The Constitution and Parental Rights

Child custody is among the most fraught topics the law confronts. It is the area in which personal relationships and raw emotions must be reconciled with legal rules and court judgements. Such is the case of “Ann,” an eight-year-old girl at the center of a case now before the Wisconsin Supreme Court. Ann has periodically spent time with her paternal grandmother, but due to family squabbles, Ann’s mother stopped bringing Ann to visit. The grandmother filed a lawsuit saying she was entitled to visitation rights, which a Wisconsin statute allows grandparents to ask for in circumstances where they have a preexisting relationship with the child such that the severing of that relationship would not be in the child’s best interest.

Complicating matters, the U.S. Supreme Court has held that these familial relationships have a constitutional dimension. In the 2000 case of Troxel v. Granville, the Court struct down a Washington State law that granted grandparents visitation rights when to do so would be in “the best interests of the child.” This standard was constitutionally infirm, the Court held, because parents have important rights that cannot by overcome by a bare showing that the child would be better off being raised by someone else.

As the late Justice Antonin Scalia pointed out, a great number of children should be taken from their homes if the question is whether someone else might do a better job raising them. Wisconsin’s statute is somewhat different than the Washington law, in that it requires a greater showing before invading the parent’s decision-making. The question for the Wisconsin Supreme Court is whether that’s different enough to shift the constitutional calculus.

About 1,100 Puerto Rican Deaths from Maria — NOT 2,795 or 4,645

The estimated number of above-average “excess deaths” in Puerto Rico attributed to Hurricane Maria (Sept 20, 2017) is a difficult figure to estimate objectively.  Puerto Rico’s official figure of 64 deaths by December 9, 2017 (which the President remembered) counted only those deaths directly attributed to the storm and confirmed by medical examiners.  Most of the direct deaths from Katrina were from drowning – which is much easier to attribute to the storm than many other causes of death. Studies of Puerto Rican deaths from Maria aspire to account for a wide range of indirect effects that are presumed (not proven) to be consequences of the storm such as suicides and heart attacks, infectious diseases, and damage to electricity and therefore to dialysis and respirator equipment.

Among at least eight major studies of direct and indirect effects on mortality attributed to Maria, two outliers stand out as being 3-5 times larger than the others, which all cluster around 1000. The first big number was from Harvard. On September 13, Time said, “Harvard’s report, which was based on systematic household surveys throughout Puerto Rico, reached an estimate of 4,645 storm-related deaths between September and December 2017, many as a result of ‘delayed or interrupted health care.’”  Nonsense. The Harvard study extrapolated from only 15 deaths reported in a survey of 3299 households to estimate that “between 793 and 8498 people died … up to the end of 2017.” By adding 793 and 8498 and dividing the result by 2, Time and others came up with a totally meaningless “average” which were widely reported with predictable sensationalism: “The hurricane that struck Puerto Rico in September was responsible for more deaths than the Sept. 11 attacks and Hurricane Katrina combined,” exclaimed The Daily Beast.” In reality, these “estimates of death from people who were interviewed” are little better than an opinion poll, and finding 15 deaths out of a sample of 3299 can’t plausibly be multiplied into 4645 for the whole island.

The latest sensational estimate of 2,975 excess deaths over six months is from an August 28 report from the Milken Institute School of Public Health at George Washington University  (GWU) commissioned by the Government of Puerto Rico. The study mentions two “scenarios” (census and displacement) yet only publicized the one with the biggest number: “Total excess mortality post-hurricane using the migration displacement scenario is estimated to be 2,975 (2,658-3,290) for the total study period of September 2017 through February 2018.” 

The 2,975 estimate only applies to the “displacement scenario.”  That is, the study “estimates cumulative excess net migration from Puerto Rico in the months from September 2017 through February 2018 and subtracts this from the census population estimates in these months.”  The population fell by about 8%, mainly due to migration rather than death, so the fact that there were more deaths than average after the hurricane means the death rate (deaths per thousand) rose more than the unadjusted statistics would suggest because the population is smaller.  But this issue is the number of deaths, not the death rate, and displacement (migration) did not make that number any higher than half a dozen other studies found (about 1000) much less three times higher.  

