November 29, 2013 11:20AM

The Dangers of a Soda Tax

Discussing the problems with a soda tax is both easy and difficult. It is easy because the main argument is fairly obvious: If taxing soda in the name of public health is a legitimate function of government, then there is no functional limit on what government can do under the guise of public health.

But this argument, though straightforward, is a difficult sell because it is not terribly convincing. This is partially because it is a slippery slope argument (“step 1 will inexorably lead to step 10”), and slippery slope arguments are often straw-man arguments. Arguing against step 10 (“so why don’t we just tax all bad foods?”) is not actually the argument being made at step 1 (“I think we should tax soda.”).

The other reason the argument is difficult is because it is hard to ignore the science. Perhaps it is true that a tax on soda will help public health. In fact, I’ll concede for the sake of argument that taxes on soda will increase public health.

So, as someone who opposes soda taxes, what arguments do I have left if I’ve made these concessions? There are three: 1) The Primitivism of Politics; 2) The Modern Fallacy of “Public Health”; and 3) A Properly Formulated Slippery Slope Argument

1) The Primitivism of Politics

What I call “primitivism” could also be called “tribalism” or “special interests.” Politics becomes increasingly primitive as it affects more of our most personal decisions. When politics starts deciding how to educate our children, what health care we can buy, and what we can freely eat or drink, our only way to fight back is by forming interest groups and “making our voices heard” in the city council, the state legislature, or Washington, D.C. In other words, those with tribes win; those without lose. Despite the efforts of the soft drink industry, the soda drinking tribe is clearly losing its effectiveness.

Why? Well, partially because rates of soda consumption are starting to mirror class divisions. According to one poll, only 11.2 percent of those living in upscale Chelsea or Greenwich Village drink at least one “sweetened beverage a day.” Soda guzzlers are often perceived to be of a lower class. We don’t usually think of a bright-eyed Harvard grad going into her office at Mayer Brown carrying 64 ounces of Mountain Dew Arctic Burst. No, we think of her carrying a Venti Caramel Brulée Frappuccino, brimming with 520 calories and 50 percent of her recommended daily allowance of saturated fat. That’s about as many calories as one liter of soda and significantly more fat.

Why should sodas be taxed and not the frothy coffee concoctions that are often preferred by upper-class people who, not coincidentally, tend to make the laws? Some people may think that both should be taxed, but a “Starbucks tax” is not currently on the table.

As the push for marijuana legalization gains momentum, tobacco users are being increasingly marginalized. Is there a coherent principle that animates this difference other than that the tobacco smoking tribe is shrinking while the marijuana smoking tribe is growing? Similarly, is there a principle that exempts coffee drinks from health taxes? Perhaps it is asking too much for politics to be principled, but maybe we can demand more than a primitive battle between interest groups where the preferences of the ruling class usually win.

2) The Modern Fallacy of “Public Health”

Although the concept of public health was and is important when dealing with broadly agreeable initiatives, such as waste abatement and vaccination, it is increasingly becoming a politicized concept.

Individuals are either healthy or unhealthy within a society, but society itself isn’t one or the other. Individuals’ decisions about what risks they are willing to take and how much they are willing to trade pleasure for diminished health are incredibly personal and should not be overly politicized. This becomes more difficult when health care costs are increasingly socialized, but the principle that health care decisions are deeply personal should be adhered to as much as possible.

Some people skydive, some people eat rare hamburgers daily, some people drink soda. All of these can be hazardous to your health. But what isn’t included in statistics about public health is the pleasure that people take in doing things and consuming things that may not be healthiest. The optimally healthiest society may not be the best society to live in, and we should be weary of technocrats making subjective judgments about trade-offs between health and pleasure.

3) A Properly Formulated Slippery Slope Argument

Although the traditional form of the slippery slope argument is often fallacious as I’ve discussed, it is possible to formulate an effective slippery slope argument: If the principle that animates step 1 is identical to the principle that animates step 10, then there is no “limiting principle” to stop the progression. This is particularly true in law where past decisions become precedents.

