Texas Regulators Bark Up the Wrong Tree

For almost 50 years, Dr. Ronald Hines has been a licensed veterinarian in Texas. After a spinal cord injury prevented him from continuing to provide in-person services, Dr. Hines started a website to provide advice on pet care. He never tried to be an animal’s primary veterinarian—he noted a disclaimer to that effect—and did not prescribe medication. 

After a decade of such practice without any complaints or problems, the Texas State Board of Veterinary Medical Examiners charged Dr. Hines with violating state law by failing to be physically present at the location of the pets before providing veterinary services. The U.S Court of Appeals for the Fifth Circuit upheld this restriction on Dr. Hines’s speech because, according to the court, any speech by a professional within the scope of his profession directed toward an individual’s circumstances isn’t protected by the First Amendment. 

Dr. Hines has asked the Supreme Court to review the case and Cato has filed a brief supporting that petition, joined by the Mackinac Center for Public Policy. 

The Fifth Circuit erroneously construed the Texas regulations as governing nonspeech conduct that only incidentally impacted speech. But everything that Dr. Hines did was speech!—there was no nonspeech conduct to regulate. Even if the regulations were content-neutral restrictions that incidentally restricted speech, the restrictions should have been reviewed under heightened scrutiny—meaning that the government would need to show a strong justification for its enforcement action. But the restrictions at issue here are explicitly content-based: Dr. Hines could’ve talked about any topic he wanted, except the topic of veterinary care. 

Under the lower court’s logic, the following people would be unknowingly violating Texas law: Dr. Sanjay Gupta provides health information online; Loveline Radio provides relationship and drug-addition advice; The Mutual Fund Show provides financial advice; in addition to radio talk shows on pet care. All these people, and many others, would be expected to know and follow the detailed regulations of every single state. 

The physical examination requirement doesn’t even make sense as a matter of basic veterinary practice. It only requires that vets visit a location, not that they actually examine a particular animal. It prevents a vet’s colleague from relying on notes and records when the primary-care vet is unavailable. Dr. Hines couldn’t even tell a client that her pet’s condition sounded serious and so the owner should, say, not let the animal drink water and bring it to him right away. 

Moreover, someone who wasn’t a licensed veterinarian could have provided the same advice as Dr. Hines without a problem; the law prohibits good information from qualified individuals while allowing unqualified individuals to give bad advice. The regulation just ends up hurting the poor, who can’t afford to travel to Dr. Hines, and practically creates geographic limitations on speech. 

The Supreme Court should take up Hines v. Alldredge and protect basic First Amendment rights in the context of occupational regulation.

Senate Conservatives Seek to Rein In the Court

Late last year, Reason magazine’s crack legal correspondent Damon Root chronicled the rise of the modern libertarian legal movement in his important new book, Overruled: The Long War for Control of the U.S. Supreme Court. In it, he focused especially on the struggle that some of us have been engaged in for more than four decades to recast the terms of the debate over the proper role of the courts from “judicial activism” and “judicial restraint” to “judicial engagement” and “judicial abdication.” That shift has been crucial because it refocused the debate from judicial behavior to where it should have been all along, namely, on the proper interpretation of the law before the court.

The struggle to bring about that shift, although much further along than when it began decades ago, is far from finished: Witness hearings just two days ago before the Senate Judiciary Committee’s Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts. Called by Subcommittee Chairman Ted Cruz in the wake of last month’s Supreme Court decisions in King v. Burwell, upholding Obamacare’s subsidies for insurance purchased through exchanges established by the federal government, and Obergefell v. Hodges, which made same-sex marriage the law of the land, the hearings were titled “With Prejudice: Supreme Court Activism and Possible Solutions.”

As the title suggests, committee conservatives, in the majority, remain focused on what they see as the Court’s activism. Their witnesses were two professional friends of mine, former Chapman Law Dean and now Professor John Eastman and Ethics and Public Policy Center President Ed Whelan. Nominally representing the liberal activist side was Duke Law Professor Neil Siegel.

