One Threat To Freedom Of Opinion Down, In California. Many More To Go.

At Overlawyered, I’ve repeatedly covered California Attorney General Kamala Harris’s audacious demand for the donor lists of nonprofits that carry on activities in California, a step likely to lead to both private and public retaliation against individuals and groups revealed to have donated to unpopular or controversial causes. So this is good news: a federal district judge in California has ruled that her crusade violates the Constitutional rights of one such group, Americans for Prosperity Foundation.

As the WSJ notes in an editorial, U.S. District Judge Manuel Real “declared her disclosure requirement an unconstitutional burden on First Amendment rights,” finding that there was scant evidence the disclosures were necessary to prevent charitable fraud, and that, contrary to assurances, her office had “systematically failed to maintain the confidentiality” of nonprofits’ donor lists, some 1,400 of which Harris’s office had in fact published online. As for retaliation against donors, “although the Attorney General correctly points out that such abuses are not as violent or pervasive as those encountered in NAACP v. Alabama or other cases from [the civil rights] era,” he wrote, “this Court is not prepared to wait until an AFP opponent carries out one of the numerous death threats made against its members.”

Food Labeling Regulations Are Bad for Your Health

Besides offering unrealistic tax reform plans, most of the presidential candidates this year made some nod to regulatory reform in their 2016 campaigns. For the most part these involve some sort of wholesale examination of the rules currently in place to determine which can be safely jettisoned to save consumers and businesses billions of dollars. 

Such regulatory reform is counterproductive, though: As Sam Batkins and I point out in a forthcoming piece in Regulation magazine, once companies have spent what is necessary to comply with the new regulations-regardless of whether or not it is cost effective–there’s little to be gained from repealing it. 

However there is one regulation which, if repealed, would enormously improve the well-being of consumers at very little cost to business: the current food labeling rules. 

5 Things ACA Supporters Don’t Want You To Know About UnitedHealth’s Withdrawal From ObamaCare

UnitedHealth’s enrollment projections provide evidence that healthy people consider Obamacare a bad deal. (AP Photo/Jim Mone, File)

UnitedHealth is withdrawing from most of the 34 ObamaCare Exchanges in which it currently sells, citing losses of $650 million in 2016. A recent Kaiser Family Foundation report indicates UnitedHealth’s departure will leave consumers on Oklahoma’s Exchange with only one choice of insurance carriers. Were UnitedHealth to exit all 34 states, the share of counties with only one or two carriers on the Exchange would rise from 36% to 52%, while the share of enrollees with only one or two carriers from which to choose would nearly double from 15% to 29%. 

The Obama administration dismissed the news as unimportant. A spokesman professed “full confidence, based on data, that the marketplaces will continue to thrive for years ahead.” Like what, two years? Another assured there is “absolutely not” any chance, whatsoever, that the Exchanges will collapse.

ObamaCare hasn’t yet collapsed in a ball of flames. But UnitedHealth’s withdrawal from ObamaCare’s Exchanges is more ominous than the administration wants you to know.

Show Me the Money!

The First Amendment’s religion clauses state that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Both of these clauses have been made applicable to the states via the Fourteenth Amendment. The continuing question is how these two clauses interact with one another, particularly in how far a state may go in “separating church and state” before running up against the Free Exercise Clause, or the principle of equal protection, or the Establishment Clause itself.

Take this case: Missouri has a Scrap Tire Grant Program that provides subsidies to construct playground flooring out of recycled old tires. Trinity Lutheran Church runs a daycare center and applied for a grant under the program. The state rated this application highly but nevertheless denied the grant—which would have enabled the purchase of a safe rubber surface for both children in its care and the larger community—solely because Trinity Lutheran is a church.

Missouri defends its position by citing the state constitution’s Blaine Amendment, which says that state funds cannot go to support religion. The U.S. Court of Appeals for the Eighth Circuit upheld the state denial and the Supreme Court agreed to hear the case.

Cato has now filed a brief supporting the church. Under the Supreme Court’s precedents regarding the “play in the joints” between the Free Exercise and Establishment Clauses, Missouri’s arguments should be insufficient to support its religious discrimination. To begin with, the state’s Blaine Amendment cannot be considered in the absence of its dark history of religious bigotry: Blaine Amendments were created nationwide in the late 19th century not simply to more explicitly separate church and state, but to harm minority religious sects, especially Catholics.

Moreover, a state constitutional provision cannot trump the U.S. Constitution, which prohibits discrimination against religion. Even under the Court’s Free Exercise jurisprudence, which since Employment Division v. Smith (1990) has offered less protection to religion against generally applicable laws, Missouri’s denial of the scrap-tire grant would be subject to strict judicial scrutiny because the action was based on Trinity Lutheran’s status as a church—and thus is not the kind of neutral law of general applicability that Smith addressed.

Five Graphs Celebrating Women’s Progress

Harriet Tubman’s forthcoming placement on the U.S. twenty dollar bill is being hailed as a symbolic win for women. Tubman certainly deserves the honor, and Cato’s Doug Bandow called for putting Tubman on “the twenty” a year ago. In celebration of the soon-to-be-redesigned twenty dollar bill, here are 5 graphs showcasing the incredible progress that women have made in the realms of work, education, health, etc.

