The Constitutional Dimension of Your Morning Commute

Over the last few years, D.C.-area drivers may have noticed the continual increases in toll fares on the Dulles Toll Road, the highway going through the Northern Virginia suburbs past Dulles Airport.  Indeed, since 2005, the toll for the typical round-trip commuter has more than quadrupled from $1.50 to $7.00, with more increases coming. These extra toll dollars haven’t been going for upkeep or expansion of the highway, however, but instead have been funding the over-budget and under-performing construction of the Metro’s Silver Line extension.

While originally slated to fund only 25% of that cost, commuters are now looking at paying more than half of the $5.6 billion (and counting) total cost, with years of construction still to come. The entity in charge of the construction project (and of gouging the toll road’s commuters) is the Metropolitan Washington Airports Authority, a public body established to govern Dulles and Reagan National airports at the behest of the Department of Transportation. But who’s actually in charge of the MWAA, and to whom can beleaguered commuters turn for relief? Although created by an interstate compact between D.C. and Virginia, the MWAA was granted all of its authority by an act of Congress, and the highways and airports that it oversees are federal property.

In many ways, the MWAA acts like a federal agency—in nearly all ways, in fact, except one important aspect: oversight. If federal assets and lawmaking power are being delegated to the MWAA, then there must be a means for the executive branch to “take care that the laws be faithfully executed.” The MWAA, however, is governed by a board of individuals whom the president has no meaningful ability to appoint, oversee, or control. This means that the MWAA has no political accountability for its decisions.

Having no other meaningful recourse, a group of Dulles Toll Road users sued the MWAA, arguing that its decrees violate the separation of powers. (Full disclosure: my wife and I just bought a house in Falls Church and will likely be using the road every now and again, though not on my commute to Cato.) The federal district and appeals courts—two of them, in an unusual development whereby the Federal Circuit transferred the case to the Fourth Circuit—decided that the MWAA’s nature as a state-created entity required the case to be dismissed. Moreover—get this—because the MWAA has no meaningful executive-branch control, there is no separation-of-powers issue. (This despite the federal government’s appearance as an amicus to argue that the MWAA exercises federal power and is subject to separation-of-powers scrutiny.)

Undeterred, the plaintiffs have petitioned the Supreme Court to hear their case. Cato has joined the American Highway Users Alliance and the Recreation Vehicle Industry Association on a brief supporting their petition. We argue that the Court should take the case because (1) there is a critical violation of the separation of powers, (2) there are already manifest harms resulting precisely from that violation, and (3) the federal government sees and treats the MWAA as a federal agency—but one without any meaningful accountability whatsoever.

It isn’t every day that a separation-of-powers case is as squarely presented as it is here, where commuters are being railroaded, so to speak, by a runaway agency whose conductor is absent. The executive branch has to take the blame not only for the MWAA’s policies, but its corruption, incompetence, and mismanagement.

The Supreme Court will decide whether to take Corr v. Metro. Washington Airports Authority later this fall.

Bipartisan Agreement against the Taxpayers

The Washington Post reports on strong disagreements in consecutive appearances by Virginia Senate candidates Mark Warner and Ed Gillespie. Obamacare, terrorism, lobbying, partisanship – lots of arguments. But take heart, the Post advises us: “Despite the positioning, both candidates agreed on a few topics.” As usual, as I’ve written before, when you hear about bipartisanship, watch your wallet. Here’s what Warner and Gillespie agree on:

For example, they each called federal sequestration cuts devastating to the Northern Virginia economy.

Gillespie said Warner was in support of sequestration, while Warner blamed Republicans for allowing the automatic spending cuts to go through after Congress failed last year to resolve the debt-ceiling crisis.

“Sequestration is stupidity on steroids,” Warner said, promising to look for places to cut spending in other areas. “You have to take on entitlement reform and tax reform.”

