How Congress Should — and Shouldn’t — Bolster School Choice

This week, the House Committee on Education and the Workforce held a hearing on “Expanding Education Opportunity through School Choice.” As I’ve written before, there are lots of great reasons to support school choice policies, but Congress should not create a national voucher program:

It is very likely that a federal voucher program would lead to increased federal regulation of private schools over time. Once private schools become dependent on federal money, the vast majority is likely to accept the new regulations rather than forgo the funding.

When a state adopts regulations that undermine its school choice program, it’s lamentable but at least the ill effects are localized. Other states are free to chart a different course. However, if the federal government regulates a national school choice program, there is no escape. Moreover, state governments are more responsive to citizens than the distant federal bureaucracy. Citizens have a better shot at blocking or reversing harmful regulations at the state and local level rather than the federal level.

Time to Rein in Judicial Deference to Executive Agencies

Bryana Bible defaulted on her student loans. Upon her default, the guarantor of her loans, United Student Aid (USA) Funds, paid the default claim and took over the loan. Bible and USA Funds agreed to a $50-a-month repayment plan. Per the applicable Higher Education Act and Department of Education regulations, however, the agreement included a collection fee of 18.5% of the unpaid loan balance.

Bible balked at this fee and filed a class action against USA Funds, alleging that the company violated both the terms of the promissory note and the federal Racketeer Influenced Corrupt Organizations Act (!). The district court agreed with USA Funds because both the law and applicable regulations allowed for exactly that fee to be imposed. But when the case got to the appellate stage, it went off the rails.

The Seventh Circuit panel fractured, with one judge considering the regulatory text unambiguously permitting the fee, one judge considering the regulatory text unambiguously prohibiting the fee, and one just finding the regulations altogether ambiguous. The judges decided to resolve the case by deferring to the Department of Education’s opinion on the matter.

The Secretary of Education filed an amicus curiae brief, siding with Bible—which contradicted both the agency’s previous regulations and the statute’s express terms. Still, because the Secretary’s brief offered novel interpretative guidance, the court was forced to defer to the agency’s interpretation of its own guidance under a rule called Auer (or Seminole Rock)deference—a doctrine requiring courts to defer to agencies’ interpretation of their own guidance unless plainly erroneous or inconsistent with the regulation—instead of hazarding its own interpretation.

USA Funds has asked the Supreme Court to clean up this mess. Cato has joined the American Action Forum and Judicial Education Project on a brief urging the Court to take up the case and overrule both Auer v. Robbins (1997)and Bowles v. Seminole Rock & Sand Co. (1945).

Auer deference is simply outdated—and was superseded by statute from its inception. In 1946, one year after the Court decided Seminole Rock, Congress passed the Administrative Procedures Act (APA). The APA distinguished between legislative and interpretative rules. Legislative rules are subject to notice-and-comment practice but interpretative rules are not. Accordingly, judicial deference to a rule that results from an open notice-and-comment procedure may be justifiable, while deference to an interpretative rule—like the one at issue here—which is not subject to such a process, is inappropriate.

Upcoming Book Forum—Michael Doyle, “The Question of Intervention”

On February 18th at noon, Cato will be hosting a book forum with Columbia University professor Michael Doyle on his new book The Question of Intervention: John Stuart Mill and the Responsibility to Protect.  The forum will include a presentation of Doyle’s conception of the key standards that should guide decisions to intervene militarily abroad, followed by responses from two distinguished discussants—Anne-Marie Slaughter (President and CEO of New America, and former director of the State Department Policy Planning Staff), and Christopher Preble (Executive Vice President for Defense and Foreign Policy Studies, Cato Institute). 

In light of the persistent calls for the United States to intervene in trouble spots around the world, this event will provide an illuminating discussion of the circumstances in which moral and security considerations supersede the norm of state sovereignty and justify foreign intervention.  To register for the event, click here.

Technological Breakthroughs in Agriculture and Health

After a short pause over the holidays, here is a new installment in the HP series on technological breakthroughs. This time, we look at improvements in agriculture, and the fight against schizophrenia, aging and diabetes. 
 
New robotic farm will harvest 30,000 heads of lettuce daily. 
 
