The National ID Social Season Is Underway

The American Association of Motor Vehicle Administrators is the umbrella group for DMV bureaucrats across the nation. It’s a non-profit group, but it does more than earnestly educate government officials and the public about the nuances of driver licensing. Since the 1930s, it has advocated for increased government spending on licensing bureaucracy—and it has advocated against driver’s rights. (It’s all discussed in my book Identity Crisis.) That doesn’t mean AAMVA can’t have fun. Indeed, AAMVA’s social season gets underway next week.

You see, AAMVA is a growing business. A decade ago, when the Capitol Hill staffer with lead responsibility for the REAL ID Act came through AAMVA’s revolving door, I noted the dollar-per-driver fee it collects in the Commercial Driver Licensing system. That $13 million in revenue has surely grown since then.

AAMVA’s revenues will grow far more when it runs the back-end of the REAL ID system, potentially pulling in from three-and-a-quarter cents to five cents per driver in the United States. At 210 million licensed drivers, AAMVA could make upwards of ten million dollars per year.

To help that business flow, every year AAMVA holds not one, but five lavish conferences, each of which has its own awards ceremonies aimed at saluting DMV officials and workers. There, AAMVA leadership, vendors, and officials from government agencies both state and federal gather to toast their successes in advancing their cause, including progress in implementating our national ID law, the REAL ID Act.

A New Legal Blow Against Obamacare

The federal district court sitting in D.C. yesterday handed a victory to those who believe in following statutory text, potentially halting the payment of billions of dollars to insurers under the Affordable Care Act’s entitlement “cost-sharing” provisions.

Since January 14, 2014, the Treasury Department has been authorizing payments of reimbursements to insurers providing Obamacare coverage. The problem is that Congress never appropriated the funds for those expenditures, so the transfers constitute yet another executive overreach.

Article I of the Constitution provides quite clearly that “No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law.” The “power of the purse” resides in Congress, a principle that implements the overall constitutional structure of the separation of powers and that was noted as an important bulwark against tyranny by Alexander Hamilton in the Federalist 78.

It’s a basic rule that bears repeating: the executive branch cannot disburse funds that Congress has not appropriated.

Accordingly, in a win for constitutional governance, Judge Rosemary Collyer held in House of Representatives v. Burwell that the cost-sharing reimbursements authorized under the ACA’s section 1402 must be appropriated by Congress annually, and are not assumed to be appropriated.

Judge Collyer gave a biting review of the federal government’s argument in the case: “It is a most curious and convoluted argument whose mother was undoubtedly necessity.” The Department of Health and Human Services claimed that another part of the ACA that is a permanent appropriation—section 1401, which provides tax credits—also somehow included a permanent appropriation for Section 1402. Hearkening to the late Justice Scalia’s lyrical prose, Collyer explained that the government was trying to “squeeze the elephant of Section 1402 reimbursements into the mousehole of Section 1401(d)(1).”

Indeed, this ruling is a bit of a feather in Cato’s cap as well. The legal argument that prevailed here—that the section 1402 funds cannot be disbursed without congressional appropriation—first was discussed publicly at a 2014 Cato policy forum. The lawyer who came up with the idea, David Rivkin of BakerHostetler, refined it in conjunction with his colleague Andrew Grossman, also a Cato adjunct scholar who spoke at the forum. After BakerHostetler had to withdraw from the case due to a conflict, George Washington University law professor Jonathan Turley (who also spoke at the forum) took over the case.

Judge Collyer stayed her injunction against the Treasury Department pending appeal before the U.S. Court of Appeals for the D.C. Circuit. Regardless of how that court decides – as in King v. Burwell, even if there’s a favorable panel, President Obama has stacked the overall deck – the case is likely to end up before the Supreme Court. If Chief Justice Roberts sees this as a technical case (like Hobby Lobby or Zubik/Little Sisters) rather an existential one (like NFIB v. Sebelius or King), the challengers have a shot. But because Democrat-appointed justices simply will not interpret clear law in a way that hurts Obamacare, this case, like so much else, turns on the presidential election and the nominee who fills the current high-court-vacancy.

Whatever happens down that line, Judge Collyer’s succinct ruling makes a powerful statement in favor of constitutional separation of powers as a bulwark for liberty and the rule of law.

Presidential Arrogance on Steroids

“Obama said ‘so sue me.’ The House did, and Obama just lost.” That’s how the Wall Street Journal sub-heads its lead editorial this morning discussing the president’s latest court loss, nailing this most arrogant of presidents who believes he can rule “by pen and phone,” ignoring Congress in the process. With an unmatched record of losses before the Supreme Court, this onetime constitutional law instructor persists in ignoring the Constitution, even when the language is crystal clear.

