Author Archive

States’ Rights and Illegal Aliens

Monday, August 2nd, 2010

During the summer of 2007 I lived in southern Arizona, about twelve miles from the U.S.–Mexico border. Needless to say, illegal aliens were everywhere. The border patrol regularly caught large groups of them, dangerously dehydrated, wandering lost through the searing desert. It was more common to see illegal aliens being loaded into the back of Border Patrol vans than to see police issuing speeding tickets. The problem is so bad there that the federal government has posted signs on many rural roads that read “Warning, Smuggling and/or illegal entry is common in this area due to the proximity of the international border. Please be aware of your surroundings at all times and do not travel alone in remote areas,” and “Travel Caution: Smuggling and Illegal Immigration may be Encountered in this Area.”

While it is unlikely that “the majority of [illegal aliens] are becoming drug mules,” it is a mistake to minimize the problem. Although most of the illegal aliens probably enter the United States in search of higher wages and government handouts, illegal entry into the United States—especially along the southern border—fosters lawlessness and threatens individual security and property rights. The difficult question is what to do about it.

After decades of frustration over the federal government’s failure to address the problem, Arizona passed SB 1070. Section 1 of the bill states,

The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.

Notice that SB 1070 is an effort by Arizona to enforce “federal immigration laws.” It does not create new legal standards and requirements for immigration. Notwithstanding this, the federal government sued Arizona in federal court, seeking to have the law declared unconstitutional.

It its lawsuit, the federal government complains that SB 1070 violates the Supremacy Clause, found in Article VI, Clause 2 of the United States Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

But claiming that SB 1070 violates the Supremacy Clause seems like a stretch to me. The federal government created a set of laws governing immigration and then adopted a policy of not enforcing those laws. SB 1070 doesn’t conflict with federal law; it conflicts with the federal policy of non-enforcement. A policy conflict doesn’t violate the Supremacy Clause. In fact, Arizona’s actions are probably more constitutional than those of our present and recent presidents. Under Article II Section 3, the President is bound “to take Care that the Laws be faithfully executed.” No honest, thoughtful American can believe that the immigration laws have been faithfully executed.

This doesn’t answer the question, however, of what role the states ought to have in regulating immigration. In other words, just because Arizona hasn’t violated Constitutional restraints by passing its law doesn’t mean that SB 1070 was good policy or that states should have a role in immigration. The drafters of the Constitution included an amendment process for good reason.

Rational critics of the Arizona law—I mean the ones that aren’t out parroting slogans about hate and racism—have offered a number of practical reasons why SB 1070 is a bad idea. See here (Reason Magazine), here (Cato Institute), and here (Cato once again). But good government and legitimate laws must be founded on just principles; mere economic analysis or consequentialist arguments are not enough. So, the initial question is what justifies restricting immigration? What justification exists for regulating movement across national boundaries? I believe that the justification derives from the fundamental individual right of property ownership.

Consider the following startlingly simple argument:

There can be no human right to immigrate, for on whose property does someone else have the right to trample? In short, if “Primus” wishes to migrate now from some other country to the United States, we cannot say that he has the absolute right to immigrate to this land area; for what of those property owners who don’t want him on their property? On the other hand, there may be, and undoubtedly are, other property owners who would jump at the chance to rent or sell property to Primus, and the current laws now invade their property rights by preventing them from doing so.

The libertarian society would resolve the entire “immigration question” within the matrix of absolute property rights. For people only have the right to move to those properties and lands where the owners desire to rent or sell to them. In the free society, they would, in first instance, have the right to travel only on those streets whose owners agree to have them there, and then to rent or buy housing from willing owners. Again, just as in the case of daily movement on streets, a diverse and varying pattern of access of migration would undoubtedly arise

Murray Rothbard, The Ethics of Liberty 119-20 (2nd ed. 1998). In other words, for Rothbard, immigration is simply an issue of private property rights.

