Archives: 10/2013

Obama’s Immigration Speech Déjà vu

Right after Republican Rep. Darrel Issa (CA) announces that he’s introducing a bill to offer legalization for some unauthorized immigrants, President Obama gave a speech about how immigration reform is now his top priority. The President said: “This is not just an idea whose time has come, this is an idea that’s been around for years now.”

The President then blamed all recent political problems and failures to pass reform on Republicans – ignoring the gargantuan efforts of Republicans in the Senate like Marco Rubio (R-FL), Jeff Flake (R-AZ), and others.

Republican support for immigration reform, especially in the House of Representatives, is vital to it becoming law. By stealing the spot light and making immigration a partisan issue, he is distracting from reform.

Does anybody else have déjà vu? How many times do we have to hear the President give a speech pleading for reform while his administration continues to deport record numbers of people? How many times will the President blame the Republicans for every problem with our immigration system in one sentence and then say we need bipartisanship in the next? How many times will the President blame everybody but his administration for our destructive immigration system?

President Obama is not in a position of moral authority to blame his political opponents for all of the problems with our immigration system, especially considering that sometime in the next few months, this administration will likely have deported its 2 millionth immigrant.

In his speech, the President also pointed to his record as a Senator in working with Republicans to pass immigration reform during the Bush administration. In fact, Obama was instrumental in killing immigration reform in 2007 when he voted for the Dorgan amendment, named after then-Sen. Byron Dorgan (D-N.D), a known poison pill designed to gut the guest worker expansion and scuttle the entire reform along with it. Without a guest worker portion, much of the support from businesses and pro-reform Republicans evaporated – which is why so many anti-immigration reform Republicans voted for the Dorgan amendment too.

It passed 49 to 48 thanks to Obama’s unexpected support.

President Obama does deserve credit for some positive changes to our immigration system. Deferred Action for Childhood Arrivals (DACA) has limited deportation of some Dreamers, at least temporarily. President Obama could have deferred their deportations on his first day in office but instead he waited almost three and a half years – five months before the next Presidential election – to do so.

President Obama’s priorities will probably shift next week toward fixing the atrocious rollout of the website or some other issue, but for this fleeting moment he’s focusing on immigration – because his political opponents are. I suspect that I will write something very similar to this in the next few months while suffering from déjà vu.

Trading Marijuana

I was struck by the following from a recent news article about legalized marijuana in Uruguay:

[Uruguay’s] Marijuana sales should start in the second half of 2014 at a price of about $1 per gram, drug chief Julio Calzada told a local newspaper, El Pais

In the U.S., the states of Washington and Colorado have legalized marijuana and adopted rules governing its sale.

Unlike Uruguay, they will tax pot, seeing it as a revenue source, when it goes on legal sale next year.

In Washington, the state marijuana consultant has projected legal pot might cost between $13 to $17 per gram, though some people suggest that’s high.

Marijuana in the medical dispensaries typically ranges from $8 to $14 per gram in Washington depending on quality.

As with many products, it seems, marijuana will be much cheaper in developing countries than in the United States. This offers up opportunities for trade, as U.S. consumers would benefit from lower priced imports.

But I doubt that this trade will happen soon. I haven’t looked at the proposed Washington and Colorado rules, but I’m guessing that import is prohibited. And the article notes that Uruguay is only selling domestically: “Sales would be restricted to locals, who would be able to buy up to 40 grams per month.”

I can imagine that in the future, if the product becomes more widely accepted, trade between different jurisdictions that allow marijuana will be permitted and U.S. prices will come down. It may be a while, though.

But wait, there is one other problem: Is the price in Uruguay a market price? It may not be:

the idea is not to make money, but to fight petty crime and wrench the market away from illegal dealers.

“The illegal market is very risky and of poor quality,” he said. The State “is going to offer a safe place to buy a quality product and on top of that, it’s going to sell it at the same price.”

In August, he had estimated that the price would be around $2.50 per gram.

It may be that Uruguay is offering not just legal marijuana sales, but subsidized marijuana sales. So, if there is trade at some point, we will have issues about whether below market marijuana is being traded “fairly.” And I can imagine anti-dumping and countervailing duty complaints being filed against marijuana imports to drive those prices back up. This will be annoying if it happens, but at least it will make the cases more interesting than if it’s just another boring steel product.