Both also agreed that there is an urgent need to improve Virginia’s transportation infrastructure, though Gillespie said the solution lies in bringing in more revenue through deep-sea oil drilling and Warner argued for privatizing portions of transportation improvements.

On national security, Gillespie and Warner agreed on a need to spend more on the U.S. military in the face of the threat posed by the Islamic State.
Once again, what the candidates agree on is spending the taxpayers’ money.

Should We Credit Global Warming When Disasters Don’t Happen?

Every time there is some sort of weather disaster somewhere, someone blames it on human-caused global warming. Maybe not directly, but the implication is clear. “While we can’t link individual events to global warming, the increase of this type of event is consistent with our expectations, blah, blah…”

Most recently this came in testimony from White House Science Adviser John Holdren before the Committee on Science, Space, and Technology of the U.S. House of Representatives:

In general, one cannot say with confidence that an individual extreme weather event (or weather-related event)—for example, a heat wave, drought, flood, powerful storm, or large wildfire—was caused by global climate change. Such events usually result from the convergence of multiple factors, and these kinds of events occurred with some frequency before the onset of the discernible, largely human-caused changes in global climate in the late 20th and early 21st centuries. But there is much evidence demonstrating that extreme weather events of many kinds are beginning to be influenced—in magnitude or frequency—by changes in climate.

Holdren then goes to list a bunch of types of extreme weather whose characteristics have changed (remarkably, all becoming worse), adding that:

There are good scientific explanations, moreover, supported by measurements, of the mechanisms by which the overall changes in climate resulting from the human-caused build-up of heat-trapping substances are leading to the observed changes in weather-related extremes.

San Francisco Taxi Trips Plunge Amid Rise of Rideshare Companies

According to Kate Toran, the San Francisco transport authority’s Taxis and Accessible Services interim director, companies such as Uber and Lyft, which provide ridesharing services, “have dramatically changed the for-hire transportation industry in San Francisco.”

A few days ago, the San Francisco Examiner reported on a presentation Toran gave to the San Francisco Municipal Transportation Agency (SFMTA) board of directors. The presentation included the slide below:

 

Uber and Lyft are both headquartered in San Francisco and are classified as Transportation Network Companies (TNCs), a designation created by California’s Public Utilities Commission last year.

Getting Government Out of the Mortgage Business, DOJ-Style

Yesterday Bloomberg reported that Federal Housing Administration (FHA) purchase loan guarantees “plunged” compared to a year ago. Part of that plunge, of course, was an expected decline in refinance activity. Currently, FHA endorsement activity is almost 80 percent purchase, whereas a year it ago it was just over half for purchase. Looking at trends in purchase endorsements, the decline looks a lot more moderate.

Even so, there has been a modest decline. Many in the banking industry, as expressed to Bloomberg, believe this is because FHA and the U.S. Deparment of Justice have been too tough on lenders, making them take back soured loans and assessing damages. JP Morgan CEO Jamie Dimon recently asked, because of the legal risk, “should we [JP Morgan] be in the FHA business at all?” 

Personally, this sounds like little more than jawboning. As illustrated by FHA’s recent credit reports, lenders are still dumping an awful lot of junk onto FHA. The average credit score is around a 680 FICO, meaning about half of FHA’s recent business is subprime. Beyond that, even subprime borrowers typically face downpayments of only around 5%, and then there’s the high debt levels witnessed. Lenders should be held responsible for making loans of such poor credit quality.

If DOJ fines on poorly performing FHA loans are chasing banks away from FHA, then I say “great.” That’s one of the reasons I helped get FHA new powers against fraud back in 2008 (see Section 2129 of HERA). As Congress is unlikely to ever scale bank the various mortgage subsidies, perhaps our only hope is that DOJ makes those subsidies so unattractive that lenders won’t use them. But then I could also see DOJ sue lenders, under fair-lending, for not using FHA.

