Today marks the last day of official business for 2007 at the Supreme Court. The Court released opinions in three cases that were argued this term, which join the two last week as the only rulings on the merits so far. (The very first case argued this term, NY School Bd. v. Tom F., was affirmed without an opinion because the court split 4-4.)
Two of the cases decided this morning definitively clarified that the Sentencing Guidelines are really not binding on the sentencing court. In Kimbrough v. U.S., the Court, by a 7-2 majority speaking through Justice Ginsburg, reversed the Richmond-based Fourth Circuit and found that a district court may impose a sentence for a crack cocaine offense that departs downward from the Guidelines' 100-to-1 ratio for crack versus powder cocaine sentences.
In Gall v. U.S., a 7-2 majority speaking through Justice Stevens repeated that appellate courts should review sentencing decisions that depart from the sentencing guidelines using the highly deferential abuse-of-discretion standard, and that the departure in this particular case was not unreasonable (reversing the St. Louis-based Eighth Circuit).
In both the above cases, Justices Alito and Thomas were the lone dissenters. Justice Alito was concerned that the district courts were not deferring sufficiently to the Sentencing Guidelines (which, while non-binding, must still "be taken into account") and worried that sentencing disparities would gradually increase. Justice Thomas continued his disagreement with Booker (the case that made the guidelines merely advisory) in rejecting the new "reasonableness" standard.
Also of note is that Justices Scalia and Souter filed concurring opinions in the above cases. Not unreasonably and as he was in his dissent from Booker, Justice Scalia continues to be concerned that judges are unconstitutionally finding facts relevant to sentences. Justice Souter, who only wrote separately in Gall but stated that his views applied to Kimbrough as well, suggested that
[T]he best resolution of the tension between substantial consistency throughout the system and the right of jury trial would be a new Act of Congress: reestablishing a statutory system of mandatory sentencing guidelines ... but providing for jury findings of all facts necessary to set the upper range of sentencing discretion.
Strangely, I agree with Justice Souter.
Finally, in Watson v. U.S., a unanimous Court through the pen of Justice Souter held that one does not "use" a gun for purposes of sentencing enhancement when that person receives a gun in trade for drugs. Justice Ginsburg filed a concurring opinion stating that, according to today's decision, it is better to receive than to give when the subject is guns and urging the Court to adopt Justice Scalia's dissent from an earlier case that found that trading a gun for drugs is "use."
I agree with Justice Ginsburg -- and guarantee you that neither my agreement with her nor hers with Justice Scalia is the start of a new trend.
One interesting observation is that in all three opinions decided today, Chief Justice Roberts was in the majority and in all three he used his right to assign authorship to the three most liberal members of the Court. (Of last week's two opinions, one also went to Ginsburg, and the Chief wrote the other himself.) This may mean one of three things: 1) Chief Justice Roberts is trying to curry the favor of his liberal colleagues; 2) Ginsburg, Stevens, and Souter write opinions faster than their colleagues (unlikely because the opinions so far have been simple and uncontroversial); or 3) nothing at all.
Overall, the Court has now granted cert in 60 cases (which, believe it or not, is 5 ahead of last term) and has heard argument in 26 of them -- plus one case of original jurisdiction involving a suit between two states.
The Court’s next official business day, when it may issue orders granting and denying new cases will be Jan. 7. That day will also see the Court's argument calendar start the New Year off with the explosive case of Baze v. Rees, which considers the constitutionality of a certain kind of lethal injection (and the granting of cert on which has effectively stayed all executions by lethal injections nationally). The next time we may see decisions on the merits is Jan. 8.
Jimmy Carter’s grasp of economics apparently hasn’t sharpened in the 27 years since he imparted a wretched U.S. economy to his successor. Or perhaps his poor-man-advocate bona fides should be scrutinized more closely.
In a Washington Post op-ed today, the former president rightly protests the egregious U.S. farm bill for its continuation of lavish subsidies to American commodities’ producers. Carter explains how subsidies breed overproduction, which suppresses world commodity prices, thereby reducing the incomes of poor farmers in countries where commodities dominate the economy.
Carter favors proposed amendments to the current farm legislation that would replace subsidy programs with crop insurance programs to protect farmers against excessive loss, which is an improvement, though not a solution.
But, in the last paragraph of his article, Carter contradicts everything he writes before that, revealing himself to be no friend of poor farmers abroad or simply ignorant of economic processes. He writes:
I am still a cotton farmer, and I have been in the fields in Mali, where all the work is done by families with small land holdings. Cotton production costs 73 cents per pound in the United States and only 21 cents per pound in West Africa, so American farmers do need protection in the international marketplace.
Now wait a second. This is a very curious statement. If cotton production is so much cheaper in West Africa than in the United States, then more production should happen there and less should happen here. If Carter is really interested in the well-being of West African farmers, “whose scant livelihood depends on cotton production,” he should advocate free trade in cotton. Why instead does he advocate that U.S. farmers be protected in the international market place? West African incomes will continue to suffer if U.S. subsidy programs are replaced by U.S. tariffs, which is what Carter seems to be advocating. How does it help Malian farmers lift themselves out of poverty if they can’t effectively compete on their advantages? Higher U.S. tariffs would only drive down the world price (as subsidies do) and likely compel other importer nations to raise tariffs to protect their own producers, shrinking the market further for Malian farmers.
