Topic: Political Philosophy

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.

The Charlie Hebdo Murders: The Real Atrocity Is Religious Persecution, Not Free Expression

The slaughter at the French magazine Charlie Hebdo brought hundreds of thousands of marchers and scores of world leaders onto the streets of Paris.  The killings demonstrate how the destructive phenomenon of religious persecution is spreading from Third World dictatorships to First World democracies. 

Religious minorities long have faced murder and prison around the world.  Now the freedom not to believe by majorities in Western democracies is under attack.

As I write in Forbes online:  “Free expression goes to the very essence of the human person.  While good judgment tells us not to express every thought we have, as moral agents responsible for our actions we must be free to assess the world and express ourselves in vibrant public debate.  For religion there is no greater affront than to inhibit people’s search for the transcendent and liberty to respond, yay or nay, to God’s call.” 

Western governments must protect the liberties of their peoples.  Members of no group, Muslim or other, should be treated as enemies.  However, the problem of violent religious intolerance is almost uniquely Muslim. 

Christians finally learned to stop killing over spiritual differences.  Today in most countries in which Muslims constitute a majority religious minorities suffer discrimination and persecution. 

There is no disguising reality.  If you are a Baha’i, Jew, Ahmadi, Christian, Yazidi, Hindu, wrong kind of Muslim, or atheist you likely will find life always difficult and often threatening in Iran, Iraq, Pakistan, Saudi Arabia, Somalia, Afghanistan, Libya, Egypt, Indonesia, Brunei, Malaysia, Sudan, Yemen, Maldives, Syria, and others. 

Some Muslims point to blowback from promiscuous U.S. intervention.  Washington has supported dictators, harmed innocents, and wrecked societies throughout the Islamic world.  However, these are acts of a nation state, not a religious faith.  And while that behavior might explain (though not justify, since nothing warrants the murder of civilians) attacks on U.S. targets, it does not illuminate why, say, Pakistani mobs burn to death Pakistani Christians.

The thugs who cut down a dozen Charlie Hebdo are the international cousins of those who murder alleged blasphemers and apostates in Muslim nations.  Earlier this year the U.S. Commission on International Religious Freedom reported that victims of the ongoing attack on free expression include people from Bangladesh, Egypt, Indonesia, Iran, Kazakhstan, Pakistan, Saudi Arabia, Tunisia, and Turkey.  Nowhere are blasphemy laws more used and abused than in Pakistan. 

In its study on the issue USCIRF explained how the law encourages abuse:  “The so-called crime carries the death penalty or life in prison, does not require proof of intent or evidence to be presented after allegations are made, and does not include penalties for false allegations.”  Judges prefer not to hear evidence, since doing so could be construed as blasphemy.  A claim usually is sufficient to send someone to prison, making the law a common weapon in personal and business disputes.

Non-Muslims are peculiarly vulnerable.  Many people do not reach trial:  mobs have killed more than 50 people charged with the offense.  And thugs like those who gunned down the Charlie Hebdo staffers have murdered judges who acquitted defendants, attorneys who represented those accused, and politicians who proposed reforming the laws.

There isn’t much Washington can do to protect liberty in other countries, but the U.S. government must insist that the liberties of Americans are non-negotiable and will be defended.  More broadly, the Charlie Hebdo murders should remind policymakers that religious liberty is not an afterthought. 

A government which refuses to protect individuals in exploring the transcendent is more likely to leave other essential liberties unprotected.  People in Muslim-majority nations, where religious persecution today is at its worst, must come to peacefully accept those who believe differently both at home and abroad.

Worst Congress Ever? You Must Be Kidding

The Establishment media really love laws and government. NPR, the Washington Post, Huffington Post, Pew Research, NBC, Politico – they’re all lamenting the “least productive Congress” ever. Or more precisely noting that the just-concluded 113th Congress was the second least productive Congress ever, second only to the 2011-12 112th Congress. But what’s the definition of a “productive Congress”? One that passes laws, of course, lots of laws. Congress passed only 286 laws in the past two years, exceeded in slackerdom only by the 283 passed in the previous two years of divided government.

Now journalists may well believe that passing laws is a good thing, and passing more laws is a better thing. But they would do well to mark that as an opinion. Many of us think that passing more laws – that is more mandates, bans, regulations, taxes, subsidies, boondoggles, transfer programs, and proclamations – is a bad thing. In fact, given that the American people pondered the “least productive Congress ever” twice, and twice kept the government divided between the two parties, it just might be that most Americans are fine with a Congress that passes fewer laws. 

Is a judge “less productive” if he imprisons fewer people? Is a policeman less productive if he arrests fewer people? Government involves force, and I would argue that less force in human relationships is a good thing. Indeed I would argue that a society that uses less force is a more civilized society. So maybe we should call the 112th and 113th Congresses the most civilized Congresses since World War II (the period of time actually covered by the claim “least productive ever”).

Dana Milbank of the Washington Post ups the ante from “least productive” to “by just about every measure, the worst Congress ever.” Seriously? Since I am confident that Mr. Milbank is not historically ignorant, I assume he’s just being rhetorically provocative. But just in case any of his readers might actually believe that claim, let me suggest a few other nominees for “worst Congress ever”:

The 31st Congress, which passed the Fugitive Slave Act in 1850

The 5th Congress, which passed the Alien and Sedition Acts in 1798

The 21st Congress, which passed the Indian Removal Act in 1830

The 77th Congress, which passed Public Law 503, codifying President Franklin D. Roosevelt’s Executive Order 9066 authorizing the internment of Japanese, German, and Italian Americans, in 1942

The 65th Congress, which passed the Eighteenth Amendment (Prohibition), the Espionage Act, and the Selective Service Act, and entered World War I, all in 1917

Worst Congress ever? The 113th isn’t even in the running. 