Article I, section 9, clause 7 of the Constitution provides that “No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law.” Not much wiggle room there. So what did the president do? He committed billions of dollars from the Treasury without the approval of Congress. In her opinion yesterday Judge Rosemary Collyer noted, the Journal reports, “that Congress had expressly not appropriated money to reimburse health insurers under Section 1402 of the Affordable Care Act. The Administration spent money on those reimbursements anyway.”

George Washington Law’s Jonathan Turley, lead counsel for the House in this case, House v. Burwell, called yesterday’s decision “a resounding victory not just for Congress but for our constitutional system as a whole. We remain a system based on the principle of the separation of powers and the guarantee that no branch or person can govern alone.”

But don’t expect the president to be any more chastened by this decision than by his many previous losses in the courts. Indeed, as he was smarting from yesterday’s loss he was preparing, the Washington Post reports, to release a letter this morning “directing schools across the nation to provide transgender students with access to suitable facilities—including bathrooms and locker rooms—that match their chosen gender identity.” And where did he get his authority for that? Not from Congress. It’s based on his reading of Title IX of the Civil Rights Act of 1964 that for over half a century no one else has seen, doubtless because Title IX prohibits discrimination on the basis of sex, not chosen sex. Reading Title IX as we want it to be is of a piece with reading the Constitution that way too. Thus do objectivity and the rule of law fade into the rule of man.

The Middle Class Shrinks as the Number of High Income Households Grows

The day before yesterday, The Washington Post ran a piece with the alarming headline, “The middle class is shrinking just about everywhere in America.” Although you wouldn’t know it from the first few paragraphs, a shrinking middle class isn’t necessarily a bad thing. As HumanProgress.org Advisory Board member Mark Perry has pointed out, America’s middle class is disappearing primarily because people are moving into higher income groups, not falling into poverty. label Data from the U.S. Census Bureau shows that after adjusting for inflation, households with an annual income of $100,000 or more rose from a mere 8% of households in 1967 to a quarter of households in 2014.

According to the Pew Research Center, 11% fewer Americans were middle class in 2015 than in 1971, because 7% moved into higher income groups and 4% moved into lower income groups. The share of Americans in the upper middle and highest income tiers rose from 14% in 1971 to 21% in 2015. 

One has to read fairly far into the Washington Post’s coverage before seeing any mention of the fact that a shrinking middle class can mean growing incomes: 

“[In many] places, the shrinking middle class is actually a sign of economic gains, as more people who were once middle class have joined the ranks at the top. [For example, in] the Washington, D.C. metropolitan area, the share of adults living in lower-income households has actually held steady [from 2000 to 2014]. The households disappearing from the middle-class, rather, are reflected in the growing numbers at the top.”

Other cities with a shrinking middle class, a growing upper class and very little change in the lower class include New York, San Francisco and New Orleans. So the next time you hear someone bemoan the “shrinking middle class,” take a closer look at the data and keep in mind that it may actually be a sign of growing prosperity. 

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A Friedman Prize for Courage

The 2016 Milton Friedman Prize for Advancing Liberty has been awarded to Flemming Rose and will be formally presented at a dinner in New York on May 25. (Tickets still available!)

Flemming Rose is a Danish journalist. In the 1980s and 1990s he was the Moscow correspondent for Danish newspapers. He saw the last years of Soviet communism, with all its poverty, dictatorship, and censorship, and the fall of communism, only to be disappointed again with the advance of Russian authoritarianism. After also spending time in the United States, he became an editor at the Danish newspaper Jyllands-Posten. In 2005 he noticed “a series of disturbing instances of self-censorship” in Europe. In particular, “a Danish children’s writer had trouble finding an illustrator for a book about the life of Muhammad. Three people turned down the job for fear of consequences. The person who finally accepted insisted on anonymity, which in my book is a form of self-censorship.”

Rose decided to take a stand for free speech and the open society. He asked 25 Danish cartoonists “to draw Muhammad as you see him.” Later, he explained that 

We [Danes] have a tradition of satire when dealing with the royal family and other public figures, and that was reflected in the cartoons. The cartoonists treated Islam the same way they treat Christianity, Buddhism, Hinduism and other religions. And by treating Muslims in Denmark as equals they made a point: We are integrating you into the Danish tradition of satire because you are part of our society, not strangers. The cartoons are including, rather than excluding, Muslims.

Rose promised to publish all the cartoons he received. He got 12. They were by turns funny, provocative, insightful, and offensive. One implied that the children’s book author was a publicity seeker.  One mocked the anti-immigration Danish People’s Party. One portrayed the editors of Jyllands-Posten as a bunch of reactionary provocateurs. The most notorious depicted the prophet with a bomb in his turban.

