Archives: 04/2018

More Progress On Restraining Government By Dear-Colleague Letter

Agencies use informal guidance documents in lieu of formal regulation to clarify and interpret uncertainties in existing law and enforcement. While there are many legitimate reasons they might want to do that, such forms of subregulatory guidance or “stealth regulation” can also offer a tempting way to extend an agency’s power and authority into new areas, or ban private actions that hadn’t been banned before – all without going through the notice and comment process required by regulation, with its protections for regulated parties.

Fair? Lawful? The Department of Justice under Attorney General Jeff Sessions has lately sought to bring agency use of guidance documents under better control, and in particular end the use of documents that 1) are obsolete, 2) improperly use the process to circumvent the need for formal regulation, or 3) improperly go beyond what is provided for in existing legal authority. Shortly after I covered this issue in December, Sessions revoked 25 guidance documents on such grounds. Caleb Brown interviewed me about all this for a Cato Daily Podcast last week.

Earlier, I covered “rule by Dear Colleague Letter” (as Education Secretary Betsy DeVos has called it) in posts on the regulation of universities during the Obama and Trump eras. Scott Shackford at Reason points out that the rescission of an earlier DoJ guidance letter on overbearing local government use of fines and fees should be read not as blessing those practices as okay, but as reflecting the likelihood that the federal government lacks clear statutory or constitutional authority to intervene against them. (adapted from Overlawyered). 

California Kills the Golden Goose Liver

In 1961, Julia Child published the first volume of Mastering the Art of French Cooking, which along with her show The French Chef introduced a culinarily parochial nation to the mysteries of boeuf bourguignon, coq au vin, and the rich duck liver known as foie gras (literally “fatty liver”). Child is celebrated for raising the standard of American cooking and enlarging the national palate. Yet according to the state of California, she is one of history’s greatest monsters.

As of 2012, California banned the sale of any product that “is the result of force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size.” This rather clumsy description targeted foie gras. Animal rights activists have long derided the foodstuff on the theory that the traditional method of production is a moral abomination. In 2005 they succeeded in passing a law that, after a seven-year delay, banned not only force-feeding within the state, but also the sale of any such product produced elsewhere.

In defense of their delicacy, industry representatives challenged the ban. Lead by a Canadian nonprofit, they filed a petition asking the Supreme Court to hear their case. The Cato Institute has now joined the Reason Foundation to file an amicus brief encouraging the Court to take the case. The brief argues that Congress has established uniform standards for poultry products, consistent with federal authority to normalize the flow of interstate commerce, and that California isn’t entitled to override this congressional judgment.

Reasonable people may disagree as to the ethics of food production, and each of us is entitled to consume or eschew what we wish. What we aren’t entitled to do is impose our idiosyncratic ethics on others. Foie gras is a safe, wholesome ingredient—though it may go straight to your hips—consumed by millions around the world. Some disapprove of that, just as some disapprove of animal products altogether. Jello Biafra long ago warned that in Jerry Brown’s hippie utopia the suede-denim secret police would force your children to meditate in school. Even he didn’t foresee the possibility of mandatory veganism, yet that’s where we’re headed if this law is allowed to stand.

In sum, the high court should review Association des Eleveurs de Canards et d’Oies du Quebec v. Becerra because sometimes state power simply isn’t all it’s quacked up to be.

New Climate Reports Make Much Ado about Little

Will global warming of a couple of tenths of a degree Celsius bring about certain disaster? That’s what a widely circulated report by Marlow Hood of the French Associated Press suggests about the horrors to come if global warming exceeds 1.5°C.

But this is one of those cases where the prescription is worse than the disease.

According to the Climate Research Unit at the University of East Anglia, we’ve already warmed about 0.9° since 1900, although temperatures have been remarkably flat in the first 14 years of this century. A bit less than half of the total warming probably had nothing to do with the combustion of fossil fuels, as it began in 1910, when the increase in atmospheric carbon dioxide was tiny.

