From the Washington Examiner: 

In June 2011, 11-year-old Skylar Capo saved a baby woodpecker from her family’s cat. “I’ve just always loved animals,” the aspiring veterinarian told her local news station. “I couldn’t stand to watch it be eaten.”

After rescuing the bird, Capo kept it by her side in a small cage for a few days to make sure it wasn’t injured. She even took it along on a family trip to the local Lowe’s hardware store. With the hot sun beating down overhead, Capo decided to carry the cage inside the store so the tiny woodpecker wouldn’t get overheated in her car.

Little did she know, these acts of compassion violated a federal statute against the “possession” or “transport” of a migratory bird — or that a Virginia game warden would be on her family’s doorstep days later demanding payment of a $535 fine.

And today’s Washington Post reports that a seven-year old boy was suspended from school because he carefully created a handgun out of the poptart he was eating and then said “bang, bang” to a schoolmate. A time-out would have been an overreaction. A suspension?

It’s hardly big news, right? Another of our freedoms gets banned in Washington every day. But this time it’s not just particular constitutional rights. They don’t like the whole idea. Or at least the word, on a license plate. 

The District of Columbia allows residents to purchase vanity license plates. And as Chris Moody and Chris Wilson of Yahoo! News describe, there are strict rules about what you can say on your vanity plate:

According to the official list of banned D.C. plate combinations, it may take some extra creativity to get your idea accepted by the city’s meticulous censors. The capital city’s DMV has a 53-page list of 26,993 license plate no-no’s that prohibit everything from praising the local baseball team to expressing disgust with the Internal Revenue Service. The list was made available through a Freedom of Information Request filed by the transparency website Gov​ern​men​tAt​tic​.org.

You can check out your own ideas at the interactive tester below. Moody and Wilson note that you can’t have such interesting plates as “GOPSUX,” “GODEMS,” “RONPAUL, ““GVTSUX,” ANTIIRS,” “OBAMA,” “BARACK,” or “OBAMA44.”

And that’s right, you can’t have a license plate reading “FREEDOM.”

You can have “LIBERTY,” though, which might suffice. Wonder how they made that distinction. I tried a few other ideas. I once noted that Starbucks wouldn’t let you print “laissez-faire” on a customized Starbucks card. D.C. is more accommodating and has no objection to “LFAIRE.” “GAY” is OK, and perhaps surprisingly so are “HOMO” and “ANTIGAY.” I’ll bet the list of banned words will be constantly growing. “FEMNIST” passes muster, and so does “ANTIFEM.” But don’t try “SEX” or “SEXY.”

Moody and Wilson noted that you can’t have “RONPAUL” or “OBAMA.” But you can have “JEBBUSH”—who is speaking at Cato tomorrow, by the way—or “JEB2016” or “JEB45.” Also “HILLARY” and “BIDEN16.” (“CHRISTIE” is too long, but you can have “CHRISTI” or indeed “CHRIST.”) Hmmm, I’m beginning to wonder why you can’t have “RONPAUL.” But you can have “RAND,” “RAND16,” or indeed “AYNRAND.”

Try your own combinations. Just don’t expect to get “FREEDOM.”

One of the more interesting and potentially influential amicus briefs in United States v. Windsor, the case challenging DOMA Section 3, is one filed by a group of federalism scholars, all of whom have some connection to Cato and/​or are generally sympathetic to the positions we take at the Center for Constitutional Studies. As Dale Carpenter puts it on the Volokh Conspiracy blog:

Today I’m proud to join three of my co-Conspirators — Jonathan Adler, Randy Barnett, and Ilya Somin — as well as Ernie Young and Lynn Baker in filing an amicus brief in United States v. Windsor arguing that DOMA Section 3 is unconstitutional. While this conclusion is shared by 69% of constitutional law professors around the country, our route to that end is probably not as widely shared.

Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis. Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power. It is also not a “necessary and proper” measure to carry into execution any of Congress’s enumerated powers. Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states. The federal government claims a hitherto unknown and sweeping power to determine marital and family status. While Congress has not (yet?) claimed a statutory authority to bar states from recognizing specific marriages, it has greatly complicated and burdened their police power to do so through the enforcement of DOMA. It may well be that Congress has authority to limit access to specific federal benefits otherwise available to validly married people. But Section 3, as an across-the-board enactment untethered to any specific power, is not plainly adapted to serve any “legitimate” interest of the federal government.

