An illuminating way to measure the vastness of government regulations:
Another way to measure the government’s size is by the length of its rule book, the Code of Federal Regulations. It is now as long as 95 King James Bibles.…
In all, the Code of Federal Regulations has grown by 16,500 pages under Obama. Nine Bibles.
In the name of civil rights, the Department of Justice is trying to prevent black families from exercising school choice.
On the heels of the Southern Poverty Law Center's ridiculous lawsuit against Alabama's new school choice law, which contends that if a law doesn't help everyone it can't help anyone, the U.S. Department of Justice is suing to block the state of Louisiana's school voucher program for low-income students and students assigned to failing public schools:
The Justice Department's primary argument is that letting students leave for vouchered private schools can disrupt the racial balance in public school systems that desegregation orders are meant to protect. Those orders almost always set rules for student transfers with the school system.
Federal analysis found that last year's Louisiana vouchers increased racial imbalance in 34 historically segregated public schools in 13 systems. The Justice Department goes so far as to charge that in some of those schools, "the loss of students through the voucher program reversed much of the progress made toward integration."
Segregation! That's a serious charge. What evidence does the Department of Justice cite?
In Tangipahoa Parish, for instance, Independence Elementary School lost five white students to voucher schools, the petition states. The consequent change in the percent of enrolled white students "reinforc(ed) the racial identity of the school as a black school."
Five students! According to the National Center for Education Statistics (NCES), there were 143 white students out of 482 students at Independence Elementary School in 2010-11 (the most recent year for which data is available). Assuming that recent enrollment and racial composition is the same and that no black students received vouchers as well, that's a 0.7 percentage point shift from 29.6 percent white to 28.9 percent white. Though the students at Independence almost certainly would not have noticed a difference, the racial bean counters at the DOJ see worsening segregation.
But the DOJ is not content merely to prevent white students from exercising school choice. The petition also cites Cecilia Primary School, which in 2012-13 "lost six black students as a result of the voucher program," thereby "reinforcing the school's racial identity as a white school in a predominantly black school district." In the previous school year, the school's racial composition was 30.1 percent black, which the DOJ notes was 16.4 percentage points lower than the black composition of the district as a whole. According to the NCES, in 2010-11 there were 205 black students out of a total enrollment of 758, so the school was 27 percent black. Assuming a constant total enrollment, the DOJ's numbers suggest that there were 228 black students in 2011-12. The loss of six black students would mean the school's racial composition shifted from 30.1 percent black to 29.2 percent black as a result of the voucher program. Again, imperceptible to the untrained eye but a grave threat to racial harmony according to the Obama administration's Department of Justice.
On Thursday, the New Mexico Supreme Court ruled in Elane Photography v. Willcock that the First Amendment doesn’t protect a photographer’s right to decline to take pictures of a same‐sex wedding against the requirements of the state’s Human Rights Act, which forbids discriminating against people on the basis of sexual orientation. This is a terrible result, for the freedom of speech and association, and for religious liberty. As I’ve argued before, even supporters of marriage equality (and equality generally) should not be blind to other violations of fundamental rights.
The New Mexico law is one of multiple state and federal “public accommodations” laws that prohibit private discrimination by companies that offer services to the public. These laws are antithetical to liberty and forbidden by the Constitution. The Supreme Court held in 1883’s Civil Rights Cases that the 14th Amendment — the provision that speaks to equal protection — doesn’t authorize Congress to legislate against discrimination by private citizens.
A hundred years later, however, the Court held that such power exists under the Commerce Clause — even where the business is confined to a single state. This is just one more instance of Commerce Clause abuse, something Cato has fought on numerous occasions, including the successful Commerce Clause challenge to Obamacare’s individual mandate.
The legislation at issue in Elane Photography didn’t come from Congress, so the question of federal power doesn’t arise. But even if a state legislature has the authority to act in a specific area, that authority can’t be exercised in a manner that violates the constitutional rights of the those subject to it. Yet the New Mexico high court disagreed with the position we took in our amicus brief and held that compelling someone to engage in artistic photography somehow doesn’t violate the freedom of speech if they aren’t forced to broadcast a government‐sponsored message (for more on the inadequacy of the court’s ruling see comments by Dale Carpenter and Hans Bader).
