Forced to cut its budget, the Agriculture Department has decided to eliminate dozens of reports, including the annual goat census (current population: three million), and the number of catfish on the nation’s fish farms (177 million, not counting the small fry).
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The Christmas Tree Tax Is a Microcosm of What’s Wrong with Constitutional Law
Jim Harper beat me to the punch on the new Christmas tree tax — probably because I initially thought it was a joke — but there’s actually much more to say here beyond the USDA’s claim that it’s not a tax and the general absurdity of the situation. Three quick things:
First, there are obvious Free Exercise and Equal Protection issues here. That is, unless we consider Christmas trees to be wholly secular, this is an obvious burden on the free exercise of Christianity, and one that no other religion faces. Even if it might be reasonable to see Christmas trees as not particularly religious — pine trees played no role in The Greatest Story Ever Told and, e.g., my secular Jewish family always had a traditional Russian New Year’s Tree (which has no ties to Russian Orthodox Christianity) — but do we want courts drawing lines between, say, creches/crucifixes and trees/Santa?
Second, and probably even more important given the times in which we live, where in the Constitution does the federal government get the power to tax the sale of a local agricultural product? Setting aside trees trucked in from out-of-state, there’s no interstate commerce here to regulate. And if it’s a tax (which, again, Ag officials deny) — presumably an excise, which is specified in the Constitution and which courts have construed to be a tax on transactions or privileges — how does assessing it to promote the general welfare or common defense? The administration cites the Commodity Promotion, Research and Information Act of 1996, under which the tax mandatory fee funds a new program to “enhance the image of Christmas trees and the Christmas tree industry in the United States.” That’s what passes for the general welfare?
Third, even if the tax is a lawful use of federal power, shouldn’t Congress be the body levying it, rather than an agency of the USDA?
I could go on, but this little 15-cent tree tax is a microcosm of what’s wrong with constitutional law, evermore divorced from the Constitution as it is. Yes, under modern doctrine, the Christmas tree tax can be probably justified under either the Commerce Clause or the General Welfare Clause — and Congress can delegate to bureaucrats the power to levy certain “assessments” — but is that the kind of government we signed up for?
h/t Cato legal associate Chaim Gordon
Yes, Virginia, There Is a Christmas Tree Tax
Via Heritage’s “The Foundry” blog (and the outraged Facebook posts of former Cato interns), behold the Christmas Tree Tax.
It’s an announcement from the Agriculture Department’s Agriculture Marketing Service that it will be levying a fifteen cent tax on Christmas trees, payable to a new “Christmas Tree Promotion Board.” The tax will raise about $2 million from Christmas tree farmers and importers directly. That money comes indirectly from you.
As noted at The Foundry, the Ag Department claims the fifteen-cents-per-tree “assessment” is “not a tax nor does it yield revenue for the Federal government.” This claim fails both informal and formal analysis.
Informal: Do Christmas tree farmers go to jail if they refuse to pay? Yes. It’s a tax.
Formal: Is it a “non-penal, mandatory payment of money or its equivalent to the extent such payment does not compensate the Federal Government or other payee for a specific benefit conferred directly on the payer”? Bingo. Tax.
The formal definition is from the Taxpayer’s Defense Act, a bill I helped write while a congressional staffer after carefully researching the distinction between taxes and other government revenues, such as fines, legitimate fees, and such.
The Taxpayer’s Defense Act would have barred agencies from establishing or increasing taxes without first getting Congress’ approval. The idea was simple: No taxation without representation. And that idea is violated by the Agriculture Department’s new Christmas Tree Tax.
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Uh-Oh: Bipartisan Housing Commission Announced
The words “bipartisan” and “commission” usually send a chill down my spine. I felt such a chill when I learned that the Bipartisan Policy Center (BPC) had formed a Housing Commission to “address the long-term challenges facing a struggling housing sector.” My initial reaction was confirmed when I read that it would be chaired by former government officials and politicians of the establishment type:
- Christopher “Kit” Bond – former U.S. senator (R‑MO)
- Henry Cisneros – Housing and Urban Development (HUD) secretary under President Bill Clinton
- Mel Martinez – former U.S. senator (R‑FL) and HUD secretary under President George W. Bush
- George Mitchell – former Senate majority leader (D‑ME) and BPC co-founder
The most disturbing name is Henry Cisneros. Policies implemented by Cisneros’s HUD helped lead to the housing bubble and bust (see this section on Cisneros from a Cato essay on HUD Scandals). What’s next, Dick Cheney on a hunting safety commission?
Christopher “Kit” Bond, former appropriator and proud porker, hangs himself with his statement on the BPC’s website:
Since serving as Missouri’s Governor, and then as a United States Senator, I have worked to be an advocate for improving public housing and advancing community development. Some of my proudest achievements are helping shape housing policy and programs in homelessness, rural housing, public housing, HOPE VI, and affordable housing. None of these successes would have been possible without strong partners on the other side of the aisle.
In fact, my fellow Commission Co-Chair, and former HUD Secretary, Henry Cisneros and I, were referred to in a 1996 Wall Street Journal article as the ‘Odd Couple’ of federal housing policy – a moniker I still wear as a badge of honor. Though it was a different time in our nation’s history, Henry and I were then – as we are now – committed to coming together to address long-ignored problems with immense implications.
The federal government’s abysmal record on housing (see these Cato essays here for more) is a poster child for government failure. But not only does Bond consider his support for these programs to be among his “proudest” achievements, he actually states that collaborating with Cisneros back in the 1990s is a “badge of honor.”
