Its the usual half-hour of public-affairs television excellence on Devil’s Advocate this Friday night, but in two segments. First, Il Mondo Vecchio owner Mark DeNittis sits down with me to describe how the USDA recently put his Denver-based artisan cured meats company out of business. That’s right, two Italian guys talking about sausages. Then Bob Berry of USAmends.com swings by to discuss the so called “fiscal cliff” and how the debate around sequestration has been distorted by both sides of the aisle. That’s Friday night at 8:30 PM on Colorado Public Television 12.
Archive for the 'Regulation' Category
There are some good reasons to get high on pot.
The Independence Institute held no position on Amendment 64, legalizing recreational marijuana. And I know not everyone is thrilled about Colorado becoming the Amsterdam of America. But like it or not, it is in our state constitution.
So let me throw out this idea – even if you hate pot being legal, there are some great victories for limited government hidden inside this issue.
First, we finally have a state-rights issue that the Left can, must and will understand and fight to preserve.
Marijuana is still very illegal by federal law, but now it’s protected by our state constitution. I am no legal expert on the U.S. Constitution, but I don’t see anything in it that gives the Feds power over Colorado on this one. But what the hell do I know? I didn’t see anything in it that could let the Feds tax us for not buying health insurance.
Pardon me for stealing this phrase, but, this is a great teachable moment. This is a massive opportunity for those of us who fear the growing central authority in D.C. Some portion of the Left will now agree with us. We need to embrace this challenge and take a lead in educating Coloradans about the Tenth Amendment before the Left tries to pervert it somehow.
In order for those who support pot to keep in legal in Colorado, they MUST embrace the Founders’ ideal of Federalism. And I believe we need to help them understand the power of this simple ideal, and why it applies to a whole lot more than weed.
But if you hate Amendment 64 and wish it smothered out of existence, the only way that can happen now is if you embrace what the Left embraces: federal power trumping the expressed wishes of a sovereign state. Perhaps, like health insurance, the Feds can tax us for not purchasing dope, but they’ll have to pervert the Constitution (again) to override the vote in Colorado.
Here’s the second little prize in Amendment 64. Legalized pot MIGHT force some on the Left to face their hypocrisies, like their confusion on property rights and freedom of association.
In Colorado, it is illegal for an owner of a private establishment to allow tobacco smoking in their bar or restaurant. No one here is free to enjoy a cigar and a steak, or a cigarette and a cup of coffee, in the same place and time. Smokers cannot freely associate with other smokers, enjoying their legal product, in private establishments. Smokers are treated like lepers. My elitist hometown of Boulder is about ready to make smoking outdoors on the Pearl Street Mall illegal. Now that about 65% of Boulder voted for pot, will pot smokers and their business owners be treated like their tobacco-smoking brethren?
Tobacco is taxed at an exorbitant rate, regulated to the point of making it a controlled substance. State cigarette tax windfalls are spent on childhood reading programs and building sidewalks. Will the state heap wild sin taxes on pot and spend that money in ways that have nothing to do it?
I am looking forward to owners and customers of pot businesses opening their eyes (if they can pry their baked eyes open) to how abusive regulation destroys what they are trying to build.
We have a problem getting our message of limited government outside of our own echo chamber. If you doubt that, I’ll remind you of the last election. Well, here’s an uncomfortable opportunity to try something different.
Let’s channel our best Voltaire: I disagree with your decision to legalize pot, but I’ll defend to the death your state’s right to do it.
Last week our Energy Policy Center put on the third in a series of women-only energy debates. This one focused on vehicle regulations (like CAFE standards) and was titled, “Minivans vs. Smart Cars.” As always, it was a great output of high powered intellectual forces, with both sides making excellent points and engaging in an entertaining style. If you’re like me and unable to attend these debates because of your testosterone, then don’t worry. Here is the audio file from the debate. ENJOY!
LADIES! Please join us tomorrow, Wednesday the 10th, for our 3rd women’s energy debate!
TOPIC: Smart Cars vs. Minivans
Ladies debate CAFE standards, smart cars, hybrids and government subsidies. Are higher CAFE standards good for families? Are kids safe in a smart car? Can these products thrive in a free market.
Marita Noon, author of Energy Freedom and Director of Energy Makes American Great. http://energymakesamericagreat.org/
Linda Gorman, economist and Director of the Independence Institute’s Health Care Policy Center.
Susan Perkins, Principal at Perkins Energy Law, http://www.perkinsenergylaw.com/
Angie Layton, attorney and alternative energy advocate, http://www.angielayton.com/meet/
Attendance is FREE!
Lunch and On-Site Child Care is also provided for FREE!
