Topic: Regulatory Studies

Government on Nutrition: Often Wrong, Seldom in Doubt

According to Peter Whoriskey’s Washington Post report this morning, the latest conventional wisdom to reverse in the nutrition world is on whole versus low-fat milk:

U.S. dietary guidelines have long recommended that people steer clear of whole milk, and for decades, Americans have obeyed. Whole milk sales shrunk. It was banned from school lunch programs. Purchases of low-fat dairy climbed.

…[But] research published in recent years indicates that the opposite might be true: millions might have been better off had they stuck with whole milk.

Scientists who tallied diet and health records for several thousand patients over ten years found, for example, that contrary to the government advice, people who consumed more milk fat had lower incidence of heart disease.

Readers of this space will be familiar with the pattern. Previous advice from Washington about the supposed hazards of eggs and other cholesterol-laden foods, the advantages of replacing butter and other animal fats with trans fats, and the gains to be made from switching from regular to diet soda, have all had to be re-evaluated and sometimes reversed in later years. And yet some in the public health establishment — including a few who are quoted in today’s Post article— still aspire to use the power of government to coerce changes in citizens’ diet. They seem to imagine that with people like themselves in charge, next time will be different.

“Health Care’s Future Is So Bright, I Gotta Wear Shades”

If you’ve ever wondered why a person would earn (and relish) titles like “ObamaCare’s single most relentless antagonist,” “ObamaCare’s fiercest critic,” “the man who could bring down ObamaCare,” et cetera, my latest article can help you understand.

Health Care’s Future Is So Bright, I Gotta Wear Shades” is slated to appear in the Willamette Law Review but is now available at SSRN.

From the introduction:

Futurists, investors, and health-law programs all try to catch a glimpse of the future of healthcare. Lucky for you, you’ve got me. I’m from the future. I’ve travelled back in time from the year 2045. And I am here to tell you, the future of healthcare reform is awesome.

When I presented these observations at the Willamette University College of Law symposium “21st Century Healthcare Reform: Can We Harmonize Access, Quality and Cost?”, I was tickled by how many people I saw using iPhones. I mean, iPhones! How quaint. Don’t get me wrong. We have iPhones in the future. Mostly they’re on display in museums; as historical relics, or a medium for sculptors. Hipsters—yes, we still have hipsters—who wouldn’t even know how to use an iPhone, will sometimes use them as fashion accessories. Other than that, iPhones can be found propping up the short legs of coffee tables.

I also noticed you’re still operating general hospitals in 2015. Again, how quaint.

It’s not often I get to cite MLK, Bono, Justin Bieber, the Terminator, Bill and Ted’s Excellent Adventure, two Back to the Future films, and Timbuk3, all in one law-journal article.

New Policy On White Collar Prosecution Risks Scapegoating

Last week, the Department of Justice announced a new policy regarding its approach to corporate criminal investigations.  Instead of focusing first on the company and, having resolved that portion of the investigation, turning to the task of identifying potential individual criminal suspects, prosecutors are now directed to build their cases against individual wrong doers from the start.  Media coverage of this policy statement has focused on criticism levied against the administration for being too soft on Wall Street and too cozy with corporate donors.  The New York Times trotted out the old complaint that no one went to jail in the wake of the financial crisis (even though, to my knowledge, no one has ever identified a criminal law the violation of which caused any part of the crisis).  While the administration’s rhetoric about equal justice before the law is admirable, the policy memo and its surrounding coverage have a distressing whiff of scapegoating about them. 

Markets Find a Way

Under new rules in the District of Columbia, residents are allowed to possess, smoke, and grow marijuana, but they are not allowed to sell it. So, as Aaron C. Davis writes in the Washington Post, this presents an interesting question: How is the marijuana grown in D.C. supposed to get to people in the city who want to smoke it? And it turns out that in a few short months the enterprising people of Washington have found several opportunities:

A fitness instructor who took up the hobby six months ago has amassed enough pot to make tens of thousands of dollars selling it. Instead, he’s begun giving away a little bit to anyone who pays for a massage. The instructor asked not to be named out of concern that he or his home, where he sometimes serves clients, could become targets for criminals.

T-shirt vendor in Columbia Heights who declined to comment may be working in a similar gray area. College students say the roving stand has become known to include a “gift” of a bag of marijuana inside a purchase for those who tip really well. And recently, dozens of people paid $125 for a class in Northwest Washington to learn about cooking with cannabis from a home grower. Free samples were included.

Andrew Paul House, 27, a recent law school graduate, may be the best early test case for whether home growers can find a way to make money from their extra pot.