This may be an appealing argument for those on the Court who take federalism seriously and have a problem with Section 3 but may not be ready to extend the constitutional right to marry to same-sex couples. Coincidentally, the justice most likely to fall into that category is Anthony Kennedy—who will almost certainly be the swing vote in these cases—but the four “conservative” justices could also sign on to something like this even as they vehemently reject the broader constitutional argument in Hollingsworth v. Perry (the Prop 8 case) or in future cases challenging state denials of marriage licenses. The four “liberal” justices, meanwhile, don’t care about limiting federal power through constitutional structure, but will presumably vote to strike down Section 3 on equal protection grounds.

Indeed, as I wrote in December, “I could see an opinion stating that marriage is an issue that our federal system leaves to the states and the federal government has to respect each state’s definition of it in granting benefits based on that status. That would mean that federal benefits would operate differently in different states, but so be it; gay married couples would have an incentive to live in the growing number of states that recognize their relationships.”

This federalism argument may ultimately be too clever because the federal government certainly does have the power to define the terms in its statutes, which would collapse the issue in Windsor back to whether the restriction on DOMA’s definition of marriage survives equal protection analysis (on which see Cato’s brief). It would also probably be a mere way-station on the road to full marriage equality, becoming increasingly academic as more states allow same-sex marriage. But, as I said, it’s more likely to resonate with certain members of the Court—and could have the potentially more important benefit of strengthening federalism in other areas of policy.

It would also mean the striking down of arguably the most signficiant federal law on federalism grounds in the modern era. We shall see.

If everyone judged the state and its agents by the same moral standards that they used for ordinary people, then nearly all of us would be libertarians. Judged in this way, essentially all governments behave appallingly.

“Yes,” comes the standard reply, “but we don’t judge governments by the same standards. The state is different, you see.”

Of course, it’s only fair to ask why that might be the case. This month at Cato Unbound, philosopher Michael Huemer does just that, addressing several of the standard reasons why the state purportedly has license to behave very differently from the rest of us. He finds them all lacking in one way or another.

Huemer’s essay draws on his new book, The Problem of Political Authority, in which he addresses nearly all of the most common justifications for treating the state as a moral agent with legitimate powers beyond those of the rest of us. For those who usually shy away from philosophy, Huemer is an intuitionist—he doesn’t build abstract systems of thought, which may or may not be convincing or even comprehensible. He begins instead with common, widely shared intuitions, in the hope that nearly all of us, whether utilitarians, deontologists, virtue ethicists, agnostics, or otherwise, will find his conclusions compelling.

To discuss with him, we’ve recruited a panel of distinguished thinkers of varying persuasions: George Mason economics professor Bryan Caplan, libertarian scholar-activist Tom G. Palmer, and Binghamton University philosophy professor Nicole Hassoun.

As always, Cato Unbound readers are encouraged to take up our themes, and enter into the conversation on their own websites and blogs, or on other venues. We also welcome your letters. Send them to jkuznicki at cato dot org. Selections may be published at the editors’ option.

When it comes to India, Washington Post reporter Rama Lakshmi seems to have no trouble recognizing that government benefits just might attract votes:

Trying to rekindle the fire of India’s economy, Finance Minister P. Chidambaram promised Thursday to rein in a runaway deficit even as he raised spending on welfare schemes that the government hopes will woo voters in elections scheduled for next year.…

“The finance minister faced two counter-veiling pressures: to present a populist, voter-friendly budget and also control the huge fiscal deficit,” said Vir Sanghvi, a political analyst. “What he presented was a ‘this-is-the-best-we-can-manage-under-the-circumstances’ kind of a budget. . . . He is hoping that the economy will improve and prices will come down by the time of the election. That is a big political gamble.”

Chidambaram promised to increase spending on rural welfare schemes, rural roads and jobs, food guarantees for the poor, women’s safety programs, tax breaks on loans for first-time home buyers and a women’s bank.

Is it really impossible to suspect that similar programs might have similar effects in the United States?

On Friday, the State Department released its draft Environmental Impact Statement (EIS) on the Keystone XL pipeline. It could not have been much worse for pipeline opponents.

The majority of the opposition has united around the climate change meme—that the approval of the Keystone XL will assure the viability of the Alberta tar sands as a major global oil supplier, a situation which they claim would mean “game over” for the climate.

I have been arguing that such a characterization of the project is nonsense.

The State Department sees things the same as me.

Here is a particularly salient point from the just-released EIS:

If all such pipeline capacity were restricted in the medium-to-long-term, the incremental increase in cost of the non-pipeline transport options could result in a decrease in production from the oil sands, perhaps 90,000 to 210,000 barrels per day (bpd) (approximately 2 to 4 percent) by 2030. If the proposed Project were denied but other proposed new and expanded pipelines go forward, the incremental decrease in production could be approximately 20,000 to 30,000 bpd (from 0.4 to 0.6 percent of total [Alberta tar sands] production) by 2030. (As examined in section 4.15, such production decreases would be associated with a decrease in greenhouse gas emissions in the range of 0.35 to 5.3 MMTCO2e annually if all pipeline projects were denied, and in the range of 0.07 to 0.83 million metric tons carbon dioxide equivalent (MMTCO2e) annually if the proposed Project were not built.)

