Once again, a court has refused to recognize any meaningful limit to Congress’s authority to regulate Americans’ private lives through the Commerce Clause. On Wednesday, after a long delay in considering the case, the U.S. Court of Appeals for the Tenth Circuit reversed a district court order that had declared the U.S. Fish and Wildlife Service (FWS)’s regulations prohibiting the “taking” of the Utah prairie dog (effectively, anything that may disrupt its habitat) unconstitutional. (This is a case in which Cato had filed a brief nearly two years ago.)
The court held that, since Congress had a rational basis to believe that protecting the prairie dog “constituted an essential part of a comprehensive regulatory scheme that, in the aggregate, substantially affects interstate commerce,” the FWS regulations are authorized under Article I, section 8. This, despite acknowledging that “taking” the prairie dogs—which exist solely within the borders of Utah and have no economic value—is a “noncommercial, purely intrastate activity.”
The case was brought by People for the Ethical Treatment of Property Owners (PETPO), a nonprofit organization formed by Utah residents and property owners to protect their interests in the face of FWS’s burdensome regulations. Its members have been prevented from building homes, starting small businesses, and even from protecting local parks and cemetery grounds. Finally, enough was enough and PETPO brought suit against the FWS on the grounds that neither the Commerce Clause nor the Necessary and Proper Clause authorizes Congress to regulate this rodent on nonfederal land. Such is the bizarre dreamscape in which the Tenth Circuit exists: where the power to regulate interstate commerce somehow covers activities that are neither interstate nor commercial.
But how did we get here? The Commerce Clause, while always a fairly broad source of authority—at least since Chief Justice Marshall’s landmark decision in Gibbons v. Ogden (1824)—wasn’t always read as a congressional blank check. It wasn’t until 1942, when the post-New Deal Supreme Court held in Wickard v. Filburn that even wholly interstate, noncommercial activity can be regulated by Congress, as long as, looked at in the aggregate, the activity could theoretically impact interstate commerce if enough people engaged in it. And while the Court has made some effortsto place outer limits on Congress’s commerce power—most notably in United States v. Lopez (1995), United States v. Morrison (2000), and NFIB v. Sebelius (2012)—these opinions seem to have done little to actually rein in federal overreach. The medical-marijuana case of Gonzales v. Raich (2005), which held that an activity may be regulated if it’s plausible that Congress thought doing so would be an “essential part of a comprehensive regulatory scheme that, in the aggregate, substantially affects interstate commerce,” is the precedent most relied on here. The Tenth Circuit, uncritically following a line of much-maligned cases holding only the most tenuous connections to actual constitutional text, has managed to chip away at the limits on federal power even more than the Supreme Court has already done.
The Constitution’s Commerce Clause affords Congress the power to regulate only items, channels, or instrumentalities of interstate commerce. If Congress wants to regulate activities that “substantially affect” interstate commerce, that power rests in the Necessary and Proper Clause, which gives Congress the means to regulate interstate commerce—provided those means are both necessary and proper. But the activities prohibited by the FWS regulation don't substantially affect interstate commerce. Moreover, the “take” rule isn't necessary: Congress can regulate interstate commerce without interfering with residents' use of their property. Nor is it proper: the power to regulate uses of property that don't affect interstate commerce belongs to the states.
Hopefully PETPO will now appeal to the Supreme Court, which, newly invigorated by the words and ideas of an energetic textualist like Neil Gorsuch (who, by the by, wasn't on this Tenth Circuit panel), will see this as another opportunity to place meaningful limits on federal authority. Until then, it appears that the good citizens of Utah will have to continue bearing burdens caused not by the critters at issue -- this isn't Bill Murray in Caddyshack -- but by federal regulators' use of powers that simply aren't theirs to assert.
The economist Herbert Stein, chairman of the Council of Economic Advisors under Richard Nixon, once quipped,
Most of the economics that is usable for advising is at about the level of the introductory undergraduate course.