Even if you agree with the court that New Mexico’s law doesn’t violate Elane Photography’s speech rights, however, it clearly violates the company’s freedom of association and freedom of contract — two rights which, while not explicitly named in the Constitution, are clearly implicit in our understanding of “liberty.” The right to freely associate and contract with others must include a negative right not to do so — or the right is meaningless. This isn’t a defense of bigoted business practices, but a defense of choice, and it applies across the board: I don’t like homophobia, or racism, or any other number of irrational or even deplorable attitudes, but as I said on 20/20 earlier this month, being a jerk isn’t illegal.
If a restaurant doesn’t like how you’re dressed, it has the right not to serve you. No shirt, no shoes, no service, no problem — or, at least that’s the way it should be. My property is my property and my time is my time. I have the right to sell or rent both to anyone I want — or not to, as the case may be. We don’t need a government forcing businesses to serve people because the market will do that for us: refusing customers — refusing to make a profit — over something as irrelevant as a customer’s skin color or sexual orientation is a losing business strategy.
Unfortunately, the Supreme Court has been hostile to freedom of association and contract since the 1930s, notably in the 1984 case of Roberts v. U.S. Jaycees, where the Court upheld a law that required the Jaycees, a private self‐help and leadership training group, to begin admitting women, over the membership’s objections. More recently, Christian Legal Society v Martinez, (in which Cato also filed a brief), the Court ruled that a Christian student group couldn’t restrict candidacy for leadership and ministerial positions to students who shared the group’s faith. (Accordingly, Democrats apparently have to admit Republicans, PETA has to admit meat‐lovers, and so forth.) In these cases, the Supreme Court, like the New Mexico court, held that the government’s interest in equality and “non‐discrimination” allows it to run roughshod over individual liberties.
While the last few terms at the Court have included numerous important victories for freedom — and we may be living what I like to call the Court’s “libertarian moment” — the Court’s protection of individual liberty is patchy. The rights of criminal suspects, the religious, property owners, businesses, and many others, are all occasionally sacrificed in the name of “progress”.
Rep. Tom McClintock tells David Fahrenthold of the Washington Post what economists mean by “concentrated benefits and diffuse costs”:
This Congress has also indulged in the habit of letting “temporary” giveaways become effectively permanent. A prime example is the Essential Air Service, a $240 million program that subsidizes flights to 161 small airports.
It was supposed to die in 1988. It didn’t.
Congress has renewed the program, again and again. Now it subsidizes flights to places such as tiny Glendive, Mont., where the government pays for a 19‐seat aircraft to visit twice a day.
On average, two people get on each day. The subsidy works out to $836 for each of their tickets.
“If we can’t cut this, we can’t cut anything,” said Rep. Tom McClintock (R‑Calif.), who sponsored an attempt to kill the program last summer.
They can’t cut this.
McClintock’s amendment lost by 74 votes. Then he tried again this summer. And lost. Many members explained their “no” votes by saying they were unwilling to sacrifice the subsidies to airports in their districts. “It’s that old problem of concentrated benefits with diffuse costs. The benefits are lavished on a few select communities, and the costs are diffused across the entire tax base,” McClintock said afterward. The beneficiaries, he said, are the only ones who care enough to fight.
David Fahrentold reports in the Washington Post:
[P]ork, the habit of using taxpayer money for a legislator’s pet cause.… appears to be stronger even than death.
That’s clear from the story of the Robert C. Byrd Highway, a decades‐old road project in West Virginia that had received earmarked funds for years from Sen. Robert C. Byrd (D‑W.Va.), the longest‐serving senator in history, who died in 2010.
The highway has been maligned as a wasteful road to nowhere. But, now, it has outlived earmarks. It has even outlived Byrd.