Translating the State Department’s calculated emissions reductions into global temperature savings, 0.35 to 5.3 MMTCO2e becomes 0.0000002°C to 0.000003°C of temperature savings annually for not building the Keystone XL and all other pipelines for transporting tar sands oil (in both Canada and the U.S.), and the 0.07 to 0.83 MMTCO2e becomes 0.00000004°C to 0.0000005°C of annual temperature savings if the Keystone XL were denied but other proposed new and expanded pipelines go forward.

Even for our climatically-concerned president, these amounts are insignificant and not worth pursuing.

Basically, the State Department’s EIS offers nothing for President Obama to hide behind if he were to deny the project on climate concerns.

Environmental activists Bill McKibben, James Hansen, Robert Kennedy Jr., and the likes have lost the battle in terms of the science.

All they can hope for now is a decision heavy on symbolism and emotion and light on facts and science.

The rest of us can hope that common sense prevails.

Being that we are dealing with Washington DC decision-making, the odds are probably pretty much stacked against us.

The debate over scholarship tax credit (STC) programs continues. Yesterday, Professor Kevin Welner of the University of Colorado at Boulder responded to my rebuttal of Valerie Strauss’ faulty analysis in the Washington Post’s blog. Welner, who wrote a book that was critical of STC programs, makes several points worthy of consideration. However, he ultimately fails to defend Strauss from any of my central criticisms. Contrary to Strauss’ claims, STC programs do benefit low-income families, donors do not “profit” from the tax credits, and STC programs are significantly different from vouchers. Finally, Welner is correct that the true fiscal impact of STC programs is unknown but the available evidence suggests that savings are likely.

STC Programs Do Benefit the Poor

In conceding that there is “no question that these programs … do indeed provide financial assistance to many lower-income families,” Welner flatly contradicts Strauss’ assertion that low-income families do not benefit. (Strauss correctly noted that tax-credit scholarships do not always cover full tuition, but then incorrectly concluded: “Poor families can’t make up the difference. Guess who can.”) So while Strauss did not directly admit that she was wrong, at least she was willing to let Welner do so on her behalf.

However, Welner then continues, “This [that low-income families benefit] is particularly true in states like Florida that means-test the recipients… It appears to be much less true in states like Arizona and Georgia… In those states, the programs also provide a great deal of assistance to upper-income families.”

Welner’s assertion is misleading because he neglects to provide context. Nine of the ten corporate-donor STC programs, including Arizona’s, contain means-testing provisions. The same is true for five of the seven individual-donor STC programs, the only exceptions being Arizona and Georgia. So when Welner refers to “states like Florida” he means every single STC program except for two, but when he expresses concerns about “states like Arizona and Georgia” he actually means just one of Arizona’s two STC programs and Georgia’s.

Welner notes correctly that I avoided “making many specific claims about the actual distribution of benefits” because there is little available evidence. That is why it is especially odd for him to claim that a “great deal” of upper-income families benefit in Arizona and Georgia. Though that’s technically possible in Georgia, he provides no evidence to support his claim.

Moreover, Welner did not address the evidence that I presented regarding Arizona’s non-means-tested individual STC program, which showed that more than two-thirds of scholarship recipients’ families earned less than 185% of the federal poverty line (the same threshold as both the federal free-and-reduced lunch program and Arizona’s means-tested corporate STC program). He also ignored the reports showing that the average annual family income of scholarship recipients was only $24,250 in Florida and $29,000 in Pennsylvania, far below the means-testing thresholds. If there is any reason to believe that recipients in other states should be significantly different, Welner doesn’t provide it.

STC Donors Still Do Not Benefit Financially From Credits

Here again, Welner’s argument is an implicit refutation of one of Strauss’ central assertions, namely that donors benefit simply by receiving tax credits. (She wrote: “Call it welfare for the rich. Why? Wealthy businesses and individuals are the folks who get the tax credits for putting up the cash to pay the tuition.”) Welner argues that donors can “make a profit on their donations, by taking a federal tax deduction on top of their 100% tax credit from the state.” While more nuanced than Strauss’ analysis, this claim is still flawed.

First, Welner again neglects to provide context. Of the ten corporate STC programs, only Arizona, Florida and Georgia offer 100% credits, and Georgia’s credit is capped at 75% of the donor’s total state tax liability. In the other seven states, where credits range from 50% to 90%, donors would save money by simply paying their taxes.

