Topic: Government and Politics

Now More Than Ever, Courts Should Police Administrative Agencies

Under the Bush administration, the Labor Department interpreted a piece of the Fair Labor Standards Act as exempting mortgage-loan officers from eligibility for overtime pay. The Obama Labor Department didn’t see the law the same way, however, and issued a re-interpretation.

This was a worrying development for the Mortgage Bankers Association, which represents banks that relied on the original interpretation and whose interests were greatly affected by the re-interpretation, but were given neither notice nor the chance to comment on the change. The MBA thus sued the Labor Department, arguing that the re-interpretation violated the Administrative Procedure Act, the 1946 law that determined (among other things) the processes that agencies must go through when exercising their “interpretive” and “legislative” powers—that is, when they interpret laws and when they make their own regulations.

Under the APA, agencies have to give affected parties notice and the opportunity for comment when making legislative rules, but do not have to do so when they merely make interpretive rules. The MBA argued that the APA requires an agency to go through the notice-and-comment process when it changes its interpretation of a law or regulation to such a degree that it is effectively making a legislative rule.

The U.S. Court of Appeals for the D.C. Circuit agreed with the MBA, and now the Supreme Court has decided to review the case. The government argues that agencies are due deference when they change the application of a law through interpretive rules—so long as they come in the form of an interpretation—and that the courts don’t get a say regarding when this action becomes a legislative rulemaking.

Cato disagrees with the government’s position—if there’s anything our country needs, it’s not fewer checks on the administrative state—and has filed a brief supporting the MBA, joined by the Competitive Enterprise Institute and the Judicial Education Network, and with former White House Counsel Boyden Gray as co-counsel. In our brief, we examine the APA’s framers’ goal of rebutting the government’s assertion of administrative power. We argue that the boundary between “interpretive” and “legislative” rules is a blurry one that should be policed by the courts. The APA’s architects assumed that the courts would play such a role; they wouldn’t have made interpretive rulemaking so procedurally easy otherwise. Scholarly sources and legislative history agree that judicial review is necessary—for example, determining when “interpretive” flip-flopping necessitates greater due-process protection—to protect those whose livelihood depends on relying on and complying with agency interpretations.

In sum, our brief looks to history to make clear a few important points that only the government would dispute. In a time when more people’s lives are staked on administrative rulings than ever before, we shouldn’t weaken the APA’s due-process protections. This case boils down to the government’s desire for agencies to more easily exercise power and for the subjects of regulations to have a harder time challenging that awesome authority. We, with the APA’s framers, think it should be the other way around.

The Supreme Court will hear oral argument in Perez v. Mortgage Bankers Association on December 1.

This blogpost was coauthored by Cato legal associate Julio Colomba.

How to Stop Wasting Money on Science

In Thursday’s Wall Street Journal, former Energy Secretary (and Stanford professor) Steven Chu and his colleague Thomas R. Cech penned an opinion piece entitled How to Stop Winning Nobel Prizes in Science, in which they argue for better long-term planning and consistency in the public funding of science. Cato adjunct scholar Dr. Terence Kealey agrees, suggesting the right amount would be consistently $0.

In August, 2013, Kealey wrote precisely about this in that month’s edition of Cato Unbound. Since then, he has stepped down after a long and successful tenure as vice-chancellor (the equivalent of college president in the U.S.) of the University of Buckingham in the United Kingdom.

First, Kealey considers the notion that science is a “public good,” i.e., something that should rightly be funded by government because scientific developments would otherwise be underprovided from the perspective of society as a whole.  

The myth [that Science is a public good] may be the longest-surviving intellectual error in western academic thought, having started in 1605 when a corrupt English lawyer and politician, Sir Francis Bacon, published his Advancement of Learning.

Kealey went on to document that there is no evidence the public good model (as opposed to laissez faire) is more efficient at providing for the betterment of the public:

Less Is More in the Federal Government

Daniel Henninger nailed it in his article “Killer Bureaucracies,” which discussed the poor performance of so many federal agencies recently. He called for “scaled-down, distributed public responsibilities” to reduce bureaucratic failure.

