From the June 2011 Kaiser Family Foundation tracking poll (by “health reform” they mean ObamaCare):
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Interstate Compacts and Do-It-Yourself Federalism
With the federal government’s growing assertion of power over the states — Obamacare is just the highest-profile example — state legislators regularly contact me for advice on how to push back while remaining constitutionally faithful. What can they do in areas like health care, immigration, drug decriminalization, and firearm regulation?
One innovative solution is interstate compacts: states can actually create binding federal law by joining together in a sort of multi-state contract. Typically they need Congress’s (but not the president’s) consent, but the Supreme Court has held that when the compacts don’t implicate challenges to federal power, they don’t even need that.
For example, Texas is now considering joining a Medicaid/Medicare compact established by Georgia and Oklahoma. Many states are considering a Health Care Freedom Act compact, which use preexisting congressional consent for criminal-justice-cooperation compacts to mutually enforce state laws prohibiting the forced purchase of health insurance.
I discussed these innovative policy solutions — on which the law is untested — in a recent podcast. More broadly, however, there are plenty of things states (and of course their citizens!) ought to be considering if they want to reestablish the dual — actually tripartite, adding individuals — sovereignty at the heart of Constitution’s structural protections of liberty. (For more on that point, see part IV of Cato’s most recent Obamacare brief and part III of Justice Kennedy’s opinion in Bond v. United States.)
To that end, our friends at the Goldwater Institute recently released a major new report called “Federalism-Do-It-Yourself: 10 Ways for States to Check and Balance Washington.” The report outlines 10 legal tools that states can use to stand up to federal overreach, without resorting to so-called nullification (states can’t simply declare federal law void). The report includes a number of examples of how these tools have been used in isolated cases and recommends that states embrace them in a clear strategy to start holding the federal government to its constitutional role. From Goldwater’s press release, some of the tools include:
Reinvigorate the Reserved Powers of the States
Remember the REAL ID Act, the federal government’s attempt to create a national identification card through state driver’s licenses? REAL ID never was carried out because 14 states refused to comply. The Supreme Court has ruled the 10th Amendment prevents the federal government from “commandeering” or forcing state officials to implement federal policies. In “Federalism DIY,” author Nick Dranias writes there are many other areas where the federal government has fooled states into helping to carry out federal mandates when they don’t have to.
Strategic Legislation Plus Litigation
The U.S. Supreme Court has recognized that states can grant more freedom and civil rights to their residents than what’s protected in the Constitution. And states can use this power to thwart federal efforts to impose new mandates on people. For example, 28 states are challenging President Obama’s health care law in two lawsuits out of Virginia and Florida. Both lawsuits won the first round before U.S. district judges and now are on appeal. Both judges ruled the states could challenge the federal law only because many states have adopted the Health Care Freedom Act, which protects a person’s right to choose his own doctors and not buy government-controlled health insurance. To date, no lawsuit against Obamacare without a state government as a plaintiff has a single victory.
Coordination with Local Governments
Laws creating many federal agencies, such as the Bureau of Land Management, include a standard but little-known provision requiring these agencies to “coordinate” proposed new rules with local governments. This means the agency must sit down with a local government and honestly attempt to craft a rule that doesn’t conflict with existing local policies. If the federal agency fails to do so, a court can block the new rule. Three counties in Utah used the right to coordination to stop the BLM from releasing diseased wild horses onto public ranch lands.
There’s a lot of good stuff in there, so kudos to Nick Dranias and Goldwater for creating this federalism toolkit.
Are Corporations People When They Make Video Games?
I note that I’m not hearing many critics of Citizens United decrying yesterday’s very welcome Supreme Court ruling, in which the majority held unconstitutional a California statute prohibiting the sale or rental of violent video games to minors. Perhaps that’s just because they’re concerned with corporate influence on elections as a policy matter, and not so much about Grand Theft Auto, but as a matter of First Amendment interpretation, it seems as though the elements that supposedly made Citizens United a travesty are present here.
As the conservative Justice Alito notes in dissent, for example, the statute at issue here does not prohibit anyone from creating, possessing, freely loaning, or playing violent video games: It regulates only their rental and sale. In other words: Money isn’t speech! The majority opinion—authored by Scalia, but joined by the Court’s most liberal justices—roundly rejects the relevance of that distinction, which “would make permissible the prohibition of printing or selling books—though not the writing of them. Whether government regulation applies to creating, distributing, or consuming speech makes no difference.” While, of course, money isn’t speech, the majority here understands that when the effect and purpose of a regulation is to restrict expression, the First Amendment is not some hollow formalism, and also limits regulation that functions by targeting enabling transactions rather than the speech directly.