This year, with continued support from Sen. John D. Rockefeller IV (D‑W.Va.) the highway got $40 million in federal money. It will need about that much every year, state officials say, until it’s finished in 2035.
In my recent op‐ed for The Hill examining the Obama administration’s estimation of the social cost of carbon (SCC) — a measure of how much future damage is purportedly going to be caused by each ton of carbon dioxide that is emitted through human activities — I identified two major problems with their measure.
First, the administration’s SCC was based on an estimate of global rather than domestic damages from anthropogenic climate change — an odd scope for a measure designed to be incorporated in the cost/benefit analysis of U.S. rules and regulations governing domestic activities (such as the energy efficiency of microwave ovens sold in the United States). In fact, Office and Management and Budget (OMB) guidelines state that
Your analysis should focus on benefits and costs that accrue to citizens and residents of the United States. Where you choose to evaluate a regulation that is likely to have effects beyond the borders of the United States, these effects should be reported separately.
Instead of “reporting separately,” the administration’s SCC embodies “effects beyond the borders of the United States.”
Second, the administration recently revised (upwards) its initial calculation of the SCC. In doing so, it included updates to its underlying economic/climate‐change/damage models, but it did not include any updates to the characteristics of the equilibrium climate sensitivity used by the models. Since the equilibrium climate sensitivity is the key factor in how much climate change will result from a given amount of anthropogenic carbon dioxide emissions, and since there is mounting scientific evidence that the equilibrium climate sensitivity is better constrained and lower than that used in the initial analysis, there is no defensible reason why the new science was not included in the administration’s revised SCC calculation.
So that’s two strikes against it.
In an interview with CNN yesterday, outgoing FBI director Robert Mueller offered up words one could characterize as defending mass surveillance of all Americans’ phone calling. Indeed his interview has been portrayed as a defense of such spying, with outlets like NRO’s “The Corner” reporting “Outgoing FBI Chief: ‘Good Chance’ NSA Would Have Prevented ‘Part’ of 9/11.” But Director Mueller spoke much more equivocally than that.
Here’s what he actually said.
CNN: If we had the kind of intelligence that we were collecting through the NSA before September 11th, the kind of intelligence collection that we have now, do you think 9/11 would have been prevented?
MUELLER: I think there’s a good chance we would have prevented at least a part of 9/11. In other words, there were four planes. There were almost 20 — 19 persons involved. I think we would have had a much better chance of identifying those individuals who were contemplating that attack.
CNN: By this mass collection of information?
MUELLER: By the various programs that have been put in place since then. … It’s both the programs (under the Patriot Act) but also the ability to share the information that has made such dramatic change in our ability to identify and stop plots.
Mueller vaguely cited “various programs,” giving them a retroactive chance of preventing “a part of 9/11.” But even this defense of post‑9/11 powers is insufficient.
In our 2006 paper, “Effective Counterterrorism and the Limited Role of Predictive Data Mining,” IBM scientist Jeff Jonas and I recounted the ease with which 9/11 attackers Khalid al‐Mihdhar and Nawaf al‐Hazmi could have been found had government investigators pursued them with alacrity. The 9/11 Commission said with respect to al‐Mihdhar, “No one was looking for him.” Had they been caught and their associations examined, the 9/11 plot probably could have been rolled up. Sluggish investigation was a permissive factor in the 9/11 attacks, producing tragic results that nobody foresaw.
That absence of foresight is a twin with retrospective assessments like Mueller’s, which fail to account for the fact that nobody knew ahead of 9/11 what devastation might occur. Immediately after the 9/11 attacks, everybody knew what such an attack could cause, and everybody began responding to the problem of terrorism.
Would Patriot Act programs have prevented at least a part of 9/11? Almost certainly not, given pre‑9/11 perceptions that terrorism was at the low end of threats to safety and security. A dozen years since 9/11, terrorism is again at the low end of threats to safety and security because of multiplicitous efforts worldwide and among all segments of society. It is not Patriot Act programs and certainly not mass domestic surveillance that make us safe. Even Mueller didn’t defend NSA spying.