1. The gender wage gap, which is largely the result of divergent career choices between men and women rather than overt sexism, is narrowing in the United States and in other developed countries. Part of this trend may be explained by more women entering highly paid fields previously dominated by men. For example, there are more women inventors and researchers in developed countries.label 

2. Around the world, girls in their teens have fewer children and are more likely to complete secondary education. As a smaller share of teenaged girls become mothers, many are better able to pursue education. The gender gap in youth literacyprimary school completion, and secondary school completion are all shrinking, even in many poor areas. Today, there are actually more women than men pursuing tertiary education and earning college degrees.label  

3. In the United States, domestic violence against women has fallen considerably since the 1990s. And the very worst kind of domestic violence—homicide of an intimate partner—has also become rarer in the United States, both for male and female victims. Police also recorded fourteen thousand fewer cases of rape in the United States in 2013 than in 2003—in spite of a population increase. In fact, both rapes and sexual assaults against women have declined significantly in the United States since the 1990s. Evolving attitudes about the acceptability of violence against women may be partially to thank.

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Arizona’s SB1070 and Crime

Arizona state representative Sonny Borrelli (R) remarked that crime rates in his state dropped 78 percent since the passage of that state’s infamous SB1070 in 2010. His remark was thoroughly debunked. Below are a few charts to put Arizona’s crime rates in context. 

It is very difficult to show causality between a law and its effect on crime in later years. Crime rates have trended downward in the United States for over 20 years now. It is difficult to credit any decline after 2010 to a specific Arizona immigration law.  Also, Arizona’s crime rate cannot be considered in isolation. Comparing it to neighboring states and the country as a whole which did not pass an SB1070-type bill is necessary to even get a slight hint of how that law on crime.  Furthermore, there is a vast empirical literature on the effect of immigration on crime. At worst, immigration has almost no effect on crime. At best, immigration decreases crime rates.   

All of the figures are presented as a rate of crime per 100,000. The violent crime rate in Arizona was declining before SB 1070 and continued to decline afterward (Figure 1). From 2009 to 2014, the Arizona violent crime rate declined by 6.3 percent while it dropped 13 percent nationally. There was a decline of 16.3 percent in California, 9.9 percent  in Nevada, and 5.5 percent in New Mexico. 

Figure 1

Violent Crime Rate

 

Source: FBI.

Like the violent crime rate, the property crime rate in Arizona was also declining before SB 1070 and continued to decline afterward (Figure 2). From 2009 to 2014, the Arizona property crime rate decline by 10.9 percent while it dropped 14.6 percent nationally. It declined in every other state: 10.6 percent in California, 14.3 percent in Nevada, and 4.6 percent in New Mexico.

Murr v. Wisconsin: When the Government Redefines Property Rights in Order to Avoid Paying Just Compensation

In 1960, the Murr family purchased a 1.25-acre lot (Lot F) in a subdivision on the St. Croix River in Wisconsin. They built a recreation cabin on the lot. Three years later, the family decided to purchase an adjacent 1.25 acre lot (Lot E) as an investment. The family did not build on Lot E, and the parents later gave their children the property. When the children began to look into selling Lot E, the government said that they couldn’t. Why? Because regulations passed after both lots were purchased require a bigger “net project area” (the area that can be developed) than either lot had by itself. Because the lots were commonly owned, the government combined them into one unit and, consequently, prohibited the development or sale of what was once Lot E.

Combining the lots essentially eviscerated the independent value that Lot E once had. The Murrs filed suit against Wisconsin and St. Croix County, arguing that the governments’ action violated the Fifth Amendment Takings Clause by depriving the Murrs of the value of the property (Lot E) without just compensation. Regulatory takings cases like this one are analyzed under the Penn Central test, which applies its three factors to “the parcel as a whole,” thus making the definition of “the whole parcel” highly relevant and even determinative, as it was here. The governments’ defense in the Murr case is a tricky mathematical manipulation: By considering Lot E and Lot F together, the government argues that the taking is not unconstitutional because it affects only half of “the parcel.” But, the Murrs argue, if Lot E is analyzed individually, then the government took the whole thing.

Defining “the parcel as a whole” has been a long-disputed issue, so the Murrs, represented by the Pacific Legal Foundation, sought, and received, Supreme Court review after the Wisconsin Supreme Court declined to hear the appeal from the Wisconsin Court of Appeals, which is a pretty unique way for the Court to take a case. This gives property rights advocates hope that the Supreme Court will bring some clarity to the muddied waters that are the Penn Central test’s three factors. The government should not be allowed to combine lots simply because they have a common owner, and it should especially not be allowed to do so in order to avoid paying the “just compensation” required by the Fifth Amendment. The Cato Institute has filed a brief in support of the Murrs urging the Court to clarify Penn Central. Although the Court has attempted in a few other cases to clarify its test, it remains unclear what the factors even mean, how they are to be measured, how they relate to one another, and how they are to be weighted. Despite, or perhaps because of, the muddled nature of the test, the government wins the vast majority of regulatory takings cases.

Adopting a bright-line rule here in the narrow context of determining what constitutes “the parcel as a whole” would bring some clarity to the Penn Central test and help protect property rights. Any rule permitting the combination of adjacent parcels would exacerbate Penn Central’s problems by leaving the lower courts to determine when combination is permissible and when it is not. Already the lower courts disagree on this issue, leading to greater uncertainty and less protection for property rights. This destabilizes property owners’ reliance interests and discourages property investment. State and local governments across the country have been using the vagueness of Penn Central to facilitate taking private property without just compensation. By clarifying the “parcel as a whole,” the Court can curtail one type of eminent domain abuse.