For reasons I explained in a previous post (and my lengthy explanatory/rebuttal comments), I don’t accept the idea of absolute private property rights as proposed by Rothbard. This makes the immigration issue more complex, but it is more true to reality. We don’t live in a world of absolute property rights and probably never will.

Additionally, whether we like it or not, many of the systems, resources, and goods in the United States have been socialized. We play in public parks and drive on public roads; we send our children to public schools; and, as of recently, our healthcare system has become socialized as well. Our trash disposal, water, electricity, and gas systems are often government-owned, or at least closely controlled by government. Our telephone, cable, satellite and internet systems and infrastructure are licensed and regulated by government and subsidized through the use of eminent domain. Our financial system is overseen by government regulators, and even our currency depends upon government promises for its value. A system of open borders where landowners control immigration through anti-trespassing laws simply cannot function under these conditions.

Despite all of this, property rights principles still can and should guide immigration law, albeit in a slightly different way. As stated by Rothbard’s argument above, a human right to immigrate would imply the right to enter and or use some property. In the case of private property, the private landowner holds the right to exclude. In the case of government property, the property right belongs to the citizens of the country or state which owns the property. This means that the citizens—through their elected officials—have the right to exclude from government property those who do not satisfy the conditions for its legal use.

This brings us back to the initial question about the role of states in establishing and enforcing immigration law. Traditionally, immigration law has been dominated by the Federal Government, and there is some constitutional support for this: Article I Section 8 Clause 4 explicitly grants Congress the power “To establish an uniform Rule of Naturalization.” But if we justify immigration restrictions by appealing to a modified theory of property rights, the states have at least as much of a right to control illegal immigration as the federal government has. Most public roads are owned by states, counties, and cities. If a utility is government-owned, it is the state or local government that owns it. Police and fire departments are funded through state and local taxes. And public schools are paradigmatically state and local entities. Significantly, these state systems are the ones that are most heavily burdened by illegal immigration.

Given the magnitude of the states’ interest in immigration law, it seems highly unreasonable to insist, as the federal government does in its lawsuit challenging SB 1070, that “the Constitution vests the [the federal government] with exclusive and plenary authority to establish the nation’s immigration policy.” While it makes sense—for uniformity’s sake—to vest control of legal immigration in the federal government, there seems to be no real need to do so for illegal immigration. If a person violates federal law and enters the country illegally, the alien’s state of residence will bear most of the burden that that person causes. So rather than sue the states for trying to protect their taxpaying, law-abiding citizens, let’s let the states protect their interests.

DISCLOSE: Here We Go Again

Wednesday, June 23rd, 2010

Despite the Supreme Court’s recent ruling in Citizens United v. Federal Election Commission (see explanatory video here if needed), Congress seems poised to resume its underhanded and self-serving efforts to control political speech. Congress is now considering legislation, sponsored by Representative Chris Van Hollen of Maryland and Senator Charles Schumer of New York, that would further restrict political speech during election season. This latest legislative effort bears the auspicious title of “Democracy Is Strengthened by Casting Light On Spending in Elections Act,” which generates the acronym DISCLOSE for its short name. (H.R.5175, and S.3295 respectively).

Given the Supreme Court’s clear ruling in Citizens United which protected robust free speech rights, it may surprise you to learn that in many ways the DISCLOSE Act would restrict speech even more aggressively than the law which the Supreme Court recently struck down. For example, the old speech restrictions only applied to electioneering communications that were made within 60 days prior to a general election. The DISCLOSE Act would double that time period to 120 days. Features like this might give the impression, at first glance, that instead of accepting the Court’s scolding for violating the First Amendment, Congress, like a petulant child, is bent on contradiction and belligerence.