The movement to tax and prohibit unhealthy things seemingly has no clear limiting principle. It is worth pondering extreme counter-examples to see if we can deduce a limiting principle (somewhat similar to the infamous “broccoli question”—can Congress make you purchase broccoli?—during the Obamacare litigation): If certain style of haircut were shown to significantly contribute to health, would mandating or subsidizing that haircut or taxing other haircuts be off-limits? Should video games be taxed because they contribute to couch potato-ness?

These questions can help us focus on another question: namely, are we treating free, responsible adults with the respect they deserve? We aren’t regulating “society,” after all, we’re regulating people. Yet many public-health proposals treat free, responsible adults as if they are resources, asking only whether their behaviors make them take too much or give too little. Conservatives often make similar arguments about drug use—that legalizing drugs will lead to lost work production and the moral decay of society.

Arguments like these do not treat people with respect, and they encourage lawmakers and technocrats to regard people with different tastes as parasites rather than people.

We should be better than that.

November 27, 2013 11:02AM

Liberalish Rather than Liberal: A Kuwaiti Grades the Gulf Kingdom

Kuwait City, Kuwait—“I read your blog post,” Dr. Anood Al-Sharikh told me when we met. “Kuwait isn’t really liberal, but more liberalish, don’t you think?”

She’s right, though in the Middle East even liberalish is a major advance over ugly authoritarian systems like the Saudi theocracy. Kuwait hosts many traditionalists and Islamists who live conservatively, but there is space for most everyone. Many women, like Al-Sharikh hold professional jobs, travel the world, and dress fashionably.

Moreover, politics is freer than elsewhere in the Gulf. Kuwait is ruled by an emir who appoints government ministers, but an elected National Assembly can challenge government ministers and force a cabinet’s resignation. On Tuesday I sat through some the “grilling” of the health minister, a liberal royal who I met last year when he was working in the prime minister’s office. Animated legislators vigorously challenged his performance as well as the arguments of their colleagues while pushing a no confidence motion.

Still, the government clearly has the upper hand, aided by problems elsewhere in the Gulf. A year ago, Kuwait was host to multiple demonstrations by an angry opposition which ranged from secular liberal to Islamist. Today “things have calmed down,” noted Waleed Moubarak of Alghanim Industries. That’s positive, in his view, since you “can only sustain so much political drama.”

But more happened than people being worn out. The authorities “sucked the wind out of” the opposition movement, noted Al-Sharikh. The “government struck back effectively” in a notably illiberal fashion, jailing some people and using its various forms of influence. It even pressed Islamist clerics to issue fatwas against the opposition. Moreover, she asked, “how can anyone in Kuwait be against the government,” which offers jobs, provides homes, pays for education, and more.

Internal contradictions hobbled the opposition: by allying with Islamists, the liberals were effectively promoting a political agenda that included imposing dress codes, closing churches, executing blasphemers, and enshrining sharia as the fount of law. Equally important, the collapse of the Arab Spring had a sobering effect. A bank analyst told me “the public was fed up, it saw chaos in Egypt, violence in Syria, and said that is not for us. People decided there was more to lose than to gain if they went down that particular route.”

In fact, Kuwait well demonstrates the tensions between a democratic polity and liberal society. Thus the “liberalish” country’s fascinating paradox: today, at least, Kuwait’s hereditary emir might be more likely than an elected parliament to encourage development of a free society.

November 27, 2013 10:57AM

Operation Sex Deviate 2.0

In the bad-old-days of American intelligence, J. Edgar Hoover maintained a notorious "Sex Deviate" file filled with salacious bits of information on the sexual proclivities of prominent Americans: actors, columnists, activists, members of Congress, and even presidents. Sometimes this information could be immediately useful—as when Hoover's right hand Cartha DeLoach proudly reported that the Bureau had learned of a truculent senator caught driving drunk with a "good looking broad."  The senator, DeLoach explained, was promptly made "aware that we had the information, and we never had trouble with him on appropriations since." But Hoover could be patient as well: In the 1940s, the FBI investigated and wiretapped columnist and suspected German spy Inga Arvad, who happened to be conducting an affair with a young naval ensign named John Kennedy.  When Kennedy won the Democratic presidential nomination 17 years later, the Arvad dossier was immediately moved to Hoover's personal office file. Sometimes the information was used to discredit Hoover's political enemies through targeted leaks; on other occasions, the threat of exposure was enough.