House has started a corporation and a sleek Web site to order deliveries of homegrown marijuana to D.C. residents’ doorsteps — “free gifts” in exchange for donations to the company, akin to a coffee mug given to donors by a public radio station.

Workers Shouldn’t Have to Jump through Hoops to not Fund Union Political Activity

If everyone agrees that forcing public employees to subsidize a labor union’s political or ideological speech impinges their First Amendment rights—and the Supreme Court has been unanimous on that point for decades—then what possible justification is there for requiring workers who’ve declined to join the union to go through the arduous process of opting out from making such payments year after year?

There is none, argues Cato’s amicus brief in Friedrichs v. California Teachers Association. As the Court recounted in Knox v. SEIU (2012), “acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles.” But as a matter of principle, opt-out plainly violates the cardinal rule that procedures involving compelled speech and association must be “carefully tailored to minimize the infringement” of First Amendment rights.

Under the opt-out approach, dissenting workers bear the risk that, if they are unsuccessful in following the opt-out procedure reluctantly administered by the union, their money will be used to further political and ideological ends with which they do not agree. The labor union, whose constitutional rights are not at stake, bears no risk at all—by default, it gets the money.

For example, a teacher who learns partway through the year that her payments to the union are being used to fund speech that she finds abhorrent—and the union here lobbies on controversial issues like abortion, gun control, and immigration reform—is still compelled by the government to continue funding that speech until the next opt-out period.

Unions, of course, favor opt-out precisely because it allows them to take advantage of inertia on the part of would-be dissenters who fail to object affirmatively. But that is no basis to countenance the wholesale violation of public employees’ First Amendment rights. Courts “do not presume acquiescence in the loss of fundamental rights,” and application of that principle here will spell the end of abusive opt-out regimes.

The Supreme Court will hear argument in Friedrichs in the middle of the upcoming term, likely in January. For more on the case and our argument, see this SCOTUSblog essay.

The Next Big Obamacare Lawsuit Lives

Just when you thought that any further Obamacare lawsuits involved things like contraceptive mandates rather than anything at the law’s core, today a federal judge ruled that Speaker of the House John Boehner’s case against the HHS and Treasury secretaries can proceed. In a highly technical 43-page opinion, Judge Rosemary Collyer found that the House of Representatives has standing to sue these officials and their agencies for spending money on ACA implementation that Congress didn’t authorize. 
 
That’s clearly the right call: only Congress can appropriate funds for federal programs and so Congress faces a unique institutional injury when the executive branch decides to take that particular prerogative upon itself. 
 
Judge Collyer went on to deny standing on the additional claim that the executive amended the statute when it delayed and modified Obamacare’s employer mandate–but this is a much closer issue that will be hotly contested on appeal. 
 
As Cato described in our King v Burwell brief, Obamacare implementation has been a seat-of-the-pants executive frolic from the get-go (and we didn’t even include the episode at the heart of the surviving claim here). It’s not surprising that a law written in haste behind closed doors and that was rammed through Congress via procedural shenanigans would have growing pains as it went online. In the normal course, that would mean technical amendments and orderly administrative rulemaking, but here, given the lack of popular support–and the loss of Congress by the enacting party as a direct result–that wasn’t possible. Accordingly, the Obama administration is (again) reaping what it has sown. 
 
Keep an eye on U.S. House of Representatives v. Burwell – and note that one of the early sketches of this suit was presented at a Cato policy forum by my colleague Andrew Grossman. 

Lessig Strains to Compare His Campaign to Eugene McCarthy’s

Harvard Law professor Lawrence Lessig is running for President on the single issue of adding restrictions to certain electoral speech. In his announcement video, he points to Eugene McCarthy’s 1968 run for the White House. He says in that video:

In 1967 Democratic Senator Eugene McCarthy entered the primary here in New Hampshire to challenge his own party’s sitting president because he feared the most important moral issue of the time, the Vietnam War, was going to be invisible in that election. In four months McCarthy went from almost nothing in the polls to almost beating Lyndon Johnson in the primary and the one issue that no one wanted to talk about became the one issue that no one could ignore.

It seems clear that Lessig intends to set up a parallel between Vietnam and America’s insufficiently regimented electoral system. There’s just one problem with pointing to McCarthy in this case: Eugene McCarthy was able to make that historic primary campaign about Vietnam because a few rich anti-war guys gave his campaign massive direct contributions, something Lessig strongly opposes.

In today’s Cato Daily Podcast (Subscribe: iTunes/RSS/CatoAudio for iOS), I talk to John Samples about the facts of McCarthy’s candidacy and why Lessig’s example doesn’t hold up. We also discuss Stewart Mott, one of McCarthy’s financial backers, and his appreciation for less-than-fully-fettered political speech.