Event starts at 11:30am, here at the Independence Institute Freedom Embassy in Uptown Denver.
RSVP to Cherish@i2i.org or call 303-279-6537 x118.
This is only for women. NO MEN ALLOWED! An audio podcast of the debate will be available on this Facebook page after the event for anyone to listen to.
Put down your Dostoyevsky novel and your vodka glass because we’ve got the Issue Paper for you. If you’ve ever wondered about weapons law in Russia, look no further than this Independence Institute Issue Paper titled, “Weapons Laws of the Russian Federation.” If there’s a small space in your heart for the finer things in Russian life (and a hatred of Stalin), we urge you to brush up on some Russian weapons law now!
Each year for the past five years, the American Legislative Exchange Council (ALEC) has produced an informative bit of research called, “Rich States, Poor States.” In it, an all-star cast of authors (Art Laffer, Stephen Moore, and Jonathan Williams) pore through financial data, fiscal policy, regulatory policy, debt ratios, labor policy, legislation and more to rank every state in accordance to their level of prosperity now and the direction they are headed. For the last 4 editions, Colorado had ranked solidly in the top 5 or 6 – with a strong showing at number 2 just 4 years ago. However, in the latest edition of Rich States, Poor States, we have fallen to number 8. Why is this? Jonathan points out that we carry a huge burden of debt, that we’ve enacted a slew of “fee” increases (FASTER, dirty dozen) recently, and we’re still not a right to work state. All of those count as negatives towards growing economically and thus, contribute to our slide down the rankings.
We had the good fortune to have co-author Jonathan Williams in town at an event here at the Independence Institute Freedom Embassy last week. Fast thinking Fiscal Policy Center director Penn Pfiffner grabbed Jonathan for a quick podcast on the latest edition of Rich States, Poor States. You can find the podcast over on iVoices.org here.
With the Supreme Court probably voting on the constitutionality of Obamacare (a term the President proudly embraces) on Friday, the health control law’s academic friends are diligently attempting to do what the entire United States Department of Justice could not do after two years of litigation: articulate plausible limiting principles for the individual mandate. Over at Balkinization, Neil Siegel offers Five Limiting Principles. They are:
1. The Necessary and Proper Clause. “Unlike other purchase mandates, including every hypothetical at oral argument on Tuesday, the minimum coverage provision prevents the unraveling of a market that Congress has clear authority to regulate.” This is no limitation at all. Under modern doctrine, Congress has the authority to regulate almost every market. If Congress enacts regulations that are extremely harmful to that market, such as imposing price controls (a/k/a “community rating”) or requiring sellers to sell products at far below cost to some customers (e.g., “guaranteed issue”) then the market will probably “unravel” (that is, the companies will lose so much money that they go out of business). So to prevent the companies from being destroyed, Congress forces other consumers to buy products from those companies at vastly excessive prices (e.g., $5,000 for an individual policy for a health 35-year-old whose actuarial expenditures for health care of all sorts during a year is $845).
So Siegel’s argument is really an anti-limiting principle: if Congress imposes ruinous price controls on a market, to help favored consumers, then Congress can try to save the market’s producers by mandating that disfavored consumers buy overpriced products from those producers.
2. The Commerce Clause. “The minimum coverage provision addresses economic problems, not merely social problems that do not involve markets.” This is true, and is, as Siegel points out, a distinction from Lopez (carrying guns) and Morrison (gender-related violence). However, it’s pretty clear under long-established doctrine that the Commerce power can be used to address “social problems that do not involve markets.” E.g., Caminetti v. United States, 242 U.S. 470 (1917) (Congress can use the interstate commerce power to criminalize interstate travel by people intending to engage in non-commercial extra-marital sex); Champion v. Ames, 188 U.S. 321 (1903) (“What clause can be cited which, in any degree, countenances the suggestion that one may, of right, carry or cause to be carried from one state to another that which will harm the public morals?”). Personally, I thought that Chief Justice Fuller’s dissent in Champion had the better argument, but Champion and its progeny are well-established precedents, so proposed limiting principle number two does not work, unless we overrule a century of precedent.
Besides that, #2 does not work for the same reason that #1 does not work. If Congress forced food producers to sell products to some consumers at far below cost, then Congress could (for economic, not social/moral motives) force other consumers to buy overpriced food, so that the producers do not go bankrupt. Imagine that instead of the Food Stamp program (general tax revenue given to 1/6 of the U.S. population to help them buy food), Congress forced grocery stores to sell food to poor people at far below cost. And instead of raising taxes in order to give money to the grocery stores to make up for their losses on the coerced sales, Congress instead forced other consumers to spend thousands of dollars on food from those same stores, which would be sold to those consumers at far above its free market price.