To that end, Congress should pursue three reforms:

  1. Eliminate bureaucracies that we do not need. Departments that mainly pump out subsidies and intrude on properly state, local, and private activities should be terminated, including the Departments of Agriculture, Education, and Energy. Federal organizations that perform useful business functions should be privatized, including USPS, FAA, TSA, Amtrak, TVA, and the Army Corps of Engineers.
  2. When feasible, scrap department superstructures—such as Homeland Security—because they add complexity and blur responsibility. Homeland agencies, such as the Secret Service and Border Patrol, should stand on their own, have narrowly-defined tasks, and report directly to the president.
  3. Assign the oversight for each agency to a single House and single Senate committee so that citizens know which politicians are to blame for failures. Homeland Security is currently overseen by more than 90 committees and subcommittees, but that’s absurd because when every politician is responsible, none of them are.

The federal bureaucracy can work better, but only if it is much smaller.

The Great Society Meets the Taxpayer

President Lyndon Johnson’s legacy was the so-called Great Society (read: entitlement programs). As these programs have matured, along with the U.S. population, the proportion of the people dependent on the State has soared. Indeed, spending on entitlement programs gobbles up bigger and bigger chunks of the federal budget.

As the population grows older, entitlements will grow. Worryingly, the ratio of people receiving government benefits to those paying taxes will continue to climb, too. As the accompanying chart shows, those who receive government goodies already number the same as those who pay taxes (the ratio is one). With the steady progression of the ratio, it will be very hard to put the genie of the Great Society back in the bottle. Can you just imagine how difficult it will be to cut entitlement programs when those who are dependent on the government outnumber taxpayers by two to one?

The Cost of Ebola and the Misery Index

For a clear snapshot of a country’s economic performance, a look at my misery index is particularly edifying. The misery index is simply the sum of the inflation rate, unemployment rate, and bank lending rate, minus per capita GDP growth. 

The epicenter of the Ebola crisis is Liberia. As the accompanying chart shows, the level of misery, as measured by the misery index, has decreased since Charles Taylor ruled Liberia.

That said, the index was still quite elevated, at 19.4, in 2012. Yes, 2012; that was the last year in which all the data required to calculate a misery index were available. This inability to collect and report basic economic data in a timely manner is bad news. It simply reflects the government’s lack of capacity to produce. If it can’t produce economic data, we can only imagine its capacity to produce public health services.

With Ebola wreaking havoc on Liberia (and neighboring countries), the level of misery is, unfortunately set to soar.

Friedman Prize Winners in the News

Every two years, the Cato Institute awards the Milton Friedman Prize for Advancing Liberty to an individual who has made a significant contribution to advancing human freedom. More than anything, past winners have embodied the old adage that the price of liberty is eternal vigilance.

It should therefore be no surprise that Milton Friedman Prize winners continue to show up in the news, pushing for freedom and standing up to power. In recent days, three awardees have appeared in the news because of their unyielding commitment to the principles of individual liberty, limited government, free markets, and peace.

Mao Yushi

In September, the ruling Communist Party in Beijing announced that the people of Hong Kong, who have enjoyed considerable autonomy since the city’s transition from a British protectorate in 1997, could only vote for electoral candidates that were pre-approved by the Communist Party. Protesters bravely took to the streets and have faced strong-arm tactics from the police, including beatings and pepper spray. Beijing has refused to budge and this week “made its highest-level denunciation yet of the protesters,” reports the New York Times, “accusing them of pursuing a conspiracy to challenge Beijing’s power over the city.”

The authorities in Beijing aren’t satisfied with cracking down on protests in Hong Kong; they are also curtailing freedom on the mainland. Mainland supporters of the protesters are being arrested. And as the Washington Post reported this week, “books by scholars considered supporters of the demonstrations are suddenly becoming harder to find,” as Beijing imposes an apparent ban on material critical of the government.

Mao Yushi, awarded the Milton Friedman Prize in 2012, is one of those scholars. Mr. Yushi is an economist and one of China’s most outspoken activists. In response to the news that his books were being censored by Beijing, Yushi wrote, “A national government organ is daring to risk universal condemnation, in open opposition to the constitution. What is our government actually trying to do?” His internet post was then swiftly deleted by government censors.

Fortunately, Mao Yushi has overcome much worse repression. Under Mao Zedong, Yushi wrote in the Washington Post just weeks before the Hong Kong protests broke out, “I was labeled a ‘rightist’ and persecuted, along with thousands of others. We were removed from our posts and sent to the countryside for ‘re-education.’ I was reduced to the lowest human form, constantly stalked by the nightmare that I could never shake: hunger.”

Read Mao Yushi’s article in the latest issue of The Cato Journal and the corresponding Op-Ed in the Washington Post.

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.