Do Businesses Have Rights?

The Washington Post reports:

As far as sales manager Brian Ward knows, Rep. Andy Harris has never shopped at Capitol Hill Bikes. But if the Maryland Republican congressman wanted to, he’d find a black and white picture of himself taped on the door with a message in bold type: NOT WELCOME.

To many in the District, Harris is a public enemy — the force behind language added to the massive federal government spending bill intended to block D.C. from legalizing marijuana despite local voters overwhelmingly approving it on the November ballot.

The move so infuriated District residents that someone has started a “Blacklist Andy Harris” tumblr asking local businesses not to serve Harris:

“My fellow Washingtonians, Rep. Andy Harris doesn’t give a d— about District residents or our rights, so let’s blacklist him! We can generate and distribute signs/stickers/posters with his face, words like “Persona non Grata” (or something similar), and ask local businesses to display them.”

I support these District of Columbia businesses’ right to refuse service to Representative Harris. Now I know there are people who would say to these small businesses, “Open a business to serve the public? You have an obligation to serve everyone.” But I say that Capitol Hill Bikes should be free to refuse service to Andy Harris, and Republicans and anti-drug activists should be free to refuse to patronize Capitol Hill Bikes. Every contract is an agreement voluntarily entered into on both sides, and no one should be forced to enter into contracts. Thus I support the right of D.C. businesses to refuse to serve those would-be customers who offend their conscience, just as I support the right (though not the rightness) of bakers, photographers, and innkeepers not to participate in gay weddings.

A Far-Out Cato Unbound

This month at Cato Unbound, we’re talking about the Search for Extra-Terrestrial Intelligence, or SETI.

Why’s that, you ask?

Several reasons, really. First, although it’s not exactly a hot public policy topic, it will certainly become one if we ever actually find anything. But that’s hardly where the importance of the topic ends.

Much more interesting to me at least is that SETI can serve as a springboard for discussing all kinds of important concepts in public policy. Our contributors this month - David Brin, Robin Hanson, Jerome H. Barkow, and Douglas Vakoch - have talked about the open societycost-benefit analysisevolutionary psychology, the hubris of experts, the narcissim of small differences, and even Pascal’s Wager (and what’s wrong with it)

So… lots of interesting stuff, particularly for libertarians who are interested in public policy.

Federalism Should Trump the Drug War

Americans are angry with their politicians but nuanced in their political opinions.  Voters in Alaska simultaneously ousted their Democratic Senator and legalized the use of marijuana.  Floridians voted to allow the use of medicinal marijuana and reelected Republican Gov. Rick Scott.

In fact, Milton Friedman and William F. Buckley long argued against drug prohibition.  The electorate appears to be moving their way.

Which makes sense.  If you want to limit government and protect individual liberty, it’s impossible to ignore the ill consequences of arresting and imprisoning millions of people for using illicit substances. 

Drug use is bad.  Arresting people for using drugs is worse. 

But conservatives have another reason to abandon the drug war: federalism.

The Drug War has poisoned almost everything it touches.  The rule of law suffers.  Lawyers speak of the drug exception to the Fourth Amendment, since judges often sacrifice Fourth Amendment protections when drugs are involved. 

Constitutional interpretation is malformed.  In Gonzales v. Raich the Supreme Court held that Uncle Sam could regulate someone who grew marijuana for personal consumption under the interstate Commerce Clause.  The reasoning of conservative jurist Antonin Scalia was used by the legal Left to argue that ObamaCare was constitutional.

Federalism is another victim of the Drug War.  Many conservatives complain about the over-criminalization of life, with Washington encroaching on an area that’s traditionally a matter of state authority.

Krugman vs. Krugman on Statutory Interpretation

To follow-up on my colleague Walter Olson’s earlier post on the Paul Krugman piece on King v. Burwell, what struck me was Krugman’s flexible approach to statutory interpretation.

Here he is in today’s piece:

Last week the court shocked many observers by saying that it was willing to hear a case claiming that the wording of one clause in the Affordable Care Act sets drastic limits on subsidies to Americans who buy health insurance. It’s a ridiculous claim; not only is it clear from everything else in the act that there was no intention to set such limits, you can ask the people who drafted the law what they intended, and it wasn’t what the plaintiffs claim. …

 if you look at the specific language authorizing those subsidies, it could be taken — by an incredibly hostile reader — to say that they’re available only to Americans using state-run exchanges, not to those using the federal exchanges.

As I said, everything else in the act makes it clear that this was not the drafters’ intention, and in any case you can ask them directly, and they’ll tell you that this was nothing but sloppy language. …

So, don’t worry so much about the specific language; instead, look at the drafters’ intent and the surrounding context. Got it.

On the other hand, here’s Krugman from January of 2013, writing about the idea of a platinum coin:

Enter the platinum coin. There’s a legal loophole allowing the Treasury to mint platinum coins in any denomination the secretary chooses. Yes, it was intended to allow commemorative collector’s items — but that’s not what the letter of the law says. And by minting a $1 trillion coin, then depositing it at the Fed, the Treasury could acquire enough cash to sidestep the debt ceiling — while doing no economic harm at all.

So in this situation, you should stick to the “letter of the law,” and not worry so much about the drafters’ intent.

Hmm, how to reconcile those two Krugman assertions about the proper approach to statutory interpretation?  That’s a tough one.  Wait, I got it!  We’ll call this the Krugman canon of construction: “Interpret statutes in whatever way makes them consistent with your policy preferences.”

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