But the DISCLOSE Act isn’t just Congress’ reflexive gag to a bitter slice of humble pie. It is cunningly crafted legislation that would, if enacted, stifle challenging, political speech without falling into the same legal pitfalls as the McCain-Feingold Act. Since the Supreme Court rejected an outright ban on all corporations, the DISCLOSE Act pretends to take a more moderate approach. Instead of directly restricting the speech of all corporations and unions, the DISCLOSE Act would directly restrict the speech of only certain classes of corporations. These classes are government contractors if the value of the contract is at least $7 million; recipients of recent government bailout funds; and foreign-controlled domestic corporations. In all fairness, these restrictions are relatively reasonable—as government restrictions go. But the real teeth of the DISCLOSE Act are found—quite fittingly—in the new disclosure requirements. Consider the following.

The DISCLOSE Act expands the definition of “independent expenditure” to include, “an expenditure that, when taken as a whole, expressly advocates the election or defeat of a clearly identified candidate, or is the functional equivalent of express advocacy.” Sec. 201(a). This tack-on at the end about functional equivalence gives the Federal Election Commission broad discretion about what speech it can regulate, and it correspondingly creates uncertainty among potential speakers about what speech is safe from regulation.

The DISCLOSE Act imposes filing requirements on everyone who wishes to spend over a $10,000 on political speech to, “(1) file a report electronically within 24 hours; and (2) file a new report electronically each time the person makes or contracts to make independent expenditures in an aggregate amount equal to or greater than $10,000 (or $1,000, if less than 20 days before an election) with respect to the same election.” Sec. 201(b). These filing requirements apply irrespective of whether it is election season or not. $10,000 may seem like high threshold, but it doesn’t last long when you consider the cost of broadcasting on television and radio. The bottom line is that before you speak about politics in any significant way, you have to warn the federal government of your intentions.

The DISCLOSE Act “Requires corporations, labor organizations, tax-exempt charitable organizations, and political organizations other than political committees (covered organizations) to include specified additional information ….” Sec. 211(a)(5)(A). This information includes, among other things, the names of substantial donors. This disclosure requirement will discourage political speech, especially the speech of those who advocate political messages that don’t agree with their community’s acceptable mainstream. Think, for example, of what this would have done to the civil rights movement in the south. Many political and social issues debated in politics today similarly raise deep prejudice and anger, and publicly disclosing the names of those who support unpopular ideas causes more than minor discomfort.

The DISCLOSE Act requires any television or radio advertisement to include statements by substantial donors stating “‘I am XXXXXXX, and I approve this message.’, with the blank filled in with the name of the applicable individual.” Sec. 214(e). Organizational donors must similarly identify themselves. This, obviously, will waste expensive seconds that would otherwise have been available for the speakers to communicate their message.

This list of restrictions found in the DISCLOSE Act is by no means a comprehensive one, but I think it illustrates a subtle, underhanded strategy for restricting speech that seeks to undermine First Amendment rights while avoiding constitutional challenge. Instead of direct bans, this strategy seeks to increase the costs—both social and economic—for those who wish to exercise their First Amendment rights. It comes on the heels of loud public outcry about many of Congress’s policies, and it immediately precedes an election season in which most voters’ starting assumption will be that “incumbent” means “incompetent and corrupt.” Even if the DISCLOSE Act did nothing more than confuse and intimidate speakers about what was permissible and what was not—which it certainly will do if it is passed, that would be reason enough not to enact it. But this legislation would do far more damage than that.

Trials for Terrorists?

Sunday, June 6th, 2010

As with most issues that appear in the national news, politicians and pundits have badly muddled the question of what to do with non-citizens captured by American soldiers and their allies. The recent debate about if and where to try Khalid Sheik Mohammed has provoked intense debate and strong feelings. For example, in response to President Obama’s plan to bring Khalid to New York for a trial in federal court, Congressman Pete Olson of Texas issued a press release which included the following statement: “This Administration needs to understand what the American people already know. Terrorists captured in foreign battle zones are not like us—they don’t deserve our sacred constitutional rights.” I also oppose measures to try “terrorists captured in foreign battle zones” in federal courts, but for very different reasons.