Subversive Patriotism: A Constitution Day Reminder

In Washington earlier this month, one person’s words in the New York Times were were deemed a threat to national security by those at whom they were aimed.

An anonymous Trump administration official was labeled “a seditious traitor who must be identified and prosecuted for illegal conduct” for exercising his or her 1st Amendment rights by publishing an op-ed in the September 5 edition of the New York Times. Vice President Pence stated that the op-ed writer’s actions inside the Administration—trying to limit what the writer believes is the damage President Trump is doing daily to the United States—is “an assault on our democracy”—a notion unhinged from any semblance of reality. 

Like everyone else working in the Trump administration, the author of the op-ed took the same oath I did when I served in the federal government, the text of which is federal law: 5. U.S.C. § 3331. Here’s the text:

I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

The oath makes no reference to pledging fealty to whoever happens to be President. It is a pledge of loyalty to our form of government, not an individual. The notion that the Justice Department even has a basis to prosecute the writer does not pass the laugh test, much less constitutional muster.

The anonymous Trump administration official—and if he or she is to be believed, many more working for Trump—views him as a domestic threat to the American people and the Constitution itself. Democrats and others on the political left have viewed Trump that way since he won the Electoral College vote in November 2016. Clearly others in the Administration now view Trump the same way.

Government Crowd Out in Transportation

The existence of government infrastructure deters or “crowds out” private investment. Many airports, bridges, and urban transit systems in the United States used to be private, but during the mid-20th century entrepreneurs were squeezed out by governments.

The provision of federal aid or subsidies to government-owned airports, bridges, and transit facilities was a key factor in pushing out private enterprise. That is one reason why I favor repealing federal aid for transportation.

AIRPORTS

In the early years of commercial aviation, private airports served many American cities. For example, the main airports in Los Angeles, Miami, Philadelphia, and Washington D.C. were for-profit business ventures in the 1930s.

The airports were generally successful and innovative, but they lost ground over time due to unfair government competition:

  • City governments were often eager to set up their own airports, even if private airports already served an area.
  • Cities issued tax-exempt bonds to finance their airports, giving them a financial edge over private airports.
  • Private airports pay taxes. Government airports do not, giving them another financial edge.
  • The U.S. military and the Post Office promoted government airports over private ones.
  • Federal New Deal programs provided aid to government airports, not private ones.
  • Congress provided aid to government airports for national defense purposes during World War II.
  • The federal Surplus Property Act after the war transferred excess military bases to the states for government airport use.
  • The federal Airport Act of 1946 began regular federal aid to government airports, not private ones.
  • The new Federal Aviation Administration in 1958 “prohibited private airports from offering commercial service.”

So governments banished entrepreneurs from a major part of America’s aviation industry. In the early 1930s, about half of the nation’s more than 1,100 airports were private, but by the 1960s, private commercial airports had mainly disappeared. Very sad, as I discuss here.

However, there is good news about airports. A privatized commercial airport industry is booming abroad, particularly in Europe. U.S. policymakers should let entrepreneurs take another crack at our airport industry.

BRIDGES

Bob Poole discusses government crowd out of private bridges in his new book Rethinking America’s Highways. In the 1920s, four main bridges built in the San Francisco area were private toll facilities. In the 1930s, the Golden Gate Bridge and Oakland Bay Bridge were built as government toll facilities.

Poole picks up the story:

All six of these bridges suffered declines in traffic and revenue due to the Depression, but the Bay Bridge and the Golden Gate opened closer to its end and were therefore less affected. Their financing costs were also lower, with the Bay Bridge getting low-cost financing from the New Deal’s Reconstruction Finance Corporation, and the Golden Gate being able to issue tax-exempt toll revenue bonds, rather than the taxable bonds issued by the toll bridge companies.

