Topic: Government and Politics

TONIGHT: Cato Scholars Live-Tweet the State of the Union

#CatoSOTU

Tonight at 9 p.m. EST, President Obama will lay out his plans for the upcoming year in his sixth annual State of the Union (SOTU) address. What will the President’s words mean for liberty? 

Find out tonight: Cato scholars will be live-tweeting their reactions to what the president says—and what he leaves out. Following the President’s address, stay tuned for commentary on the Republican and Tea Party responses. Featured scholars will include everyone from David Boaz to Mark Calabria, Walter Olson to Alex Nowrasteh….and many, many more.

This is your chance to ask the experts what to expect from the policy world in 2015—and to add your two cents to the discussion. Follow @CatoInstitute on Twitter and join the conversation using #CatoSOTU

Obama’s SOTU: Opportunity Lost

In tonight’s SOTU address, President Obama plans to push policies aimed at “helping middle-class Americans.”

Why is that a sensible goal for policy?  Where are goals like liberty or economic efficiency?

What about scaling back excessive regulation, simplifying our byzantine tax code, or slowing the growth of unsustainable entitlements?

What about the huge range of policies that might encourage economic growth?

The President’s proposals–increased taxes on the rich, more handouts for the middle class–are about redistributing the economic pie; and they will shrink rather than grow that pie by distorting economic incentives.

None of this is likely to matter, of course; the Republican Congress will presumably block most of the President’s proposals.

But it’s sad that a lame-duck president with nothing to lose will not endorse something valuable and historic, like legalizing drugs, vastly expanding legal immigration, or withdrawing all our troops from the Middle East.

Alas, the Republicans would presumably block these policies as well, since Republicans, like Democrats, worry more about pandering to their constituents than promoting freedom or economic growth.

But taking a stand for liberty is a first step; on this score the President’s approach fails miserably.

Did Supreme Court Telegraph Its Ultimate Ruling on Gay Marriage?

That’s the question I pose in my latest Forbes piece. Here’s a taste:

As any good lawyer knows, framing the question you ask a court is just as important — often more important — than providing a well-argued answer that helps your client. Well, when the Supreme Court, as expected, decided to take up gay marriage, it unexpectedly reframed the “questions presented” in the four cases it took up and consolidated for argument. Instead of accepting any of the formulations presented in the four petitions for review, it asked the parties to brief these two questions:

  1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
  2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

This was unusual; typically the justices simply decide whether to take a case based on the petitioners’ articulation. That’s why first-year legal-writing classes spend so much time working on those “questions presented.”

So what does this mean? UC-Irvine law professor Rick Hasen found the first question “odd” because it focused on state powers and obligations rather than individual rights, which ”perhaps keeps the court from getting into questions about heightened scrutiny for sexual orientation discrimination.” Harvard law professor Larry Tribe suggested that the reframed questions “technically leave open a middle path along which the court would prevent states from discriminating against same-sex couples lawfully married in their home states without requiring any state to take the affirmative step of issuing its own marriage licenses to same-sex couples.” (In my initial reaction to the cert grant, I speculated on the same compromise possibility but ultimately concluded that this was less likely than a clean win for the challengers on both questions.)

Read the whole thing. And I also recorded a podcast reacting to the Court’s decision to take up these cases.

Dividing the Loot in Maryland

Anticipating the inauguration of a rare Republican governor in Maryland, the state’s big Democratic jurisdictions are getting worried about their access to the state treasury:

Montgomery and Prince George’s officials are trying to make sure their counties are not forgotten by Gov.-elect Larry Hogan.

The Anne Arundel County Republican, who will be sworn in Wednesday, has pledged to pay more attention to rural Maryland, which he says was neglected during the administration of outgoing Gov. Martin O’Malley (D). Those rural counties also voted for Hogan by overwhelming margins….

“The uncertainty of the new administration creates more of an impetus . . . for larger jurisdictions to come together,” said Prince George’s County Council Chair Mel Franklin (D-Upper Marlboro), who wants to form a “large-county caucus” to lobby in Annapolis.

They have nothing to worry about, right? Surely a governor wouldn’t direct taxpayer dollars on the basis of political favoritism? As it happens, I’ve been watching Maryland politics for many years, and this story reminded of one that appeared in the Washington Post 20 years ago this week, when Parris Glendening became governor:

In his first major act as Maryland governor, Parris N. Glendening unveiled a no-new-taxes budget today that unabashedly steers the biggest share of spending to the three areas that voted most strongly for him: Montgomery and Prince George’s counties and Baltimore.

Glendening proposed cuts in welfare and other state programs so he can build more schools, fight crime and create jobs, particularly in those three urban areas, the only ones where Glendening (D) won a majority of votes Nov. 8.

I thought that was such a perfect encapsulation of politics at its finest that I’ve quoted it numerous times, including in my forthcoming book The Libertarian Mind. I also like to quote this charming and honest description of politics in a letter written by Lord Bolingbroke, an English Tory leader in the eighteenth century:

I am afraid that we came to Court in the same dispositions as all parties have done; that the principal spring of our actions was to have the government of the state in our hands; that our principal views were the conservation of this power, great employments to ourselves, and great opportunities of rewarding those who had helped to raise us and of hurting those who stood in opposition to us.

I recall reading that Charlie Peters, the legendary editor of the Washington Monthly, used to say that state legislatures are just committees for dividing up the loot, though I can’t find it online. If he didn’t, he should have.