The world’s first completely robotic farm is in the works in Japan. Developed by a company called Spread, the farm will be able to harvest crops at greater quantities than before. The indoor farm already uses LED light instead of natural sunlight and stores the growing plants on vertical racks, allowing crop growth to be more easily controlled and more productive. With full automation, the farm will increase its lettuce production to 30,000 heads per day. The state-of-the-art facility also will provide environmental benefits such as recycling used water and greatly reduced labor costs. Spread hopes to export its technology around the world in the near future. 
 
 
new study released by the Broad Institute of MIT has found new links between brain development during adolescence and schizophrenia. The researchers focused in on a gene called component 4 (C4), which is found in the immune system. They examined 100,000 human DNA samples from 30 countries. When C4 is prominently expressed in the genetic code, people have a higher risk of developing schizophrenia. Additional analyses of mice found that C4 plays a role in closing off synapses in the brain. This process emerges during adolescence and opens exciting new avenues for additional research.  
 
A cure for aging?
 
competition in Silicon Valley is underway inspiring innovators in medicine to discover a way to reduce the effects of aging. The Palo Alto Longevity Prize awards $1 million in prizes to researchers who can find a way to reduce the effects of aging and disease. But, the goal of the competition is not just to find a way to allow individuals to live longer, but also to raise their quality of life by reducing the impact of age-related diseases such as Alzheimer’s and cancer. The body has a natural state of rest, called homeostasis, which it returns to after recovering from sickness or trauma. In a person’s early life, it is relatively easy for their body to return back to that state after getting a cold or breaking a bone. But after the age of 40, it becomes much harder for that person’s body to get back in sync.
 
‘Cure’ for Type 1 diabetes close. 
 
Scientists at Harvard and MIT have found a way to provide long-term treatment for Type 1 diabetes. Tests in animals have been so far successful. Through embryonic stem-cell research, the team found a way for cells to detect glucose levels and adjust insulin levels accordingly throughout the body. The breakthrough would effectively eliminate reliance on insulin injections for several years at a time and reduce the risks that come from Type 1 if an injection is missed or a sudden spike in blood-sugar occurs. The disease afflicts millions of individuals across the world, including 400,000 in Britain alone, according to The Telegraph. Those with Type 1 diabetes must check their blood sugar levels and take insulin injections daily in order to live with the disease. 
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Let a Thousand Flowers Bloom

While Cato believes that same-sex couples ought to be able to get marriage licenses (if the state is involved in marriage in the first place), a commitment to equality under the law can’t justify the restriction of private parties’ constitutionally protected rights like freedom of speech or association.

Arlene’s Flowers, a flower shop in Richland, Washington, declined to provide the floral arrangements for the same-sex wedding of Robert Ingersoll and Curt Freed. Mr. Ingersoll was a long-time customer of Arlene’s Flowers and the shop’s owner Barronelle Stutzman considered him a friend. But when he asked her to use her artistic abilities to beautify his ceremony, Mrs. Stutzman felt that her Christian convictions compelled her to decline. She gently explained why she could not do what he asked, and Mr. Ingersoll seemed to understand.

Later, however, he and his now-husband, and ultimately the state of Washington, sued Mrs. Stutzman for violating the state’s laws prohibiting discrimination in public accommodations. The trial court ruled against Arlene’s Flowers and the case is now on appeal.

Cato has filed an amicus brief supporting Arlene’s Flowers and Mrs. Stutzman, urging Washington’s highest court to reverse the trial court’s decision. Although floristry may not initially appear to be speech to some, it’s a form of artistic expression that’s constitutionally protected. There are numerous floristry schools throughout the world that teach students how to express themselves through their work, and even the Arts Council of Great Britain has recognized the significance of the Royal Horticultural Society’s library, which documents the history, art, and writing of gardening.

The U.S. Supreme Court has long recognized that the First Amendment protects artistic as well as verbal expression, and that protection should likewise extend to floristry—even if it’s not ideological and even if it’s done for commercial purposes. The Supreme Court declared more than 70 years ago that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” West Virginia Board of Education v. Barnette (1943). And the Court ruled in Wooley v. Maynard—the 1977 “Live Free or Die” license-plate case out of New Hampshire—that forcing people to speak is just as unconstitutional as preventing or censoring speech.

Do Scientists Suppress Uncertainty in the Climate Change Debate?