If there’s a limiting principle, the only one seems to be that in order to mandate the purchase of a product, Congress must also inflict some other harm on the producers of the product, which the coerced purchases will ameliorate.
3. “Collective action failures and interstate externalities impede the ability of the states to guarantee access to health insurance, prevent adverse selection, and prevent cost shifting by acting on their own. Insurers operate in multiple states and have fled from states that guarantee access to states that do not.” This is really a policy argument for Obamacare. Hypothesizing that it’s a good policy argument, it’s not a limiting principle. That the advocates of Obamacare think that the policy arguments for their mandate is better than the policy arguments for other mandates does not provide courts with a limiting principle of law.
Moreover, the policy argument is wrong. It’s true that some insurance companies stop operating in states where the law forces them to sell insurance to legislatively-favored purchasers at far below the actuarial cost of the insurance, with the legislature failing to compensate the companies for the enormous resulting losses. If you make it difficult for companies to operate profitably in your state, then they will eventually stop operating in your state. It’s not a collective action problem; it’s just a problem of several states enacting laws that prevent companies from covering their costs. Any state with guaranteed issue and other price controls can solve the problem immediately by simply using tax revenues pay compensation for the subsidy which the state law forces the insurance companies to provide to certain consumers.
Obamacare is a particularly weak case in which to argue that the federal government is riding the rescue of the states to solve a collective action problem. For the first time in American history, a majority of the States are suing to ask that a federal law be declared unconstitutional. These states are taking collective action to stop the federal government from imposing a problem on them.
4. The Tax Power. “[T]he minimum coverage provision respects the limits on the tax power. The difference between a tax and a penalty is the difference between the minimum coverage provision and a required payment of say, $10,000 that has a scienter requirement and increases with each month that an individual remains uninsured. Unlike the minimum coverage provision, such an exaction would be so coercive that it would raise little or no revenue. It would thus be beyond the scope of the tax power.”
Let’s put aside the fact that, however ingenious the progressive professoriate’s tax arguments have been, the chances that the individual mandate is going to be upheld under the tax power appear to be at most 1% greater than the chance the Buddy Roemer will be the next President of the United States.
Presuming that Siegel’s tax justification for the individual mandate is valid, it is an anti-limiting principle. Congress can indeed mandate eating hamburgers, smoking, not smoking, not eating hamburgers, or anything else Congress wants to mandate, as long as Congress sets the “tax” at level that will raise a moderate amount of revenue, does not include a scienter requirement, and does not make the “tax” increase each month that the individual refuses to do what Congress mandates.
5. Liberty. “The minimum coverage provision does not violate any individual rights, including bodily integrity and substantive due process more generally. These rights would be violated by a mandate to eat broccoli or exercise a certain amount.” Pointing to the existence of the Bill of Rights is not an example of a limiting principle for an enumerated federal power. The Constitution does not say that Congress may do whatever it wishes as long as the Bill of Rights protections of Liberty are not violated. Ordering New York State to take title to low-level radioactive waste generated within the state (New York v. United States) did not violate any person’s substantive due process rights, but the order was nonetheless unconstitutional because it exceeded Congress’s powers. The federal Gun-Free School Zones Act did not, as applied, violate the Second Amendment rights of Alfonso Lopez, who was carrying the gun to deliver it to a criminal gang. Yet the Act still exceeded Congress’s commerce power. A limiting principle must limit the exercise of the power itself, not merely point out that the Bill of Rights protects some islands of Liberty which the infinitely vast sea of federal power might not cover.
Finally, I certainly agree with Professor Siegel that the Fifth Amendment’s liberty guarantee (and its 14th Amendment analogue for the states) should be interpreted to say that no American government can order people to consume a certain amount of healthy food, or to exercise. But there is no major case that is on point for this. The argument for a new unenumerated right “not to eat the minimum quantity of nutritious food which government scientists have determined is essential for good health” is something that would have to be built almost entirely by extrapolation from cases that have nothing to do with food. I hope that courts would accept the argument; but if the political culture ever moved far enough so that a nutrition mandate could pass a legislature, I’m not as certain as Prof. Siegel that courts would overturn the mandate. The odds of winning a case against a nutrition mandate will be better if the judges who decide that case have not grown up in a nation where a federal health control mandate is the law of the land.
In her newest article for Townhall.com, Amy Oliver asks an important question: can you be an advocate for the poor AND for “green” energy simultaneously? Her answer is: absolutely not.
Poverty rates have been rising over the last decade. Even in states like ours that claim to be renewable energy meccas.