I say “nominally” because Professor Siegel took pains early in his testimony to expose problems with the very idea of judicial activism. If defined in opposition to judicial deference, he said, many of the recent decisions of the Court’s “conservatives” would have to be called “activist.” But if the term is defined as engaging in legal infidelity, then we’re arguing not about activism or restraint but about whether the judge read the law correctly.

That’s right. In fact, “judicial engagement” emerged in libertarian thought mainly in opposition to calls from conservatives like Robert Bork and Antonin Scalia for courts to be more deferential to the political branches. But it was animated by the contention that the basic problem with conservative deference was its misreading of the law. In particular, under our Constitution, as Bork put it, majorities were entitled to rule in “wide areas” simply because they were majorities, even if in “some areas” minorities were entitled to be free from majority rule—to which many of us responded that that had the law exactly backwards, turning the Constitution on its head.

But having put his finger on the real source of the differences between the activist and restraint schools, Siegel then went on to illustrate why conservatives called the hearings in the first place, arguing that the Court got it right in both King and Obergefell. In King, Siegel said, Chief Justice John Roberts was right to ignore both the text at issue in the case and the rationale for that text and instead “to read the statute in context and as a whole.” Those, of course, are the kinds of words that enable courts to reach almost any conclusion they wish—to engage in the “activism” conservatives rightly condemn. On reading the law correctly here, credit the conservatives.

Hackers Remotely Kill a Jeep

This is a very interesting development—one that’s been coming for a long time: Your car is a computer, some cars can be hacked, and now we know they can be hacked in dangerous ways.

The correct public policy response is implicit in this very good Wired article describing the whole thing. “Automakers need to be held accountable for their vehicles’ digital security,” writer Andy Greenberg says, quoting auto hacker Charlie Miller thus: “If consumers don’t realize this is an issue, they should, and they should start complaining to carmakers.”

That’s two very important consumer protection systems in a couple of brief sentences: In one, carmakers suffer lost sales if their cars are hackable or perceived as such. The market feedback system—including the article itself—causes automakers to work to make their cars less hackable.

How Drones Encourage Dumb Wars and Corrode Democratic Government

My article in this week’s Washington Examiner magazine argues that because U.S. wars seem so cheap, they tempt us into making war too casually. I explain that while this tendency isn’t new, recent technology breakthroughs, which allowed the development of drones, have made it worse. We now make war almost like people buy movies or songs online, where low prices and convenience encourage purchase without much debate or consideration of value. I label the phenomenon one-click wars.

If we take occasional drone strikes as a minimum standard, the United States is at war in six countries: Pakistan, Somalia, Yemen, Syria, Afghanistan, and Iraq, with Libya likely to rejoin the list. In the first three, U.S. military action is exclusively the work of drones. Regular U.S. ground forces are present only in Iraq, where they avoid direct combat, and Afghanistan, where they mostly do.

There’s something remarkable in that combination of militarism and restraint. How can we be so willing to make war but so reluctant to take risks in making it?

My explanation starts with power. Wealth, technological prowess, and military might give the United States unique ability to make war around the world. But labor scarcity, liberal values, and our isolated geography that makes the stakes remote  limit our tolerance for sacrificing lives, even foreign ones, in war. This reluctance to bear the human costs of war leads to reliance on long-range technology, especially airpower.

Airpower, despite its historical tendency to fail without help from ground forces, always offers hope that we are only a few bombs away from enemy capitulation. The promise of cheap, clean wars is always alluring. They would let you escape the choice between the bloody sacrifices war entails and the liberal values it offends. 

Jared Bernstein Tilts His Tax Facts

Former Obama administration economist, Jared Bernstein, argues for higher taxes in a New York Times op-ed yesterday. His piece begins:

Like it or not, the campaign season is upon us, and that almost certainly means somebody is going to try to buy your vote with a tax cut — even though average federal tax rates are already low in historical terms, our tax code remains tilted in favor of the wealthy, and our children, neighborhoods and infrastructure desperately need public investment.