Global temperatures are a mere 0.6° away from the dreaded 1.5° threshold. Yet there are reasons to question the concerns voiced in the AFP report; does one seriously believe that if you tack on another 0.6°, all that prosperity, wealth, and health that was accrued since 1900 starts to melt away?

S’No Surprise in Antarctica!

This week’s report, by Elizabeth Thomas and colleagues from the British Antarctic Survey, that snowfall has been increasing in Antarctica is hardly surprising. What is different that it is much more comprehensive than previous studies, which were largely limited by a virtual lack of pre-1957 data. That was the “International Geophysical Year”, in which systematic observations of Antarctica’s climate began.

The new study looks at the last 200 years of snowfall trapped in 79 ice cores taken from around the continent. It supplements other recent findings that also made headlines.

Determining Antarctica’s overall ice balance has been, well, slippery. One favored method has been to look at gravitational data measured by satellite. Thicker ice means more mass, which means greater gravity. These studies usually come up with a net loss, translating to from 6/1000 of an inch of sea level rise per year to 12/1000 (both values being rather small beer). But different measurements show otherwise. Three years ago, Jay Zwally and his colleagues at NASA used satellite-based altimetry and concluded Antarctica was undergoing a net gain in ice.

Common sense dictates that it should be snowing more in Antarctica. Think of it as Buffalo on steroids when it comes to snow. In the fall, when Lake Erie isn’t frozen, cold air passing over it from the west picks up evaporated moisture and dumps it on the land in the form of snow squalls. The warmer the water and/or the colder the air is, the more is snows. Unlike a mere Great Lake, Antarctica is surrounded by a largely unfrozen ocean, and when any atmospheric disturbance sends moisture onshore, it snows too.

Around Antarctica, there’s been a slight—meaning a couple of tenths of a degree—warming of the surrounding ocean, which means that the air blowing over it picks up a bit more moisture than it used to. Unlike Lake Erie, the Southern Ocean is huge, and any atmospheric disturbance that shoves more oceanic air up onto the continent is going to be pushing a substantial stream inland with ever more moisture, even for a very slight ocean temperature rise.

The “surface mass balance” of a glacier or an ice sheet is the difference between accumulated snowfall and what either melts or evaporates. In anticipation of increased snowfall, the last (2013) scientific summary by the United Nations’ Intertgovernmental Panel on Climate Change shows that the projected 21st change in the Antarctic mass balance to be weakly positive. That’s why it’s perplexing that the new finding is so newsworthy.

But now we know that the snow has been increasing down there for the past 200 years…and that the increase started before the major emissions of atmospheric carbon dioxide.

Should a Balanced Budget Amendment Also Determine the Size of Government?

The House of Representatives are set to debate and vote on introducing a Balanced Budget Amendment to the Constitution of the United States. Such a move is almost certain to fail, as it requires a super-majority in both chambers of Congress, and three-quarters of the states—38 out of 50—would need to ratify it. Coming hot on the heels of the recent spending-cap busting omnibus bill, it’s difficult not to see this as a form of Republican fiscal virtue-signalling.

As I wrote in my recent paper on fiscal rules, the best way to build support for fiscal conservatism is to deliver it. That means constructing an argument about the supply and demand for government, getting public and political buy-in for a new fiscally responsible budgeting framework, and taking the necessary steps to get to a stage where the budget is balanced, ideally though spending cuts. Neither party has shown an appetite for this so far – in fact, quite the opposite.

Rule design is an incredibly important part of acceptance, and then adherence to a rule, too, though: critics and economists have a point about some of the downsides of a pure year-on-year BBA (as proposed). Evidence from around the world suggests rules that are too inflexible to changing circumstances and recessions prove less durable.

New Study from American Action Forum Adds to the Argument Against Present Supply-Side Opioid Policy

On April 11 the Washington Post cited a new study from the American Action Forum that reinforces arguments I have made here and here, that despite a dramatic reduction in the opioid prescription rate—a 41 percent reduction in high-dose opioid prescriptions since prescriptions peaked in 2010—the overdose rate continues to climb, as nonmedical users have simply migrated to more dangerous substitutes like fentanyl and heroin while the supply of diverted prescription opioids suitable for abuse continues to come down.