Harvard Study of CBO Reports Says Nothing New or Interesting about King v. Burwell

Vox’s Sarah Kliff reports that Harvard University’s Theda Skocpol has produced a study purporting to show Congress intended for the Patient Protection and Affordable Care Act (PPACA) to authorize health-insurance subsidies through exchanges established by the federal government—even though the statute expressly and repeatedly says those subsidies are available only “through an Exchange established by the State.” Whether the PPACA authorizes those subsidies in the 36 states with federal exchanges is the question presented in King v. Burwell. The Supreme Court will hear oral arguments in King on March 4, with a ruling expected by June. Unfortunately for the administration and its supporters, Skocpol offers nothing either new or that supports the notion that Congress intended something other than what it expressly said in the statute.

What evidence does Skocpol claim to have found in support of her counter-textual interpretation of congressional intent? She combs through 68 analyses issued by the Congressional Budget Office during 2009 and 2010. She finds that in none of those reports did the CBO entertain the idea that the PPACA’s exchange subsidies might be available in some states but not others. She interprets this as both “excellent evidence” and “the best objective evidence we have that no one in Congress considered premium subsidies restricted to certain states to be either possible or desirable.”

Yeah, about that.

An alert Vox reader already informed Kliff that the claim that CBO never considered the possibility of exchange subsidies in some states but not others isn’t exactly true. The comprehensive health care bill approved by Democrats on the Senate’s Health, Education, Labor, and Pensions (HELP) Committee in 2009 (S. 1679) would have given states four years to establish exchanges themselves, after which point the federal government would establish an exchange. As my partner-in-crime-fighting Jonathan Adler and I write in an amicus brief filed with the Supreme Court in King:

S. 1679 asked each state to adopt certain health insurance regulations, and either establish an Exchange itself or ask the federal government to establish one “in” the state… S. 1679 withheld Exchange subsidies, as well as many of its insurance regulations, for up to four years until the state complied.

The CBO scored S. 1679 assuming that some states would establish exchanges early and some would not. Thus the agency’s cost projections assumed that exchange subsidies would be available in some states but not in others. So we’ve already got a problem with Skocpol’s analysis.

Supreme Court Decrees That June Is a Good Month for Marriage

As widely expected—and widely requested in myriad legal filings—the Supreme Court has agreed to review state laws that deny marriage licenses to same-sex couples, as well as those that deny recognition of such marriages formed in sister states. While the high court ducked these issues in October, at that time there was not yet a “circuit split”: all federal appellate courts to have ruled on the issue had struck down the state laws. When the Cincinnati-based Sixth Circuit went the other way in November, today’s “decision to decide” was assured.

Moreover, based on the firm briefing schedule that the court has established, it’s clear that the justices intend to hear argument this term—meaning that we can expect a final ruling the last week of June. (This puts paid to my prediction that the Court would grant the case but delay argument till the first week of next term, in October.)

So how will the Court rule? Assuming that Justice Anthony Kennedy is the swing vote—a pretty safe assumption—it’s hard to see him giving full victory to the states. It would be odd indeed if the author of the landmark gay-rights opinions in Romer v. Evans (1996), Lawrence v. Texas (2003), and United States v. Windsor (2013) suddenly shied from taking the final logical step in that direction. At the same time, it’s at least conceivable that a strong federalist like Kennedy, perhaps joined by Roberts, could find himself in the moderate (and therefore legally controlling) position of striking down the non-recognition of out-of-state marriages while not requiring the issuance of marriage licenses themselves. Maybe. The smart money is still on a 5-4 ruling establishing that this Fourth of July everyone throughout the land will be able to marry without regard to sexual orientation.

While the Supreme Court isn’t a political institution in the conventional sense, the justices don’t live in a vacuum and so are rarely caught too far ahead or behind popular opinion. As Americans’ views on same-sex marriage have shifted dramatically in the last decade, it quickly became just a matter time before the Court found itself with a case it had to take on an issue that can only be decided one way. This eventual ruling—hopefully on equal-protection grounds rather than some nebulous results-oriented hand-waving—will undoubtedly create not insignificant controversy, but the writing has long been on the wall.

Lobbyists Deal — Easily — with a Changing Congress

On NPR’s “Morning Edition,” Peter Overby discusses the way lobbyists are adjusting to the new Republican Congress. Some are hiring former Republican lawmakers and congressional staff. Some are reminding clients that there are still two parties, as in this nice ad for superlobbyist Heather Podesta, former sister-in-law of White House eminence John Podesta:

OVERBY: Even in a Republican Congress, lobbyists will need to court Democrats, too. Heather Podesta is happy to point that out. She runs her own small Democratic firm.

HEATHER PODESTA: The power of the Congressional Black Caucus has really grown.

OVERBY: In fact, she says CBC members are expected to be the top-ranking Democrats on 17 House committees and subcommittees.

PODESTA: Corporate America has to have entree into those offices. And we’re very fortunate to have the former executive director of the Congressional Black Caucus as part of our team.

After every election, the lobbyists and the spending interests never rest. The challenge for the tea party and for groups such as the National Taxpayers Union is to keep taxpayers even a fraction as engaged as the tax consumers.

In the last analysis, as I’ve written many times before – and in my forthcoming book The Libertarian Mind – the only way to reduce the influence of lobbyists is to shrink the size of government.