Archives: 04/2012

Strip Searches and Obamacare

Only a few days after deliberating over the eventual fate of the Affordable Care Act, the Supreme Court issued the opinion in Florence v. Board of Chosen Freeholders, which allows prisons to strip-search detainees regardless of whether prison officials have a reasonable suspicion that the prisoner may be carrying contraband. The decision precipitated a firestorm of condemnations from those who were astounded that the same justices who treated Obamacare with such skepticism would allow the state to humiliate nonthreatening prisoners. But those commentators learned the wrong lesson from the erroneous decision in Florence. In fact, Florence demonstrates precisely why the Supreme Court must strike down the Affordable Care Act.

The issue of the constitutionality of the individual mandate is a question of power—whether Congress has power over people who have not purchased health insurance. The issue in Florence was also a question of power, but of a slightly different nature. In Florence, it was undeniable that prison officials had power over their detainees. Even though some detainees were undoubtedly innocent, just as Mr. Florence eventually proved to be, the officials had gone through the requisite procedures. The only question in the case was whether the Fourth Amendment, which protects people from unreasonable searches and seizures, creates a carve-out for those already under prison officials’ power.

Basing their opinion on the traditional deference given to prison administrators, the Court in Florence held that the Fourth Amendment creates no such carve-out for nonviolent detainees. The Supreme Court has often acknowledged that they do not understand how to run a prison, not least because they are very unlikely to have spent any time there. Therefore, once detainees cross the threshold into the ambit of prison officials’ power, the Court has generally been reluctant to second-guess how that power is used.

For similar reasons, courts have been highly deferential to Congress when it is acting within the scope of its enumerated powers. Once Congress is properly regulating commerce, courts have generally deferred to congressional judgment on the basis that judges are unqualified to decide whether something is an effective or ineffective regulation. Courts are much better at deciding whether a power exists than deciding if a power was exercised in a reasonable fashion. Whether a power was exercised reasonably is usually treated by the courts as an insanity test—if the use of the power was not totally insane, then it is reasonable. In short, once power is granted, it is much more difficult to protect ourselves against abuses of that power.

This is precisely why the Framers of the Constitution carefully delineated the scope of congressional powers. It is easier to preserve liberty by denying power over large parts of our lives than by granting expansive power and then using individual rights to carve out small chunks of liberty for chosen individuals/activities. In the former system, liberty is presumed and power is the exception. In the latter, power is presumed and liberty is the exception.

The challenge to the Affordable Care Act is about preserving this system of broad liberty and limited power that forms the backbone of our constitutional structure. If Congress is allowed to take power over those who have failed to purchase health insurance, then Congress’s power over that part of “commerce”—namely, those who may enter into commerce, a.k.a. everyone—will be nearly absolute. Like prisoners subject to the whims of prison officials, our ability to challenge Congress’s subsequent abuses of power will be limited to the few available individual rights claims. Also, like prison officials, courts will give Congress extreme deference to regulate the nation’s “commerce.”

Many critics of the challenge to the Affordable Care Act continually invoked “deference to Congress’s reasonable judgment” as a reason why the individual mandate should be upheld. This misunderstands the question at issue. Congress, like prison officials, only gets deference after they are acting within the realm of their powers. They do not and should not get deference in deciding whether or not something or someone is within the scope of his power. This would be akin to allowing prison officials to incarcerate someone if they reasonably believed he committed a crime. For the purposes of law, someone either is or is not a criminal and something either is or is not commerce. “Reasonable belief” has nothing to do with it.

But many proponents of the constitutionality of the individual mandate argue just that: that Congress had a “reasonable belief” that some of those who lack health insurance will shift costs onto others in the future. Again, this misunderstands the question at issue. Congress has power to regulate commerce, not the possibility of future commerce or, even worse, a reasonable belief in the possibility of future commerce. The Court disavowed this line of reasoning in Lopez and Morrison when they refused to examine the “fit” between commerce and guns in school zones (Lopez) and violence against women (Morrison).

I won’t be so hyperbolic and claim that, in the event Obamacare is upheld, humiliating strip searches await all of us. Instead, I will simply reiterate that it will be much harder to make constitutional arguments against such humiliations, which is disturbing enough.

Why Is Press Coverage of the Martin/Zimmerman Case So Bad?