Congressman Olson is wrong about the U.S. Constitution; it certainly does protect terrorists. It protects everyone. Olson’s mistake is a common one for people who don’t understand the Constitution’s role. The Constitution was meant to restrain the power of the federal government, and its principles derive from self-evident, inalienable rights. These rights belong to all humans as humans. If the Constitution were strictly limited to U.S. citizens or residents, or even if it were limited to people who are not captured in foreign battle zones, it would be ineffective. If membership or non-membership in a category were a prerequisite for having “sacred constitutional rights,” the federal government could avoid constitutional restraints by simply categorizing individuals as unprotected. That process of categorization itself would be unrestrained, because if the government did not have to abide by the Constitution in its dealings with a category of individuals, then it could act however it chose toward them. Such individuals would have no right to a fair trial, no right to due process, no right to be free from torture or even summary execution. This is an absurd result.

But recognizing that terrorists have constitutional rights does not inevitably lead to the conclusion that those rights may or must be adjudicated by federal courts. Although the Constitution is meant to restrain the federal government in all of its interactions, regardless of who it is dealing with, the form of those restraints varies. The important question is not whether terrorists are entitled to constitutional rights, but rather which branch of government is responsible for protecting those rights and the method by which they must be protected. In short, it is an issue of separation of powers and procedural due process.

For Americans today, courts are the natural first choice for protecting constitutional rights. But it was not always so, and the Constitution clearly did not entrust courts with the power to determine those rights in every circumstance. Take, for example, the writ of habeas corpus. The writ of habeas corpus is the legal procedure by which a litigant may compel the government to release a person who the government doesn’t have good cause to imprison. Obviously this is an extraordinarily important procedure, but the Constitution explicitly grants to Congress the power to suspend the writ of habeas corpus “when in cases of Rebellion or Invasion the public Safety may require it.” Art. I, §9, cl. 2. Consider also that the Constitution entrusts to Congress and the President the power to employ military force to destroy the lives or property of foreign nations: “The Congress shall have power … To declare war.” Art. I, §8, cl. 11; and “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States” Art. II, §2, cl. 1. No court is involved even though the rights of those individuals in enemy countries are drastically curtailed by the federal government.

The Founding Fathers recognized a simple truth that many politicians and pundits cannot seem to grasp: judicial adjudication of constitutional rights is neither possible nor even desirable in every circumstance. The task of dealing with individuals captured by the military on foreign battlefields is one of these circumstances. A federal court trial is not appropriate here for at least two reasons: competence and jurisdiction.

Federal courts are not competent to adjudicate the rights of individuals captured on foreign battlefields. This is not because judges are not smart enough or because of flaws in the trial process. Federal courts are not competent for this task simply because the processes and goals of a criminal trial are not compatible with the exigencies and aims of war. The military is not equipped to handle evidence, find witnesses, or investigate crime; it is equipped to achieve victory by bringing death and destruction to our enemies. The purpose of capture and imprisonment in a military context is not to punish wrongdoing or rehabilitate wrongdoers; it is to neutralize threats. Consequently, the federal courts’ complex rules of evidence and procedure that help ensure fairness in regular criminal trials only cause confusion and mistakes when applied in the context of military prisoners. But even more serious than the lack of competence is the problem of jurisdiction.

For a federal court to have authority to decide a case brought before it, it must have jurisdiction over the individuals involved in the case. Generally, a court has jurisdiction over individuals who are within the territory of the nation to which the court belongs. This makes intuitive sense. For example, prostitution is legal in the Netherlands but it is illegal in the United States. Nevertheless, a United States court clearly has no authority to hear cases about people who prostitute themselves in the Netherlands—even though it violates United States law—because it is outside of the jurisdiction of United States courts. Granted this is easier to accept than the terrorist cases because there are not United States troops occupying the Netherlands, and prostitution in the Netherlands doesn’t directly threaten United States’ national security. But the concept is the same. United States courts don’t have jurisdiction over individuals who commit crimes outside of the United States. Any other policy aggrandizes the United States federal courts as arbiters of justice for the whole world, or at least however far United States military power can reach. This is insufferable arrogance.