A firestorm erupted. Protests were made. Western embassies were attacked in some Muslim countries. As many as 200 people were killed in violent protests. Rose and the turban cartoonist were the subject of death threats. To this day Rose travels with security. 

Is Rose in fact a provocateur or anti-Muslim? No. When we discovered that his book A Tyranny of Silence had not been published in English, that was the first question we asked. From reading the manuscript, and from talking to contacts in Denmark and Europe, we became confident that Rose was a genuine liberal with a strong anti-authoritarian bent, sharpened during his years as a reporter in the Soviet Union. His book, recently reissued with a new afterword, confirms that. Chapter 10, “A Victimless Crime,” traces the history of religious freedom from the Protestant Reformation to the challenges faced today by Muslims of different religious and political views.

Air Traffic Control: Bureaucracy and Unions

For more than a century, America has been the global leader of the aviation industry. But these days, the government-run parts of the industry are inefficient and falling behind, including airports, security screening, and air traffic control (ATC). International experience shows that these activities can be better run outside of government bureaucracies.

House Transportation Committee chairman Bill Shuster introduced legislation to shake-up our moribund ATC system and move it out of the government. Shuster modeled his bill on highly successful Canadian reforms that established ATC as a self-funded nonprofit corporation, Nav Canada. For America, Canadian-style reforms could reduce airspace congestion, improve efficiency, benefit the environment, and save taxpayer money.

Such reforms should appeal to conservatives and Republicans, but there is resistance. Some Republicans are carrying water for the general aviation industry, which opposes the bill for apparently short-sighted financial reasons. And some conservative wonks oppose the bill because it does not reform the labor union structure of the ATC workforce. That objection is also short-sighted.

Economist Diana Furchtgott-Roth opposes Shuster’s legislation over labor issues. Diana is an expert on labor unions, but she is letting the perfect be the enemy of the good here. Our ATC system—run by the Federal Aviation Administration (FAA)—is being held back by government bureaucracy and congressional micromanagement, not so much by unionization.

The reason why the FAA has a long history of cost overruns, mismanaged technology projects, and other failures is the bad incentive structure that exists within all federal agencies. The more complex the task, the more that government bureaucracies fail, and ATC is becoming increasingly complex. Bob Poole has described the FAA’s bureaucracy problems in this study, and I have discussed federal bureaucratic failure more generally in this study.

Marc Scribner at CEI does a fantastic job of countering Diana’s arguments, and Bill Shuster responds to Diana’s labor-related complaints here. Personally, I would repeal “collective bargaining” (monopoly unionism) completely in the public and private sectors, for both economic and freedom reasons. But until that happens, I would take a private-sector unionized company any day over a unionized federal bureaucracy. Diana would apparently prefer the latter, which I find perplexing.

An Absence of Ocean Acidification Impacts on Two Marine Copepods

Copepods are small crustaceans and encompass a major group of secondary producers in the planktonic food web, often serving as a key food source for fish. And in the words of Isari et al. (2015), these organisms “have generally been found resilient to ocean acidification levels projected about a century ahead, so that they appear as potential ‘winners’ under the near-future CO2 emission scenarios.” However, many copepod species remain under-represented in ocean acidification studies. Thus, it was the goal of Isari et al. to expand the knowledge base of copepod responses to reduced levels of seawater pH that are predicted to occur over the coming century.

To accomplish this objective, the team of five researchers conducted a short (5-day) experiment in which they subjected adults of two copepod species (the calanoid Acartia grani and the cyclopoid Oithona davisae) to normal (8.18) and reduced (7.77) pH levels in order to assess the impacts of ocean acidification (OA) on copepod vital rates, including feeding, respiration, egg production and egg hatching success. At a pH value of 7.77, the simulated ocean acidification level is considered to be “at the more pessimistic end of the range of atmospheric CO2 projections.” And what did their experiment reveal?

In the words of the authors, they “did not find evidence of OA effects on the reproductive output (egg production, hatching success) of A. grani or O. davisae, consistent with the numerous studies demonstrating generally high resistance of copepod reproductive performance to the OA projected for the end of the century,” citing the works of Zhang et al. (2011), McConville et al. (2013), Vehmaa et al. (2013), Zervoudaki et al. (2014) and Pedersen et al. (2014). Additionally, they found no differences among pH treatments in copepod respiration or feeding activity for either species. As a result, Isari et al. say their study “shows neither energy constraints nor decrease in fitness components for two representative species, of major groups of marine planktonic copepods (i.e. Calanoida and Cyclopoida), incubated in the OA scenario projected for 2100.” Thus, this study adds to the growing body of evidence that copepods will not be harmed by, or may even benefit from, even the worst-case projections of future ocean acidification.