Archive for April, 2010

Sugary, Salty Liberty

Wednesday, April 21st, 2010

Some people make foolish decisions. Or, at least, to me they seem foolish. You see, I like being healthy. I enjoy waking up in the morning with a clear head. I value playing sports and being able to climb a flight of stairs without feeling unwell, and I hope to live a long, happy life. But some people don’t seem to value those things as much as I do. I know this because of what these people choose to eat, drink, smoke, snort, chew, inject, or otherwise do to their bodies. I also know this because these people fail to maintain their bodies in good physical condition. These seem like foolish decisions to me because of what I value.

Even aside from my preferences, I believe that destroying one’s body—either through neglect or deliberate choice—is morally wrong. This belief derives from my faith that God created mankind and that He has commanded us to live healthily.

Yesterday, the Institute of Medicine (IOM) released a report identifying excessive salt intake as the cause of serious health problems in the United States. On its website, it summarized the findings and circumstances of the report as follows:

Population-wide reductions in sodium intake could prevent more than 100,000 deaths annually. In 2008, Congress asked the IOM to recommend strategies for reducing sodium intake to levels recommended in the Dietary Guidelines for Americans. In this report, the IOM concludes that reducing sodium content in food requires new government standards for the acceptable level of sodium.

Some misunderstanding led the Washington Post to report that due to the findings in this study, the Food and Drug Administration (FDA) intended to regulate the salt content in food:

The Food and Drug Administration is planning an unprecedented effort to gradually reduce the salt consumed each day by Americans, saying that less sodium in everything from soup to nuts would prevent thousands of deaths from hypertension and heart disease. The initiative, to be launched this year, would eventually lead to the first legal limits on the amount of salt allowed in food products.

In a statement posted on its website the FDA promptly denied plans to implement regulations limiting salt content:  “A story in today’s Washington Post leaves a mistaken impression that the FDA has begun the process of regulating the amount of sodium in foods. The FDA is not currently working on regulations nor has it made a decision to regulate sodium content in foods at this time. ”

Despite the FDA’s denial, at least two concerned legislators declared their support for regulations limiting salt content. Commenting about the nonexistent FDA plans to regulate, Senator Tom Harkin (D-Iowa), chairman of the Health, Education, Labor and Pensions Committee, said, “I understand they want to do it in a phased kind of a deal, but I don’t want it to be too long. … This is crying out for change that’s long overdue.” Representative Rosa DeLauro (D-Conn.) was similarly concerned: “I don’t want this to take 10 years. . . . This is a public health crisis.”

Evidently, although the FDA is not presently planning to follow the recommendations of the Institute of Medicine, some members of Congress think that unhealthy food is a serious crisis calling for a rapid regulatory response.

Salt is not the only regulatory target for these health-conscious legislators, and the federal government isn’t the only one advocating regulation. Some state legislators seem to be thinking along the same lines. Yesterday, a Reuters article noted that

New York City, which has banned smoking and artificial trans-fats in restaurants, has pledged to coordinate a nationwide effort to reduce salt in restaurant and packaged foods by 25 percent over five years. … California state Senator Dean Florez introduced legislation in February to tax sodas and other sugar-sweetened drinks and use the proceeds to bankroll programs to fight childhood obesity.

Notwithstanding my personal preference for a healthy lifestyle and notwithstanding my moral beliefs, I oppose government regulations that ban the sale of unhealthy foods because I believe in human equality. Not in the sense that all people are equal in their abilities and accomplishments—that is clearly not true. I believe in human equality in the sense that every person should be treated equally in the eyes of the law. This isn’t just a principle that applies in criminal cases or fights over government “entitlements.” This principle governs the relationship between the citizens and their government. It is an essential principle of liberty.

The consequence of a belief in human equality is that no person has the right to dictate to another the lifestyle she must live or the values she must adopt. As long as a person is not violating the rights of someone else, she must be permitted to make her own choices—even if the consequences are bad. (The obvious caveat here is for relationships such as parent/child relationships and guardian/mentally incompetent relationships.)

