Topic: Government and Politics

Uh Oh: The North Koreans are Mad and Won’t Take it Any More!

It’s hard being dictator of North Korea.  You’re a god, or the nearest human thing to it, but you aren’t allowed any time to yourself.  The rest of the world privately admires you and publicly envies you. 

Some of them even mock you. 

In 2002 Pierce Brosnan played a hero in fighting against the Korean people in the James Bond movie “Die Another Day.”  Worse, two years later the great and wonderful “Dear Leader” Kim Jong-il was mercilessly insulted by the movie “Team America:  World Police.”  Unable to stop him from impoverishing his desperate people to build nuclear weapons, the U.S. government turned loose the most fearsome of weapons against the movie-loving Kim:  Hollywood.

Of course, the Dear Leader was a convenient target, with his bouffant hairdo and platform shoes.  As I point out in my article at American Spectator online:  “The great and wonderful man-god was too busy traveling the country giving guidance to farmers and workers whose farms and workplaces were no longer operating to take time off to retool his appearance to satisfy international critics.  But he persevered, drowning his many sorrows in Hennessy cognac while comforting the beautiful young virgin girls who flocked to his side.”

Now “Great Successor” Kim Jong-un has taken over the sacred mission of his grandfather and father:  to reinvigorate monarchy in Asia.  He has shown the way to the next century by dancing with Mickey Mouse and partying with Dennis Rodman.

Naturally, Washington has rejected Kim’s friendly demands for tribute to remedy the economic injustices created by the unfair success of market economics compared to Stalinesque central planning.  Now the common criminals who run Washington—at least there is one thing Americans and North Koreans can agree upon—have turned again to their secret agents in the movie industry. 

Court Tosses D.C. Tour Guide Licensing Scheme

Since there isn’t any other legal news this or next week, the U.S. Court of Appeals for the D.C. Circuit today decided to strike down D.C.’s absurd licensing regulations regarding Uber food trucks raw milk guns campaign finance tour guides. Believe it or not, until today District law required people to pay the government $200 and pass a 100-question test on 14 subjects, covering material from no less than eight different publications, before they can give city tours—all for the purpose of “protecting” tourists from misinformation. If you didn’t comply, you faced a fine and 90 days in jail.

I previously wrote about this case when Cato filed a brief last fall, so I’ll just provide some key excerpts from the court opinion (written by Judge Janice Rogers Brown, whom we had the honor to publish in the Cato Supreme Court Review the first year I edited it). Here’s how it starts:

This case is about speech and whether the government’s regulations actually accomplish their intended purpose. Unsurprisingly, the government answers in the affirmative. But when, as occurred here, explaining how the regulations do so renders the government’s counsel literally speechless, we are constrained to disagree.

The court later describes the reason for its disagreement:

The District’s reliance on a Washington Post article dating from 1927 to justify the exam requirement is equally underwhelming. [Citation omitted.] The article merely establishes that, nearly a century ago, the newspaper expressed concern about unscrupulous or fraudulent charitable solicitation and that an unidentified number of persons said self-styled tour guides were overly aggressive in soliciting business. Reliance on decades-old evidence says nothing of the present state of affairs. Current burdens demand contemporary evidence. [Citations of last term’s big voting right case, Shelby County v. Holder, and other cases are omitted.]

Continuing the theme that D.C. failed to justify its speech regulation, the court says:

Even if we indulged the District’s apparently active imagination, the record is equally wanting of evidence the exam regulation actually furthers the District’s interest in preventing the stated harms. Curiously, the District trumpets as a redeeming quality the fact that, once licensed, “[t]our guides may say whatever they wish about any site, or anything else for that matter.” [Citation omitted.] But we are left nonplussed. Exactly how does a tour guide with carte blanche to—Heaven forfend—call the White House the Washington Monument further the District’s interest in ensuring a quality consumer experience? [Footnote omitted.]

Salon Writer Not a Fan of Sharing Economy Start-up or ‘Transnational Neocolonialist Libertarian Arrogance’

Over at Salon, Andrew Leonard has written an article headlined “Libertarians’ anti-government crusade: Now there’s an app for that,” in which he criticizes MonkeyParking, a start-up that enables users to auction off information about parking spaces. MonkeyParking recently received a cease and desist demand from San Francisco City Attorney Dennis Herrera, stating that it is in violation of a provision in San Francisco’s Police Code that “specifically prohibits individuals and companies from buying, selling or leasing public on‐street parking.”

According to Leonard, MonkeyParking and another app that offers to pay car owners to occupy parking spaces “is an example of how the ‘sharing economy’ can be totally bullshit.”

He contrasts MonkeyParking with Forage Oakland, which allows residents to “share” produce from local fruit trees such as figs and lemons.

Forage Oakland sounds great, and a libertarian would be the last person to object to residents setting up a way to give away produce for free. Indeed, last month it was reported that lawmakers and regulators in 33 American cities have restrictions or are considering implementing restrictions that hamper those hoping to hand out food to homeless people.