One lesson from such courses is that minimum wage laws reduce employment, so this is reassuring:
I critically review the recent findings regarding the effects of minimum wages on employment. Contrary to often asserted statements, the preponderance of the evidence still points toward a negative impact of permanently high minimum wages.
From Jesus Fernandez-Villaverde at the University of Pennsylvana.
In a recent Wall Street Journal column defending Obamacare 3.8% surtax on investment income on joint returns above $250,000, Peggy Noonan ends by quoting Tucker Carlson’s Fox News interview with Paul Ryan which questioned the now-suspended health plan’s elimination of that surtax:
“Looking at the last election, was the message of that election really, ‘We need to help investors?’ I mean, the Dow is over 20,000. Are they really the group that needs the help?. . .“The overview here is that all the wealth, basically, in the last 10 years, has stuck to the top end. That’s one of the reasons we’ve had all the political turmoil, as you know. And so, kind of a hard sell to say ‘Yeah, we’re gonna repeal Obamacare, but we’re gonna send more money to the people who’ve already gotten the richest over the last 10 years.’ I mean, that’s what this does, no? I’m not a leftist, it’s just—that’s true.”
Mr. Carlson used the word “wealth” rather than income. He said, “all the wealth . . . in the last 10 years, has stuck to the top end.” He surely meant income, however, since the latest wealth estimate from the Survey of Consumer Finance was in 2013, and wealth of the top 1%, like income of the top 1%, clearly fell from 2007 to 2013. Despite “shared prosperity” Clinton campaign chatter, there were no gains to share. John Weicher at the Hudson Institute notes that, “Between 2007 and 2013, the poor became poorer, but so did the rich and the people in between.”
Tucker Carlson is not a leftist and neither is Peggy Noonan. Yet to define what is “true” about income growth over 10 years, they are relying wholeheartedly on the socialist team of French economists Thomas Piketty and Emmanuel Saez.
When media celebrities disparage the “top end” they do not mean Fox News anchors (who earn millions); they mean the “Top 1%” who earned more than $442,900 in 2015 according to Piketty and Saez. When claiming all the gains over the last 10 years have “stuck to” the top 1%, Carlson appears to have accepted the same source Hillary Clinton abused when she claimed “more than 90 percent of [income] gains have gone to the top 1 percent.”
What “stuck to the top end,” to use Tucker Carlson’s phrase, is the Top 1% share of gains since 2009. Prior losses are forgotten. The “last 10 years” is simply redefined as starting with 2009, not 2007.
In the latest version of this ruse, Saez says, “Top 1% families . . . capture[d] 52% of total real income growth per family from 2009-2015.” Of the many deceptions the Piketty-Saez team has inflicted on us over the years, this one may well be the most politically popular and most economically ridiculous. It has fooled many fools.
What goes unmentioned, is that the Top 1% first “captured” 49% of the losses from 2007 to 2009. Students of New Math might imagine the 52% gain from 2009 to 2015 compensated for the 49% loss from 2007 to 2009, but that deserves an “F” grade (because the 52% gain is calculated from a much smaller base).
The graph shows what actually happened to average pretax incomes of the Top 1%, as estimated by Piketty and Saez.
From 2007 to 2015, average real incomes of the Top 1% fell by 11.9%, even before taxes.
Top incomes fell much more after taxes because top tax rates were increased from 35% to 39.6% in 2013, the arbitrary and discriminatory 1990 PEP/Pease limits on exemptions and deductions were restored, and an extra 3.8% Obamacare surtax was inflicted on those supposedly privileged stockholders.
When conservative media commentators rely on deceptive leftist statistics to make their points, they might as well be leftists.
The simplistic notion that organisms are “dumb” when it comes to changing environments goes like this: Species X lives in a relatively stable environment and with a certain defined range of temperature. So, if the temperature changes enough, species X will go extinct.
In resuming our series on biological adaptation to environmental change, we are going to be looking in depth at the evolutionary and environmental nuances that—with some limits—invalidate the simple point of view. And, in doing so, we will discover important implications for environmental and climate-related policies.