None of the justices seem to make much of the obvious fact that the great majority of popular video games—and probably just about all of the ones exhibiting the level of graphical sophistication and realism at issue here—are produced, marketed, and sold by (uh oh) corporations. In fact, the passage quoted above focuses entirely on acts (“creating, distributing, or consuming”) rather than particular actors, just as the First Amendment itself prohibits government interference with speech not with this or that type of speaker. The Court simply observes that because the statute “imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny.” In dissent, Justice Thomas argues that the games are not “protected speech” in the context of the statute, because the Founders would have considered all speech directed at minors unprotected (a premise whose chilling implications the majority is quick to point out). Justice Breyer allows that video games—including violent ones—are indeed “protected speech,” but argues that studies linking them to violence are enough to give the state a “compelling interest” in limiting their dissemination. What nobody suggests, even in passing, is that video games might cease to be “protected speech” if the statute were limited to games manufactured and sold by corporations—which, in practice, is pretty much all the games we’re talking about.
Someone who welcomed this decision as a victory for free speech, but nevertheless supports regulation of independent political expenditures, can always take Breyer’s route: Maybe God of War III is not really harmful enough to make its prohibition a compelling state interest, but the degradation of democracy by corporate influence is a serious enough problem that its regulation survives “strict scrutiny,” overriding ordinary First Amendment protection even in the domain of political speech normally regarded as its core. That is not a position I find plausible, but it is at least coherent. The position I doubt can be made coherent is one according to which a prohibition of a commercial transaction instrumental to corporate-produced speech (and intended precisely to curtail that speech) should not even trigger First Amendment protections when the speech expresses a political opinion, whereas the same prohibition is unconstitutional if the speech is about Kratos impaling a minotaur on his Blades of Chaos. Though if that’s the form political expression has to take to enjoy constitutional protection, I look forward to the impending release of Palinfamous 2 and Barack Band III.
Did They Learn Correlation and Causation in College?
It looks like Peter Thiel won’t be unopposed advising kids to stay out of college
Thanks to a new report from Georgetown University economist Anthony Carnevale, and a David Leonhardt column based on Carnevale’s study, over the last few days the college-for-all crowd has been striking back. But they seem to have missed something in their own college training: correlation does not equal causation.
Carnevale, Leonhardt, and others’ argument is basically that there are big, positive returns on a college degree. It’s something, frankly, that’s not generally in dispute. I say “generally,” because while on average college grads make a lot more than people without a degree, there’s a lot more to the story than averages. Indeed, there are at least three major problems with making averages the basis for a universal-college offensive, problems that Andrew Gillen recently laid out in a terrific blog post. I won’t reinvent the wheel by going into them all (read Andrew’s post) but I’ll summarize them: (1) There are huge throngs of people who attempt college and never finish, a giant population ignored when you just look at completers; (2) at least part of the college wage premium is simply a function of a degree signaling something about the intelligence, work habits, etc. that graduates already possessed; and (3) there are some majors and degrees that confer no great wage premium and are in about as much demand as Betamax or gangrene.
What is most concerning about the Carnevale report, however, is how the report and its fans make the very basic mistake of conflating correlation with causation in implying that the roughly one-third of bachelor’s holders in jobs not requiring degrees are much better workers thanks to their BAs. They base that conclusion on degree-holders in non-degree jobs earning appreciably more than workers with only high-school diplomas. Heck, a graphic to go with Leanohardt’s column trumpets that dishwashers with college degrees make a lot more than dishwashers without them, a data point seized on by the Fordham Institute’s Peter Meyer to attack anyone who dares say college isn’t the best option for everyone.
Once the dishwasher example comes up, is there any way to escape the causation/correlation problem? Any way to not at least seriously contemplate that it isn’t what someone learned in college that makes him or her a better dishwasher, but that someone able to graduate college will tend to be more punctual and reliable? Heck, even if you believed that the proverbial underwater basket weaving major existed, it would be very hard to conclude that the skills one would need to make the finest submerged wickerwork would be useful for getting dinner plates spotless, even though that often occurs underwater.
And many of the public service jobs cited in the graphic, such as firefighters? At least from what we know about teachers, government employee pay scales often give salary bumps for degrees, but degrees don’t necessarily have any bearing on job effectiveness.
People like Carnevale and Leonhardt are right to guard against efforts, especially by public-school employees, to actively push kids away from college, in particular if that’s driven by students’ class or race. But shoving everyone into ivy walls? Based on what we know, that’s equally unjustifiable.
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Republicans Getting Rich off ObamaCare
Here we have the spectacle of a former Republican Health and Human Services secretary getting rich by helping states implement ObamaCare. Leavitt Partners (among other consultants) is helping states create the law’s health insurance “Exchanges.” Or the non-ObamaCare-compliant health insurance Exchanges that will by law become ObamaCare-compliant Exchanges. Via Politico:
More than $300 million in exchange grants has already flowed into the states since the Affordable Care Act passed. That number will grow exponentially in the coming months, as states move from the initial steps of passing exchange legislation to the more lucrative task of setting them up.