In addition, the California legislature voted in 1933 to relieve the Bay Bridge of having to cover operating and maintenance costs out of toll revenues, allocating state highway fund (gas tax) monies to cover those costs. The four private toll bridges all went into receivership by 1940. Unlike the Ambassador Bridge (in Michigan), they were unable to work out refinancing plans and were eventually acquired by the state, with the Dumbarton and San Mateo transfers not taking place until the early 1950s; their shares traded on the Pacific Coast Exchange until then.

A similar fate befell many of the other 200-odd private toll bridges during the Depression. The Reconstruction Finance Corporation provided low-cost loans to public-sector toll bridges, but not to investor-owned ones. Relatively new government toll agencies offered buyouts to struggling bridge owners during those years. The New York State Bridge Commission bought four private toll bridges over the Hudson River; the Delaware River Joint Toll Bridge Commission acquired at least six private toll bridges; and the city of Dallas bought the toll bridge on the Trinity River in order to eliminate tolls.

By 1940, the Public Roads Administration (the former Bureau of Public Roads, now part of the Federal Works Agency) reported that the number of US toll bridges had declined to 241, of which 142 were still investor-owned. But nearly all the bridges had been bought out by toll agencies or state and local governments by the mid-1950s.

URBAN TRANSIT

The early history of urban transit in America is one of private-sector funding and innovation, as Randal O’Toole discusses in this study. Hundreds of cities had private streetcar and bus companies moving people in downtowns and the growing suburbs in the early 20th century.

As the century progressed, however, the rise of automobiles undermined the demand for transit. At the same time, transit firms had difficulty cutting costs because their workforces were dominated by labor unions and governments resisted allowing them to cut services on unprofitable routes.

The nail in the coffin for private transit was the Urban Mass Transportation Act of 1964, which provided federal aid to government-owned bus and rail systems. The act encouraged state and local governments to take over private systems, and a century of private transit investment came to a close.

This Transportation Research Board study discusses the decline of private transit:

As the declining fortunes of America’s cities gained national recognition during the 1960s, Congress passed legislation that for the first time gave the federal government a prominent role in the provision of urban transit. The Urban Mass Transportation Act of 1964 (later redesignated the Federal Transit Act) provided loans and grants for transit capital acquisition, construction, and planning activities.

… Notably, only public entities could apply for the federal grants. Given the availability of federal aid, many cities, states, and counties purchased or otherwise took over their local rail and bus systems. Thus by the 1970s, a largely new model of transit provision—public ownership—had become increasingly prevalent in the United States. Many jurisdictions consolidated the operations of smaller private and public systems under the auspices of regional transit authorities. A few states, such as Connecticut, Rhode Island, and New Jersey, formed statewide transit agencies.

… In 1940, only 20 transit systems in the country were publicly owned, and they accounted for just 2 percent of ridership. By 1960, although the vast majority of all systems were still in private ownership, properties in public ownership accounted for nearly half of all transit ridership, mainly because the country’s very largest systems were publicly owned. By 1980, more than 500 systems were publicly owned, accounting for 95 percent of ridership nationally.

In sum, the bad news is that when the government advances, the private sector retreats. But the good news we have seen around the world in recent decades is that when the government gets out of the way, the private sector steps in to provide better services at lower costs.

Further reading:

https://www.downsizinggovernment.org/transportation

https://www.downsizinggovernment.org/infrastructure-investment

https://www.downsizinggovernment.org/privatization

Third Circuit Makes It Harder For Landlords To Exit Section 8

In principle, the federal housing-voucher program known as Section 8 ought to win points as a market-oriented alternative to the old command-and-control approach of planning and constructing public housing projects. While allowing recipients wider choice about where to live, it has also enabled private landlords to decide whether to participate and, if so, what mix of voucher-holding and conventionally paying tenants makes the most sense for a location. 