We begin with revolutionary classic in evolutionary biology published in 1984 by Peter Hochachka and George Somero called “Biochemical Adaptation.” It summarized and expanded on much of their earlier work on what they called “phenotypic plasticity”.
Pre-Hochachka thinking had it that our DNA codes for specific proteins, which do their thing (often serving as catalysts for complex biochemical syntheses) and are pretty much static, which would lead automatically to the “dumb” organism when it comes to environmental change. But, among other things, Hochachka and Somero can show that, depending upon temperature, many critical proteins actually change their shape as temperature rises (or falls), greatly broadening the environmental range of many species.
A wonderful example of this concerns marine fish living in tropical waters, which tend to experience much smaller seasonal variations in temperature than fish inhabiting other latitudes. Without phenotypic plasticity, there are concerns that tropical fish maintain narrow temperature tolerance and that they might presently be close to their optimal temperature limit. If temperatures were to therefore rise in the future in response to CO2-induced global warming, many tropical fish species might experience widespread decline and possible extinction.
Given plasticity, does this hypothesis hold any water?
A five-member Portuguese research team of Madeira et al. (2016) examined the cellular stress response of a tropical clownfish species (Amphiprion ocellaris) exposed to elevated temperatures over a period of one month. Their experiment was conducted in a controlled laboratory setting in which they subjected juvenile A. ocellaris to either ambient (26°C) or elevated (30°C) temperatures, while examining several biomarkers (e.g., stress proteins and antioxidants) in several tissue types (brain, gills, liver, intestine and muscle) at 0, 7, 14, 21 and 28 days of temperature treatment. What did their measurements reveal?
According to Madeira et al., “results showed that exposure time significantly interacted with temperature responses and tissue-type, so in fact time influenced the organisms’ reaction to elevated temperature.” First, at day 7 they observed significantly higher levels of biomarkers in fish in the high temperature environment that was indicative of a typical thermal stress response. Thereafter, however, they report that biomarker levels stabilized, showing either “a significant decrease in comparison with controls or no significant differences from the control” through the end of the experiment, which observations they suggest are indicative of temperature acclimation.
The fact that temperatures outside the “normal” range elicited clear biochemical changes (after a period of initial stress) is clear evidence for the much more nuanced view of organismal response to change.
Commenting on their findings, Madeira et al. write that “A. ocellaris probably lives far from its upper thermal limit and is capable of adjusting the protein quality control system and enzymes’ activities to protect cell functions under elevated temperature, adding that “these results suggest that this coral reef fish species presents a significant acclimation potential under ocean warming scenarios of +4°C.”
This is very good news for those concerned about the impact of global warming on tropical reef fish, and therefore for reefs themselves, as fish are an integral part of complex reef ecology.
One could speculate that—because most species alive today evolved on a warmer (pre-ice age) planet, that the genetic material that responds to heat is maintained, only to be expressed when they go back to their future, which is what is happening as we speak.
Hochachka, P., and S. Somero, 1984 (republished in 2016). Biochemical Adaptation. Princeton Legacy Library, Princeton. 520pp.
Madeira, C., Madeira, D., Diniz, M.S., Cabral, H.N. and Vinagre, C. 2016. Thermal acclimation in clownfish: An integrated biomarker response and multi-tissue experimental approach. Ecological Indicators 71: 280-292.
At least in Serbia, people know that politicians' promises are ridiculous. NPR reports on a satirical candidate named Ljubisa Beli Preletacevic, or just Beli for short:
A new politician is here to save you. I'm pure and clean. Whatever the other politicians promise you, I will promise you three times more.
I'll give jobs to everyone and big pensions to everyone. I'm going to move the sea here because we need a beach.
Satire it may be, but his new party won 12 council seats in his home town, and most of his party's candidates are seriously seeking election. Reporter Joanna Kakissis continues:
There will be no corruption, excluding my own of course, he declares to one crowd. Please send all money directly to my pockets. Drama student Danka Svetilova laughs and asks for a selfie. She says mainstream politicians have lied to Serbs for years....