I tried to use my imagination and think of how a thoughtful and intelligent liberal like Bernstein might conceive of tax policy. But I could not come up with any scenario under which this statement might be considered true: “our tax code remains tilted in favor of the wealthy.”   

The plain fact of the matter is that the federal tax system is highly graduated, or what liberals call “progressive.” Lower-income households pay much smaller shares of their income in taxes than do higher-income households.

In his article, Bernstein uses data from the respected Tax Policy Center (TPC), as I do here. The first table shows TPC estimates of average federal tax rates (total taxes divided by income) for U.S. households (specifically, “tax units”) in five income groups.

King v. Burwell: How the Supreme Court Helped President Obama Disenfranchise His Political Opponents

Criticizing my recent post-mortem on King v. Burwell, Scott Lemieux kindly calls me “ObamaCare’s fiercest critic” for my role in that ObamaCare case. Other words he associates with my role include “defiant,” “ludicrous,” “farcical,” “dumber,” “snake oil,” “ludicrous” (again), “irrational,” “aggressive,” “comically transparent,” and “dishonest.”

Somewhere amid the deluge, Lemieux reaches his main claim, which is that (somehow) I admitted: “the King lawsuit wasn’t designed to uphold the statute passed by Congress in 2010. It was intended to ‘enfranchise’ the people who voted against the bill.” I’m not quite sure what Lemieux means. But perhaps Lemieux doesn’t understand my point about how the Supreme Court helped President Obama disenfranchise his political opponents.

As all nine Supreme Court justices acknowledged in King, “the most natural reading of the pertinent statutory phrase” is that Congress authorized the Affordable Care Act’s premium subsidies, employer mandate, and (to a large extent) individual mandate only in states that agreed to establish a health-insurance “Exchange.” That is, all nine justices agreed that the plain meaning of the operative statutory language allows states to veto key provisions of the ACA—sort of like the Medicaid veto that has existed for 50 years and lets states destroy health insurance for millions of poor Americans. The Exchange veto includes the power to shield millions of state residents from the ACA’s least-popular provisions: the individual mandate and the employer mandate.

You Ought to Have a Look: Highlights from the House Hearing on Social Cost of Carbon

You Ought to Have a Look is a feature from the Center for the Study of Science posted by Patrick J. Michaels and Paul C. (“Chip”) Knappenberger.  While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic.  Here we post a few of the best in recent days, along with our color commentary.

In case you missed it the House Natural Resources Committee, this week, held a hearing examining the Administration’s determination of the social cost of carbon—that is, how much future damage (out to the year 2300) the Administration deems is caused by the climate change that results from each emitted (metric) ton of carbon dioxide.

As you may imagine from this description, determining a value of the social cost of carbon is an extremely contentious issue, made more so by the fact that the Obama Administration requires that the social cost of carbon, or SCC, be included in the cost/benefit analysis of all federal actions (under National environmental Protection Act, NEPA) and proposed regulations.

Years ago, we warned about how powerful a tool the SCC was in the Administrations hands and have worked to raise the level of public awareness. To summarize our concerns:

The administration’s SCC is a devious tool designed to justify more and more expensive rules and regulations impacting virtually every aspects of our lives, and it is developed by violating federal guidelines and ignoring the best science.

The more people know about this the better.

Our participation in the Natural Resources Committee hearing helped further our goal.

That the hearing was informative, contentious, and well-attended by both the committee members and the general public is a testament to the fact that we have been at least partly successful elevating the SCC from an esoteric “wonky” subject to one that is, thankfully, starting getting the attention it deserves.

In this edition of You Ought to Have a Look, we highlight excerpts from the hearing witnesses, which along with our Dr. Patrick Michaels, included Dr. Kevin Dayaratna (from The Heritage Foundation), Scott Segal (from the Policy Resolution Group) and Dr. Michael Dorsey (from US Climate Plan).  The full written submissions by the witness are available here.