Topic: Government and Politics

CAP Study on Federal Land Issues

The federal government owns more than one quarter of the land in the nation, about 640 million acres. The holdings are concentrated in the West, where it owns about half of the 11 westernmost states.

The policy issues surrounding federal land are complex, but there is a good argument that much of the land would be better managed, and would generate more value for Americans, if it was transferred to state governments and the private sector. There is a movement in the West to gain more local control over federal lands because the economic and environmental decisions made in faraway Washington often do no reflect local needs. Randy O’Toole and I wrote about some of these issues here.

It’s the Heritage Individual Mandate Debate All Over Again

A group of prominent conservatives recently released an ObamaCare replacement plan that would replicate many of that law’s worst features. As I explain in a new post at Darwin’s Fool, conservatives need to examine this proposal closely against the alternative. An excerpt:

If you’re a conservative and you’re reading this, chances are good you have a gun to your headConservatives are so averse to health policyNational Review‘s Ramesh Ponnuru once quipped that “Republicans will do anything to repeal ObamaCare–except think about health care.” This is no small problem. Indeed, it is how we got ObamaCare in the first place: conservative neglect enabled a raft of very un-conservative health care ideas to germinate at the Heritage Foundation for a decade and a half. By the time Democrats picked up those ideas and ran with them in 2009, it was too late. Conservatives were powerless to stop them.

Conservatives may indeed be just one election away from repealing ObamaCare, which is all to the good. But some conservatives have proposed replacing ObamaCare with refundable tax credits for health-insurance.  Tax credits are ObamaCare-lite. They would cement in place many of ObamaCare’s worst features, and replicate its awful results. If those features acquire a bipartisan imprimatur, we will never in our lifetimes be rid of them. Unless conservatives give tax credits the scrutiny they should have applied to the Heritage Foundation plan in the 1990s, they will make the same mistake all over again.

Conservatives don’t have to repeat history. A better set of reforms offers a clear path toward a market system, and away from ObamaCare, by building on the bedrock conservative idea of health savings accounts (HSAs). “Large” HSAs would deliver better, more affordable, and more secure health care, particularly for the most vulnerable. At the same time, Large HSAs would give workers a larger effective tax cut than all the Reagan and Bush tax cuts combined, and nine times larger than repealing ObamaCare.

Read the whole thing.

Arab and Muslim Americans: The New “Others”

Over the last month, GOP presidential hopeful Donald Trump’s counterterrorism policy prescriptions have included creating a database of Arab and Muslim Americans, and more recently, a call for a ban on all Arab/Muslim immigration to the United States. While he has yet to call for the creation of WW II-style ethnic/religious concentration camps for our Arab/Muslim American neighbors, at this point nothing seems beyond the pale for Trump. Unfortunately, as I have noted before, when it comes to stigmatizing–if not de facto demonizing–Arab/Muslim Americans, he’s getting some help from DHS, DoJ, and the legislative branch.

Indeed, in the ongoing legislative battle to pass dubious cybersecurity legislation, House Homeland Security Chairman Mike McCaul (R-TX) is being wooed to support the revised cyber information sharing bill with a new carrot: the inclusion of his “countering violent extremism” (CVE) bill in the FY16 omnibus spending bill–a measure condemned earlier this year by civil society groups from across the political spectrum.

To date, McCaul has been opposed to the Senate’s approach to cybersecurity issues in the form of the Cybersecurity Information Sharing Act (CISA), and, keeping that in mind, House and Senate supporters have largely excluded him from their negotiations over a final cyber bill. By dangling the inclusion of his CVE legislation in the omnibus is a clear effort to get McCaul to drop his opposition to CISA by giving him one of his priorities: Passage of CVE legislation would create yet another bureaucracy in DHS to essentially monitor the Arab/Muslim American population for signs of extremism. 

The fact that a similar CVE effort in the U.K. failed miserably has not deterred Congressional boosters like McCaul from pursuing that same discredited approach at the expense of the civil and constitutional liberties of a vulnerable minority population. Additionally, the expense of American taxpayers is likely to be at least an additional $10 million per year for the proposed DHS CVE office. 