For Any Fiscal Policy Question, Spending Restraint Is the Answer

Okay, I’ll admit the title of this post is an exaggeration. How to fix the mess at the IRS is a fiscal policy question, and that requires tax reform rather than spending restraint.

But allow me a bit of literary license. We just had a big debt limit battle in Washington and, after a lot of political drama, politicians kicked the can down the road.

So we need to ask ourselves whether that fight accomplished anything?

It did focus attention of the flaws of Obamacare, and I suppose there’s some value in that.

But the debt limit was not a vehicle - as has been the case in the past - for changes in fiscal policy. We didn’t get something good, like the sequester which resulted from the 2011 debt limit legislation. And we didn’t get something bad, like the tax hike in the 1985 debt limit legislation

Some are asking whether we should even have a debt limit. A number of critics have suggested we should get rid of the borrowing cap because it creates the risk of default. I think those concerns are very overblown.

I’m more persuaded by those who argue that the debt limit diverts attention from better options to improve fiscal policy.

The Latest Obamacare Case on Appeal

Last year’s Supreme Court decision holding that Obamacare imposes a “tax” on people who don’t buy health insurance came as a surprise to most Americans. The law doesn’t call it a “tax,” but a “penalty,” and the law’s authors and supporters never called it a “tax” when it was enacted. But Chief Justice Roberts and the four liberal justices held that unlike the penalty in the 1922 case of Bailey v. Drexel Furniture – which was disguised as a tax – what the Patient Protection and Affordable Care Act imposed looked like a penalty but was really a tax.

One of the problems with that – left unaddressed in the NFIB v. Sebelius ruling – is that the Constitution requires “all bills for raising revenue” to “originate” in the House of Representatives. If the PPACA imposes a tax, then it fails this requirement because it originated in the Senate.

That’s the argument being made in the case of Matt Sissel, a veteran and small business owner represented by the Pacific Legal Foundation (including one of us, Sandefur). In a brief filed yesterday in the U.S. Court of Appeals for the D.C. Circuit, Sissel’s lawyers argue that the Obamacare “tax” originated in the Senate in violation of Constitutional standards.

There’s little case law interpreting the Constitution’s Origination Clause. The leading case is 1911’s Flint v. Stone Tracy Corp., which held that the Clause wasn’t violated when the Senate amended a House-passed bill to add a tax to it. The Court held that the Senate – which has the constitutional authority to “propose or concur with amendments” to House-passed revenue bills – was allowed to do this because that Senate amendment “was germane to the subject-matter of the bill.” It’s hard to see how the “germaneness” requirement was satisfied in the PPACA’s case, though. That law originated in the Senate, which took a House-passed bill on a completely different subject (providing incentives for veterans to buy their first homes), deleted its entire text, and replaced it with the bill that became Obamacare. This “shell bill” tactic is not uncommon in legislatures, but the Supreme Court has never held that it satisfies the origination requirement. A federal trial court threw Sissel’s case out in June, on the grounds that the Senate’s “amendment” satisfied the “germaneness” rule because the original House bill had something to do with taxes. But if the standard is that lax, the Origination Clause would mean nothing: the Senate could originate taxes at any time when they have some extremely broad similarity with some other bill the House has passed. In an age of boxcar-sized omnibus bills, that would be easy to do.

That trial court also said that the Origination Clause doesn’t apply to the Obamacare tax anyway, because, while it’s a tax, it isn’t a “bill for raising revenue.” There are precedents that have exempted certain kinds of taxes from the Origination Clause because they’re not revenue measures, but are instead earmarked for some specific fund, or are actually just enforcement penalties meant to ensure compliance with another law. But funds raised by the PPACA aren’t earmarked – they go into the general Treasury, to be spent as Congress chooses. And in NFIB, Chief Justice Roberts’s opinion specifically held that the provision at issue is not a penalty, but only a tax. It’s the reverse of Drexel Furniture.

