Within the past two weeks, federal courts in two circuits have blocked the mandates of Obamacare on private businesses to fund abortion and contraceptives in their medical plans. In both cases, the owners of the businesses combined in the suits were Catholics. And the claim was made in all cases that the mandates compelled the owners to become accomplices in endorsing and facilitating acts that were in deep conflict with the moral teachings they had absorbed as Catholics. But what was striking about the judgments in these cases was that the judges did not rest their judgments on the “beliefs” of the owners. Continue Reading →
Liberty Law Blog
President Obama said in his Veterans Day remarks at Arlington National Cemetery Monday that when responsibility for security in Afghanistan is transferred next year, America’s “longest war” will come to a close. But America’s longest war, the ongoing war on terror, was authorized by a Congressional resolution—the Authorization for Use of Military Force—whose alteration or repeal he endorsed six months ago but that will almost certainly endure. The promised “engagement” with Congress about its repeal has not occurred because a variety of actions and policies in the war on terrorism, from drone attacks to detention, depend on the AUMF remaining in force. The longest war persists for reasons of the longest motive: power. Continue Reading →
The Manhattan Institute’s Stephen D. Eide has a fine Report on the extent to which state and local obligations for public employee pensions and so-called “OPEB” payments (overwhelmingly, health care) are “crowding out” public salaries and employment. The picture is bracing. Public salaries have barely budged over the past decade or more, and state and local governments have by and large failed to re-hire the hundreds of thousands of employees they shed after the 2008-2009 crisis. To a large extent, escalating pension and OPEB costs cut into the services that municipalities and especially large cities can afford to provide. The picture would be bleaker still if cities actually made the pension payments they’re supposed to make (which they don’t.) Detroit, needless to say, is the poster child: by 2017, barring adjustments in receivership or bankruptcy, the city is on track to spend two-thirds of its budget on post-employment benefits.
Among the Report’s recommendations is the following:
Governments should consider using the Affordable Care Act to eliminate retiree health care. The federally mandated state-based exchanges are the essential mechanism by which the Affordable Care Act, or Obamacare, intends to provide universal coverage to the previously uninsured. Detroit and Chicago have already announced plans to transfer their retirees to the exchanges, through which they may purchase subsidized care. In principle, governments that pursue this option will be increasing the burden on federal taxpayers, but it should be emphasized that the burden of funding OPEB now rests with state and local taxpayers. Moreover, the federal subsidies are means-tested: retired couples subsisting on more than $62,000 a year will not qualify for a subsidy. Though the exchanges were criticized by some as a “bailout” following the Detroit and Chicago announcements, it is likely that transferring the OPEB burden from state and local governments to the federal government will result in a net gain for the taxpayer.
Uh-oh. A statute designed to insure the previously uninsured (of whom there are a lot more now than before the statute kicked in) is now supposed to serve as a program for the already-insured. This was in fact the ACA plan all along, at least so far as state and city governments are concerned. And it is a bailout under another name.
To get a sense of the order of magnitude: we’re talking about millions of former and current employees and roughly $1 trillion in outstanding OPEB obligations, all of it unfunded.
Will or would cities pass the savings from an OPEB transfer on to local citizens, in the form of enhanced services? Not a chance: they’ll protect their pensions and delay reform. That suggests an efficiency-enhancing idea: let’s cut out the middlemen and send the checks directly to the SEIU and the NEA.
My colleague Pat Lynch alerts me to some of the best analysis yet on the pick your metaphor unraveling of Obamacare. It comes from Sven Wilson, Director of BYU’s Public Policy program. I can do no better than send you to Wilson’s post that argues Obamacare has fundamentally transgressed the primal law of activist government, that is, instead of concentrating benefits and dispersing costs it has, well, done the opposite. Mancur Olson’s work prominently figures into Wilson’s analysis.
Such arrogance, such belief in the power of behavioral economics, rational planning, progressive ideals, egalitarian dreams, who knows what lead them to believe that millenials, millenials of all groups would subscribe to Obamacare and provide a crucial pool of revenues to fund the sick and aging. And then there is the additional concentration of costs in the cannibilization of the individual insurance market, and the belief that this would go happily unnoticed as productive middle-class Americans now are forced into more expensive plans they never sought. It is enough to make a fellow realize that ideological fads come and go but dispersed knowledge and local decision-making are forever.
Last week was the occasion of my first visit ever to Hillsdale College. Wow, was that impressive: it’s sheer bliss to encounter a horde of confident, smart, and serious kids.