Leonard argues that Forage Oakland is different from MoneyParking because

Monkey Parking’s [sic] solution intended to generate profit off of a public good by rewarding those who are able to pay — and shutting out the less affluent. That’s outrageous and not something any civilized society should tolerate.

He doesn’t elaborate on what measures a “civilized society” should take in order to prevent MonkeyParking from operating, especially given the fact that the technology being used by MonkeyParking isn’t going anywhere soon and that, according to Pew, the number of Americans who own smartphones has increased over the last few years.

He goes on to criticize MonkeyParking’s “obvious self interest”:

The entitlement and obvious self-interest that led MonkeyParking to decide it could solve a San Francisco municipal problem with a blatantly illegal business model is shared by many “disruptive” entrepreneurs—often cloaked under the cover of libertarian ideology.

It’s a shame that he doesn’t appreciate that the price system is extremely efficient at communicating information to producers and customers and that the regulatory environment that is affecting MonkeyParking is only the latest example of regulators and lawmakers not being able to keep up with changes in technology.

The IRS Scandal: Who’s Really Being Gullible?

Some figures on the left have aggressively sought to dismiss the renewed Internal Revenue Service scandal as unserious. Rep. Lloyd Doggett (D-Tex.) captured this mood at one recent Capitol Hill hearing when he suggested that after questioning whether the loss of emails was truly accidental, his GOP colleagues might go on next to quiz the IRS’s leadership about the president’s birth certificate and space aliens in Roswell, N.M. It’s not a “serious inquiry,” Rep. Doggett said. “I believe it’s an endless conspiracy theory here.”

And yet many Americans who do not care about space aliens do doubt the IRS’s account of what has happened. While we covered the story a year ago as well as more recently, this might be a good time to recapitulate why.

The IRS grants 501(c)(4) nonprofit status (less favorable than (c)(3) tax status, which affords donors charitable deductibility) to a wide array of “social welfare” organizations–many, like the ACLU, with a definite ideological valence. In recent years the status has been sought and obtained by groups whose missions are closely related to campaign and electoral politics, most notably Organizing for America, whose role on the national scene is to support President Obama’s messaging. Not surprisingly this has excited controversy about whether the eligibility rules for (c)(4) status are being drawn in the right place. Most advocates profess to believe, though, that whatever the right set of rules, they should apply alike to all sides in our political life.

By March 2012 the Associated Press was reporting on a flurry of bizarre and seemingly unprecedented IRS demands that some (c)(4) applicants of a right-of-center valence provide extraordinarily burdensome and intrusive documentation of their activities–things like copies of all books and literature distributed to participants, transcripts of leaders’ radio appearances and live speeches, printouts of all Facebook and Twitter output, and so forth, along with donor lists and names of family members. The IRS was also delaying groups’ approval for long periods–in fact, seemingly indefinitely–without explanation or a firm denial that could be appealed to a court. Defenders of the agency leadership subsequently put out a search for left-of-center groups that might have run into similar treatment, and although they did manage to turn up a few tales of bureaucratic red tape and rigmarole, they were unable to come up with anything remotely comparable.

IRS nonprofit chief Lois Lerner at first denied any targeting, then sought to blame rogue employees at the IRS Cincinnati office for it. But emails soon emerged clearly indicating guidance by high-level IRS managers in Washington. Lerner then declined to testify, asserting her Fifth Amendment privilege against admissions tending to expose herself to criminal liability.

Through the ensuing scandal, there was little hard proof that Lerner and other IRS insiders had coordinated the targeting with political actors outside the agency–on Capitol Hill, say, or in party organizations, or the White House–although a number of details on the record, such as frequent White House visits by agency insiders and coordination with outside figures on press messaging, made for suggestive circumstantial evidence. To establish that political operatives or officials outside the agency were aware of targeting at the time, or even perhaps instigated or directed it, would be to blow the scandal wide open, perhaps threatening the careers of well-known public figures. If any email documentation of such coordination is to be found, it would most likely be in the “external” (outside the agency) emails of Lerner and other key players in the targeting effort.

Magna Carta and Constitutional Criminal Procedure

In United States v. Booker (2005), the Supreme Court held that the Sixth Amendment prohibits a judge from sentencing a convicted defendant to a prison term exceeding the law’s maximum penalty for the crime committed, unless additional aggravating facts are found by the jury (or admitted by the defendant). The Court also held that all sentences must be reasonable.

In a subsequent case, Justice Scalia issued a concurrence in which he expressed concern about situations in which judges issue sentences below the statutory maximum, but which would only be reasonable in light of additional facts found solely by the judge. He proposed an “as-applied” doctrine, in which the reviewing court asks whether the sentence would be reasonable as applied to only those facts that were found by the jury.

The situation that Justice Scalia feared has now become manifest for three criminal defendants who were all convicted of selling small quantities of drugs but acquitted of conspiracy charges relating to the distribution of much larger quantities. Despite the acquittals, all three defendants received sentences four times greater than any other defendant convicted of the same crimes in the post-Booker era using the guidelines issued by the U.S. Sentencing Commission.