These are reasons why the judge-made exceptions to the Origination Clause shouldn’t apply here. But there’s a broader reason why the courts should be reluctant to exempt Obamacare. In their decision last year, the majority of justices expressed a desire to preserve what they saw as democratic lawmaking. “We possess neither the expertise nor the prerogative to make policy judgments,” wrote Roberts. “Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.” Whatever you might think of this idea, if the courts are concerned about our democratic process, they should not hesitate to enforce a constitutional provision designed to preserve democratic accountability.

The Origination Clause was written to ensure that the power to tax – government’s most pervasive, dangerous, and easily abused power – was kept close to the people’s chamber: the House of Representatives, elected every two years directly by local districts. Had Obamacare been properly proposed in the House as a tax on not buying insurance in the first place, it wouldn’t have survived more than a few days – and as it stands the backlash against the law’s enactment swept out the House majority that supported that law. If the courts are concerned with empowering the will of the voters, that’s all the more reason that procedural requirements like the Origination Clause – that help ensure accountability and transparency, and keep the taxing power as close to the people as possible – are fully enforced.

Free Speech Week — Wednesday

This is the third day of Free Speech Week, during which we will be celebrating freedom of speech by posting highlights from Cato’s recent work to support freedom of speech in its various forms, whether through legal advocacy, media appearances, or other public outreach.

Today we will highlight the First Amendment right of citizens to record on-duty police officers. This has been a controversial topic over the past few years, as police officers have in many instances reacted negatively, unprofessionally, or even illegally to being recorded by bystanders. While federal courts have now acknowledged the inherent First Amendment right of citizens to record public officials performing their duties, many officers still side-step the law and make arrests based on trumped up charges, like obstruction or delay of an officer. 

The following Cato video featuring Radley Balko, Clark Neily, and David Rittgers gives a good overview of the importance of the right to record the police:

Also, a couple years back, I hosted a panel discussion at Cato on laws that prohibit recording the police. The video can be found here.

Being able to record the police is important because of the much needed accountability that it provides. Many of the stories and accounts I’ve written about on Cato’s National Police Misconduct Reporting Project have only come to light because concerned citizens have stood up against police misconduct by recording it—sometimes resulting in further abuse to themselves or their family. The ability to record and then speak out when something wrong happens goes to the heart of the First Amendment, which makes the fight over recording the police a good topic to remember on Free Speech Week.

For more information on Free Speech Week and to learn how you can help celebrate free speech, check out


Thanks to Natural Gas and Climate Change, U.S. Carbon Dioxide Emissions Continue Downward Trend

Global Science Report is a feature from the Center for the Study of Science, where we highlight one or two important new items in the scientific literature or the popular media. For broader and more technical perspectives, consult our monthly “Current Wisdom.”

Carbon dioxide emissions in the United States from the production and consumption of energy have been on the decline since about 2005, after generally being on the rise ever since our country was first founded.

The decline in emissions between 2012 and 2011 was 3.8 percent, which, according to the Energy Information Administration (EIA) was the largest decline in a non-recession year since 1990 and the first time that carbon dioxide (CO2) emissions fell while the per capita economic output increased by more than 2 percent.  In other words, we are producingmore while emitting less carbon dioxide.


A New, a New Podcast, and 100 Excursions

Today’s kind of a big deal over at

To start with, the Cato Institute’s resource on the theory and history of liberty unveiled a completely new look, one designed from the ground up to work great on mobile devices like smartphones and tablets. And we created a new way to browse all of’s content from within a single, intuitive interface.

We’ve also launched’s first podcast, “Free Thoughts.” Hosted by Trevor Burrus and me, it’s a bi-weekly discussion show about libertarianism and the ideas that influence it. The first episode is on politics and community and the relationship between them. In the coming weeks, we’ll have episodes on money and political speech, commodication, Robert Nozick’s Anarchy, State, and Utopia, and much more. You can subscribe in iTunes—or via RSS.

Finally, today we published the 100th Excursions essay from George H. Smith. Smith is an authority on libertarian intellectual history and author of the new book The System of Liberty: Themes in the History of Classical LiberalismEvery week for the last two years, has published a new essay from Smith. His 100th looks at Adam Smith, standing armies, and competition in education.

It’s an exciting day for And we’ve got much more to come.