Second, even in the three states that offer 100% tax credits, donors merely break even. Donors could otherwise deduct the state taxes that they would have paid, so they do not “profit” in any way. Whether a donor reduces her federal tax liability by deducting the $1000 she paid in state income taxes or by making a tax-credit eligible donation of $1000 and taking the federal charitable donation deduction makes no difference with regard to the amount of federal taxes she pays. In each case, her taxable income is reduced by the same amount and she pays the same federal taxes.

Donors and Scholarship Swapping

Welner also raises a separate concern that some donors could benefit as recipients by designating a friend’s child as the recipient of their donation in return for the same. First it’s worth noting that “earmarking” is expressly forbidden in almost every state. Moreover, this practice should not be seen as problematic in states with means-testing provisions. That said, Arizona and Georgia should either means-test their STC programs or forbid earmarking, in line with the other states.

STC Programs Are Different From Vouchers

Contrary to Welner’s assertion, Strauss did in fact claim that STCs are vouchers. She wrote: “The program… allows individuals and businesses to take a dollar-for-dollar tax credit for a donation to an organization that offers school vouchers.” She also incorrectly claimed that STCs use “public money” at least five times. As I explained, vouchers and tax credits “differ greatly in terms of funding and administration.” Welner objects that they do not really “differ greatly”. Readers can decide.

Vouchers entail government appropriations of public funds. By contrast, as the U.S. Supreme Court has held, STC programs do not involve “public funds”. Welner wonders what I mean when I state that “every state supreme court to address the matter” has agreed. In addition to the Arizona decision that Welner cites, there were also two appellate decisions in Illinois that ruled that tax credits are not “appropriations” or “public funds”. (Illinois’ tax credits are for personal educational expenses.) The Illinois state supreme court, in declining to hear further challenges, affirmed the appellate courts’ rulings. Likewise, a trial court in Montana ruled that tax credits are not government appropriations. The Montana Supreme Court affirmed the lower court’s decision though on other grounds, neither rejecting nor directly affirming the trial court’s finding on that question. In most states, school choice opponents have not even bothered to challenge STC programs on these grounds.

The differences in administration are significant as well. In a voucher program, the state government collects applications and disburses funding. Allocations are made uniformly or by a set formula. By contrast, under a STC program, numerous private entities make these decisions and, within state guidelines, they can set differing rules for eligibility and tailor funding based on the distinct needs of families. For example, some scholarship organizations prioritize special-needs children, some consider academic merit, and others are concerned only with financial need.

Welner is correct that the “purposes and end result” of vouchers and STC programs are “largely the same,” but programs with similar ends can have very different means. Welner’s example of mortgage subsidies versus mortgage interest deductions is inapposite because there is no third party involved. A more apt comparison would be food stamps versus tax deductions for donations to food pantries. I assume Welner would not object to my claim these programs greatly differ in terms of funding and administration, even though the purposes of each are largely the same.

Fiscal Impact of STC Programs

Welner objects to my statement that “well-designed STC programs such as those in Arizona, Florida, and Pennsylvania actually save states money by decreasing state expenditures more than they decrease state tax revenue.” I based my assessment on academic and government studies of each state’s STC program.

An independent study of the fiscal impact of Arizona’s STC program in 2009 determined that it saves the state between $99.8 million and $241.5. In 2010, the Florida legislature’s nonpartisan Office of Program Policy Analysis and Government Accountability (OPPAGA) estimated that Sunshine State taxpayers saved $1.44 for every dollar of revenue reduced by the tax credits. In the same year, the Commonwealth Foundation reported that Pennsylvania saves $512 million a year as a result of its STC program, while reducing state tax revenues by about $40 million.

Welner takes issue with one of these, arguing that Florida’s OPPAGA study is based on questionable assumptions regarding the number of students who were induced to leave the public school system because of the STC program. Welner correctly notes that it is not possible to truly ascertain the number of switchers. It’s also worth noting that the average scholarship sizes in Arizona, Florida and Pennsylvania are $1,861, $3,664, and $990 respectively. By contrast, the most recently published per pupil expenditures in each state are $9,139, $9,975, and $14,167 respectively. Moreover, these figures do not account for the fact that low-income students and students with special needs are more expensive for the state to educate, so the savings are even greater when they switch.

Even Welner concedes that it is likely that Florida’s STC program does save money, though he is skeptical that Arizona’s does. It’s not clear why he thinks that, considering that the scholarships are 37% of public school spending per child in Florida compared to only 20% in Arizona. In states where the tax credits are worth 50% or 65% of donations, the likelihood of savings is even greater.