I’m not sure what Mel Martinez has going for him on housing policy other than that his relatively short tenure as HUD secretary under Bush wasn’t marred by scandal like his successor’s, Alphonso Jackson. At least Martinez acknowledges that the Bush administration continued the Clinton administration’s misplaced emphasis on expanding homeownership.
As for George Mitchell, his claim to federal housing policy fame is that he authored the creation of the Low-Income Housing Tax Credit. Here’s what a Cato essay on public housing has to say about the LIHTC:
Another response to the failure of traditional public housing has been the creation of the Low Income Housing Tax Credit in 1986, which currently subsidizes construction or rehabilitation of roughly 70,000 units of low-income housing each year. This is another failed attempt to manipulate markets, and it has a variety of negative effects. For one thing, the structure of the tax credit program encourages the location of projects in particularly low-income areas, thus exacerbating the concentration of poverty in cities, just as traditional public housing did. Also, the method of allocating tax credits to the states results in many subsidies going to areas of the country where few housing affordability problems exist.
Further, the projects built under the LIHTC program have income caps for tenants, which create the same disincentive effects for personal advancement that traditional welfare programs do. Finally, the program essentially functions as a subsidy program for developers. Economists Edward Glaeser and Joseph Gyourko argue that developers effectively pocket the $4 billion or so in annual federal tax credits, while the rents in buildings constructed under the program are generally no lower than they would have been in the absence of the program.
In a nutshell: an establishment commission is planning to “reform the nation’s housing policy by crafting a package of realistic and actionable policy recommendations” for the Beltway establishment’s consideration. Hold onto your wallets, taxpayers.
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Who’s Winning the Race to Fiscal Destruction: Europe or the United States?
Even though the unwashed masses decided that I didn’t win my stimulus debate in New York City, I continue my fight for the hearts and minds of the American people.
I’m now taking part in a debate for U.S. News & World Report on “Who Is Handling Its Debt Crisis Better: United States or Europe?”
This was a tough question. I asked the organizer whether I could vote none of the above, but I was told I had to pick an option.
As you can see, I said the United States was doing a better job — but only by default.
Our long-run outlook is grim, but at least we still have time to reform the entitlement programs and save America… The only major difference is that European nations are farther down the path to fiscal collapse. The welfare state was adopted earlier in Europe and government spending among euro nations now consumes a staggering 49 percent of economic output. This heavy fiscal burden, especially when combined with onerous tax systems, helps explain why growth is anemic. …the United States still can turn things around. Greece, Italy, and other welfare states have probably passed the point of no return, but it’s still possible for American lawmakers to fix the entitlement crisis by turning Medicaid over to the states , modernizing Medicare into a premium-support system, and transitioning to a system of personal retirement accounts for younger workers. If those reforms don’t take place, the consequences won’t be pleasant. To be blunt, there won’t be an IMF to bail out the United States.
For all intents and purposes, I contend that America can be saved if something like the Ryan budget is approved.
You can vote on this page on whether you like or dislike what I said, as well as what the other participants said.
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‘Government Efficiency’: Trying to Turn Cats into Dogs
I’ll have more to say later on Mitt Romney’s speech on federal spending, but his banal call for making government more “efficient” gave me an opportunity to share some good commentary on the subject. In a recent piece criticizing Indiana’s Republican-led state government for not doing “anything substantive to improve Indiana’s budgetary, fiscal or economic position,” Craig Ladwig, editor of the Indiana Policy Review, nails it:
Most troubling of all is that few in the leadership of either party share our belief that government must be kept small for smallness’ sake. The goal is not to run it “like a business” or make it more efficient (consolidate), but to ensure that government is simple enough that average citizens can understand and monitor its workings. The constitutional ability to do that and a passion for self-government (governing one’s self), thereby reaping the rewards and accepting the consequences, are what is meant by American exceptionalism.
Nor does the current leadership appreciate that government cannot by nature be proactively involved in prosperity, that it cannot create wealth but only refrain from taking it away or destroying it. Even Republicans busy themselves in such neo-mercantile schemes as tax rebates for politically favored companies and industries, or training programs to win more contracts from the federal government. At the same time, they slap a tax on entrepreneurial activity as soon as it finds success, most recently in Internet commerce.
Look, Democrats already work tirelessly to extract from us the revenue to support a bloated, systemically flawed and misguided state government. Do they need Republican help?
Milton Friedman famously described those trying to reform government without changing its makeup as being engaged in an attempt to transform a cat into a dog. This General Assembly may learn to bark, but it will still be a cat.
The “government efficiency” snake-oil salesmanship from politicians has become tiresome, especially when it comes from high-profile Republicans like Mitch Daniels and Mitt Romney. Unfortunately, I don’t see too many people “on the right” taking these people to task for it. So kudos to Craig.
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This Week in Government Failure
Over at Downsizing the Federal Government, we focused on the following issues this past week:
- Dan Mitchell says that sequestration would be a small step in the right direction.
- The Senate vote on rural development subsidies symbolizes just how unserious most policymakers are when it comes to making specific spending cuts.
- Republican hypocrisy on energy subsidies.
- Government cost overruns: One reason to shift infrastructure financing to the private sector is that governments and their contractors often give taxpayers the shaft.
- The Military-Industrial Complex yells “jobs!” in a crowded federal budget.
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