For health consultants and information technology vendors, it’s already shaping up to be a gold mine…
The opportunity is, seemingly, everywhere. Even in states that have used executive orders and heated rhetoric to push back against implementation of the reform law, vendors still see possible contracts.
“There is a group that feels as though they don’t want to be associated with the Affordable Care Act,” said Leavitt Partners CEO Michael Leavitt, who was Health and Human Services secretary under President George W. Bush. “Privately, though, it’s clear that several of those are planning behind the scenes, because they don’t want to have a federal exchange.”
These Exchanges—there is no such thing as a state-run Exchange—are the government bureaucracies that will make health insurance more expensive, induce employers to drop coverage, entrench ObamaCare, and dole out hundreds billions of debt-financed government subsidies to insurance companies.
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Should American Taxpayers Finance another Big Fat Greek Bailout?
It appears that American taxpayers are about to subsidize another Greek bailout (via the Keystone Cops at the IMF). This is way beyond economically foolish. It is also morally offensive.
To turn Winston Churchill’s famous quote upside down, “Never have so many paid so much to subsidize such an undeserving few.”
Let’s start with a few facts:
- Greece’s GDP is roughly equal to the GDP of Maryland.
- Greece’s population is roughly equal to the population of Ohio.
- Despite that small size, in both terms of population and economic output, Greece already has received a bailout of about $150 billion (actual amount fluctuates with the exchange rate).
- Don’t forget the indirect bailout resulting from purchases of Greek government bonds by the European Central Bank.
- Now Greece is angling for another bailout of about $150 billion.
Is there any possible justification for throwing good money after bad with another bailout? Well, if you’re a politician from Germany or France and your big banks (i.e., some of your major campaign contributors) foolishly bought lots of government bonds from Greece, the answer might be yes. After all, screwing taxpayers to benefit insiders is a longstanding tradition in Europe.
But from a taxpayer perspective, either in Europe or the United States, the answer is no. Or, to be more technical and scientific, the answer is “Heck no, are you friggin’ out of your mind?!”
Consider these fun facts from a recent column by John Lott and then decide whether the corrupt politicians of Greece (and the special interest groups that receive handouts and subsidies from the Greek government) deserve to have their hands in the pockets of American taxpayers:
Despite Greece’s promises, government spending is up over last year’s already bloated levels, the deficit is bigger than ever, and it has utterly failed to meet the promised sell-off of some government assets. Not a single public bureaucrat has been laid off so far. …Greece can pay off €300 of the €347 billion debt by selling off shares the government owns in publicly traded companies and much of its real estate holdings. The government owns stock in casinos, hotels, resorts, railways, docks, as well as utilities providing electricity and water. But Greek unions fiercely oppose even partial privatizations. Rolling blackouts are promised this week to dissuade the government from selling of even 17 percent of its stake in the Public Power Corporation. …Greeks apparently believe that they have Europe and the world over a barrel, that they can make the rest of the world pay their bills by threatening to default. Greece’s default would be painful for everyone, but for Europe and the United States, indeed for the world, the alternative would be even worse. If politicians in Ireland, Portugal, Spain, Italy, and other countries think that their bills will be picked up by taxpayers in other countries, they won’t control their spending and they won’t sell off assets to pay off these debts. Countries such as Greece have to be convinced that they will bear a real cost if they don’t fix their financial houses while they still have the assets to cover their debts. …The real problem is the incentives we are giving to other countries. We have to make sure that “Kicking the can down the road” isn’t an option.
Just for good measure, here are a few more interesting factoids in a Wall Street Journal column by Holman Jenkins.
[Greece is] one of the most corrupt, crony-ridden, patronage-ridden, inefficient, silly economies in Christendom. …The state railroad maintains a payroll four times larger than its ticket sales. When a military officer dies, his pension continues for his unwed daughter as long as she remains unwed. Various workers are allowed to retire with a full state pension at age 45.
To be blunt, Greek politicians have miserably failed. Wait, that’s not right. You can’t say someone has failed when they haven’t even tried. Let’s be more accurate and say that Greek politicians have succeeded. They have scammed money from taxpayers in other nations to prop up a venal and corrupt system of patronage and spoils. Sure, they’ve made a few cosmetic changes and trimmed around the edges, but handouts from abroad have enabled them to perpetuate a bloated state. And now they’re using a perverse form of blackmail (aided and abetted by big banks) to seek even more money.
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For ObamaCare, June Has Been a Very Cold Month
That’s the subject of my latest Kaiser Health News column:
Obamacare passes two milestones this month. It has been exactly two years since the first version of the legislation appeared in Congress. And it has now enjoyed exactly two years of solid public opposition. Yet this month has been harsher than most.
It is almost enough to make you feel sorry for ObamaCare. Almost.