In addition to my two earlier posts in this space on Stand Your Ground (SYG) laws, which I recommend reading in conjunction with Tim Lynch’s three recent posts, I’ve been doing a lot of writing on SYG and other issues in the Trayvon Martin/George Zimmerman case. Here are some links:

  • I wrote an op-ed for the Daily Caller on how the Washington Post, on both its editorial and reporting side, has been advancing misconceptions about SYG laws, especially about the purported increase in uses of deadly force in self-defense. More on “justifiable homicide” statistics here.
  • At Overlawyered, I try to answer Ann Althouse’s question as to why there was such a rush in many quarters to pile on the SYG law as the supposed culprit. My answer: “because many people yearn for ways to blame their ideological opponents when something awful happens.”
  • I also have a post about how, while there are many to blame for sensationalized, inflammatory, and racially oriented coverage of a case like this, the lawyers tend to set the tone. And I note that with an impending civil suit by the Martin family, the former “self-appointed vigilante” is now due to reappear as “designated agent of the homeowners’ association.”
  • For more background on the (non-)applicability of SYG to the case, I did a nine-minute video interview with Lee Pacchia at Bloomberg Law on the subject, which aired on Monday, following my Cato Daily audio podcast. And don’t miss this Reuters analysis on how SYG plays out in actual Florida courtrooms (“winning immunity could be quite difficult… [J]udges have granted immunity just nine times since 2005.”)

Pretty Sure It’s Already Divisive

When you’ve been fighting over the same thing for well-nigh 90 years, there’s a good chance some new policy won’t suddenly make it divisive. Nonetheless, that’s what an L.A. Times article, citing critics, suggests about a new law in Tennessee allowing in-class discussions critical of evolutionary theory and other scientific topics:

The measure will allow classroom debates over evolution, permitting discussions of creationism alongside evolutionary teachings about the origins of life. Critics say the law, disparagingly called “The Monkey Bill,” will plunge Tennessee back to the divisive days of the notorious Scopes “Monkey Trial’’ in Dayton, Tenn., in 1925.

You don’t have to be Charles Darwin—or God—to figure this one out: the law was passed because the topic is already divisive. Government-schooling defenders might not want to acknowledge that, and they have been able to keep it slightly hidden by having discussion of creationism de jure  forbidden in public schools, but hard evidence reveals that Americans are mightily torn.

Time after time, surveys expose the deep split. Most recently, a 2010 Gallup poll found that 40 percent of Americans believe that “God created humans in present form”; 38 percent accept that ”humans evolved, with God guiding”; and 16 percent believe that “humans evolved, but God had no part in the process.” Those numbers have stayed pretty consistent since 1982, the first year for which Gallup has data.

Clearly, whether you want to acknowledge it or not, Americans are already very divided on evolution, and have been for quite some time.

How has what peace we’ve had been kept? Generally, by avoiding evolution in the schools. As Berkman and Plutzer have found, about 60 percent of high school biology teachers either completely avoid or soft-pedal evolution so as not to stir up controversy.

Public schools haven’t been happily chugging along, teaching rigorous evolutionary theory and eschewing any alternative explanations for human origins. A large number have been either teaching evolutionary pap, or nothing.

One of the major arguments government schooling defenders employ against school choice is that choice would lead to a balkanized, divided America. To make that argument, they have to ignore the history of American education—it was largely government-free for about two centuries, and public schools were long grounded in homogeneous communities—and assume that if you force diverse people together they will give up their conflicting values and ultimately engage in a gigantic, society-wide group hug.

Our endless battling over evolution—not to mention incessant fighting over countless other matters—reveals that that just doesn’t happen. You cannot force conscience uniformity, and you can’t have peace or rigor without educational freedom. Tennessee is just helping to make that clear.

ALEC’s Rich States, Poor States

The American Legislative Exchange Council (ALEC) released the fifth edition of its “Rich States, Poor States” report yesterday. For fiscal wonks the report is a fun read, as it is chock full of tax and economic comparisons between the 50 states.

The first part of the report is a “Supply Side 101” lesson on the advantages of low marginal tax rates and the mobility of labor and capital. One point that policymakers often overlook is that a high tax rate on one tax base tends to shrink not just that tax base, but other tax bases as well. Thus, high income tax rates shrink reported incomes, and in turn that shrinks both income and payroll tax bases. Similarly, high corporate income tax rates shrink the corporate tax base and the individual and payroll tax bases as corporate investment, hiring, and wage growth are reduced.

The ALEC report explores these sorts of effects in detail for death taxes, which are taxes on estates and inheritances. States that impose death taxes induce people with substantial assets to relocate to states without those burdens. When people move, the death-tax states lose not just death-tax revenues, but also revenues from income taxes and other taxes. They also lose the productive contributions that high-earners often make in their communities, such as their aid to start-up businesses and charities.

I agree with the ALEC report’s authors—Art Laffer, Steve Moore, and Jon Williams—that taxpayers can be very responsive to marginal tax rates, especially over the longer term. I might quibble with them, however, with the overwhelming importance they seem to assign to the effect of state tax rates on economic growth as compared to other state policy factors such as regulatory burdens. The authors present statistical tables showing that high-tax states tend to grow more slowly than low-tax states. But in those correlations, I wonder whether tax rates are serving as proxies for broader state policy environments? In other words, states with high taxes often tend to be the states that impose an array of anti-market policies. Low-tax states often tend to be more broadly growth-friendly.