…Colorado, home of the New Energy Economy and an aggressive renewable energy mandate, now has 40,000 fewer jobs than in 2000 with 900,000 more residents, the highest rates of unemployment in 28 years, and the median salary remains at the same level it was in 2000. The wage gap is considerable between black and Hispanic households, which make $20,000 less than the state’s median household income of $54,000.
No question, times are tough. Especially for the poorest folks among us. This makes for a rock/hard place situation for those on the Left. They promote themselves as champions of the poor and downtrodden. They claim to be the voice for the voiceless. Yet at the same time, they push aggressively for green energy in America. These positions become diametrically opposed when you consider the effects of our green energy policies.
Take for example our renewable energy mandate (RPS). The mandate in Colorado is 30%. This means that 30% of the electric power in our state must come from renewables. Whether you want it or not and whether you can afford it or not is beside the point. You’re paying a good chunk of your income for someone else’s wind and solar fantasies. This acts like a regressive tax on the poor. Why? Well, I’ll let Amy explain.
From 2011 to 2020, the RPS “will cost Colorado citizens an additional $11.78 billion over conventional power. By 2020, the RPS will force working families to an average of $337 more per year. By 2020, the RPS will cost commercial businesses an average of $2,360 per year. By 2020, the RPS will cost industrial businesses an average of $43,367 per year.
Renewable energy is simply not efficient. Unfortunately, our renewable energy mandate forces the least capable of us to fork over more of their money for energy. In many cases, it’s nothing more than a wealth transfer from poor to rich. How can you say you care about the poor when you force high energy costs on them en masse?
The working poor cannot afford this green agenda. The unemployed cannot afford this green agenda. If you want jobs in Colorado, the last thing you should want is green energy.
By 2020 “Colorado will lose an average of 18,380 jobs. Wages will be reduced by an average of $1,269 per worker. Total “annual real disposable income will fall by $1.87 billion.
That doesn’t sound very poor-friendly does it?
It’s a simple law of economics: when you prevent prices from rationing goods and services, something else must ration them. During the Nixon administration’s price controls, it was long lines and waiting that rationed gasoline. When you expand “free” medical services – like Obamacare does – price is no longer a factor. Therefore, something (or someone) else must do the rationing.
Washington state knows a thing or two about rationing medical services. According to this Investor’s Business Daily article, Washington has had to put a cap on how many times they allow Medicaid recipients to visit the emergency room each year. In this case, it is the political class who is doing the rationing.
Our Health Care Policy Center director Linda Gorman reminds us in the article that our health care system is politically controlled. Thus, politicians are in control of medical decisions and they are the ones doing the rationing like in Washington state.
When health care systems are politically controlled, politicians direct resources away from the seriously ill who need expensive advanced medical care, to the healthy voter,” said Linda Gorman, a senior fellow at the conservative Independence Institute. “Relatively few voters need advanced care, so catering to the healthy makes political sense.
Good point Linda. When you allow the political class to make medical decisions, you have to be honest who they have in mind when making those decisions.
Makes you sick, doesn’t it. (pun intended)
In one of the most informative op-eds I have ever read, our Research Director and Law guru Dave Kopel discusses the Obamacare cases that could potentially be heard by the Supreme Court in the upcoming session, which begins in October 2011 and will end in June 2012. We’ve got several chances at getting a “writ of certiorari” to challenge Obamacare’s constitutionality and Dave is certain one of them will get the proverbial nod. As Dave explains, a writ of certiorari is the legal term used to describe the Supreme Court’s action in picking up a case to be heard.
Perhaps most interesting to me in the article is when Dave points out that one of the cases addresses an area of constitutionality that none of the others does. In most instances, the legal challenge is meant to take on Obamacare’s individual mandate via the Commerce Power and/or the Necessary and Proper Clause. But in Seven-Sky v. Holder, the plaintiffs are challenging the mandate on First Amendment grounds! Turns out, the mandate to buy “Western style” health insurance infringes on some people’s religious freedoms. I’ll let Dave explain,
All the Seven-Sky plaintiffs are individuals who, for one reason or another, have religious objections to using the standard services of western medicine. The PPACA contains no exemption for such people… They argue that the mandate violates the First Amendment’s guarantee of free exercise of religion, as protected by a federal statute called the Religious Freedom Restoration Act (RFRA). That 1993 law provides that the federal “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.
Isn’t that fascinating? Obamacare has some waivers and exemptions – mostly for friends of the White House and some religious groups like the Amish – but none for these folks. It will be interesting to see which of these cases the Supreme Court decides to take up. I will be doubly interested if the SCOTUS decides to take this particular First Amendment case.