The jurisdiction of federal courts is also limited by the fact that warfare and national security are the province of Congress and the President. By constitutional design, courts were not given authority over foreign affairs—especially where there is a need for secrecy, rapid response, or coordinated effort. Justice Scalia effectively argued this position in his fiery dissent from the court’s opinion in Boumediene v. Bush.

What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

Boumediene v. Bush, 553 U.S. 723 (2008) (Scalia J. Dissenting). So although it seems like the Supreme Court is protecting individual rights by hearing cases about military detention, it is, in effect, a power grab by the Court. It allows the Court to finally extend its reach into the field of foreign affairs—which for so long has been beyond its power.

For all of these reasons, bringing individuals into United States courts to adjudicate the extent of their constitutional rights is a bad idea. It is a bad idea because federal courts are not competent to handle such cases; it is a bad idea because it aggrandizes the jurisdiction of United States courts beyond their territorial limits; and it is a bad idea because it permits the Court to seize power from Congress and the President, once again, under the guise of protecting individual rights.

So although I reject Congressman Olson’s shocking claim—that terrorists don’t have sacred constitutional rights—we reach the same result. Bringing individuals captured on foreign battlefields into the United States for trial in United States courts is the wrong way to vindicate those rights.

Rights, Risk, and Regulation

Sunday, May 23rd, 2010

Libertarians oppose government regulations. This is arguably their defining characteristic. It is also the reason that many Americans reject libertarian political philosophy as unworkable, utopian, or just plain foolhardy. Other political philosophies on both the left and the right embrace government regulation to some degree; they simply disagree about what and how to regulate.

Personally, I feel uneasy about libertarianism’s blanket rejection of government regulation, and for some time I have tried to reconcile this uneasiness with concepts that are critically important to me like self-ownership and individual equality. I have struggled to explain my uneasiness because I believe that no government action can be justified by mere efficiency, expediency, or convenience. I’m not sure I’ve found a good solution, but here’s what I’ve come up with.

Drawing on principles of human equality and individual rights, libertarianism easily seizes the high ground in any discussion of political principles. But there is, I think, a tendency among libertarians—as well as fiscal conservatives, constitutionalists, and anarcho-capitalists—to overstate the reach of these rights-based arguments against government regulation.

Rights-based arguments against government regulation usually run as follows: I have a right to do X; this regulation restricts me from doing X; and since this regulation violates my right, it should be struck down or repealed. This is a persuasive argument, but it is frequently misapplied. The problem, unsurprisingly, is in determining whether the regulated action truly is an individual right.

Generally, individual rights fall into the three categories that were recognized in the Declaration of Independence: Life, Liberty, and Property (Pursuit of Happiness). These rights are phrased broadly, but it is important to recognize that an individual’s rights are always limited by the rights of others. For example, an individual’s right to life evaporates when he attacks someone else: his right to life yields to his victim’s right to life—expressed as the right of self-defense.

It is easy to accept that no individual has the right to intentionally harm innocent others. This is a clear limit to individual rights, and it is fundamental to criminal law. But government regulations go much further. Government regulations often limit actions which are not meant to cause harm, but which create a risk of unintentional harm. Regulations of this kind cause controversy because they restrict actions which may never actually harm anyone. Libertarians seize on this fact and reject these regulations as a violation of individual rights. On its face, this is potent criticism.

True human equality means that individual liberty cannot be restricted unless it is being exercised in a way that violates others’ rights. Actions which don’t in fact harm anyone don’t seem to violate anyone’s rights, so there doesn’t seem to be any principled justification for government regulation. In general, this is an excellent argument, but it fails in the context of unreasonable risk of irreparable harm.

