and the costs that those births impose on society. Recognizing same-sex marriage does not advance this interest because same-sex unions do not result in pregnancy.

As I’ve written before, this is a remarkably confused argument. There are costs to out-of-wedlock births. Too many children grow up without two parents and are less likely to graduate from high school, less likely to find stable jobs, and more likely to engage in crime and welfare dependency. All real problems. Which have nothing to do with bans on same-sex marriage. One thing gay couples are not doing is filling the world with fatherless children. Indeed, it’s hard to imagine that allowing more people to make the emotional and financial commitments of marriage could cause family breakdown or welfare spending.

The brief repeatedly says that “same-sex marriage fails to advance the State’s interest in reducing unplanned out-of-wedlock births.” Well, that may be true. But lots of state policies fail to advance that particular interest, from hunting licenses to corporate welfare. Presumably Abbott doesn’t oppose them because they don’t serve that particular purpose.

The brief does note that same-sex marriage may very well produce other societal benefits, such as increasing household wealth or providing a stable environment for children raised by same-sex couples [or] increasing adoptions.” But the attorney general wants to hang the state’s ten-gallon hat on the point that it won’t reduce out-of-wedlock births by opposite-sex couples.

In a previous case, Judge Richard Posner declared that the states of Indiana and Wisconsin had not produced any rational basis for banning gay marriage. Attorney General Abbott seems determined to prove him right.

Falling Oil Prices Put Producers Between a Rock and a Hard Place

Over the last few months, the price of Brent crude oil lost over 20% of its value, dropping below $90 just yesterday and hitting its lowest level in over two years. In consequence, oil producers will no longer be able to rely on oil revenues to pay their bills. The fiscal break-even price – a metric that determines the price per barrel of oil required for a nation to balance its budget at current levels of production – puts the problem into perspective.

Using data from Bloomberg and Deutsche Bank, I prepared a chart showing the break-even prices for the world’s major oil producers and the price on Brent crude. Over the past six months, Brent crude fell far below the break-even price for eleven of the top oil producers in the world; Iran, Venezuela, Nigeria, and even Saudi Arabia can no longer finance their governments’ largess through oil revenues.

The combination of oil markets flying into a perfect storm and excessive government spending puts most of the world’s oil producers between a rock and a hard place, where they will stay for some time.