President Poroshenko Goes to Washington

Ukrainian President Petro Poroshenko spoke before the U.S. Congress yesterday morning, and afterward met with President Obama at the White House. The visit was overshadowed by other major events of the week—Congress’s vote to authorize arms and training for Syrian rebels, and the Scottish independence referendumbut it was noteworthy that the visit didn’t elicit any U.S. offers of military support for Ukraine.

Poroshenko’s speech to Congress focused heavily on Ukraine’s role as a “strong American partner” and fellow democracy, and argued for greater U.S. involvement in the crisis. He even went so far as to argue that “this is America’s war too,” though he certainly offered no justification for why Ukraine is of key strategic interest for the United States. Between rousing rhetoric, references to John F. Kennedy, and anecdotes about brave Ukrainian warriors, he did ask the United States for three pieces of aid:

First, he asked for weaponry. Poroshenko thanked the United States for the humanitarian aid it has provided to Ukraine, but argued that “we can’t win a war with blankets.” The White House has promised a new $53 million aid package, comprising nonlethal military aid (i.e., blankets and food supplies). In contrast, the Ukrainians are particularly interested in heavy and antitank weapons.

Second, Poroshenko asked Congress for a massive injection of financial aid to support investment, fight corruption, and reform the Ukrainian state.

Finally, and most worrisome, he asked the United States (and NATO) to grant Ukraine a “special, non-allied partner status” for security and defense. It’s unclear exactly what this would entail, but it sounds suspiciously like a plea for NATO protection of Ukraine without full NATO membership.

There is limited interest in Congress to give Poroshenko some of what he is seeking. Sens. Bob Corker (R-TN) and Robert Menendez (D-NJ) have co-sponsored the Ukraine Freedom Support Act of 2014, which would seek to arm Ukrainian troops. But though the bill unanimously passed the Senate Foreign Relations Committee, it is unclear what will become of it as the Senate begins its recess, or whether it would command broader support from Congress.

Arming Ukraine’s government is foolhardy at best. Even if Ukraine were central to U.S. interests, the United States cannot possibly provide enough military aid to allow Ukraine to prevail against the Russian military. Such aid has the potential to escalate the situation and undermine a diplomatic settlement. Giving Ukraine a “special defense status” is an even worse idea, especially if it were to commit NATO to the military defense of Ukraine.

Luckily, the Obama administration seems determined to give Poroshenko a public relations boost—rolling out the red carpet for his visit—and nothing more. President Obama’s remarks praised Poroshenko’s leadership, but promised only to continue to help Ukraine reach a diplomatic settlement with Russia. With the U.S. military already gearing up for action on two different continents, it isn’t surprising that American leaders would choose to avoid escalating another regional conflict. Let’s hope this restraint continues once the other crises are past. 

A Tip o’ the Hat to the United Kingdom

As an eighth-generation Scottish-American, I’m disappointed that my ancestral homeland has chosen not to be A Nation Once Again. But at the Daily Caller I do note one remarkable and positive aspect of the referendum:

The leaders of the United Kingdom allowed this referendum to take place, allowed the Scots to peacefully decide their own fate. Just think how remarkable that is. We Americans weren’t allowed to peacefully leave the United Kingdom….

A few secession efforts in the United States also demonstrate the remarkable nature of the Scottish independence referendum. The San Fernando Valley region wanted to secede from the city of Los Angeles in the 1970s, and eventually a vote on secession was held in 2002. But the entire city of Los Angeles got to vote on whether the Valley could leave, and the effort was defeated. Today there are counties in both California and Colorado that have discussed secession, but in both cases the state law says that the legislature would have to approve. Few central governments look kindly on the loss of any portion of their taxpayers.

And that’s why I offer a tip o’ the hat today to the Parliament and the governments of the United Kingdom. They allowed the people of Scotland to decide their own fate. They did not insist that any secession had to get the approval of the government from which the dissident region wanted to secede. They did campaign hard to persuade Scottish voters to stick with the UK. But they let the Scots decide. May the road rise up to meet them, and may the sun shine warm upon their faces. And may other central governments learn from their example.