The reason for my visit was a big campus event on Dodd-Frank; I was one of the invited speakers. The tape is here. It’s based on a manuscript I’m still noodling over. Here’s the gist of it:
Conservative-libertarians mope about Dodd-Frank’s subsidies to big financial institutions. They also mope about the feds’ civil and criminal prosecutions of financial institutions—like, J.P. Morgan. My view is that these things are of a piece. As David Skeel (who also spoke at the Hillsdale gig) has explained in a very fine book, Dodd-Frank cements a symbiotic, “corporatist” partnership between the government and the big banks. Wall Street lives with de facto bailout guarantees and other embedded subsidies. That’s the quid; what’s the pro quo?
Answer, the government gets to siphon off a big chunk of the profits (in the case of Fannie and Freddie, all of the profits), chiefly by means of “law enforcement” (see, e.g., the $13 billion settlement in the works between JPM and DoJ). The SEC, the CFTC, the Fed, the FHA—they’ve all become profit centers for a cash-starved Congress. That’s the essence of adversarial corporatism: the bankers get to make a boatload of money, and the government gets to treat them like a criminal class. Whether these people have actually done something wrong is secondary, if not wholly irrelevant. With Wall Street’s capable assistance, government has managed to institutionalize and monetize the perp walk.
Is this a great country, or what?
From afar, the defeat of the Republicans in Congress on the matter of the debt ceiling seemed fore-ordained and the inevitable consequence of political ineptitude on an almost heroic scale. Perhaps (and this is the best that might be said) they were staking their future claim to be able to say ‘I told you so’ when the financial catastrophe wrought by the western world’s addiction to spending money it has neither saved nor earns nor strikes not in the comparatively muted fashion that we have experienced hitherto, but in its full and terrible force. Continue Reading →
Democracy has no cure for a corrupt demos. Politicians’ misdeeds taint them alone, so long as their supporters do not embrace them. But when substantial constituencies continue to support their leaders despite their having broken faith, they turn democracy’s process of mutual persuasion into partisan war. Continue Reading →
In a pending case, Schuette v. Coalition to Defend Affirmative Action, the Supreme Court faces the claim that the Fourteenth Amendment prohibits Michigan and every other state from including, within its constitution, a prohibition on any state racial discrimination, even if such discrimination might favor a racial minority. Several briefs, including a brief filed by 76 professional historians, present evidence allegedly supporting this contention. Continue Reading →
Communism killed some 94 million people in the 20th century. It ranks alongside any other evil of that period, which is saying something. Consequently, no less than Nazism, it is not a word to be casually used or a charge to be lightly made. Both happened in response to Richard Reinsch’s eminently sensible observation in this space that Barack Obama is “not a socialist”—a clause followed hard on by another stating that Obama’s policies were incompatible with the genius of the American regime. Despite the latter clause, this set off a range of posted comments that placed “progressive,” “socialist” and “communist” on the same slippery continuum, with one commentator remarking that they were separated only by meaningless degrees, another claiming that Obama was not a socialist, he was a “radical socialist,” and still another clarifiyng that, no, he was a “fascist” instead.
It is difficult to see what purpose is served by these excesses other than to trivialize charges conservatives ought to take seriously while deflecting punches that might actually land. Certainly no converts are going to be made by forcing choices to falsely stark extremes—either a state scaled back beyond what anyone in the mainstream of politics, Republican or Democrat, today supports on the one hand or the specter of socialism on the other—that, not incidentally, crowd 62 million Americans who voted for Obama into the same pejorative category. A charge of communism is a charge of totalitarianism that conjures the Gulag, the collectivization of farms and the deaths by starvation or slaughter of tens of millions. It is not the same thing as socialism, and socialism is not the same thing as progressivism. Continue Reading →
- Comes now a discussion of an originalism that can sing! This month’s Liberty Forum considers Mike Rappaport and John McGinnis’s new book, Originalism and the Good Constitution. Rappaport and McGinnis offer their thoughts in a lead essay with responses from Richard Epstein and Ralph Rossum.
- The current Liberty Law Talk is with Mark Helprin on his latest novel In Sunlight and In Shadow. We also talk politics, war, and what’s right and wrong in Mad Men.
- Walking The Wire and learning criminal procedure and constitutional law in the process.
- Tony Freyer and Andy Morriss: The structure and strategy of the Caymans as an offshore financial center.
- Is legal education’s future moving from bad to worse? Derek Muller has pessimistic but empirically informed thoughts at his blog Excess of Democracy.
- Green Gentry politics and the favelas it’s creating in the California interior. Somewhere in this confusion rests an opportunity for a broad-based coalition to coalesce and roll back California’s green wave. I won’t hold my breath.
- Much attention has been paid to Harvey Mansfield’s recent essay on Machiavelli’s philosophical and political commitments. However, seventy years ago James Burnham’s The Machiavellians: Defenders of Freedom reminded us that “only power restrains power.” Francis Sempa’s reflections on Burnham’s classic work are worth reading.
- Argentina to America: Don’t follow me.