Ever wonder about the neutrality (or lack thereof) of scientists investigating the subject of global warming? Does it seem that far too many of them eagerly sound alarm bells when it comes to documenting and communicating the potential consequences of human-induced climate change to the public? Well, that little voice inside your head telling you something is awry appears to be vindicated based on new research published in the journal Public Understanding of Science.

In an article that is both enlightening and damning at the same time, Senja Post (2016) set out to investigate the “ideals and practices” of German scientists in communicating climate change research findings to the public. Post accomplished her objective by conducting and analyzing a representative survey of German scientists holding the academic rank of full professor and who were actively engaged in climate change research. Altogether, 300 such scientists were identified and invited to participate in her survey, and 42 percent of them responded with a completed questionnaire in which they were queried about “various aspects of climate change, their attitudes toward publicly communicating scientific uncertainty, and their media relations.”

According to Post, the results of her survey indicated that “the more climate scientists are engaged with the media the less they intend to point out uncertainties about climate change and the more unambiguously they confirm the publicly held convictions that it is man-made, historically unique, dangerous and calculable.” Similarly, the more scientists were convinced of the alarmist narrative that rising atmospheric CO2 is causing dangerous climate change, the more they worked with the media to disseminate that narrative. Post’s survey also revealed that “climate scientists object to publishing a result in the media significantly more when it indicates that climate change proceeds more slowly rather than faster than expected,” which finding, in her words, “gives reason to assume that the German climate scientists are more inclined to communicate their results in public when they confirm rather than contradict that climate change is dramatic.”

Such findings are saddening and shameful, highlighting a near-ubiquitous bias among climate scientists (at least in Germany) who willfully suppress the communication of research findings and uncertainties to the public when they do not support the alarmist narrative of CO2-induced global warming. Such deceit has no place in science.

 

Reference

Post, S. 2016. Communicating science in public controversies: Strategic considerations of the German climate scientists. Public Understanding of Science 25: 61-70.

Who Will Stand Up for the Constitution?

The Constitution has gotten short shrift in the ongoing presidential debates, save for an occasional mention by Rand Paul. Now that he’s out of the race, Politico reports this morning, in a piece entitled “Ted Cruz, born-again libertarian,” that Cruz is scrambling for Paul’s supporters, claiming that he’s the one remaining “constitutional conservative.” That’s rich, and here’s why.

If there is any test of libertarian constitutionalism, it concerns the proper role of the courts in limiting legislative and executive excesses, federal, state, and local. Even many conservatives today are rethinking their earlier views and arguing now that courts need to be more engaged in the business of limiting government and preserving liberty. And no Supreme Court decision in our history more symbolizes the divide between the earlier conservatives and the libertarians who’ve gradually brought this re-thinking about than Lochner v. New York, where the Court in 1905 struck down an economic regulation because it violated the right to liberty of contract protected by the 14th Amendment.

And where does Ted Cruz stand on that? Here’s Damon Root writing yesterday about the Paul exit in Reason’s “Hit & Run” blog:

Ted Cruz, meanwhile, stands in direct opposition to the libertarian legal movement on the central issue of economic liberties and the Constitution. For example, in July 2015 Cruz attacked the Supreme Court’s Lochner decision as a regrettable example of the Court’s “imperial tendencies” and “long descent into lawlessness.”

Unfortunately for Cruz, he undercut his own position in that speech by mangling the facts of Lochner, which he incorrectly described (while reading from a prepared text) as a case where “an activist Court struck down minimum wage laws” on behalf of an individual right “that has no basis in the language of the Constitution.” (Cruz’s opposition to Lochner also happens to be indistinguishable from Barack Obama’s negative view of the case.)

In reality, Lochner was not a minimum wage case at all; it was a maximum working hours case, plain and simple. What’s more, there is significant historical evidence showing that the individual right at issue in Lochner—liberty of contract—is deeply rooted in the text and history of the 14th Amendment.

Ted Cruz may be a “constitutional conservative” in the old and, increasingly, passing sense, but he’s hardly heir to those Rand Paul supporters who take the Constitution seriously. If his views on Lochner are any indication, he’d be more comfortable with the deferential Court that has left Obamacare largely intact. At the least, he needs to bone up on his constitutional theory and history.