The second part of the ALEC report presents state-by-state policy and economic data. Here, the authors do examine numerous non-tax factors. State right-to-work laws, for example, affect business location decisions in labor-intensive industries that are prone to unionization. With policy levers such as right-to-work laws, worker compensation costs, and the quality of state legal systems, state policymakers have the power to attract or repel business investment and thus spur or hinder economic growth.

There are substantial differences in income levels and economic growth performance across the states, and those differences stem partly—or mainly—from state policy differences. As such, it is the job of state policymakers to explore and pursue reforms that can make residents of their states more prosperous. The ALEC report provides a useful prod to state governments to roll up their sleeves and get to work.

TED Goes to School

In this new TEDx video, University of Newcastle (England) lecturer Pauline Dixon takes viewers on a tour of schools serving some of the poorest people on Earth. Private schools … that charge fees … that are paid for by the poor parents themselves … and that outperform local government schools spending far more per pupil. I know. You’ll just have to watch it.

If your curiosity is piqued afterwards, check out her colleague James Tooley’s wonderful book, The Beautiful Tree, which tells the story of their travels and research. It will blow your mind.

A Market Solution for the Falklands

The Falklands just won’t go away.  Bret Stephens’ piece in yesterday’s Wall Street JournalWhy the Falklands Matter” makes that clear.

To solve the question of the Falkland’s sovereignty once and for all, I proposed a market solution in “A Market Solution Will Save Money and End the Dispute over Falklands Sovereignty,” which was published by London’s City A.M. in February.

About Those Postal Retiree Health Benefits

While Congress is busy trying to figure out how it’s going to continue screwing up the U.S. Postal Service, postal expert Michael Schuler has been busy analyzing the reasons why it’s so screwed up to begin with. Last week, Michael released a paper on congressional micromanagement of the USPS. A new paper looks at the complicated and controversial topic of postal retiree health benefits.

A common claim made by the postal unions and other defenders of the unsustainable status quo is that the USPS would be a-okay if a 2006 law hadn’t required the postal service to start setting aside money for future retiree health benefits. Here’s the background from Michael:

Before enactment of the Postal Accountability and Enhancement Act of 2006 (PAEA, P.L. 109-435), the U.S. Postal Service had been promising generous retirement health benefits to its workers without setting aside any money to pay the costs it would owe in future years. Because the Service was ignoring a very expensive fringe benefit in its income statement, its reported costs were artificially low and its reported income artificially high. The unfunded retiree health care obligation had mushroomed to $74.8 billion by September 30, 2006.

The 2006 law addressed the unfunded liability by requiring the USPS to annually set-aside an average of $5.6 billion from 2007 to 2016. However, USPS revenues began plummeting shortly after the PAEA’s enactment. The annual “prefunding” payments have been exacerbating the USPS’s financial woes. Naturally, postal management and the unions would like Congress to make the payments disappear. The problem is, eliminating the payments won’t put the USPS in the black, and it would merely set the stage for a major taxpayer bailout down the road. As Michael explains, moving to pay-as-you-go financing for retiree health benefits is a bad idea:

First, prefunding is always more transparent than pay-as-you-go. Prefunding shows the costs of commitments when they are made instead of ignoring the costs until years later. Second, pay-as-you-go with regard to deferred postal compensation is unfair because it transfers costs incurred for today’s mail service to future mail users or taxpayers. Third, pay-as-you-go is extremely risky for an organization like the Postal Service where the future obligations are huge while income is stagnating or declining. (It would not be dangerous if future obligations were small or if income were growing rapidly enough to easily pay future bills.) Fourth, a sometimes overlooked hazard of the pay-as-you-go method is that costs can appear deceptively low for many years and then suddenly climb as more workers retire and as retirees, with increasing age, need more medical care. In that vein, OPM estimated that if retiree health care financing had reverted to pay-as-you-go in 2010, the Postal Service’s pay-as-you-go expense would have been only $2.3 billion in 2010 but almost tripled to $6.4 billion by 2020. If PAEA had not moved toward prefunding, insolvency and the need for a massive taxpayer bailout would be virtually inevitable for USPS, although that might not have become clear to the public for several more years because of pay-as-you-go’s lack of transparency.

Michael says that the prefunding payment schedule should be stretched out given the USPS’s financial woes. However, the extended schedule should come with reforms that would “lower the extraordinary cost of USPS’s health care fringe benefit.” I think a common sense reform would be to eliminate retiree health care benefits for new employees. As I noted in an essay on the U.S. Postal Service, the health benefit is something that a decreasing number of private sector workers receive:

Opponents of pre-funding USPS retiree health benefits argue that private companies and the rest of the federal government are not legally required to do so. That is largely irrelevant. Retiree health care coverage is an increasingly rare perk in the private sector, and the federal government’s financial management is nothing to emulate. In 2008, only 17 percent of private sector workers were employed at a business that offered health benefits to Medicare-eligible retirees, down from 28 percent in 1997.