Individuals have a right to be free from unreasonable risk created by others’ behavior. This is heresy to libertarian philosophy, but I think it is right nonetheless. Individuals have a right not to be exposed to unreasonable risk created by others’ behavior. When individuals choose their home, job, transportation method, recreation, and lifestyle, they simultaneously choose to subject themselves to a certain risk level. They accept that risk level because they believe that it is worth it. If that risk level increases because someone in the community chooses to engage in unreasonably risky behavior, then that person has violated the rights of the other members of the community. Differentiating between unreasonable risk and reasonable risk (risk that is just an unavoidable part of life) is difficult, but community standards provide a benchmark.

Unreasonable risk by itself is not enough to justify regulation, however. Regulation is appropriate only when there is unreasonable risk of irreparable harm. Irreparable harm is harm that cannot be undone by the payment of money, such as death and serious bodily injury. If the harm can be undone by payment of money, then the appropriate remedy is a lawsuit rather than regulation. The reason for this is that regulations are necessarily imprecise. Regulations are general rules that cover a whole class of individuals or activities, so, inevitably, some individuals will be included in the class and subjected to the regulation who should not be. If harm can be undone by the payment of money, the individual who was harmed can be put in approximately the same position as he would have been in had the harm never occurred. So the imprecision of regulation is unjustified.

There are easy cases and hard cases, of course, but I think the principles are clear. Consider the following example. A contractor decides to cut costs by storing his dynamite supply in the basement of his home. He does not intend to injure anyone, but he is nevertheless exposing his neighbors to significant additional risk. In a residential community this risk is unreasonable because dynamite storage is more hazardous than most residential activities and dynamite is not commonly stored in residences. Additionally, if the dynamite explodes, it will likely cause irreparable injury. The opportunity to sue in the event of an accidental explosion is not a good solution to this situation because recovering money in a lawsuit is never adequate recompense for death or serious injury. So, a government regulation prohibiting residential dynamite storage is justified and does not violate the contractor’s rights.

I am only tentatively attached to these arguments. The critical leap is the premise that individuals have a right to be free from unreasonable risk of irreparable harm. I think this is right, but this comes more from gut feeling than reasoned argument.

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.


Thoughts About the Mount Vernon Statement

Wednesday, February 17th, 2010

Today at George Washington’s historic home, the leaders of several conservative organizations signed a document titled “The Mount Vernon Statement.” This document purports to restate the principles and ideas of the American founding and articulate a unifying “Constitutional conservatism.”

Although I agree with some of what this document contains, there are two statements which taint the rest of the project. These statements describe this proposed Constitutional conservatism as follows:

“It encourages free enterprise, the individual entrepreneur, and economic reforms grounded in market solutions.”

“It supports America’s national interest in advancing freedom and opposing tyranny in the world and prudently considers what we can and should do to that end.”

The first of the two statements makes me uneasy simply because it is so ambiguous. What is a policy agenda that encourages free enterprise and economic reforms grounded in market solutions? I can’t tell if this is an endorsement of laissez faire principles or more of the Keynesian economics that we have seen lately.

The second statement seems to endorse the position that the United States is justified in meddling in foreign affairs if it is “advancing freedom” or “opposing tyranny.” I would be much more comfortable with a statement like “provide for the common defense.” Alas, the Constitution’s language isn’t broad enough to justify foreign wars to secure commercial interests, so apparently the authors of The Mount Vernon Statement had to insert something more flexible.

Now I understand that this document is probably just an effort to reunite a conservative movement that has fractured over disagreements about fundamental issues. But the reunification that this document proposes simply ignores the problems. If these people want to build a political movement, they should try using plain language in the style of Ron Paul. You may disagree with what Ron Paul says, but it is clear what he stands for.

As of this writing, the document’s website states that over 7,500 people had signed to show their support. Maybe it will do some good, but I expect that The Mount Vernon Statement will be forgotten within the month.

More on the Healthcare Debate

Wednesday, February 17th, 2010

Today I attended a debate about the nationalization of healthcare. The panelists were Doug Bandow, senior fellow at the Cato Institute; Neville Cox, director of post graduate teaching and learning at Trinity College Dublin School of Law; and David P. Fidler, Professor of Law at Indiana University Maurer School of Law.