As former NBC Nightly News anchor Tom Brokaw reminded us this week, Arab and Muslim Americans have died for the United States in Iraq and Afghanistan. They have paid for our freedom with their blood and their lives. Proposals that would strip them of their rights and attempt to turn them into political and societal lepers should be repudiated–vocally and forcefully. Those who propose such un-American and unconstitutional discrimination are the ones who should be shunned and permanently confined to the unhinged fringes of American political and social life.

Finland to Break New Ground with Basic Income Experiment

Despite some of the breathless headlines, Finland is not adopting a national universal basic income. That is, Finland is not scrapping the existing welfare system and distributing the same cash benefit to every adult citizen without additional strings or eligibility criteria. Finland is moving forward with one of the most extensive and rigorous basic income experiments in decades, which could help answer some of the lingering questions surrounding the basic income. The failures of the current system are well documented, but there are concerns about costs and potential work disincentives with a basic income. Finland’s experiment could prove invaluable in trying to find an answer some of these questions, and whether it is possible some kind of basic income or negative income tax would be a preferable alternative to the tangled web of programs in place now.

The Finnish Social Insurance Institution (Kela) will lead a consortium of think tanks, universities, and businesses in surveying the existing literature, analyzing past experiments, and designing different models to test in Finland. They will present an interim report next March, where the government will decide which models to develop further. The consortium will present a final report in November, after which the government will choose which models to actually test. The experiment will begin in 2017 and last for two years, after which the consortium will begin to evaluate the results.

One of the most important issues with any basic income proposal is deciding whether it would replace the current system or be added on to the existing structure. (The latter, of course, does not have much appeal from a limited-government perspective.) The consortium is considering multiple models, as Kela’s presentation shows: 

How Far Will Justice Kennedy Go?

Coming out of oral argument in Fisher v. UT-Austin, I have a frustrating sense of déjà vu all over again. Not simply because this is the second iteration of Abigail Fisher’s plea not to be judged by skin color, but because every time the Supreme Court takes up affirmative action both sides talk past each other and the issue is (not) resolved by a mushy baby-splitter like Justices Lewis Powell or Sandra O’Connor. Regardless of what the particular legal issues may be, one side pushes racial preferences forever (for whatever reason, currently “diversity”) and the other says never (because the way to stop racial discrimination is to stop discriminating on race). The ultimate ruling inevitably rejects the specific use of race at issue but keeps the door open for future uses – chasing some Goldilocks ideal of “race consciousness” but not too much.

Fisher II is no different. I’ll let others provide detailed exegeses of the justices’ repartee, but the bottom line is that there aren’t any surprises here. With Justice Elana Kagan recused, there’s a reduced three-justice liberal bloc staunchly in favor of UT-Austin’s holistic review (which Cato’s brief assails as being a black box that can’t pass the smell test, let alone strict scrutiny). Conversely, I heard nothing from Chief Justice Roberts or Justices Scalia/Thomas/Alito that would support the university. For that matter, Justice Kennedy – who dissented in the University of Michigan case of Grutter v. Bollinger (2003) that was Fisher’s precursor – didn’t say anything to indicate he would approve UT’s admissions program either, though at one point suggested that a remand for fact-finding might be appropriate (Later, he all but rejected that idea).

So we wait to see how broadly Kennedy wants to go. Will he merely vote to strike down the use of race in the admissions decisions complementing UT’s Top 10 program, or will he cast doubt on the use of race in educational administration altogether? Will he tighten the judicial standard of review that the Court set in Fisher I – making it essentially impossible to meet – or will he throw bones to both sides in a way that again avoids changing the status quo?

At some point, the Supreme Court has to realize that the hallowed “diversity” interest is both pretext and ephemera, and that an admissions program that uses race in a constitutional manner is a self-contradicting proposition. I don’t know if that day will come next June when Fisher is decided, but my fervent hope is that Justice Kennedy pushes his own jurisprudence further in that direction.

Slaying Maryland’s Gerrymander — And How I Helped

With Justice Antonin Scalia writing, the Supreme Court has unanimously ruled that a challenge can proceed in federal court arguing that Maryland’s ridiculous, convoluted Congressional redistricting map violates the Constitution by harming some voters based on their political views. In general, the high court has declined to disturb partisan gerrymanders, no matter how flagrant, so long as they otherwise comply with equal population requirements and the federal Voting Rights Act. The rationale for this position has been that the Court could not identify any principled standard to apply that would not draw it into a multitude of political disputes. 