The defendants argue—and no prosecutor or judge has disputed—that their sentences would not be deemed reasonable without consideration of the additional evidence of conspiracy. In reviewing the sentences, the U.S. Court of Appeals for the D.C. Circuit adhered to settled precedent and declined to adopt the as-applied doctrine, and so the defendants seek to further appeal their sentences to the Supreme Court and finally resolve the question, under the Sixth Amendment, of whether a judge can base a sentence on facts that the jury did not find beyond a reasonable doubt.

In an amicus brief supporting that petition, the Cato Institute, joined by the Rutherford Institute, argues that the Sixth Amendment prohibits the increased sentencing of defendants based solely on judge-found facts of the crime, regardless of whether the final sentence remains below the statutory maximum. The defendants’ constitutional right to a jury trial can be traced back to Article 39 of the Magna Carta, which is also the historical origin of the Constitution’s prohibition on ex post facto, or retrospective, criminal laws.

Article 39 reflected a deep concern that the government would undermine the jury’s role and imprison defendants without the input of their peers. Given the status of sentencing guidelines as “law” for purposes of the Ex Post Facto Clause, the Sixth Amendment should extend to the defendant’s right to the “lawful judgment of his peers,” meaning that a judge can only render a sentence based on the jury’s factual findings. 

In other words, if it’s unconstitutional to sentence a defendant based on rules issued after he commits the purported crime, it must be unconstitutional to sentence a defendant without the input of his peers.

The Supreme Court will decide whether to take the case of Jones v. United States when it comes back from its summer recess.

ObamaCare’s Exchanges Perform More than a Dozen Functions Besides Issuing Subsidies

One of the issues underlying Halbig v. Sebelius and three similar lawsuits making their way through federal courts is whether Congress intentionally restricted the Patient Protection and Affordable Care Act’s (PPACA) private health-insurance subsidies to individuals who buy coverage through state-established exchanges. If so, that would mean the Internal Revenue Service’s decision to issue subsidies in the 34 states that did not establish exchanges (i.e., that have federally established exchanges) is illegal. For more on the IRS’s attempt to rewrite the PPACA in this fashion, click here.

On Twitter, a skeptic challenges my coauthor Jonathan Adler claim that Congress intended to withhold subsidies in states that did not establish exchanges, arguing “The exchanges serve no purpose at all absent subsidies. Is there no golden rule at all in American jurisprudence?” (Read the entire exchange here.)

In legal jargon, the skeptic argues that a literal interpretation of the statutory language restricting subsidies to those enrolled “through an Exchange established by the State” would be absurd, and the courts should defer to the agency’s reasonable interpretation.

Exchanges, however, are regulatory bureaucracies that perform other functions and serve other purposes besides dispensing subsidies, as the PPACA’s authors and the president acknowledged. In 2009, President Obama said that health insurance exchanges “would allow families and some small businesses the benefit of one-stop-shopping for their health care coverage and enable them to compare price and quality and pick the plan that best suits their needs.” Senate Majority Leader Harry Reid (D-NV) said PPACA “guarantees real choice and competition to keep insurers in check… By creating strong competition, we’ll reduce skyrocketing health care costs.” The PPACA’s Senate drafters wrote, “Insurers that jack up their premiums before the Exchanges begin will be excluded–a powerful incentive to keep premiums affordable.”

In fact, the exchanges are supposed to perform more than a dozen functions besides issuing subsidies. Here are some of the ways PPACA’s health insurance exchanges attempt to serve the goals of “one-stop shopping,” price and quality comparisons, expanding choice and competition, and reducing health insurance premiums, even in the absence of subsidies:

Drones Risk Putting US on ‘Slippery Slope’ to Perpetual War

As the New York Times reports, the Stimson Center today released a report warning that “the Obama administration’s embrace of targeted killings using armed drones risks putting the United States on a ‘slippery slope’ into perpetual war.” The Washington Post, the Guardian and Vox all lead their articles on the report with that warning.

The slippery slope point probably isn’t new to most readers. But it’s worth focusing on here, both because the argument is often misstated or misunderstood, and because, in this case, I helped make it. The report’s task force, co-chaired by retired General John Abizaid, former head of U.S. Central Command and Rosa Brooks of Georgetown Law, included working groups. I was on one that considered, among other things, what danger drones create for U.S. foreign policy. The report largely reflects those we identified: the erosion of sovereignty, blowback from those in targeted countries, drone strikes’ tendency to undermine democratic oversight, and the slippery slope problem.

The report puts those concerns in context. It points out that: drones can serve wise or dumb policies; that most drones are for surveillance or other non-strike uses; and that it is drone strikes that occur off declared battlefields that have generated the most controversy. The report notes that past military innovations, like cruise missiles, raised similar concerns by making waging war easier.

The report rejects several common complaints about drones. It denies that they create a reckless, “playstation mentality” among pilots. It explains that drones are not more prone than other weapons cause civilian casualties.

Having delimited the circumstances where drones raise concerns, the report goes into considerable causal detail, at least compared to most reports of this kind, about what the trouble is. The blowback, oversight, and sovereignty problems are relatively easy to understand, in theory. The tricky part is measuring the harm.