Regulations banning unhealthy food change this relationship. They assume that one person has the right to impose his values on someone else. Of course they are couched in language brimming with benevolent intentions, but in essence they reject the principle that “all men are created equal.” Consider the interaction on a basic level. Suppose that Nate makes crackers and Dave wants to buy some. But Joe knows that Nate’s crackers are unhealthy. Dave will not heed Joe’s advice to avoid Nate’s crackers, so Joe says to himself, “For Dave’s good, I will threaten Nate with physical violence or loss of property if he continues to sell those unhealthy crackers.” Is this a relationship of equals? Certainly not! Joe is placing himself in a position of superiority over both Dave and Nate. This is called a paternalistic relationship.

Some try to justify such paternalistic relationships by arguing that it is for Dave’s own good. But who is to determine what is good for Dave? Among equals, Dave would determine what is good himself—even if Joe is more knowledgeable or intelligent. Perhaps Dave does not share Joe’s faith in modern medical research. Perhaps Dave enjoys the pleasure of eating crackers so much that he is willing to accept the risk of health problems in the future. Perhaps Dave simply is not willing to exercise his mind or strength of will long enough to understand the health risks and choose not to eat the crackers. Joe is free to try to persuade Dave not to eat unhealthy crackers, but not to use the threat of force to interfere in a voluntary transaction between Nate and Dave. Whatever the reason for Dave’s decision to eat the crackers, no matter how irrational or foolish it might seem to Joe, the principle of human equality demands that Dave be permitted to choose for himself.

I value a healthy lifestyle. I enjoy playing sports and hiking with my wife and kids. I want to live a long time so I can enjoy my family relationships and the joys of just being alive. For me liberty is doing these things. But for some, liberty is sugary and salty.

The Administrative State: A Crack in the Foundation of Liberty

Sunday, April 18th, 2010

On 16 June 1933, the front page of the New York Times announced the enactment of President Roosevelt’s New Deal legislation:

Assuming unprecedented peacetime control over the nation’s economic life, President Roosevelt placed in operation today his sweeping program for recovery from the depression.  Within two hours he signed acts of Congress giving him control over industry, power to coordinate the railroads, and authority to start work on a $3,300,000,000 public works program, and then began the active administration of these and other major measures.

N.Y. Times, A1 (6/16/1933).

This expansion of government power marked a radical departure from our country’s founding principles of liberty. Over the next few years the federal government spawned over 100 new agencies—called the alphabet agencies—to wield this power. This was the beginning of the administrative state.

The administrative state is incompatible with liberty for many reasons, most of which have to do with laissez-faire principles. But one reason that should persuade even the most committed statist is that adopting the administrative state undermines the core constitutional principle of separation of powers.

Long before the founding fathers began worrying about American independence, statesmen and political philosophers had advocated separating the powers of government. The idea itself is rather simple: if a single governing body possesses the power to write the law (legislative power), enforce the law (executive power), and apply the law to individual cases (judicial power), then there is nothing to prevent that governing body from destroying liberty. James Madison wrote about the importance of separating government’s powers as follows:

No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

James Madison, The Federalist No. 47

When the powers of government are distributed among coequal branches, the excesses and extremes of any one branch are moderated by the other two. For example, if the executive branch tries to use its power to unlawfully oppress an individual or group, the judicial branch can declare its actions unlawful, or the legislative branch can enact a law to prevent the oppression. Of course, if all three independent branches conspire together to destroy liberty, then separation of powers will not help. But having such a combination is far less likely than having just one of the branches run amok.

Nazi Germany, which exemplified many of the evils of unrestrained government power, serves as apt illustration of the consequences of disregarding the principle of separation of powers:

Independence of the judiciary was destroyed. Judges were removed from the bench for political and ‘racial’ reasons. Periodic ‘letters’ were sent by the Ministry of Justice to all Reich judges and public prosecutors, instructing them as to the results they must accomplish. Both the bench and bar were continually spied upon by the Gestapo and SD, and were directed to keep disposition of their cases politically acceptable. Judges, prosecutors and, in many cases, defense counsel were reduced in effect to an administrative arm of the Nazi Party.