Yesterday’s unsurprising decision rests solely on a narrow procedural point – whether the claim as not “obviously frivolous” deserves to proceed to a three-judge panel, rather than being thrown out by a single judge – which augurs little about whether the Court has changed that view. The Court has signaled continued interest in redistricting, however, by accepting two other merits cases for argument this term, Wittman v. Personubhallah from Virginia and Harris v. Arizona Independent Redistricting Commission. These are in addition to the just-argued case of Evenwel v. Abbott, discussed this morning by colleague Ilya Shapiro (no relation to Steve Shapiro, plaintiff in the Maryland case). 

Meanwhile, state interest in redistricting reform is gaining steam. Last month, Ohio voters overwhelmingly approved a plan to draw state legislative districts by nonpartisan commission, an idea that has advanced in a number of other states in recent years, especially out West.

I’ve had a chance to grapple with these issues myself this fall, because Maryland Gov. Larry Hogan was generous enough to appoint me as a private citizen as co-chair of his bipartisan Maryland Redistricting Reform Commission, created by executive order in August. After three months of hearings, research, and workshops, we filed our report last month, calling for Maryland to adopt an independent citizen commission format similar to California’s pioneering model, but simplified and adapted to fit our smaller state and its institutions. While libertarians have paid only sporadic attention to gerrymandering over the years, the practice exemplifies the manner in which self-serving use of government power can entrench and insulate a political class, enabling it to withstand discontent and correction from voters. 

The progressive group Envision Frederick County invited me to share my thoughts on the issue at greater length. Those thoughts, of course, represent my views alone, not those of anyone else at the Cato Institute. You can read them here, as well as the entire report of the governor’s commission. I hope they represent steps onward and upward to a fairer and more effective system of representation, both in Maryland and in other states afflicted by gerrymandering.

Congress’s Diminishing Power of the Purse

One of the most important aspects of the separation of powers is the commitment of the power of the purse to the legislative branch. It constrains the executive and the judiciary from engaging in unilateral action without congressional approval. If there’s no approval, there will be no money to pay for the executive action, as the rule would have it. Unsurprisingly, with the advent of the administrative state and an aggressive executive, this power has been significantly diminished in modern times

Indeed, Article I, Section 8 of the Constitution provides expressly that “[t]he Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts,” to the exclusion of any other branch’s exercise of those powers. The upshot: the separation of powers, especially Congress’ power over appropriation priorities, is eroded as executive agencies and executive allies have access to funds not appropriated by Congress.

In order to keep their power of the purse intact, Congress originally enacted the Miscellaneous Receipts Statute in 1849. That law is now codified today in Title 31 of the U.S. Code. It requires all government officials in receipt of funds, such as settlements from civil or criminal enforcement, to deposit that money with the Treasury. As a structural point, the law effectively aims at stopping executive agencies from self-funding through enforcement or other receipts of money. It maintains their dependence on Congress for their annual appropriation.

However, the Justice Department has found a way around this law to fund political allies on the left or executive priorities without congressional approval: settlement agreements. As Wall Street Journal columnist Kimberley Strassel recently reported, “[i]t works like this: The Justice Department prosecutes cases against supposed corporate bad actors. Those companies agree to settlements that include financial penalties. Then Justice mandates that at least some of that penalty money be paid in the form of “donations” to nonprofits that supposedly aid consumers and bolster neighborhoods.”

The trick here is that Justice never “receives” the funds within the meaning of the Miscellaneous Receipts Statute, and thus has no requirement to deposit the funds it exacts from defendants with the Treasury—the donations are made directly without money ever being received into Justice’s hands.

Despite the fact that Justice Guidance discourages the practice because “it can create actual or perceived conflicts of interest and/or other ethical issues”—and, indeed, it was almost banned in 2008 due to perceptions of abuse—Justice continues to push this method of funding political allies and favored priorities of the executive. In fact, “[i]n 2011 Republicans eliminated the Housing Department’s $88 million for ‘housing counseling’ programs,” Strassel reports, “which spread around money to groups like La Raza. Congress subsequently restored only $45 million, and has maintained that level. . . [B]ank settlements pour some $30 million into housing counseling groups, thereby essentially restoring all the funding.”