The National Security Agency has clearly learned to apply Hoover's tactics in the war on terrorism: In a new Huffington Post story based on documents leaked by Edward Snowden, Glenn Greenwald reports that the NSA discussed how Islamist "radicalizers" could be discredited by exploiting information—presumably obtained through electronic surveillance—about their online sexual activities. 

Critically, the six "radicalizers" mentioned in the NSA document do not appear to have been directly involved in terrorism: They are described only as preachers of extremist ideas. Indeed, the document notes that the three English-speaking "radicalizers," one of whom is identified as a "U.S. person," seem to have had minimal contact with members of violent groups, and one is characterized as explicitly condeming violence against civillians.  Nevertheless, the Agency urged that such "vulnerabilities" as "online promiscuity" or "viewing sexually explicit material online" could be used to discredit these "radicalizers" by exposing them as hypocrites.

While it's not clear whether the NSA—or one of its client agencies—ever carried through on this plan, even compiling and disseminating such derogatory information about a U.S. person guilty of no more than vile (but nevertheless First Amendment protected) speech would be, prima facie, illegal. But given the breadth of NSA's collection, records of the online sexual habits of millions of others who might one day be deemed "radicalizers" of one stripe or another are almost certainly sitting in a database waiting to be mined and deployed.

The report underscores one of the primary reasons intelligence surveillance in particular is so susceptible to abuse. In criminal investigations, the paradigmatic government use of information gleaned from wiretaps or other forms of spying is as evidence in a criminal trial, where the government's actions are subject to eventual scrutiny and legal accountability. But in the realm of intelligence, only rarely are the fruits of surveillance used in criminal prosecution—eliminating the primary "back end" institutional check on government spying. Often, the point is precisely to make use of information from intercepts in ways that can never be directly or publicly traced to government. A target whose reputation or career is torpedoed by embarassing disclosures may never know whether they were the victim of an intelligence operation or simple bad luck.

The U.S. legal system is ill-designed to guard against such tactics: Our primary safeguard—indeed, in most cases the only safeguard—against violations of the Fourth Amendment is the "exclusionary rule," which prohibits evidence derived from illicit surveillance from being used against a defendant at trial.  When, instead, intelligence agencies use surveillance to attack their targets through means other than prosecution, no court or judge is ever likely to review their work. You may not be engaged in any criminal conduct, but does that really mean you have "nothing to hide" from government?  Check your browser history before answering too confidently.

November 26, 2013 5:16PM

The Court Revisits Obamacare

Obamacare’s legal troubles were far from ended when Chief Justice Roberts ruled in 2012 that the law’s “penalty” for failing to buy health insurance was really a “tax,” purportedly rendering the Act constitutional under Congress’s power to tax, even though neither he nor anyone else could say whether the Constitution recognized or allowed so sui generis a tax.

So far is the litigation from over, in fact, that if you’re planning a legal challenge to Obamacare, you’ll have get in line. Two of those in line got good news today: The Supreme Court has agreed to hear their challenges. Both concern Obamacare’s mandate that employer provided health insurance policies cover such things as sterilization, contraceptives, and abortifacients, even in the face of an employer’s religious objections. In Sebelius v. Hobby Lobby Stores, Inc. the U.S. Court of Appeals for the Tenth Circuit ruled for the individual employer. In Conestoga Wood Specialties Corp. v. Sebelius the U.S. Court of Appeals for the Third Circuit ruled against the corporate employer. At issue are both constitutional and statutory claims under the Religious Freedom Restoration Act (RFRA).

Ilya Shapiro has discussed the issues more fully here. And earlier on I had a short post on the subject here. The Court will likely hear oral argument in March. Maybe the website will be running by then.

November 26, 2013 4:15PM

Peter Lewis, RIP

Progressive Corp. Chairman Peter B. LewisThe Washington Post brings us some sad news today: Peter Lewis has died of a heart attack.

If you watch any television at all, you will see many TV commercials for Progressive Auto insurance, featuring the wise-cracking, Flo, with her 1960s hairdo, but Peter Lewis was the man who took the helm of the company as CEO in 1965 and turned a small company into one of the largest auto insurers in the USA.

After serving as CEO for 35 years, Lewis retired to focus on philanthropy.  He saw the futility and countless injustices of America's drug war policies and financially supported organizations that worked to end drug prohibition, including the Cato Institute.

