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Credits for Crucifixes. Or: What’s the Matter with Kagan?
Justice Kagan’s dissent yesterday in the Supreme Court ruling upholding Arizona’s education tax credits seems to me so obviously mistaken on both the facts and the law that I feel I must be missing something. I offer my initial analysis briefly below, and if anyone can tell me if/where I’m going wrong, my e‑mail address is just a Google away.
First, Kagan and her fellow dissenters express dismay at the putative novelty of the majority’s distinction between tax credits and government spending. But, more than a decade ago, this very same distinction was acknowledged by the Arizona Supreme Court in Kotternman v. Killian, and that AZ Court ruling itself cites a string of precedents from around the country supporting it. Clearly, the majority’s ruling is far from novel, and Kagan and the dissenters should know that.
Next, Kagan claims that the majority’s ruling would preclude taxpayers from suing the government for operating a program that gives tax credits exclusively to one religious group. She claims that taxpayers of other faiths would lack standing. That seems quite wrong. The pivotal issue is that taxpayers would have to show a specific personal harm resulting from the government’s actions in order to have standing. In the case of Arizona’s tax credits, as the majority acknowledged, there is no harm to taxpayers. Everyone is eligible for the credit and credits can be claimed against donations to any type of scholarship organization, of any faith or no faith. By contrast, under Kagan’s straw man example of a credit for the purchase of crucifixes, non-christian taxpayers would suffer a specific personal harm: they would be denied the right to use the credit to purchase religious symbols of their own faith (or to buy “Who is John Galt?” posters if they happened not to be religious). This harm would be the direct result of government action–specifically, of the government’s decision to favor Christians over members of other faith groups and secular taxpayers.
A program that discriminates based on religion causes harm to taxpayers by virtue of excluding them from participation. That, in turn, is a clear equal protection violation, not to mention a violation of at least two of the three prongs of the First Amendment Lemon Test, and so such taxpayers would not only have standing to sue they would win the suit.
Again, the AZ tax credit program causes no such harm, because anyone, regardless of faith, can participate, and no one is compelled to support any kind of religious education. Why could Kagan and her co-dissenters not see this?
Obama and Military Tribunals
Yesterday, Obama’s attorney general, Eric Holder, held a press conference and announced that Khalid Shaik Mohammed (KSM) would be prosecuted for war crimes before a military tribunal. It’s probably fair to say, as some newspapers have noted, that the idea of bringing KSM to New York City to be tried in civilian court for the 9/11 atrocity was Holder’s “signature” decision since becoming attorney general–and that that idea is now dead. However, Obama and Holder conceded a place for tribunals more than a year ago and they could never really offer a good explanation as to why some persons would go to civilian court and why others would go before tribunals. Like Bush, Cheney, and Rumsfeld, Obama and his people would just sorta decide case-by-case.
Conservatives are chortling over Obama’s apparent embrace of Bush policies, such as keeping Guantanamo open and reviving trials before tribunals. Like the escalation of the war in Afghanistan, however, Obama has not stumbled on to the correct path. He has instead shown exceptionally poor judgment yet again. Two questions are now looming on the horizon. First, prosecutors are anxious to have a lengthy 9/11 trial, but what if KSM calls the tribunal a farce and decides to skip the trial, plead guilty, and then demands to be executed so he can become a martyr? The tribunal might grant the wish, but the legitimacy of the military system may be called into question again–especially in the Muslim world. Second, the Pentagon has made it pretty clear that anyone acquitted by a tribunal will remain a prisoner at Guantanamo (pdf). There may be a legal rationale for that, but, again, how is that going to be perceived by the world? As a start, one might consider how we would react if an American were acquitted by a court abroad, but was nonetheless returned to his prison cell to be detained indefinitely.
There is no need to go there. Obama should close Gitmo and transfer the prisoners to Bagram and hold them there, but with full transparency. The Bush policies of secret prisons, secret interrogation methods, and secret trials before special military courts were wrongheaded and remain so.
For additional background, go here.
Federal Spending: Ryan vs. Obama
House Budget Committee Chairman, Paul Ryan, introduced his budget resolution for fiscal 2012 and beyond today entitled “The Path to Prosperity.” The plan would cut some spending programs, reduce top income tax rates, and reform Medicare and Medicaid. The following two charts compare spending levels under Chairman Ryan’s plan and President Obama’s recent budget (as scored by the Congressional Budget Office).
Figure 1 shows that spending rises more slowly over the next decade under Ryan’s plan than Obama’s plan. But spending rises substantially under both plans—between 2012 and 2021, spending rises 34 percent under Ryan and 55 percent under Obama.
Figure 2 compares Ryan’s and Obama’s proposed spending levels at the end of the 10-year budget window in 2021. The figure indicates where Ryan finds his budget savings. Going from the largest spending category to the smallest:
- Ryan doesn’t provide specific Social Security cuts, instead proposing a budget mechanism to force Congress to take action on the program. It is disappointing that his plan doesn’t include common sense reforms such raising the retirement age.
- Ryan finds modest Medicare savings in the short term, but the big savings occur beyond 10 years when his “premium support” reform is fully implemented. I would rather see Ryan’s Medicare reforms kick in sooner, which after all are designed to improve quality and efficiency in the health care system.
- Ryan adopts Obama’s proposed defense (security) savings, but larger cuts are called for. After all, defense spending has doubled over the last decade, even excluding the costs of wars in Iraq and Afghanistan.
- Ryan includes modest cuts to nonsecurity discretionary spending. Larger cuts are needed, including termination of entire agencies. See DownsizingGovernment.org.
- Ryan makes substantial cuts to other entitlements, such as farm subsidies. Bravo!