But there is another possibility, which is that Section 8 will in time bring with it onerous new restrictions on the private landlord-tenant relationship. For landlords, participation in the program has long carried with it some significant burdens of inspection, certification, and reporting paperwork. So long as participation was voluntary, these conditions were presumably worth it in exchange for the chance to reach voucher-holders as a class of potential tenants. When accepting Section 8 tenants stops being a voluntary choice, however, the balance is likely to shift. And one of the big policy pushes of the past decade – zealously promoted by the Obama administration – was the local enactment of laws and ordinances prohibiting so-called source-of-income discrimination, which in practice can mean making it a legal offense for a landlord to maintain a policy of declining Section 8 vouchers. Once that sort of control is in place, and landlords cannot opt out of the program, there will no longer be any natural check on Washington’s imposition of ever more burdensome conditions via Section 8 program rules on private landlords, including conditions that affect their relations with conventional non-voucher tenants. 

Now, in an en banc ruling, the Third Circuit has made clear another source of legal exposure for landlords participating in the program. A specialized portion of the program provides so-called enhanced housing vouchers to enable tenants to go on living in properties that once received “project-based” Section 8 support (akin to traditional low-income housing) but have been converted by their owners to conventional market-rate housing. Philip Harvey owned one such property a unit of which had long been rented to Florence Hayes. When Ms. Hayes died in 2015, Harvey sought to renovate the apartment for use by his daughter, while Ms. Hayes’s son wanted to take over as primary tenant. Litigation ensued and a three-judge panel of the Third Circuit ruled, over a dissent, that once her lease expired the law placed Harvey under no obligation to sign a new lease with her successor. 

On Aug. 31, however, the full Third Circuit by a lopsided margin overturned the panel opinion and ruled Ms. Hayes’s son had the right to take over as tenant and obtain lease renewals from Harvey under good behavior, and so did anyone else who had been on the lease (even as a child) at the time of such a property’s conversion. It construed language about how a tenant “may elect to remain” in a converted project as binding not just HUD in its obligation to provide assistance, but also as binding the landlord. Only Judges D. Michael Fisher and Thomas Hardiman, who had prevailed on the original panel, dissented. Various tenants’-rights amicus filers, as well as the City of Philadelphia, took the son’s side. 

Judge Fisher, in dissent, says the majority “overlooks the basic design of the enhanced voucher program as an incentive-based program, not a compulsory one.” But “overlooks” may not be the right verb. Maybe a better one is “takes another step to subvert.”

The Narrow Bank: A Follow-Up

In my last post I wrote about the lawsuit TNB USA Inc has filed against the New York Fed, which has refused to grant the would-be bank a Master Account. I argued that, despite its name (TNB stands for “The Narrow Bank”), and despite what some commentators (now including, alas, The Wall Street Journal’s editorial staff) seem to think, TNB isn’t meant to supply ordinary persons with a safer alternative to deposits at ordinary banks. Instead, TNB’s purpose is to receive deposits from non-bank financial institutions only, to allow them to take advantage, indirectly, of the Fed’s policy of paying interest on bank reserves — thereby potentially earning more than they might either by investing directly in securities or by taking advantage of the Fed’s reverse repo program, which is open to them but which presently offers a rate 20 basis points lower than the Fed’s IOER rate.

A Hollow Victory?

Yet for all the controversy TNB’s lawsuit has generated, its outcome may no longer matter as much as it might once have. For one thing, TNB’s success can no longer undermine the Fed’s ON-RRP program, which is designed to implement the Fed’s target interest rate lower bound, for the simple reason that that program is already moribund. Commenting on my post, J.P. Koning observed that, while the Fed’s ON-RRP facility, first established in December 2013, once supplied non-bank financial institutions with an attractive investment alternative, it ceased being so this year. As the chart below, reproduced from J.P.’s comment, shows, the facility — which once accommodated hundreds of billions of dollars in bids — is now completely inactive:

The decline on ON-RRP activity since the beginning of this year is a byproduct of the general increase in market rates of interest, both absolutely and relative to the Fed’s ON-RRP offer rate, that has made the program both less attractive to potential participants and unnecessary as a means for establishing a lower-bound for the effective fed funds rate. But that decline is but one symptom of a more general development, to wit: the tendency of the Fed’s policy rate settings to lag further and further behind increases in market-determined interest rates, thanks in no small part to the Trump administration’s fiscal profligacy. Here, for example, is a FRED chart comparing the Fed’s policy rate settings to the yield on 1-month Treasury bills:

In the figure the “Lower Limit” of the Fed’s federal funds target range is also the Fed’s ON-RRP facility offer rate, while the “Upper Limit” is the same as the Fed’s IOER rate until mid-June 2018, and 5 basis points above the IOER rate afterwards.

Although an overnight repurchase agreement is a more liquid investment than a one-month Treasury bill, its easy to appreciate how that difference ceased, in the last year or so, to compensate for the gap between the ON-RRP rate and other money market rates. But those rates have also increased relative to the IOER rate, with the Fed’s June decision to reduce the IOER – ON-RRP rate spread from 25 to 20 basis points, reducing the attractiveness of IOER relative to money market rates by another 5 bps. Consequently, bank reserves are also much less attractive relative to money market instruments, and especially to shorter-term Treasury bills, than they were a year ago.

All of which means that TNB’s efforts could end up being in vain even if the Fed ends up granting it an account. As J.P. Koning points out in his own post concerning the TNB case, “even if TNB succeeds in its lawsuit, there is a larger threat. The gap the bank is trying to exploit is shrinking.” In contrast, when the TNB plan was originally developed in 2016, that gap was about 25 basis points.

Commuting in 2017

The total number of American workers who usually commute by transit declined from 7.65 million in 2016 to 7.64 million in 2017. This continues a downward trend from 2015, when there were 7.76 million transit commuters. Meanwhile, the number of people who drove alone to work grew by nearly 2 million, from 114.77 million in 2016 to 116.74 million in 2017.

These figures are from table B08301 of the 2017 American Community Survey, which the Census Bureau posted on line on September 13. According to the table, the total number of workers in America grew from 150.4 million in 2016 to 152.8 million in 2017. Virtually all new workers drove to work, took a taxi-ride hailing service, or worked at home, as most other forms of commuting, including walking and bicycling as well as transit, declined.

Transit commuting has fallen so low that more people work at home now than take transit to work. Work-at-homes reported for 2017 total to nearly 8.0 million, up from just under 7.6 million in 2016. 

Two other tables, B08119 and B08121, reveal incomes and median incomes of American workers by how they get to work. A decade ago, the average income of transit riders was almost exactly the same as the average for all workers. Today it is 5 percent more as the number of low-income transit riders has declined but the number of high-income – $60,000 or more – has rapidly grown. Median incomes are usually a little lower than average incomes as very high-income people increase the average. In 2017, the median income of transit riders exceeded the median income of all workers for the first time.

For those interested in commuting numbers in their states, cities, or regions, I’ve posted a file showing commute data for every state, about 390 counties, 259 major cities, and 220 urbanized areas. The Census Bureau didn’t report data from smaller counties, cities, and urbanized areas because it deemed the results for those areas to be less statistically reliable. 

The file includes the raw numbers plus calculations showing the percentage of commuters (leaving out people who work at home) who drive alone, carpooled, took transit, (with rail and bus transit broken out separately), bicycled, and walked to work. A separate column shows the percentage of the total who worked at home. The last column estimates the number of cars used for commuting including drive alones and carpoolers.

For comparison, you can download similar files for 2016, 2015, 2014, 2010, 2007and 2006. The formats of these files may differ slightly as I’ve posted them at various times in the past. Soon, I’ll post similar files for commuting by income and other pertinent topics.

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