So that's why she and her schoolteacher mom are voting for Beli in this Sunday's presidential election. Better a fake candidate who tells the truth about lying, she says, than a real one who lies about telling the truth.
The Cato Institute recently released Monetary Alternatives: Rethinking Government Fiat Money, a collection of essays 30 years in the making. As George Selgin explains in the foreword,
The complacency wrought by the Great Moderation, not to mention the limited interest in fundamental monetary reform before then, resulted in a dearth of serious inquiries into potentially superior arrangements….Cato kept the subject alive, offering a safe haven, in the shape of its Annual Monetary Conference, for the minority of experts that continued to stress the need for fundamental monetary reform. Although fundamental reform has been a consistent theme of Cato’s monetary conferences, those conferences have never been dominated by one approach to reform. The articles in this book present a variety of ideas for improving the monetary regime — including proposals for a formal “monetary constitution,” various monetary rules, competing currencies, and establishing a new gold standard.
In sum, Monetary Alternatives explores fundamental and controversial ideas that would move our monetary system and economy beyond repeated crises to sustainable stability and prosperity. The contributors to the volume energetically question the status quo and provide compelling arguments for moving to a monetary system based on freedom and the rule of law.
A limited constitutional government calls for a rules-based, free-market monetary system, not the topsy-turvy fiat dollar that now exists under central banking. When the Federal Reserve was created in 1913, its powers were strictly limited and the United States was still on the gold standard. Today the Fed has virtually unlimited power and the dollar is a pure fiat money.
Central banking, like any sort of central planning, is not a panacea. Concentrating monetary power in the hands of a few individuals within a government bureaucracy, even if those individuals are well intentioned and well educated, does not guarantee sound money. The world’s most important central bank, the Federal Reserve, is not bound by any strict rules, although Congress requires that it achieve maximum employment and price stability. The failure of the Fed to prevent the Great Recession of 2009, the stagflation of the late 1970s and early 1980s, and the Great Depression of the 1930s, raises the question, can we do better?
In questioning the status quo and widening the scope of debate over monetary reform, the fundamental issue is to contrast a monetary regime that is self-regulating, spontaneous, and independent of government meddling versus one that is centralized, discretionary, politicized, and has a monopoly on fiat money. Free-market money within a trusted network of private contracts differs fundamentally from an inconvertible fiat money supplied by a discretionary central bank that has the power to create money out of thin air and to regulate both banks and nonbank financial institutions.
There are many types of monetary regimes and many monetary rules. The classical gold standard was a rules-based monetary system, in which the supply of money was determined by market demand — not by central bankers. Cryptocurrencies, like bitcoin, offer the possibility of a private non-commodity monetary base and the potential to realize F. A. Hayek’s vision of competitive free-market currencies. Ongoing experimentation and technological advances may pave the way for the end of central banking — or at least the emergence of new parallel currencies.
In making the case for monetary reform and thinking about rules versus discretion in the conduct of monetary policy, it is important to take a constitutional perspective. As early as 1988, James M. Buchanan argued, at an international monetary conference hosted by the Progress Foundation in Lugano, Switzerland:
The dollar has absolutely no basis in any commodity base, no convertibility. What we have now is a monetary authority [the Fed] that essentially has a monopoly on the issue of fiat money, with no guidelines that amount to anything; an authority that never would have been legislatively approved, that never would have been constitutionally approved, on any kind of rational calculus [“Comment by Dr. Buchanan,” Economic Education Bulletin 28, no. 6: 32–35].
In 1980, just after Ronald Reagan’s election, Buchanan recommended that a presidential commission be established to discuss the Fed’s legitimacy. There was some support within the Reagan camp, but Arthur Burns, a former chairman of the Federal Reserve Board, nixed it. As Buchanan explained at the Lugano conference, Burns “would not have anything to do with any proposal that would challenge the authority of the central banking structure.”
Buchanan’s aim was “to get a dialogue going . . . about the basic fundamental rules of the game, the constitutional structure.” There is, he said, “a moral obligation to think that we can improve things.” That is the spirit of this volume and Cato’s recently established Center for Monetary and Financial Alternatives.