In ten years (less?) marijuana will be a legally sold product in much of the United States, and too many people will casually assume that it was somehow inevitable.  Last December, following the successful initiatives to legalize marijuana in Colorado and Washington, I told an adviser to Lewis that when the history of the drug war is written, he will be remembered as one of the heroes.   I am glad Lewis lived to see the turning of the tide on drug policy here in the USA.

November 26, 2013 3:07PM

Who’s Afraid of Political Speech?

With the dust barely settled following Harry Reid’s bombshell late last week—killing Senate filibusters of appellate court nominees, the obvious purpose of which was to enable the DC Circuit’s eventual rubber-stamping of Obama’s rule by executive order—the Wall Street Journal is now reporting that the Obama administration today “proposed a crackdown on the widespread use of tax-exempt organizations for political campaigning, seeking to reduce the influential role that the secretive groups have played in recent elections.” The timing is exquisite.

It’s hardly news that the administration (and the left generally) is obsessed with limiting political speech—and with the Supreme Court’s 2010 Citizens United decision in particular. Recall the president’s appalling breach of decorum when in his State of the Union Address two weeks later he ridiculed the captive justices sitting before him, to the cheers of the Democrats standing in applause over them. The obsession has continued, manifesting itself most notoriously in the IRS stonewalling of Tea Party applications for 501(c)4 tax-exempt status. Now, we’re told, the new "guidance" issued today “by the Treasury Department and the Internal Revenue Service would curtail a broad array of these tax-exempt entities' activities, including campaign advertising, voter registration, get-out-the-vote efforts, and distribution of voter guides and campaign materials”—all designed, one Treasury official said, “to simplify the task of policing the groups for the IRS, by drawing brighter lines.”

Thus, under the current standard, the Journal reports,

a tax-exempt entity could run TV ads in the run-up to an election, congratulating a candidate for introducing a bill, and urging the legislature to enact it into law and viewers to support candidates who back that issue, officials said. Under the new standards, the group wouldn't be able to count that as exempt activity if it is run within the 60-day or 30-day window.

Groups also are able to do voter registration drives and get out the vote efforts now, as long as it isn't done in support of a particular candidate. But under the new standard, groups couldn't do voter registration drives as part of their exempt activity, even voter drives that aren't overtly partisan or political.

I won’t go into the arcane contribution limits or disclosure requirements that are contemplated by this proposal. But I will note that none of this would be necessary if only we could give directly to candidates and their parties far more than our crabbed current law allows. But that would mean that incumbents would face stiffer competition than they now do under current restrictions. And that’s the dirty little secret of our campaign finance law. It parades as corruption prevention, but at bottom it’s incumbent protection.

November 26, 2013 1:38PM

FDA Moves To Crush 23andMe

23andMe is a service that combines a home-based saliva testing DNA-sample kit combined with a web-based service to explain what the results mean and put you in touch with other users. At $99, it's a breakthrough hit in affordable personal technology -- and now the Food and Drug Administration is determined to snuff it out. I discuss this appalling development in a new post at Overlawyered: 

...Some of us want to seek out distant relatives and clues about national origins, or satisfy curiosity about patterns of disease in our family lines. For adoptive families, home genome testing can be hugely valuable in cases where one knows little about the medical history of an adoptee’s birthfamily. It’s our body, and our right to inform ourselves about it — or so we thought.


The FDA very likely has decent legal grounds to forbear from a crackdown should it choose to. But the key takeaway sentence from Matthew Herper’s piece in Forbes criticizing the company is: “This is not the way to deal with a powerful government regulator.” Disrespectful, anti-authority attitudes from someone an agency intends to regulate? Ask former Buckyballs CEO Craig Zucker where that gets you. ...

Science blogger Razib Khan has suggested that information services like 23andme, rather than submit to expensive and cumbersome regulation as "medical devices," may simply pack up and move offshore. But even if they do, that won't be the end of our government's jealous wish to regulate them -- or so I predict in my post.

P.S. Is it relevant that governments themselves, through their law enforcement agencies, run elaborate saliva-, blood- and DNA-collection operations that are hedged with few of the protections of voluntariness, privacy and openness that one finds with 23andMe?