Meanwhile, does Carter have any empathy for America’s lower income families?Apparently, not enough. Protection of U.S. cotton farmers artificially raises the prices of textiles, which means that clothing and shoes are more expensive than they would be otherwise. Expenditures on necessities, like clothing and food, account for a higher proportion of the budgets of lower income families. Thus, artificially raising the prices of those products is akin to a regressive tax – it burdens those with less income disproportionately.
Perhaps Carter is not writing as the founder of the Carter Center, an international NGO, as the byline indicates, but as a small cotton farmer from Plains, Georgia, who believes the current subsidy system unfair because the big farms get most of the largesse.
Sometimes, governments lie. For example, the U.S. government describes outlays for Social Security, Medicare, and Medicaid as "mandatory" spending, in contrast to "discretionary" spending on things like national defense and bridges to nowhere.
Yet "mandatory" spending is not really mandatory. It too is discretionary, and everyone knows it. The only thing that makes "mandatory" spending different is that Congress creates legislative formulas that automatically determine spending levels, instead of determining spending levels each year through the regular appropriations process. Congress can change those formulas at its discretion, which means that such spending is actually . . . discretionary. Calling such spending "mandatory" is therefore a lie that serves only to conceal the choices Congress has made.
The U.S. government, its officers, and its agents should describe federal spending as either "automatic" or "appropriated." There is no such thing as mandatory federal spending.
Update: I stand corrected.
It's no fun when the IRS take a big bite out of your paycheck. But it's even worse when the taxman makes you pay additional layers of tax on the same income. And the ultimate outrage is when the government imposes another layer of tax just because you die. Plenty of economists have complained that the death tax is a punitive form of double taxation that penalizes capital formation, but Whoopi Goldberg probably did more to advance the cause of death tax repeal when she pointed out the moral injustice of the current system during a recent episode of ABC's The View.
The Senate re-commenced debating the farm bill on Friday, after Democrats and Republicans struck an agreement over the amendments process (see my earlier blog entry here). Senate leaders are hoping that they can get a bill passed by the holiday recess, and on to conference early in the new year.
Although President Bush has threatened to veto the bill that emerged from the Senate Agriculture Committee (the bill being debated now), as well as the House Farm Bill passed in July, powerful members of Congress don't seem too rattled. According to a recent article, Colin Peterson (chair of the House Agriculture Committee) is fairly confident that he and President Bush can get together, just the two of them nice and cozy, and come to an agreement. The money quote:
...if we can get all of these other people out of this thing and just sit down and say, ‘Look, for the betterment of the country, hopefully we can work this out.' That's my plan.
By "all these other people", Mr Peterson presumably means you and I, and anyone else who is unhappy with the current state of agriculture policy in America. So sit tight, everybody, and wait for the check (currently $288 billion worth).
George Will writes about proposals from Reps. Pete Hoekstra and Scott Garrett that "would enable states to push Washington toward where it once was and where it belongs regarding K through 12 education: Out." Both Hoekstra and Garrett (pdf) have spoken at recent Cato forums on the reauthorization of the No Child Left Behind Act. Will offers a pithy if depressing prediction:
No Child Left Behind, supposedly an antidote to the "soft bigotry of low expectations," has instead spawned lowered standards. The law will eventually be reauthorized because doubling down on losing bets is what Washington does.
Cato scholars have been pointing to the problems with NCLB for a long time. Back in 2001 Sheldon Richman and Darcy Olsen warned that getting the federal government involved wasn't the way to improve accountability in schools. Larry Uzzell pointed out that the law not only intruded the federal government into matters best left to the states, but its actual effect would be to lower educational standards, just the opposite of what President Bush and his allies promised. Neal McCluskey and Andrew Coulson "find that No Child Left Behind has been ineffective in achieving its intended goals, has had negative unintended consequences, is incompatible with policies that do work, is at the mercy of a political process that can only worsen its prospects, and is based on premises that are fundamentally flawed."
Florida quarterback Tim Tebow is the first sophomore to win the Heisman trophy as the nation's outstanding college football player. Since 1935 every previous winner had been a junior or senior. He's also surely the first homeschooled athlete to win the award. In the past decade or so we've gotten used to homeschoolers winning spelling bees and geography bees and science fairs. But who ever heard of a homeschooler winning a top athletic prize? Well, now we have.
Tebow benefited from a Florida law that allowed homeschooled students to play on public school athletic teams. Some states bar students who don't attend a particular school from participating in extra-curricular activities. No doubt fans of the University of Florida Gators are glad that their state was so open to letting homeschoolers develop their athletic skills.
He sounds like a fine young man--born in the Philippines, where his parents were Christian missionaries and where he often spends summers preaching and doing charity work. And even more startling, he says he'll return to the University of Florida for two more years rather than taking the big bucks from the NFL now.
Isabel Lyman wrote about homeschooling in a Cato study here. Of course, some people, like Russell Shaw at HuffingtonPost, don't like homeschooling. They want to require that all parents turn their children over to the all-knowing, all-wise, efficient, effective, politically correct government schools. And they're appalled at the idea that parents, not the state, should assume primary responsibility for the upbringing of the children they bring into the world. Shaw is afraid that Christian parents will teach their children creationism and other anti-scientific ideas. (Presumably not the parents whose homeschooled children are winning science fairs.) I wonder if he'd feel differently if he knew that homeschooling families are politically and culturally diverse; as Lyman writes, "There are two historical strains of homeschooling, a religious-right thread inspired by author Raymond Moore and a countercultural-left thread inspired by John Holt." Or does he just think that, left or right, all children need to get the same thoughts drilled into their heads from the same textbooks?