This year marks Cato’s 40th anniversary and the 35th anniversary of the Annual Monetary Conference, making it an appropriate time to bring out this collection of articles devoted to rethinking government fiat money and to offer alternatives consistent with limited government, the rule of law, and free markets.
Contributors to Monetary Alternatives include: Claudio Borio, Jeffrey Lacker, John Allison, Bennett McCallum, James Buchanan, George Selgin, Peter Bernholz, Charles Plosser, Leland Yeager, John Taylor, Scott Sumner, James Dorn, Edwin Vieira, Lawrence White, Richard Timberlake, Roland Vaubel, and Kevin Dowd.
[Cross-posted from Alt-M.org]
The North Carolina legislature has passed and sent to Democratic Gov. Roy Cooper H.B. 142, unveiled last night as a compromise intended to end the state's acrimonious year-long battle over discrimination laws and transgender persons' access to bathrooms and changing rooms. From what I can see, it's a basically sound measure that gives both sides much of what they legitimately asked.
HB2, the bill passed last March, was a response to a successful push in the city of Charlotte to enact anti-discrimination laws going well beyond state law in numerous areas, including making LGBT persons a protected class and regulating private actors in various ways (including bathroom policies) through employment and public accommodations laws. Opponents went to the state legislature and -- as has happened in other states lately as well -- proposed yanking back those portions of home rule that allowed for local ordinances to go beyond state law. (How you feel about yanking back home rule powers probably has a lot to do with how you feel about the substantive laws involved, since neither libertarians nor most other thinkers hold to a rigid always-or-never view of municipal home rule powers. Should towns in your state have the power to jail people for using alcohol or medical marijuana? Enact rent control? Ban the construction of any residence worth less than $1 million?)
One part of HB2, then, eliminated towns' and cities' power to go beyond state law in some areas of employment and public accommodations law. But HB2 went a fateful step further by enacting into law the idea of some organized social conservatives that transgender persons should use the bathroom of their sex at birth, unless they succeed in jumping over the legal hurdles needed to get a changed certificate. There are all sorts of things wrong with that approach, and I said some of them in a Wall Street Journal letter last year.
[The relevant section] of the bill imposes affirmative, uniform new duties of exclusion on North Carolina government entities such as schools, town halls, courthouses, state agencies and the state university system, taking away what had generally been local discretion. This not only will inflict needless burdens on a small and vulnerable sector of the public, but presumes to micromanage local governments and districts in an area where they had not been shown to be misusing their discretion. Whatever the merits of the rest of the bill, the provisions on state-furnished bathrooms are a good example of how legislation in haste from the top down can create new problems of its own.
The new HB142 compromise retreats, and rightly so, from this worst portion of HB2, but it does not retreat (or at least not very much) from the other elements, including those that are not so bad. By repealing HB2, it abandons the wretched aim of trying to prohibit transgender-friendly bathrooms. But it also takes away local governments' power to mandate them in the private sector. It provides that "State agencies, boards, offices, departments, institutions, branches of government, including The University of North Carolina and the North Carolina Community College System, and political subdivisions of the State, including local boards of education, are preempted from regulation of access to multiple occupancy restrooms, showers, or changing facilities, except in accordance with an act of the General Assembly."
"Regulation of access to" is not an entirely clear phrase in this context. Clearly, cities like Charlotte need to go on carrying on the "regulation of access to" their own city-run facilities. The debate in the legislature today, according to several sources, emphasized sound local discretion -- Charlotte can run bathrooms in municipal buildings the way it sees fit.
The bill further pre-empts municipalities temporarily from enacting discrimination laws that go beyond the states'. "No local government in this State may enact or amend an ordinance regulating private employment practices or regulating public accommodations. That latter pre-emption expires in 2020.
The new compromise is being met with peals of outrage from some of the predictable ultras on both sides. But it looks to me like a more careful attempt to respect the legitimate rights of both sides than we've seen in this controversy up to now.