I have a minor quibble with the study’s finding that “the annual growth rate of prescription opioid-involved overdose fatalities significantly slowed from 13.4 percent before 2010 to just 4.8 percent after.” In fact, the Center for Disease Control and Prevention end-of-2017 Data Brief No. 294 reported:

The rate of drug overdose deaths involving natural and semisynthetic opioids, which include drugs such as oxycodone and hydrocodone, increased from 1.0 [per 100,000] in 1999 to 4.4 in 2016. The rated increased on average by 13% per year from 1999-2009 and by 3% per year from 2009-2016. (Emphasis added)

As an aside, it is worth mentioning that four researchers working in the CDC’s Division of Unintentional Injury Prevention reported in the April 2018 American Journal of Public Health that the CDC’s method for tracking opioid overdose deaths have over-estimated the number due to prescription opioids, calling the rate “significantly inflated.” Many overdose deaths actually due to fentanyl are folded into the “prescription opioid” numbers since, technically, fentanyl is a prescription drug even though it is rarely prescribed outside of the hospital in a form suitable for abuse. 

The AAF report understates the significant role that the abuse-deterrent reformulation of OxyContin and other opioids have played in driving nonmedical users to heroin and fentanyl. The researchers “suggest” abuse-deterrent formulations “could be a major factor driving the rise in heroin fatalities.” But evidence of the connection is much more powerful and convincing, as I presented in the Cato Policy Analysis “Abuse-Deterrent Opioids and the Law of Unintended Consequences” in February of this year.

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Presidential War: From “Not Normal” to the New Normal

A US attack on Syria is imminent, but don’t expect a congressional debate on whether it’s wise or lawful, the Wall Street Journal reported this morning. “I think for a surgical strike, they easily have the authority to do it,” says Senate Foreign Relations Committee chairman Bob Corker. 

That’s the same Senator Corker who, not long ago publicly agonized that President Trump’s “volatility” and recklessness could put America “on the path to World War III.” One wonders what he could have had in mind if not something like this

Might I suggest that taunting and threatening a nuclear-armed rival is far more disquieting than insulting Mika Brzezinski, tweeting out CNN/Wrestlemania mashup videos, or whatever else usually provokes cries of “not normal” from official Washington? This particular tweetstorm will likely be followed by a barrage of Tomahawk missiles and the risk of a wider war. Maybe Corker and his colleagues should show some concern about it and do something—like their jobs.

Corker’s claim that the president “easily [has] the authority” to launch airstrikes is nonsense. In the absence of an imminent threat, the Constitution denies the president the power to initiate war. That this is supposed to be a “surgical” attack is a distinction that doesn’t make a constitutional difference. No prominent figure in the Founding Generation thought the president had the right, absent authorization from Congress, to engage in “limited” war. Washington even doubted his authority to take unilateral action against hostile Indian tribes, writing that “The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”

In this case, Congress hasn’t authorized an attack against the Assad regime. The 2001 AUMF—already stretched beyond credulity to underwrite the war against ISIS—can’t be made to fit what Trump plans. 

Trump has no legal authority to order the strike; what’s more, his administration insists that we have no legal right to hear the reasons he thinks he can. Last year, DOJ’s Office of Legal Counsel drafted a legal memorandum justifying Trump’s drive-by Tomahawk attack on a Syrian airfield in April 2017. The administration is currently fighting in federal court to prohibit the release of that memo, in a Freedom of Information Act lawsuit filed by the the Protect Democracy Project. As Protect Democracy noted in a filing Monday, “the withheld documents are serving as the working law that embodies [the administration’s view of] the governing legal authority for the use of military force.” As the administration contemplates ordering military action in Syria—and elsewhere—aren’t the American people entitled to know what limits, if any, it acknowledges on its authority to wage war? Apparently, not: that’s on a need-to-know basis, and we don’t need to know.