- Ryan would turn Medicaid and food stamps into block grants. That is an excellent direction for reform, and it would allow Congress to steadily reduce spending and ultimately devolve these programs to the states.
- Ryan would repeal the costly 2010 health care law. Bravo!
To summarize, Ryan’s budget plan would make crucial reforms to federal health care programs, and it would limit the size of the federal government over the long term. However, his plan would be improved by adopting more cuts and eliminations of agencies in short term, such as those proposed by Senator Rand Paul.
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Tuesday Links
- Republicans have a big opportunity to undo Obamacare and reform Medicaid and Medicare all at once.
- It’s a good thing, too, because we’re facing a big debt crisis and if we don’t change course, federal spending will crest 42% of GDP by 2050.
- There’s also a big elephant in the room in an excessively complicated tax code.
- One has to wonder if the Republicans intend to put the big sacred cow of defense spending on the table.
- Unrelated to the budget, education choice proponents scored a big victory in the U.S. Supreme Court yesterday in ACSTO v. Winn, a decision that upheld education tax credits:
Paul Ryan and Political Discipline
Today POLITICO Arena asks:
Paul Ryan’s budget — hard-headed fiscal sanity or inhumane?
My response:
Either we discipline ourselves, painfully, or soon enough the Chinese and other lenders will do it for us, more painfully still, by refusing to loan to us any longer at currently low interest rates. And in that event, the debt service will be all consuming. Neither individuals nor nations can go down the road we’re on without paying the price.
Margaret Thatcher put it plainly: “The trouble with socialism” — let’s be honest, we’re socializing the costs of our appetites by imposing them on our children and grandchildren — “is that eventually you run out of other people’s money.”
Inhumane? The inhumanity is among those demagogues who put us on this path, promising something for nothing year in and year out. Paul Ryan deserves our gratitude for biting the bullet at last. The ball is now in the court of the demagogues.
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Does Virginia Even Have Standing to Challenge Obamacare?
As I described yesterday in the context of Cato’s latest brief, Virginia’s challenge to the constitutionality of the individual mandate is now on appeal before the Fourth Circuit (the federal appellate court that covers Maryland, Virgnia, and the Carolinas). Before the court even considers the constitutional merits, however, it must confirm that the state has standing to bring the lawsuit in the first place.
Indeed, two amicus briefs filed by some law professors argue that the state does not have the legal power to challenge the constitutionality of Obamacare. But Pacific Legal Foundation attorney and Cato adjunct scholar Timothy Sandefur filed a brief responding to those briefs and arguing that Virginia does have standing to bring the case.
Here’s the issue: Article III of the Constitution only lets federal courts hear “cases and controversies,” which means that a plaintiff — whether an individual, a state, a corporation, or any other entity — must have been actually harmed in a way that courts can address. For example, courts can’t review abstract political arguments or give advisory opinions. Here, Virginia argues that it’s been injured because it passed a Health Care Freedom Act that prevents citizens from being forced to buy health insurance — which is obviously in conflict with the individual mandate.
The professors say, in contrast, that states can’t pass laws that conflict with federal law as a means of getting in court and challenging the constitutionality of the federal law. They point to Massachusetts v. Mellon, a 1923 decision that said states don’t have the “duty or power to enforce … [citizens’] … rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them as parens patriae.…” They argue that the “the state’s interest in enforcing its legal code must necessarily give way to federal law whenever a conflict arises,” and that “[m]anufacturing a conflict with federal law cannot of itself create an interest sufficient to support standing.”
PLF’s brief explains, however, that states have had the power to do precisely that since at least McCulloch v. Maryland, the 1819 case that upheld the constitutionality of the national bank (and which is central to the Necessary and Proper Clause analysis at the heart of the larger constitutional debate over Obamacare). In McCulloch, Maryland passed a law taxing the bank simply to give it the ability to challenge the bank’s creation in the Supreme Court. Although the Court found the bank constitutionally kosher, it never denied that the state couldn’t raise its claims. And the Supreme Court has allowed states in many other cases to challenge federal laws that intrude on their constitutionally retained sovereignty.
In South Dakota v. Dole (1987), for instance, the Court allowed the state to challenge the constitutionality of laws that infringed on the power to regulate alcohol consumption (by tying federal highway funds to states’ raising their drinking age to 21) — a power that the Twenty-First Amendment leaves to states. If states can defend powers retained by the Twenty-First Amendment, why can’t they defend powers retained by the Tenth Amendment?
And states should have the power to bring these lawsuits, because the Founders intended for states to serve as a check against Congress going beyond its constitutional authority. In Federalist 46, for example, Madison assured skeptics that states would have “means of opposition” against federal overreaching, and those means would include “the embarrassments created by legislative devices.” States are supposed to defend their turf in the federal constitutional scheme. As for cases like Mellon, PLF argues that these cases involved “political questions” and so were not rulings about standing: in those cases the states weren’t really exercising their sovereign powers. But in this case, Virginia has clearly exercised its sovereignty by passing the Health Care Freedom Act.
Interestingly, one reason PLF argues that states should have standing to bring these cases is because there’s some question whether individual citizens are allowed to bring Tenth Amendment challenges. That question will be resolved this term in Bond v. United States, a case in which Cato filed an amicus brief in December. If individuals are hard-pressed to defend the federalist structure, then states certainly should be able to.
In short, PLF’s brief (which was also filed on behalf of Americans for Free Choice in Medicine and Matt Sissel, PLF’s client in a different Obamacare case) makes a complicated but crucial argument supporting states’ ability to defend federalism by challenging the constitutionality of federal overreaching. More at PLF’s blog.