United States v. Altstotter, Nuremburg Military Tribunals case no. 3 pg 7 indictment count 1 ¶ 7 (1947).

I am not arguing that disregard for the principle of separation of powers directly caused the horrors of Nazi Germany. I am confident, however, that separating the three primary government powers helps guard against such radical movements. This should appeal to individuals on every part of the political spectrum.

It is critical to understand that keeping government powers separate is the people’s responsibility. Each of the three branches will naturally press against the limits of its power—even when not driven by radicalism. That is the nature of power. So, if the people disregard the principle of separation of powers, each branch will gradually usurp the power of the others.

Usurpation by the judicial branch is called judicial activism, and it frequently attracts media attention and public anger. But the harm to separation of powers wrought by the administrative state, sometimes called the “unelected fourth branch of government,” attracts little notice today—although it was vehemently opposed in its early years.

So, how does the administrative state undermine the principle of separation of powers? The following quote from the United States Court of Appeals for the Ninth Circuit helps illustrate:

Most federal administrative agencies combine within one organization a number of responsibilities that our system of government normally seeks to separate. They formulate policy as does the legislature, administer policy as does the executive, and adjudicate controversies as does the judiciary. They investigate infractions of statutes or regulations, prosecute those against whom their investigation has established a prima facie case, and judge the case they themselves have presented.

Grolier v. Federal Trade Commission, 615 F.2d 1213 (9th Cir. 1980)(citing W. Gellhorn & C. Byse, Administrative Law, Cases and Comments 1035 (1974)).

In brief, most federal agencies violate the principle of separation of powers.

Unfortunately, this isn’t just another academic issue that will never touch the life of the average citizen. Agencies write volume upon volume of regulations each year. Most businesses are subject to agency regulation, and the consequence is that consumers must pay higher prices for goods and services. Agency regulation is particularly costly because it lacks the tempering influence of separation of powers.

Since the legislative, executive, and judicial functions are merged in many federal agencies, an agency’s regulatory goals may change drastically on short notice. Executive agencies are particularly volatile because every time the nation elects a new president, executive agencies get new leadership and the agencies’ regulatory goals change. When regulations change, businesses must spend money to comply, and these expenses are passed along to consumers.

Notwithstanding all this, I think it is important to recognize that the problems which agencies are created to solve are not often trivial. Usually they are serious problems which demand a meaningful solution. But the administrative state is not it. The administrative state violates the principle of separation of powers and permits the elected branches of government to punt tough issues of governance to unelected bureaucrats.

When the wealthy go hunting, they often employ people called beaters to walk in the thickets and startle animals into the open. If the animals were intelligent, they might recognize that they had two options besides running out in front of the hunters’ guns: stay put and let the beaters wander by or, if the beaters get too close, attack the poorly-armed beaters as they grope blindly through the thicket.

Choosing the administrative state in an effort to solve the nation’s problems is to permit fear or discomfort to drive us into a rash decision which undermines liberty; it is like the animal choosing to run out in front of the hunters’ guns. We must not forget that we have other options. If a problem is not yet concrete, if it is still possible that it will not come about, we can dig in deeper and wait for clearer information. Perhaps advances in technology will solve the problem. Maybe the potential problem will turn out to be nothing more than an unfounded suspicion. Finally, if we find that the problem is unavoidable, we can attack it head on. Our elected representatives can craft thoughtful legislation in harmony with the Constitution to solve those problems which are capable of solution.

Citizens United v. FEC

Friday, April 2nd, 2010

A few weeks before the 2008 primary election, a non-profit corporation called Citizens United tried to release a video criticizing Hillary Clinton. Federal campaign finance laws prohibited this, so Citizens United sued. In 2010, the Supreme Court ruled that those campaign finance laws were unconstitutional because they violated the First Amendment. President Obama publicly criticized the Supreme Court’s decision.

This video explains why President Obama was wrong and the Supreme Court was right.

There are three parts to this video.