Surprisingly, the panelists agreed on many issues. All agreed that having health insurance tied to employment was foolish; that the present U.S. healthcare system was unsustainable and that radical changes were necessary to prevent serious negative consequences; that efforts to resolve the problems with healthcare at a national level will continue to be undermined by the substitution of political maneuverings for reasoned solutions; that there is no successful system of nationalized healthcare in the world; that the American people has an obligation to care for the poor and needy in its society; and that all healthcare systems demand uncomfortable tradeoffs.

Since I didn’t take careful notes and since my memory isn’t good enough to write a play-by-play account of the debate, I will simply summarize what I understood the panelist’s positions to be.

Professor Cox argued that the British healthcare system where the government provided health insurance was a good model, and cited statistics which place the United States at the bottom of industrialized nations in healthcare quality. He thought that the “public option” element of President Obama’s healthcare plan was essential to ensure that individuals with chronic healthcare problems requiring expensive care had access to insurance. He argued that healthcare was an area in which individual autonomy would have to yield to social need. He recognized that this would entail the rationing of healthcare and that government would have to make the rationing decisions—especially in areas where the likelihood of the patient surviving was low and the treatment costs were high. Overall he supported President Obama’s plan and hoped that it would succeed.

Professor Fidler began by trying to explain why the recent efforts to reform healthcare had failed. He argued that the public simply doesn’t believe President Obama’s claims that the healthcare bill would not require deficit spending. Government efforts to provide services in the past had always gone over budget—usually dramatically over, so the public simply isn’t willing to believe that healthcare would be any different. He almost scoffed at the idea that President Obama would be able to squeeze any real money out of the Medicare and Medicaid programs. Evidence of this is the fact that Congress passed a benefit cut to Medicare and Medicaid in 2002, but for the past 7 years they have postponed the bill’s effective date in response to political pressure. Professor Fidler also speculated that the public was genuinely afraid of radical change to their health insurance plans, and that the public did not believe Obama’s assurances that those who were happy with their current health insurance would see no change in the system. He also questioned, if healthcare were truly such a high priority for the country, then why would the Obama administration be unwilling to use deficit spending to fund it? Nevertheless, he conceded that the current health insurance system was badly broken.

Mr. Bandow of the Cato Institute was clearly used to debates of this kind. He had numerous facts and concrete examples at his disposal to illuminate his arguments. He began by clarifying the statistic that Professor Cox cited about the quality of United States healthcare. He noted that if accidents and violent crimes were eliminated from the statistical calculations, then the United States healthcare quality would rank in the middle range of scores from industrialized nations. Mr. Bandow next argued that the problems with United States health insurance were caused by perverse incentives: the patient is not directly paying the costs, and healthcare providers benefit from high costs. In other words, of the two parties who make decisions about what treatment a patient should receive, one doesn’t care how much it costs because the insurance company is paying for it, and the other wants the costs to be high because high costs yield profits. Consequently, there is very little incentive to reasonably evaluate whether a treatment is necessary or even beneficial before paying for it. This system drives up costs and wastes resources. Real reform, Mr. Bandow argued, will not simply provide more healthcare services to more people; United States citizens already consume much more healthcare on average than the citizens of any other nation. Real reform would place incentives toward efficiency on the individuals who were making the decisions about what treatment was necessary and what treatment was not. This would eliminate waste and reduce costs. This would also allow individuals rather than government bureaucrats to make the hard decisions about issues like end of life care and treatments with a low likelihood of success.

So there you have it. Three perspectives on healthcare reform. If any of the positions above seem unclear, please post a comment and I will try to clarify what the panelist meant.

Without going into too much depth, I just want to point out that except for the unanimous-but-indistinct affirmations that the United States has an obligation to care for the needy, none of the panelists argued from a basis of principles. Nothing was said about whether compelling individuals to purchase health insurance would violate important principles of individual autonomy. Nothing was said about whether granting government power to make decisions about medical care for individuals would violate important principles of individual liberty. Nothing was said about whether taxing the many to support the few would violate property rights. Are we too far down the rabbit hole to worry about such things anymore? Instead the panelists relied on consequentialist/utilitarian arguments grounded in economic theories about which plan would maximize healthcare overall.

Efficiency and Commerce for All

Thursday, February 11th, 2010

You probably own something which is worth more to you than the money you could sell it for. Wedding rings and family heirlooms are obvious examples. Suppose that this thing which you value so much had been damaged in some way, and you took it to a repair shop. Suppose that this repair shop, as is common, was in the business of selling as well as repairing items like yours. Suppose lastly that, because of mistake or malice, the repair shop sold your item instead of returning it to you. Certainly, you would want to recover your item and would expect the law to support your claim. After all, you have a right to your property, and when the repair shop sold your property instead of returning it to you, your property right was violated. Protecting property rights is one of the essential functions of government; in the words of the Declaration of Independence, “to secure these rights, governments are instituted among men.” But in the circumstances described above, your high expectations would be disappointed. Under current law, although you could sue to recover the monetary value of the item, you could not recover the item itself.

State law governing the sale of goods is based on a body of model statutes called the Uniform Commercial Code (UCC). Instead of arising from the usual legislative process, the UCC was written by two private legal organizations and then enacted—with a few modifications—by the legislatures of most states. See UCC Introduction. The provision of the UCC that would prevent you from recovering your item in the circumstances described above reads as follows, “Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in the ordinary course of business. … regardless of any condition expressed between the parties …” UCC § 2-403(2)-(3).

So we see that in some circumstances state law explicitly refuses to protect you from clear violations of your property rights. This isn’t earth-shattering news. It probably won’t make you jump out of your chair and start a revolution. Nevertheless, it is worth noting because this and other laws which work similar mischief are evidence of a dangerous trend in society’s view of property rights. Put simply, concerns about commercial efficiency have come to trump principles of justice.

The efficiency justification for UCC § 2-403 runs something like this: commerce depends upon low-cost transactions between buyers and sellers. If buyers were obliged to return goods that they had purchased under circumstances like those described above (a repairman wrongfully selling goods that were only entrusted to him for repair), then buyers could never be certain that they actually owned the goods that they paid for. This uncertainty about ownership would have inefficient consequences. For example, some buyers would pay to investigate whether the seller had actual ownership of the goods; some buyers would buy anonymously to avoid the risk; and some transactions simply wouldn’t happen at all. These inefficiencies and other consequences of uncertainty would stifle commerce.

I don’t know whether these efficiency concerns stem from sound economics, but it doesn’t really matter. The important question is not whether a law is efficient; the important question is whether a law is just. Just laws are the foundation of individual liberty because just laws recognize and protect individual rights. UCC § 2-403 is an unjust law because after implicitly recognizing a property right, it declines to enforce it. Sadly, this is not an isolated problem.

This substitution of efficiency for justice manifests itself in many other areas of the law. In real property law, for example, the U.S. Supreme Court ruled that the Constitution did not bar government from seizing the homes of private citizens and giving them to a corporation if that corporation could show that it would make more efficient use of the land. Kelo v. City of New London, 545 U.S. 469 (2005). In nuisance law, courts now allow individuals to damage their neighbor’s property through the creation of a nuisance if that nuisance produces economically efficient results. Boomer v. Atlantic Cement Co., 26 NY2d 219 (1970). These are only two examples of many.

Justice is the heart of good law. If we substitute efficiency for justice, law becomes nothing more than a manipulable mechanism for invoking government force. Justice is a foundational part of American traditions. Among the few phrases of the Pledge of Allegiance that have remained constant—and have not been the target of law suits—is the phrase “liberty and justice for all.” Do we really want to substitute such noble ideals with an uninspiring surrender like “efficiency and commerce for all”?